PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY! PLEASE PAY ATTENTION TO PROVISIONS THAT EXCLUDE OR LIMIT LIABILITY AND TERMS OF DISPUTE RESOLUTION, GOVERNING LAW AND JURISDICTION, WHICH MAY APPEAR IN CAPITAL LETTERS. THIS AGREEMENT RELATES TO www.KaziYangu.ke.
Welcome to KaziYangu and thank you for trading on KaziYangu's web-based transaction platforms. Here at KaziYangu, we appreciate your business and take your privacy concerns seriously. Therefore, we have put together these Terms of Use that we feel best reflect our core values and principles and allow us to comply with the law concerning web software distribution and information privacy.
This Terms of Use Agreement (this "Agreement") describes the terms and conditions applicable to your access and use of the websites, mobile sites, mobile applications and other portals owned, operated, branded or made available by KaziYangu(defined below) from time to time which relate to the KaziYangu e-commerce platform including but not limited to the web and mobile-optimized versions of the websites identified by the uniform resource locator "(www.kaziyangu.ke)" and the mobile applications of the KaziYangu e-commerce platforms (the "KaziYangu Sites") [collectively the "Sites"].
Unless otherwise agreed to in writing, this document is a legally binding agreement between you as the user of the Sites (referred to as "You", "Your" or "User" hereinafter) and KaziYangu Data Solution Limited, a limited liability corporation duly established and incorporated under the laws of the Republic of Kenya, carrying on business as KaziYangu, the owner and operator of the websites, mobile sites, mobile applications and other portals owned, operated, branded or made available by KaziYangu from time to time which relate to the KaziYangu e-commerce platform including but not limited to the web and mobile-optimized versions of the websites identified by the uniform resource locator "www.kaziyangu.ke" and the mobile applications of the KaziYangu e-commerce platforms (referred to as "We", "Our" or "KaziYangu" hereinafter).
This Agreement further describes the terms and conditions on which you conclude online transactions for products and services by using the websites, mobile sites, mobile applications and other online transaction portals owned, operated, branded or made available by KaziYangu from time to time which relate to the KaziYangu e-commerce platform including but not limited to the web and mobile-optimized versions of the websites identified by the uniform resource locator "www.kaziyangu.ke" and the mobile applications of the KaziYangu e-commerce platform.
This Agreement contains various limitations on KaziYangu's transaction services offered through the Sites as well as gives various powers and authority to KaziYangu with respect to online transactions effected using KaziYangu's transaction services offered through the Sites. This includes without limitation the power and authority to reject or cancel an online transaction. You should read this Agreement and, to the extent as applicable, the relevant Transactional Terms (defined in clause 1.4 below), and other rules and policies of KaziYangu (including those specified in clause 1.8), carefully which are hereby incorporated into this Agreement by reference.
This Agreement contains various limitations on KaziYangu's transaction services offered through the Sites as well as gives various powers and authority to KaziYangu with respect to online transactions effected using KaziYangu's transaction services offered through the Sites. This includes without limitation the power and authority to reject or cancel an online transaction. You should read this Agreement and, to the extent as applicable, the relevant Transactional Terms (defined in clause 1.4 below), and other rules and policies of KaziYangu (including those specified in clause 1.8), carefully which are hereby incorporated into this Agreement by reference.
1. Application and Acceptance of Terms
1.1 Contracting Party: This Agreement is entered into between You (also referred to as "User" or "User" hereinafter) and KaziYangu Data Solution Limited, a limited liability corporation duly established and incorporated under the laws of the Republic of Kenya, carrying on business as KaziYangu, the owner and operator of the websites, mobile sites, mobile applications and other portals owned, operated, branded or made available by KaziYangu from time to time which relate to the KaziYangu e-commerce platform including but not limited to the web and mobile-optimized versions of the websites identified by the uniform resource locator "www.kaziyangu.ke" and the mobile applications of the KaziYangu e-commerce platforms (referred to as "We", "Our" or "KaziYangu" hereinafter) for use of KaziYangu's Sites, Services and Transaction Services (as defined hereinbelow) offered through the Sites as described hereunder.
1.2 Application of Terms: Your access to and use of the Sites and KaziYangu services, software and products through the Sites, which shall include the platforms described in clause 7.1 of the Terms (such services, software and products collectively referred to as the "Services" hereinafter) is subject to the terms and conditions contained in this document as well as the Privacy Policy (defined in clause 4.3 below), the Product Listing Policy and any other rules and policies of the Sites that KaziYangu may publish from time to time. This document and such other rules and policies of the Sites referenced herein and/or made available by hyperlink are collectively referred to below as the "Terms". By accessing and use of the Sites and Services, You agree to accept and bound by the Terms including those additional terms, conditions and policies referenced herein and/or made available by hyperlink in these Terms. Please do not access or use the Services or the Sites if you do not accept all of the Terms.
1.3 Use of Services or Sites: You may not access or use the Services or the Sites and may not accept the Terms if:
(a) You are not of legal age to form a binding contract with KaziYangu; or,
(b) You are not permitted to receive any Services under the Laws of Kenya or other countries/regions including the country/region in which You are resident or from which You access and use the Services and Sites.
1.4 Transactional Terms: KaziYangu provides an online transaction and ancillary services on the Sites (such platforms and services, the "Transaction Services") which allow registered Users of the Sites to conclude online transactions for products or services within the Sites subject to the terms of this Agreement. KaziYangu may publish transaction rules, dispute rules and other rules and policies for any type of online transactions and any subsequent amendments or modifications ("Transactional Terms") as may be made from time to time. Such Transactional Terms are expressly incorporated into this Agreement by reference, and You agree to be bound by such rules and policies.
1.5 Binding Agreement: This Agreement, including the Transactional Terms and the General Terms, form a legally binding agreement between You and KaziYangu in relation to Your use of the Sites, Services and Transaction Services. By accessing and using the Sites, Services and Transaction Services, You agree to accept and be bound by this Agreement. Please do not use the Sites, Services and Transaction Services if you do not accept all of the terms.
1.6 Amendments: KaziYangu may amend any terms of this Agreement, including the Transactional Terms, the General Terms and other related agreements at any time, except to the extent prohibited by applicable law, by posting the relevant amended and restated version on the Sites. The amended terms shall be effective immediately upon posting, except to the extent prohibited by applicable law. We will endeavor to give you advance notice of material changes to this Agreement. It is Your responsibility to review these Terms for any changes. By continuing to access or use the Sites, Services and Transaction Services, You agree that the amended and restated Terms will apply to You. Your continued use of the Sites, Services and Transaction Services will constitute acknowledgement and consent to any amendments or updates made within the Terms. Any new feature that may be added to the Sites, Services and Transaction Services from time to time will be subject to these Terms unless stated otherwise. This Agreement may not otherwise be amended except in writing by an authorized officer of KaziYangu.
1.7 General Terms: You agree that you shall also comply with relevant rules and policies published on the Sites which are also incorporated into this Agreement by reference ("General Terms"). The General Terms include without limitation:
- 1.7.1 Product Listing Policy
- 1.7.2 KaziYangu Privacy Policy and
- 1.7.3 Intellectual Property Right (IPR) Protection Policy.
1.8 Additional Agreements: In some cases, you may be required to additionally enter into a separate agreement(s), whether online or offline, with KaziYangu or our affiliates for any Service (or features within the Services) (each an "Additional Agreement"). If there is any conflict or inconsistency between the provisions of this Agreement and the provisions of the Additional Agreement, the Additional Agreement shall take precedence over the Terms only in relation to that Service (or feature within the Service) concerned.
2. Provision of Services
2.1 Registration: You must register as a User on the Sites in order to access and use the Sites, Services and Transaction Services. Further, KaziYangu reserves the right, without prior notice, to restrict access to or use of certain Services (or any features within the Services) to paying Users, or subject to other conditions that KaziYangu may impose in our discretion.
2.2 No Warranty: Services (or any features within the Services) may vary for different regions and countries. No warranty or representation is given that a particular Service or feature or function thereof or the same type and extent of the Service or features and functions thereof will be available for Users. KaziYangu may in our sole discretion limit, deny or create different levels of access to and use of any Services (or any features within the Services) with respect to different Users.
2.3 Changes to Services: KaziYangu may launch, change, upgrade, impose conditions to, suspend, or stop any Services (or any features within the Services) without prior notice except that in case of a fee-based Service, such changes will not substantially adversely affect the ability of such paying Users to enjoy that Service.
2.4 Affiliates: Some Services (or part thereof) may be provided by KaziYangu affiliates on behalf of KaziYangu.
2.5 Promotion Services: Promotion Services provided by KaziYangu pursuant to the terms hereunder shall include:
2.5.1 Top Ranking and Sponsored Listing;
2.5.2 Services that benefit, promote, support, whether directly or indirectly, the business of User, the User's brand, product, store, logo, trademark, service mark, User Content (as defined in clause 4.7 of the Terms) and/or derivative work using the User Content on software, applications, tools, browser extensions and/or platforms operated and/or controlled by KaziYangu("KaziYangu Channels") and/or on software, applications, channels, platforms, websites and/or any other forms of media that are operated and/or controlled by third parties ("Third Party Channels"); and
2.5.3 Any such other services as may be announced by KaziYangu from time to time.
KaziYangu shall be entitled to, at its sole discretion, determine whether the Promotion Services or any part thereof will be available to You.
3. Transaction Services
3.1 Transaction Services: KaziYangu's Transaction Services are designed to facilitate registered Users of the Sites to place, accept, conclude, manage and fulfill orders for the provision of products and services online within the Sites ("Online Transactions"), which may include certain services which will be either supported by KaziYangu or its affiliates. KaziYangu reserves the right to change, upgrade, modify, limit or suspend the Transaction Services or any of its related functionalities or applications at any time temporarily or permanently without prior notice without any liability for any losses or damages arising out of or in connection with such suspension or termination. KaziYangu further reserves the right but shall not be obliged to introduce new features, functionalities or applications to the Transaction Services or to future versions of the Transaction Services. All new features, functionalities, applications, modifications, upgrades and alterations shall be governed by this Agreement, unless otherwise expressly stated by KaziYangu.
3.2 Users Only: KaziYangu's Transaction Services are only available to registered Users of the Sites. If your Usership of the Sites expires or is terminated early for any reason, you are not eligible to use the Transaction Services.
3.3 Types of Transactions: KaziYangu's Transaction Services are available to those types of Online Transactions permitted by KaziYangu only. For any type of Online Transactions, KaziYangu may limit any or all of the Transaction Services to a specified group of Users in accordance with the relevant Transactional Terms. The types of Online Transactions and other benefits, features and functions of the Transaction Services available to a registered User may vary for different countries and regions. No warranty or representation is given that the same type and extent of transactions, benefits, features and functions will be available to all Users.
3.4 Lawful Items: The products or services of an Online Transaction using the Transaction Services must be lawful items and must not be otherwise prohibited or restricted by this clause 3.4. You shall not use the Transaction Services in connection with any Online Transaction that:
3.4.1 may infringe KaziYangu's or any third party's legitimate or proprietary rights including but not limited to copyright, trademark right, patent or other intellectual property rights;
3.4.2 may be in breach of the Product Listing Policy or the Intellectual Property Right Protection Policy or
3.4.3 may be in breach of other terms of this Agreement including, but not limited to, the Transactional Terms and the General Terms.
3.4.4 KaziYangu shall have the right to refuse or cancel any Online Transaction which it determines in its sole discretion to be in breach of this clause 3.4.
3.5 Refuse or Cancel Transactions: Apart from clause 3.4, KaziYangu reserves the right, at our sole discretion, to refuse or cancel any Online Transaction for any reason without any liability for any losses or damages arising out of or in connection with such refusal or cancellation. Some situations that may result in an Online Transaction being rejected or cancelled include where KaziYangu has reason to believe the Online Transaction is unauthorized, violates any law, rule or regulations or may otherwise subject KaziYangu or any of our affiliates to liability. KaziYangu may also require additional verifications or information for any Online Transaction, and you agree to provide such verifications and information to KaziYangu upon request.
3.6 KaziYangu Supplemental Services:
3.6.1 KaziYangu may, through its affiliates, provide certain services for certain Online Transactions ("KaziYangu Pay Services"). KaziYangu Pay Services are provided by KaziYangu and its affiliates (collectively, "KaziYangu Pay") to receive payment of funds in support of Sites for the Online Transactions. The KaziYangu Pay Services are provided in accordance with the terms and conditions set out in the KaziYangu Pay Services Agreement
3.6.2 KaziYangumay, through its affiliates provide certain services for certain Online Transactions ("KaziYangu Supplemental Services"). KaziYangu Supplemental Services are provided by KaziYangu to receive payment of funds in support of Sites for the Online Transactions. The KaziYangu Supplemental Services are provided in accordance with the terms and conditions set out in the KaziYangu Supplemental Services Agreement.
3.7 Transactional Terms: For any type of Online Transactions, KaziYangu may impose additional restrictions, limitations and prohibitions as well as penalties for any violations in the relevant Transactional Terms. Disputes between Buyers and Sellers: You agree that any
3.8 Dispute arising between you and the other party to an Online Transaction will be handled in accordance with clause 15, and that KaziYangu shall have the full right and power to make a determination for such Dispute or to delegate or sub-contract such power to another party. Upon receipt of a Dispute, KaziYangu shall have the right to request either or both of Buyer and Seller to provide supporting documents. You agree that KaziYangu shall have the absolute discretion to reject or receive any supporting document. You also acknowledge that KaziYangu is not a judicial or arbitration institution and will make the determinations only as an ordinary non-professional person. Further, we do not warrant that the supporting documents that the parties to the Dispute submit will be true, complete or accurate. You agree not to hold KaziYangu and our affiliates liable for any material which is untrue or misleading. You agree to release and indemnify KaziYangu (and our agents, affiliates, directors, officers and employees) from all claims, demands, actions, proceedings, costs, expenses and damages (including without limitation any actual, special, incidental or consequential damages) arising out of or in connection with such dispute.
3.9 Powers of KaziYangu: You expressly acknowledge and agree that KaziYangu shall have the full power, authority and discretion to reject or cancel an Online Transaction without any liability for any losses or damages arising out of or in connection with such refusal or cancellation and to make a determination on any dispute between buyer and seller in accordance with this Agreement and the relevant Transactional Terms. You also acknowledge that this Agreement and the relevant Transactional Terms may not cover all issues that may arise in connection with an Online Transaction. You agree and accept that KaziYangu shall have the right to modify or supplement the Transactional Terms at any time, except to the extent prohibited by applicable law. You further agree and accept that KaziYangu shall have the right to make determinations wherever KaziYangu considers appropriate having regard to the evidence received by us, commonly accepted principles and practices in the relevant industries and interests of both Buyer and Seller regardless of whether the issue in question has been expressly addressed in the Transactional Terms or this Agreement, except to the extent prohibited by applicable law.
3.10 KaziYangu's Records: In case of any dispute in connection with any Online Transaction, the records of KaziYangu shall take precedence and be conclusive, except to the extent prohibited by applicable law.
4. Users Generally
4.1 Compliance With Applicable Law: As a condition of your access to and use of the Sites or Services, you agree that you will comply with all applicable laws and regulations when accessing or using the Sites or Services.
4.2 User Restrictions: You agree that: (a) You will not copy, reproduce, download, re-publish, sell, distribute or resell any Services or any information, text, images, graphics, video clips, sound, directories, files, databases or listings, etc. available on or through the Sites (the "Site Content"); and, (b) You will not copy, reproduce, download, compile or otherwise use any Site Content for the purposes of operating a business that competes with KaziYangu, or otherwise commercially exploiting the Site Content. Systematic retrieval of Site Content from the Sites to create or compile, directly or indirectly, a collection, compilation, database or directory (whether through robots, spiders, automatic devices or manual processes) without written permission from KaziYangu is prohibited. Use of any content or materials on the Sites for any purpose not expressly permitted in the Terms is prohibited.
4.3 Privacy Policy: You must read the KaziYangu Privacy Policy (the "Privacy Policy") which governs the protection and use of personal information about Users in the possession of KaziYangu and our affiliates.
4.4 Third Party Content: KaziYangu may allow Users to access to content, products or services offered by third parties through hyperlinks (in the form of word link, banners, channels or otherwise), API or otherwise to such third parties' web sites. You are cautioned to read such web sites' terms and conditions and/or privacy policies before using the Sites. You acknowledge that KaziYangu has no control over such third parties' web sites, does not monitor such web sites, and shall not be responsible or liable to anyone for such web sites, or any content, products or services made available on or through such web sites.
4.5 Misuse: You agree not to undertake any action to undermine the integrity of the computer systems or networks of KaziYangu and/or any other User nor to gain unauthorized access to such computer systems or networks.
4.6 Misuse of Feedback System: You agree not to undertake any action which may undermine the integrity of KaziYangu's feedback system, such as leaving positive feedback for yourself using secondary User IDs or through third parties or by leaving unsubstantiated negative feedback for another User.
4.7 User Content: By posting or displaying any logos, trademarks, service marks, brands, description/information in the product listings, and any other information, content or material on the Sites (any of such information, content or material, collectively referred to as "User Content") or providing any User Content to KaziYangu and/or its affiliates and their respective representative(s), and to the extent permitted under applicable laws, you grant an irrevocable, perpetual, worldwide, royalty-free, and sub-licensable (through multiple tiers) license to KaziYangu and/or its affiliates and their respective representative(s) to display, transmit, distribute, reproduce, publish, duplicate, adapt, modify, edit, translate, create derivative works using the User Content, remove any part of it (including, without limitation, the watermark or mark the User Content bears), and otherwise use any or all of the User Content in any form, media, or technology now known or not currently known in any manner, on the Sites, KaziYangu Channels and/or Third Party Channels and for any purpose which may be beneficial, whether directly or indirectly, to KaziYangu, the operation of the Sites, the provision of any Services and Promotion Services and/or the business of the User. You confirm and warrant to KaziYangu that you have all the rights, power and authority necessary to grant the above license and the User Content and use of such User Content (including derivative works) by KaziYangu and/or its affiliates under such license is free from any infringement or violation of any Third-Party Rights (as defined in clause 5.4 of the Terms). To the maximum extent permitted by law, you waive your right to enforce your Intellectual Property Rights in the User Content against KaziYangu and/or its affiliates, assignees or sub-licensees in connection with use of such User Content in connection with the Services. Information that is protected under data protection laws will only be used and kept in compliance with those laws.
5. Users Accounts
5.1 Designated user Account: User must be registered on the Sites to access or use some Services (a registered User is also referred to as a "user" below). Each user account shall be designated as either:
5.1.1 Merchant User Account;
5.1.2 Individual Customer User Account;
5.1.3 Supplier User Account;
5.1.4 Logistics Provider User Account;
5.2 Only One User Account: Except with KaziYangu approval, one User may only register one user account on the Sites. KaziYangu may cancel or terminate a user's account if KaziYangu has reasons to suspect that the User has concurrently registered or is in control of two or more user accounts. Further, KaziYangu may reject User's application for registration for any reason
5.3 User Credentials: Upon registration on the Sites, KaziYangu shall assign an account and issue a user ID and password (the latter shall be chosen by a registered User during registration) to each registered User. An account may have a web-based email account with limited storage space for the user to send or receive emails.
5.4 Security of User Account: A set of User ID and password is unique to a single account. Each User shall be solely responsible for maintaining the confidentiality and security of your User ID and password and for all use of and activities that occur under your account (whether such use or activities are authorized or not). No User may share, assign, or permit the use of your User account, ID or password by another person, even to other individuals within the User's own business entity (where applicable). User agrees to notify KaziYangu immediately if you become aware of any unauthorized use of your password or your account or any other breach of security of your account.
5.5 Authorized Use: User agrees that all use of the Sites and Services, and all activities that occur under your account (including without limitation, posting any company or product information, clicking to accept any Additional Agreements or rules, subscribing to or making any payment for any services, sending emails using the email account or sending SMS) will be deemed to have been authorized by the User.
5.6 Multiple Use: User acknowledges that sharing of your account with other persons, or allowing multiple users outside of your business entity to use your account (collectively, "multiple use"), may cause irreparable harm to KaziYangu or other Users of the Sites. User shall indemnify KaziYangu, our affiliates, directors, employees, agents and representatives against any loss or damages (including but not limited to loss of profits) suffered as a result of the multiple use of your account. User also agrees that in case of the multiple use of your account or User's failure to maintain the security of your account, KaziYangu shall not be liable for any loss or damages arising from such a breach and shall have the right to suspend or terminate User's account without liability to the User.
6. Users Responsibilites
6.1 Representations and Warranties: Each User represents, warrants and agrees that:
6.1.1 You have full power and authority to accept the Terms, to grant the license and authorization and to perform the obligations hereunder;
6.1.2 You will use the Sites, Services and Transaction Services in good faith and in compliance with all applicable laws and regulations;
6.1.3 all information and material You provide in connection with the use of the Sites, Services and Transaction Services is true, lawful and accurate, and is not false, misleading or deceptive;
6.1.4 You will not use the Sites, Services and Transaction Services to defraud KaziYangu, our affiliates or other users of the Sites, Services and Transaction Services or engage in other unlawful activities (including without limitation dealing in products prohibited by law);
6.1.5 in case that you are a Seller of products, you have the legitimate right and authorization to sell, distribute or export the products using the Sites, Services and Transaction Services and such products do not infringe any third party's rights;
6.1.6 in case that you are a Seller of products, you have good title to the products ordered under the Online Transaction, and the products meet the agreed descriptions and requirements;
6.1.7 in case that you are a Seller of services, you will provide the services ordered with reasonable care and skill; and,
6.1.8 for Users who are business entities, the address you provide when registering is the principal place of business of your business entity. For purposes of this provision, a branch or liaison office will not be considered a separate entity, and your principal place of business will be deemed to be that of your head office.
6.2 User Information: User will be required to provide information or material about your entity, business and or products/services as part of the registration process on the Sites for your access to and use of any Service or the user account. Each user represents, warrants and agrees that (a) such information and material whether submitted during the registration process or thereafter throughout the continuation of the use of the Sites or Service is true, accurate, current and complete, and (b) you will maintain and promptly amend all information and material to keep it true, accurate, current and complete
6.3 Consent to Publication of Information: Upon becoming a user, you consent to the inclusion of the contact information about you in our database and authorize KaziYangu and our affiliates to share the contact information with other Users or otherwise use your personal information in accordance with the Privacy Policy.
6.4 User Content Representations and Warranties: Each user represents, warrants and agrees that:
6.4.1 You shall be solely responsible for obtaining all necessary third-party licenses and permissions regarding any User Content that you submit, post or display;
6.4.2 any User Content that you submit, post or display does not infringe or violate any of the copyright, patent, trademark, trade name, trade secrets or any other personal or proprietary rights of any third party ("Third Party Rights");
6.4.3 you have the right and authority to sell, trade, distribute or export or offer to sell, trade, distribute or export the products or services described in the User Content and such sale, trade, distribution or export or offer does not violate any Third Party Right; and
6.4.4 neither the user nor any of its related persons, have been banned or removed from any major e-commerce platforms, or otherwise implicated in selling counterfeit or pirated products online.
6.5 Further User Content Representations and Warranties: Each user further represents, warrants and agrees that the User Content that you submit, post or display shall:
6.5.1 be true, accurate, complete and lawful;
6.5.2 not be false, misleading or deceptive;
6.5.3 not contain information that is defamatory, libelous, threatening or harassing, obscene, objectionable, offensive, sexually explicit or harmful to minors;
6.5.4 not contain information that is discriminatory or promotes discrimination based on race, sex, religion, nationality, disability, sexual orientation or age;
6.5.5 not violate the Product Listing Policy (insert hyperlink), other Terms or any applicable Additional Agreements;
6.5.6 not violate any applicable laws and regulations (including without limitation those governing consumer protection, unfair competition, price gouging or false advertising) or promote any activities which may violate any applicable laws and regulations;
6.5.7 not contain any link directly or indirectly to any other web Sites which includes any content that may violate the Terms.
6.6 Further User Representations and Warranties: Each User further represents, warrants and agrees that you shall/are:
6.6.1 carry on your activities on the Sites in compliance with any applicable laws and regulations;
6.6.2 conduct your business transactions with other users of the Sites in good faith;
6.6.3 carry on with your activities in accordance with the Terms and any applicable Additional Agreements;
6.6.4 not use the Services or Sites to defraud any person or entity (including without limitation sale of stolen items, use of stolen credit/debit cards);
6.6.5 not impersonate any person or entity, misrepresent yourself or your affiliation with any person or entity;
6.6.6 not engage in spamming or phishing;
6.6.7 not engage in any other unlawful activities (including without limitation those which would constitute a criminal offence, give rise to civil liability, etc.) or encourage or abet any unlawful activities;
6.6.8 not involve attempts to copy, reproduce, exploit or expropriate KaziYangu's various proprietary directories, databases and listings;
6.6.9 not involve any computer viruses or other destructive devices and codes that have the effect of damaging, interfering with, intercepting or expropriating any software or hardware system, data or personal information;
6.6.10 not involve any scheme to undermine the integrity of the data, systems or networks used by KaziYangu and/or any user of the Sites or gain unauthorized access to such data, systems or networks;
6.6.11 not, and your director(s), officer(s), controlling party(ies), affiliates and legal jurisdiction in which any of the foregoing persons or entities are organized or has operations are not, persons or entities that are subject to any economic or fraud sanctions of any governmental, international or regulatory entities; and
6.6.12 not engage in any activities that would otherwise create any liability for KaziYangu or our affiliates.
6.7 Restriction on Use: User may not use the Sites, Services or user account to engage in activities which are identical or similar to KaziYangu's e-commerce marketplace business.
6.8 Provision of Information and Assistance: User agrees to give all notices, provide all necessary information, materials and approval, and render all reasonable assistance and co-operation necessary for the completion of the Online Transactions and KaziYangu's provision of the Services, evaluating whether User has breached the Terms and/or handling any complaint against the User. If User's failure to do so results in delay in, or suspension or termination of, the provision of any Service, or cancellation of any Online Transaction, KaziYangu shall not be obliged to extend the relevant service period nor be liable for any losses or damages arising out of or in connection with such default, delay, suspension, cancellation or termination.
6.9 Editorial Control: User acknowledges and agrees that KaziYangu reserves the right to, but shall not be required to actively monitor or exercise any editorial control whatsoever over the content of any message or material or information (including User Content) created, obtained or accessible through the Services or Sites. KaziYangu does not endorse, verify or otherwise certify the contents of any comments or other material, or information (including User Content) created, submitted, posted, displayed or otherwise made by any User. Each User is solely responsible for the contents of their communications and may be held legally liable or accountable for the content of their comments or other material or information.
6.10 Obligations to Pay Taxes: You shall be solely responsible for payment of any taxes (such as VAT), duties or other governmental levies or any charges or fees that may be imposed on any products or services purchased or supplied under or in connection with the Online Transactions, except to the extent that KaziYangu calculates, collects or remits taxes in relation to the Online Transactions according to applicable law.
6.11 Feedback System: You shall not take any action which may undermine the integrity of KaziYangu's feedback system, such as providing positive feedback on oneself on the Sites using secondary User IDs or through third parties or by providing unsubstantiated negative feedback on another user on the Sites.
6.12 Indemnification by User: You agree to indemnify KaziYangu and our affiliates, employees, directors, officers, agents and representatives and to hold them harmless, from any and all losses, damages, actions, claims and liabilities (including legal costs on a full indemnity basis) which may arise, directly or indirectly, from your use of the Sites, Services and Transaction Services or from your breach of this Agreement, except to the extent prohibited by applicable law. KaziYangu reserves the right, at our own discretion, to assume the exclusive defence and control of any matter otherwise subject to indemnification by you, in which event you shall cooperate with KaziYangu in asserting any available defences.
6.13 Collection and Use of Information for Transaction Services: If you have applied for and/or used the Transaction Services of KaziYangu, you acknowledge and agree that KaziYangu shall have the right to use the information collected about you and your Online Transactions, including but not limited to your credit information, business information, personal information (such as applicant name and home address) and financial information (the "Collected Information") to facilitate the administration, processing, and operation of your use of the services. In connection with your use of the Transaction Services, KaziYangu may use the Collected Information in the manner set out in the Privacy Policy and/or personal information collection statement relevant to the Transaction Services that you have agreed to prior to or during your application for and use of the Transaction Services.
6.14 Compliance with Applicable Law: User acknowledges and agrees that each User is solely responsible for observing applicable laws and regulations in its respective jurisdictions to ensure that all access and use of the Site and Services are in compliance with the same. Each User represents, warrants and agrees that:
6.14.1 You and Your affiliates shall comply with applicable laws and regulations in conducting your respective business (including without limitation applicable laws and regulations with respect to product safety, intellectual property rights, data privacy, consumer protection, product or regulatory certification, import and export control, unfair competition, price gouging, false advertising, labor, environment, health and safety, anti-bribery and anti-money laundering).
6.14.2 You and Your affiliates are not the subject of any trade restrictions, sanctions or other legal restrictions enacted or proposed to be enacted by any country, international organization or jurisdiction ("Relevant Subjects");
6.14.3 You and Your affiliates are not offering products or services that would likely trigger any international trade restrictions, sanctions or other legal restrictions by any Relevant Subjects;
6.14.4 neither You, or any of Your parent companies or affiliates, directly or indirectly, deals with, or provides any funds, goods or services to Relevant Subjects;
6.14.5 You will at all times comply with all applicable export control and sanctions laws and regulations with regard to products, services, software and technologies in using the Services; and,
6.14.6 You and Your affiliates are responsible for your products compliance with the laws and regulations of the country/region of destination, including with relevant labor laws and standards. If a product is not permitted in one or more markets, Sites reserve the right to remove the product listing from, OR STOP THE SALE OF ANY SUCH PRODUCT IN, those markets.
6.15 Breaches: If you are, in KaziYangu's opinion, not acting in good faith, abusing the Transaction Services, or otherwise acting in breach of this Agreement, KaziYangushall have the right, except to the extent prohibited by applicable law, to cancel the relevant Online Transaction(s) at any time without any liability for any losses or damages arising out of or in connection with such cancellation. Except to the extent prohibited by applicable law, KaziYangualso reserves the right to impose any penalty, or to temporarily or permanently suspend or terminate your use of the Transaction Services, temporarily or permanently suspend or terminate or procure the suspension or termination of your paid or free Usership on the Sites. KaziYangu also reserves the right to, except to the extent prohibited by applicable law, (i) temporarily suspend the transaction functionalities of your account with KaziYangu for a prescribed period determined by KaziYangu, or permanently terminate the use of your KaziYangu account and/or (ii) authorize to temporarily suspend the transaction functionalities of your KaziYangu Pay account for a prescribed period determined by KaziYangu, or permanently terminate the use of your KaziYangu Pay account without any liability for any losses or damages arising out of or in connection with such suspension or termination. KaziYangu may also publish the findings, penalties and other records regarding the breaches on the Sites.
6.16 Non-Compliance: If, at any time, you fail to meet any of the above requirements, you should stop using the Services immediately. If KaziYangu reasonably believes that any of your conduct violates or threatens to violate any applicable laws and regulations, KaziYangu may, at its sole discretion, at any time take action as it may deem appropriate in light of the circumstances, including, but not limited to, terminating the provision of Services to you, closing relevant purchase orders, and terminating your accounts, while reserving all rights it may have regarding any non-compliant actions or conduct of its Users.
7. Breaches by Users
7.1 User Content Breach: KaziYangu reserves the right in our sole discretion to remove, modify or reject any User Content (in whole or in part) that you submit to, post or display on the Sites which we reasonably believe:
7.1.1 violates any applicable laws and regulations;
7.1.2 violates the Terms hereunder;
7.1.3 could subject KaziYangu or our affiliates to liability;
7.1.4 infringes any Third Party Rights;
7.1.5 could harm the interests of our Users, third party or KaziYangu or our affiliates; or
7.1.6 is otherwise found inappropriate in KaziYangu's sole discretion.
7.2 Consequences of Breach: If any User breaches any Terms, or if KaziYangu has reasonable grounds to believe that a User is in breach of any Terms, KaziYangu shall have the right to take such disciplinary actions as it deems appropriate, including without limitation:
7.2.1 suspending or terminating the User's account and any and all accounts determined to be related to such account by KaziYangu in its sole discretion without liability for any losses or damages arising out of or in connection with such suspension or termination;
7.2.2 restricting, downgrading, suspending or terminating the subscription of, access to, or current or future use of any Service;
7.2.3 removing any product listings or other User Content that the User has submitted, posted or displayed, or imposing restrictions on the number of product listings or User Content that the User may post or display;
7.2.4 imposing other restrictions on the User's use of any features or functions of any Service as KaziYangu may consider appropriate in its sole discretion; and
7.2.5 is otherwise found inappropriate in KaziYangu's sole discretion.
7.3 Events of Breach: Without limiting the generality of the provisions of the Terms, a User would be considered as being in breach of the Terms in any of the following circumstances:
7.3.1 upon complaint or claim from any third party, KaziYangu has reasonable grounds to believe that such User has willfully or materially failed to perform your contract with such third party including without limitation where a User who supplies products or services using the Sites and Services has failed to deliver any items ordered by such third party after receipt of the purchase price, or where the items such User has delivered materially fail to meet the terms and descriptions outlined in your contract with such third party;
7.3.2 KaziYangu has reasonable grounds to suspect that such User has used a stolen credit card or other false or misleading information in any transaction with a counter party;
7.3.3 KaziYangu has reasonable grounds to suspect that any information provided by the User is not current or complete or is untrue, inaccurate, or misleading; or
7.3.4 KaziYangu believes that the User's actions may cause financial loss or legal liability to KaziYangu or our affiliates or any other Users.
7.4 Cooperation with Relevant Authorities: KaziYangu reserves the right to cooperate fully with governmental or regulatory authorities, law enforcement bodies, private investigators and/or injured third parties in the investigation of any suspected criminal or civil wrongdoing. Further, to the extent permitted by applicable laws and policies, KaziYangu may disclose the User's identity, contact information and/or information regarding the User's account(s), transactions or activities carried out on or via the Site, if requested by a government, regulatory or law enforcement body or an injured third party, or as a result of a subpoena or other legal action. KaziYangu shall not be liable for damages or results arising from such disclosure, and User agrees not to bring any action or claim against KaziYangu for such disclosure.
7.5 Limitation on Use of Services: KaziYangu may, at any time and in our reasonable discretion, impose limitations on, suspend or terminate the User's use of any Service or the Sites without being liable to the User if KaziYangu has received notice that the User is in breach of any agreement or undertaking with any affiliate of KaziYangu and such breach involves or is reasonably suspected to involve dishonest or fraudulent activities. KaziYangu reserves the right to but shall not be required to investigate such breach or request confirmation from the User.
7.6 Indemnity: Each User agrees to indemnify KaziYangu, our affiliates, directors, employees, agents and representatives and to hold them harmless, from any and all damages, losses, claims and liabilities (including legal costs on a full indemnity basis) which may arise from your submission, posting or display of any User Content, from your access to or use of the Sites or Services, or from your breach of the Terms or any Additional Agreements.
7.7 Indemnity: Further Assurance: Each User further agrees that KaziYangu is not responsible, and shall have no liability to you or anyone else for any User Content or other material transmitted through the Sites or Services, including fraudulent, untrue, misleading, inaccurate, defamatory, offensive or illicit material and that the risk of damage from such User Content or other material rests entirely with the User. KaziYangu reserves the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by the User, in which event the User shall cooperate with KaziYangu in asserting any available defenses.
8. Transactions between Sellers and Buyers
8.1 General: Through the Sites, KaziYangu provides electronic web-based platforms for exchanging information between buyers and sellers of products and services. KaziYangu additionally provides electronic web-based transaction platforms for Users to place, accept, conclude, manage and fulfill orders for the provision of products and services online within the Sites subject to the terms herein. However, for any Services and Transaction Services, KaziYangu does not represent either the seller or the buyer in specific transactions. KaziYangu does not control and is not liable or responsible for the quality, safety, lawfulness or availability of the products or services offered for sale on the Sites, the ability of the sellers to complete a sale or the ability of buyers to complete a purchase.
8.2 Seller and Buyer: For the purpose of this Agreement, the term "Seller" means the registered User who supplies the product(s) or service(s) under an Online Transaction, and the term "Buyer" means the registered User who purchases or acquires the product(s) or service(s) under an Online Transaction.
8.3 Online Order: Seller and Buyer shall enter into an Online Transaction for products or services by completing, submitting and accepting an order online using the applicable standard order form on the Sites. Seller and Buyer yourselves shall be responsible for ensuring that you have agreed to, and specified, all the relevant terms and conditions for the products or services in the relevant online order form, including but not limited to the pricing, quantity, specifications, quality standards, inspection, shipping etc., save that, and except to the extent prohibited by applicable law, for all transactions concluded on the Sites, all risks of damage and loss of products purchased by a Buyer under a transaction will be borne solely by the Buyer upon physical delivery to the specified address, and KaziYangu may refuse to process or cancel, without liability for any losses or damages arising out of or in connection with such refusal or cancellation, any Online Transaction which in KaziYangu's reasonable opinion, has insufficient information to constitute a binding contract.
8.4 Third Party Content: Online Transactions Subject to This Agreement: An Online Transaction is additionally subject to the applicable terms and conditions set forth in this Agreement and the Transactional Terms. Seller and Buyer shall complete the Online Transaction according to the terms of the online order, the relevant Transactional Terms and this Agreement. Seller or Buyer may only cancel any Online Transaction in accordance with the relevant Transactional Terms.
8.5 Misuse: Transaction between Seller and Buyer Only: Each Online Transaction is made by and between a Seller and a Buyer only. Notwithstanding that KaziYangu makes available the Transaction Services and, if applicable, may conduct formality review(s) of an Online Transaction, KaziYangu shall not be considered as a party to the Online Transaction. KaziYangu does not represent the Seller nor the Buyer in any Online Transaction. KaziYangu will not be responsible for the quality, safety, lawfulness or availability of the products or services offered under any Online Transaction; or the ability of either Seller or Buyer to complete any Online Transaction (except to the extent prohibited by applicable law). You agree that you will not hold KaziYangu and our affiliates and agents liable for any losses, damages, claims, liabilities, costs or expenses arising from any Online Transactions, including any breach, partial performance or non-performance of the Online Transaction by the other party to the transaction.
8.6 Payment of Contract Price: For any Online Transaction, Buyer agrees to pay the full transaction price listed for Online Transaction to the Seller. Seller agrees that the Buyer's full payment of the transaction price listed for the Online Transaction constitutes final payment to Seller and Buyer's payment obligation for the Online Transaction is fully satisfied upon receipt of funds by Seller.
8.7 Transaction Risks: Buyers and Sellers accessing or using the Sites Services or Transaction Services shall assume the risks of conducting any purchase and sale transactions in connection with or through the Sites Services or Transaction Services. Buyer and Sellers accessing or using the Sites Services or Transaction Services shall also fully assume all risks of liability or harm of any kind arising out of or in connection with any subsequent activity relating to the products or services that are the subject of the transactions on the Sites. Examples of such risks shall include, but are not limited to, mis-representation of products and services, fraudulent schemes, unsatisfactory product quality, failure to meet specifications, defective or dangerous products, unlawful products, delay or default in delivery or payment, cost mis-calculations, breach of warranty, breach of contract, transportation accidents, the risk that the manufacture, importation, export, distribution, offer, display, purchase, sale and/or use of products or services offered or displayed on the Sites may violate or may be asserted to violate Third Party Rights, and the risk that Users may incur costs of defense or other costs in connection with third parties' assertion of Third Party Rights, or in connection with any claims by any party that they are entitled to defense or indemnification in relation to the assertion of rights, demands or claims by claimants of Third Party Rights. Examples of such risks also include the risk of claims from consumers, other purchasers, end-users of products or other third parties that they have suffered injuries or harm from their use of the products obtained through the Sites or Services. All of the foregoing risks are referred to as "Transaction Risks". KaziYangu is not liable or responsible for any damages, claims, liabilities, costs, harm, inconveniences, business disruptions or expenditures of any kind that may arise a result of or in connection with any Transaction Risks.
8.8 Payment Methods: Please note that the payment methods available on the Sites may be provided by KaziYangu's partners. If there is any chargeback or reversal of any payment requested by a payment service partner, Seller agrees that KaziYangu has the right to refund the money so requested by the payment service partner without liability to Seller. KaziYangu will use reasonable efforts to assist you in participating in the dispute resolution process of the relevant payment service partners. However, if the participation in the dispute resolution process is subject to additional fees, this will be at your own cost only.
8.9 Third Party Vendors: You may engage one or more third party vendors for the purpose of completing and fulfilling an Online Transaction such as logistic service companies etc. Some of such third-party vendors may be partners of KaziYangu and thus designated by KaziYangu to you. Among such designated partners, you may be required to agree and accept the terms and conditions of their services online within the Sites. You agree that unless otherwise arranged between KaziYangu and you, the buyers and sellers on KaziYangu platform are responsible for arranging for the shipment of the products. Notwithstanding the foregoing, for all third-party vendors, you acknowledge and agree that such third party vendors are engaged at your own discretion and cost and that you will not hold KaziYangu and our affiliates and agents liable for any losses, damages, claims, liabilities, costs or expenses arising from the services of such third party vendors. You shall ensure that the third parties comply with Terms of Use (insert hyperlink) and Privacy Policy (insert hyperlink)(as defined above).
8.10 Provision of Information: User agrees to provide all information and materials as may be reasonably required by KaziYangu in connection with your transactions conducted on, through or as a result of use of the Sites or Services. KaziYangu has the right to suspend or terminate any User's account if the User fails to provide the required information and materials without liability for any losses or damages arising out of or in connection with such suspension or termination.
8.11 Indemnity: In the event that any User has a dispute with any party to a transaction, such User agrees to release and indemnify KaziYangu(and our agents, affiliates, directors, officers and employees) from all claims, demands, actions, proceedings, costs, expenses and damages (including without limitation any actual, special, incidental or consequential damages) arising out of or in connection with such dispute or the transaction.
8.12 Your Agent: If you are required to conclude and complete an Online Transaction through an agent, such agent is merely an agent of you. If any obligations are required to be performed by the agent, you shall remain solely liable to the other party of the Online Transaction for the non-performance or default by your agent.
8.13 Disclaimer: Users are hereby made aware that there may be risks of dealing with people acting under false pretenses. KaziYangu uses several techniques to verify the accuracy of certain information our Users provide us when they register for a Usership service on the Sites. However, because user verification on the Internet is difficult, KaziYangu cannot and does not confirm each User's purported identity (including, without limitation, Users). We encourage you to use various means, as well as common sense, to evaluate with whom you are dealing.
9. KaziYangu Service Fees
9.1 Service Fees: KaziYangucharges service fees for the Sites, Services, Transaction Services and Online Transactions according to the fee schedules announced by KaziYangu on the Sites. KaziYangu reserves the right to charge any service fees for other types of Online Transactions upon prior notification published on the Sites. The service fees levied by KaziYangu shall be as follows:
9.1.1 User Accounts: Users shall pay all fees and charges to your account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. Payments must be made by swiping of the agreed daily service charge at the end of the day from the system wallet. All subscription obligations and payments are non-cancellable and nonrefundable.
The following are the billing classifications that you may choose from:
9.1.2 Pay Mwanzo-wa-mwezi: you will pay KES 5,000 every 1st of the month to enjoy unlimited features with the KaziYangu Mobile ERP
9.1.3 Pay Pole-Pole; you will be deducted KES 5,000 from the number of transactions that you will be conducting evenly throughout the month. For example, if you conduct 1,000 transactions you will be charged as little as KES 5 per transaction.
9.1.4 KaziYangu.ke service will automatically renew and charge your credit card or Mpesa number or initiate an ACH withdrawal from your system wallet account on file daily, weekly, monthly or according to agreed upon schedule. The renewal charge will be equal to the agreed plan that you are enrolled in. Changes to the fees associated with your plan will be reflected on KaziYangu.ke website, or invoices, quotes, website. KaziYangu.ke will add to the published service fees applicable taxes, levies, or duties imposed by the appropriate authorities.
9.1.5 You agree that if you are unable to pay the specified monthly payment promptly to be subjected to daily or weekly deduction on the money received to cater of the monthly payment of KaziYangu.ke services.
9.1.6 You agree to provide KaziYangu.ke with complete and accurate billing and contact information. This information is to remain current at all times. KaziYangu.ke reserves the right to terminate your access to the KaziYangu.ke Platform, in addition to any other legal remedies, if the contact information you have provided is false or fraudulent.
9.1.7 Supplier User Accounts: KaziYangu shall charge and levy a commission of zero-point five percent (0.5%) for all products sold by the Supplier User Account through Online Transactions carried on and conducted on the KaziYangu Sites and platforms and using the KaziYangu Services; and,
9.1.8 Logistics Provider User Accounts: KaziYangu shall charge and levy a commission of five percent (5%) for all products transported by the Logistics Provider User Account through Online Transactions carried on and conducted on the KaziYangu Sites and platforms and using the KaziYangu Services.
9.2 Billing: KaziYangu shall issue Users with an invoice in respect of Online Transactions carried on and conducted on the KaziYangu Sites and platforms and using the KaziYangu services on a monthly basis and You agree to pay the service fees as captured in the monthly invoices within fourteen (14) days of receipt of the monthly invoice. In the event of failure to make any payment as and when the same falls due, KaziYangu reserves its rights to take any and all action against User, including but not limited suspending the User's account.
9.3 Third Party Fees Not Included: The service fees charged by KaziYangu do not include any fees (including all taxes) for any service or product that you may acquire or purchase from third party vendors in connection with the Online Transaction. It shall be your responsibility to settle the fees with such third-party vendors.
9.4 Taxes, Financial Charges Not Included: All fees charged by KaziYanguare exclusive of any taxes (such as VAT), duties or other governmental levies or any financial charges. You agree to pay and be responsible for any such taxes, duties, levies or charges for the use of the Transaction Services in addition to our service fees. You further agree that you are responsible for paying any and all applicable taxes associated with the transactions on KaziYangu (including, without limitation, any applicable VAT or sales tax) and agree to indemnify KaziYangu for failing to pay any applicable taxes. In the event KaziYanguis required by any applicable law to collect or withhold any taxes or duties, You agree to pay such taxes or duties to KaziYangu. You will also be liable for any financial charges for remission of funds to you, and KaziYangushall have the right to pay such charges from such funds. KaziYangushall have the right to deduct any financial charges incurred as a result of providing the Transaction Services and the party receiving the funds will bear the costs of such bank charges.
9.5 Insurance
KaziYangu.ke in partnership with various insurance providers of their choice warrants to insurer your goods/property listed under KaziYangu online platform against:
Fire and special Perils-Safeguards property/goods owned by the business and their contents such as machinery, equipment, stock and furniture against damages caused by fire and Special Perils.
Burglary -Covers against theft of property due to forcible and violent entry into premises/building.
Passive terrorism and political violence -Cover for physical loss or damage directly caused by one or more of the following perils occurring during the Policy Period; Act of Terrorism; Sabotage; Riots, Strikes and/or Civil Commotion; Malicious Damage; Insurrection, Revolution or Rebellion; Mutiny and/or Coup d'état; War and/or Civil War.
Employer liability - Provides and indemnifies you against legal liability in respect of any bodily injury or disease by accident sustained by your employees caused during the period of insurance and arising out of and in the course of employment by you in the business.
Personal accident cover/last expense cover i.e. death, permanent total disability, critical illness like heart attack, cancer, stroke or major organ transplant.
9.6 Revenue Based Financing
Revenue-based financing allows loan approval based on evidence of income rather than collateral from the business. KaziYangu through our financing partners will ensure transparency and efficiency that aligns loan eligibility with actual business day-to-day performance, providing an alternative to collateral-based financing for you. The interest rates and payment terms and tenure will be offered through kaziyangu.ke mobile ERP application and it will be issued according to each client transaction performance and the rating which the system would have come up with
9.7 Disclaimer: KaziYangu does not have any control over, and is not responsible or liable for, the products or services that are paid for with our service. We cannot ensure that a buyer or a seller you are dealing with will actually complete the transaction.
10. Confidentiality
10.1 Confidential Obligations: You shall keep confidential all confidential information provided by other Users of the Sites or by KaziYangu or any of its affiliates in connection with any Online Transaction or the Transaction Services. You and your affiliates will use confidential information only as is reasonably necessary and relevant to any Online Transaction or the Transaction Services. You will not, and will cause your affiliates not to, directly or indirectly (including through a third party) otherwise disclose confidential information to any individual, company, or other third party except as required to comply with the law. You will take all reasonable measures to protect the confidential information against any use or disclosure that is not expressly permitted in this Agreement. You will retain confidential information only for so long as its use is necessary for the Online Transaction or the Transaction Services or to fulfill your statutory obligations (e.g. tax) and in all cases will delete such information upon termination or as soon as no longer required for the fulfilment of statutory obligations.
10.2 Confidential Information: All information and material provided by another User of the Sites or by KaziYangu or any of its affiliates will be deemed to be confidential information unless such information or material is already in the public domain or has subsequently becomes public other than due to your breach of the confidential obligations.
10.3 Data Protection and Privacy: You must read the privacy policy of Sites which govern the protection and use of personal information of Buyers and Sellers in the possession of KaziYangu and its affiliates and explains how your personal information may be processed in connection with products and services offered by KaziYangu. Our Privacy Policy can be accessed at KaziYangu Privacy Policy.
10.4 Data Protection and Privacy Role of Sellers: Sellers acknowledge that they have their own data protection and privacy compliance responsibilities with respect to personal information of Buyers or other individuals that the Seller processes. Sellers represent and warrant, and undertake to KaziYangu to ensure, that in relation to such personal information they are and will be fully compliant with all applicable data protection and privacy laws, including without limitation maintaining their own records of such personal information independently of the platform (to the extent required under applicable laws), complying with direct marketing laws, and responding to requests by individuals to exercise their rights under such laws. Neither KaziYangu nor any of its affiliates is responsible or liable for a Seller's fulfilment of their obligations under applicable data protection and privacy laws. For the avoidance of doubt, in relation to such personal information the liability and obligations of KaziYangu and its affiliates under applicable data protection and privacy laws are entirely independent of and separate from the liability and obligations of Sellers under such laws. KaziYangu shall have no liability to any Sellers for the compliance, by KaziYangu or its affiliates, with its or their own obligations under applicable data protection or privacy laws, including without limitation in relation to the exercise by Buyers or other individuals of their rights regarding their personal information processed in connection with any services and products provided by KaziYangu.
11. Disclaimers and Limitation of Liability
11.1 No Warranty: You expressly agree that Your use of the Transaction Services is at your sole risk. TO THE FULLEST EXTENT PERMITTED BY LAW THE SERVICES PROVIDED BY KAZIYANGU ON OR THROUGH THE SITES ARE PROVIDED ON THE "AS IS", "AS AVAILABLE" AND "WITH ALL FAULTS" BASES, AND KAZIYANGU MAKES NO REPRESENTATION OR WARRANTY THAT THE TRANSACTION SERVICES WILL BE UNINTERRUPTED, TIMELY OR ERROR FREE. KAZIYANGU MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO THE ACCURACY, TRUTHFULNESS AND COMPLETENESS OF THE INFORMATION PROVIDED BY ANY USER OF THE KAZIYANGUSITES. YOU WILL BE SOLELY RESPONSIBLE FOR ALL CONSEQUENCES RESULTING FROM YOUR OWN JUDGEMENT AND DECISION TO USE OR OTHERWISE RELY ON SUCH INFORMATION. KAZIYANGUAND OUR AFFILIATES FURTHER EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF CONDITION, QUALITY, DURABILITY, PERFORMANCE, ACCURACY, RELIABILITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH POSSIBILITY WAS REASONABLY FORESEEABLE. ALL SUCH WARRANTIES, REPRESENTATIONS, CONDITIONS, UNDERTAKINGS AND TERMS ARE HEREBY DISCLAIMED AND EXCLUDED.
11.2 Exclusion and Limitation of Liabilities: TO THE FULLEST EXTENT PERMITTED BY LAW, KAZIYANGUSHALL NOT BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS OR REVENUES, BUSINESS INTERRUPTION, LOSS OF BUSINESS OPPORTUNITIES OR LOSS OF DATA, WHETHER IN CONTRACT, NEGLIGENCE, TORT, EQUITY OR OTHERWISE, ARISING FROM THE USE OF OR INABILITY TO USE THE TRANSACTION SERVICES. THE AGGREGATE LIABILITY OF KAZIYANGUAND OUR AFFILIATES AND AGENTS ARISING FROM THE TRANSACTION SERVICES IN CONNECTION WITH ANY ONLINE TRANSACTION SHALL NOT EXCEED THE HIGHER OF THE SERVICE FEES CHARGED BY KAZIYANGUOR US$1,000.
11.3 Further Exclusion and Limitation of Liabilities: TO THE MAXIMUM EXTENT PERMITTED BY LAW, KAZIYANGUMAKES NO REPRESENTATIONS OR WARRANTIES ABOUT THE VALIDITY, ACCURACY, CORRECTNESS, RELIABILITY, QUALITY, STABILITY, COMPLETENESS OR CURRENTNESS OF ANY INFORMATION PROVIDED ON OR THROUGH THE SITES; KAZIYANGUDOES NOT REPRESENT OR WARRANT THAT THE MANUFACTURE, IMPORTATION, EXPORT, DISTRIBUTION, OFFER, DISPLAY, PURCHASE, SALE AND/OR USE OF PRODUCTS OR SERVICES OFFERED OR DISPLAYED ON THE SITES DOES NOT VIOLATE ANY THIRD PARTY RIGHTS; AND KAZIYANGUMAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND CONCERNING ANY PRODUCT OR SERVICE OFFERED OR DISPLAYED ON THE SITES.
11.4 Downloaded Material: Any material downloaded or otherwise obtained through the Sites or Services is done at each User's sole discretion and risk and each User is solely responsible for any damage to its own or to KaziYangu's computer system(s) or any loss of data that may result from the download of any such material. No advice or information, whether oral or written, obtained by any User from KaziYangu or through or from the Sites shall create any warranty not expressly stated herein.
11.5 Third Party Services: The Sites may make available to User services or products provided by independent third parties. No warranty or representation is made with regard to such services or products. In no event shall KaziYangu or our affiliates be held liable for any such services or products.
11.6 Indemnification: Each User hereby agrees to indemnify and hold KaziYangu, our affiliates, directors, officers and employees harmless, from any and all losses, claims, liabilities (including legal costs on a full indemnity basis) which may arise from such User's access to or use of the Sites or Services (including but not limited to the submission, posting or display of such User's information and User Content on the Sites, KaziYangu Channels or Third Party Channels under Promotion Services) or from your breach of any of the representations, warranties hereunder and the terms and conditions of the Terms. Each User hereby further agrees to indemnify and hold KaziYangu, our affiliates, directors, officers and employees harmless, from any and all losses, damages, claims, liabilities (including legal costs on a full indemnity basis) which may arise from User's breach of any representations and warranties made by User to KaziYangu, including but not limited to those set forth in clause 6 hereunder.
11.7 Third Party Rights Indemnification: Each User hereby further agrees to indemnify and save KaziYangu, our affiliates, directors, officers and employees harmless, from any and all losses, damages, claims, liabilities (including legal costs on a full indemnity basis) which may arise, directly or indirectly, as a result of any claims asserted by Third Party Rights claimants or other third parties relating to the User Content, information and/or products offered or displayed on the Sites. Each User hereby further agrees that KaziYangu is not responsible and shall have no liability to you, for any material posted by others, including defamatory, offensive or illicit material and that the risk of damages from such material rests entirely with each User. KaziYangu reserves the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you shall cooperate with KaziYangu in asserting any available defenses.
11.8 Limitation of Liability: KaziYangu shall not be liable for any special, direct, indirect, punitive, incidental or consequential damages or any damages whatsoever (including but not limited to damages for loss of profits or savings, business interruption, loss of information), whether in contract, negligence, tort, equity or otherwise or any other damages resulting from any of the following:
11.8.1 the use or the inability to use the Sites or Services;
11.8.2 any defect in goods, samples, data, information or services purchased or obtained from a User or any other third party through the Sites or Services;
11.8.3 violation of Third Party Rights or claims or demands that User's manufacture, importation, exportation, distribution, offer, display, purchase, sale and/or use of products or services offered or displayed on the Sites or through the Services may violate or may be asserted to violate Third Party Rights; or claims by any party that they are entitled to defense or indemnification in relation to assertions of rights, demands or claims by Third Party Rights claimants;
11.8.4 unauthorized access by third parties to data or private information of any User;
11.8.5 statements or conduct of any User of the Sites or Services; or;
11.8.6 any matters relating to the Sites or Services, however arising, including negligence.
11.9 Aggregate Liability: Notwithstanding any of the foregoing provisions, the aggregate liability of KaziYangu, our employees, agents, affiliates, representatives or anyone acting on our behalf with respect to each User for all claims arising from the access to or use of the Sites or Services during any calendar year shall be limited to the greater of:
11.9.1 the amount of fees the User has paid to KaziYangu in exchange for the access to or use of the Site or Services during the calendar year; and
11.9.2 the maximum amount permitted under the applicable law. The preceding sentence shall not preclude the requirement by the User to prove actual damages. All claims arising from the use of the Sites or Services must be filed within one (1) year from the date the cause of action arose or such longer period as prescribed under the applicable law governing the Terms.
11.10 Foreseeability of Loss: The limitations and exclusions of liability to you under the Terms shall apply to the maximum extent permitted by law and shall apply whether or not KaziYangu has been advised of or should have been aware of the possibility of any such losses arising.
12. Force Majeure
12.1 Force Majeure: Under no circumstances shall KaziYangu, our affiliates and/or agents be held liable for any delay or failure or disruption of the Transaction Services resulting directly or indirectly from acts of nature, forces or causes beyond our reasonable control, including without limitation, Internet failures, computer, telecommunications or any other equipment failures, electrical power failures, strikes, labor disputes, riots, insurrections, civil disturbances, shortages of labor or materials, fires, flood, storms, explosions, acts of God, war, governmental actions, orders of domestic or foreign courts or tribunals, or non-performance of third parties or any suspension or disruption of transportation or business operation (including but not limited to delays or disruption of the resumption of work or operation ordered by any government agency) in the event of a national or regional spread of epidemic or pandemic. KaziYangu shall not be liable for or required to pay compensation of any nature whatsoever for any loss arising from the unavailability, inconvenience or failures of the services or systems due to the following reasons:
12.1.1 system shut-down for maintenance;
12.1.2 inability to transmit data due to failures in communications terminals or telecommunications equipment;
12.1.3 systems failure and inability to perform its functions due to force majeure events including but not limited to typhoons, earthquakes, tsunamis, floods, power failure, fires, storms, war, political unrest, labor strikes, shortage of labor or materials, riots, insurrections, civil disturbances, terrorist attack, explosions, acts of God, governmental actions, orders of domestic or foreign courts or tribunals, non-performance of third parties; or
12.2 suspension or delay of services or systems failure due to reasons beyond the reasonable control of KaziYangu such as hacker or cyber-attacks, technical adjustments or failure of the telecommunications department, website upgrades, third party problems or any suspension or disruption of transportation or business operation (including but not limited to delays or disruption of the resumption of work or operation ordered by any government agency) in the event of a national or regional spread of epidemic or pandemic.
13. Intellectual Property Rights
13.1 Sites and Sites Content: KaziYangu is the sole owner or lawful licensee of all the rights and interests in the Sites and the Site Content. The Sites and Site Content embody trade secrets and other intellectual property rights protected under worldwide copyright and other laws. All title, ownership and intellectual property rights in the Sites and Site Content shall remain with KaziYangu, our affiliates or licensors, as the case may be. All rights not otherwise claimed under the Terms or by KaziYangu are hereby reserved.
13.2 Icons and Logos: "KAZIYANGU" and related icons and logos are registered trademarks or trademarks or service marks of KaziYangu Data Solution Limited and its affiliates, in various jurisdictions and are protected under applicable copyright, trademark and other proprietary rights laws. The unauthorized copying, modification, use or publication of these marks is strictly prohibited.
13.3 Third Party Intellectual Property: KaziYangu may have independent third parties involved in the provision of the Sites or Services (e.g., the authentication and verification service providers). You may not use any trademark, service mark or logo of such independent third parties without prior written approval from such parties.
13.4 Derivative Works: To the largest extent permissible under applicable law, all rights, title and interest to all derivative work created by KaziYangu and/or its affiliates using User Content pursuant to the Terms shall belong to KaziYangu, which may be freely assignable, licensable or grantable by KaziYangu to any third party or its affiliates
14. Notices
14.1 Notices to KaziYangu: All legal notices or demands to or upon KaziYangu shall be made in writing and sent to KaziYangu personally, by courier or certified mail to the following entity and address: KaziYangu Data Solution Limited, P. O. BOX 13338 - 00200, Nairobi, Kenya, Attn: Legal Department. The notices shall be effective when they are received by KaziYangu in any of the above-mentioned manner.
14.2 Notices to User: All legal notices or demands to or upon a User shall be effective if either delivered personally, sent by courier, certified mail, by facsimile or email to the last-known correspondence, fax or email address provided by the User to KaziYangu, or by posting such notice or demand on an area of the Sites that is publicly accessible without a charge. Notice to a User shall be deemed to be received by such User if and when:
14.1.1 KaziYangu is able to demonstrate that communication, whether in physical or electronic form, has been sent to such User, or
14.1.2 immediately upon KaziYangu posting such notice on an area of the Sites that is publicly accessible without charge.
14.4 Sufficiency of Electronic Communication: You agree that all agreements, notices, demands, disclosures and other communications that KaziYangu sends to you electronically will satisfy any legal requirement that such communication should be in writing
15. Governing Law; Jurisdiction
15.1 Governing Law: THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE REPUBLIC OF KENYA WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES.
15.2 Amicable Negotiations: If any dispute or claim arises from or in connection with this Agreement, an Online Transaction or your access to or use of the Transaction Services ("Dispute"), the relevant parties shall resolve the Dispute through amicable negotiations.
15.3 DISPUTE BETWEEN BUYER AND SELLER: IN CASE A DISPUTE ARISES BETWEEN BUYER AND SELLER, IF THE DISPUTE IS NOT RESOLVED THROUGH AMICABLE NEGOTIATION WITHIN THE PRESCRIBED TIME PERIOD ACCORDING TO THE RELEVANT TRANSACTIONAL TERMS, YOU AGREE TO SUBMIT THE DISPUTE TO KAZIYANGUFOR DETERMINATION. IF YOU ARE DISSATISFIED WITH KAZIYANGU'S DETERMINATION AND EXCEPT AS OTHERWISE STIPULATED UNDER APPLICABLE LAW, YOU MUST APPLY TO CHARTERED INSTITUTE OF ARBITRATORS KENYA BRANCH FOR ARBITRATION AND NOTIFY KAZIYANGUOF SUCH APPLICATION WITHIN 20 CALENDAR DAYS AFTER THE DATE OF RECEIPT OF KAZIYANGU'S DETERMINATION. IF EACH OF BUYER AND SELLER IN THE DISPUTE DOES NOT APPLY FOR ARBITRATION WITHIN THE ABOVE 20 CALENDAR DAYS, EACH OF THE BUYER AND THE SELLER SHALL BE DEEMED TO HAVE AGREED THAT KAZIYANGU'S DETERMINATION SHALL BE FINAL AND BINDING ON YOU. FURTHER, EACH OF BUYER AND SELLER SHALL BE DEEMED TO HAVE WAIVED ANY CLAIM AGAINST KAZIYANGU, OUR AFFILIATES AND AGENTS.
15.4 Disputes between You and KaziYangu: In case a Dispute arises between You and KaziYangu, if the Dispute is not resolved between You and KaziYangu by amicable negotiations and except as otherwise stipulated under applicable law, You and KaziYangu agree that the Dispute shall be finally resolved by arbitration with the Chartered Institute of Arbitrators Kenya Branch.
15.5 Arbitration: IF ANY DISPUTE IS SUBMITTED TO THE CHARTERED INSTITUTE OF ARBITRATORS KENYA BRANCH FOR ARBITRATION, THE ARBITRATION SHALL BE CONDUCTED IN ACCORDANCE WITH THE RULES OF THE CHARTERED INSTITUTE OF ARBITRATORS KENYA BRANCH IN FORCE AT THE TIME OF APPLYING FOR ARBITRATION AS AMENDED BY THIS CLAUSE. THE ARBITRATION PANEL SHALL CONSIST OF ONE SINGLE ARBITRATOR. UNLESS THE PARTIES AGREE OTHERWISE, THE ARBITRATION SHALL BE CONDUCTED IN ENGLISH AND IN NAIROBI. THE ARBITRATION SHALL BE CONDUCTED BY TELEPHONE, ONLINE AND/OR SOLELY BASED ON WRITTEN SUBMISSIONS AS SPECIFIED BY THE PARTY INITIATING THE ARBITRATION, PROVIDED THAT THE ARBITRATION SHALL NOT INVOLVE ANY PERSONAL APPEARANCE BY THE PARTIES OR WITNESSES UNLESS OTHERWISE AGREED BY THE PARTIES. THE ARBITRATION AWARD RENDERED BY THE ARBITRATOR SHALL BE FINAL AND BINDING ON ALL THE RELEVANT PARTIES. THE ARBITRATION EXPENSES SHALL BE BORNE BY THE LOSING PARTY UNLESS OTHERWISE DETERMINED IN THE AWARD.
15.6 Indemnification: If you initiate any legal proceedings against KaziYangu or our affiliates in breach of this clause 15, including any legal proceedings disputing KaziYangu's determination which has become binding on you according to this clause 15, you shall hold KaziYangu and our affiliates, agents, employees, directors, officers harmless and indemnified against any claim, losses, damages that may be suffered by us.
15.7 Limitation Period: In any event, you may not make any claim against KaziYangu or our affiliates under this Agreement after one year from the occurrence of the matter giving rise to the claim.
15.8 Injunctive Relief: Notwithstanding the foregoing provisions, either party may seek injunctive or other equitable relief against the other party in any court of competent jurisdiction prior to or during the arbitration.
16. General Provisions
16.1 Entire Agreement: Subject to any Additional Agreement(s), this Agreement constitutes the entire agreement between You and KaziYangu with respect to and governs the use of the Sites, Services and Transaction Services, superseding any prior written or oral agreements in relation to the same subject matter herein.
16.2 Severance: If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be deleted and the remaining provisions shall remain valid and be enforced.
16.3 Headings: Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section.
16.4 Independent Contractor: No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement.
16.5 No Waiver: Any failure by KaziYangu and our affiliates to exercise any of our rights under this Agreement shall not constitute a waiver of such right or a waiver with respect to subsequent or similar breach. A waiver shall be effective only if made in writing.
16.6 Assignment: KaziYangu shall have the right to assign this Agreement (including all of our rights, titles, benefits, interests, and obligations and duties in this Agreement) to any of our affiliates and to any successor in interest. KaziYangu may delegate certain of KaziYangu rights and responsibilities under this Agreement to independent contractors or other third parties. You may not assign, in whole or part, this Agreement to any person or entity.