Term Conditions Page

Terms & Conditions

By signing up for, or using the Ndiema Market services or its affiliates, you are agreeing to be bound by the following terms and conditions. The services offered by Ndiema Market under the Terms of Service include various products and services to help you sell goods and services to buyers, whether Online or Offline.

Customer Service

Your use of the ndiema.market website www.ndiema.market (hereinafter referred to as "ndiema.market.") and tools are governed by the following terms and conditions as applicable to ndiema.market. If you transact on ndiema.market, you shall be subject to the policies that are applicable to the website for such transaction. By mere use of the website you shall be contracting with Ndiema Online Marketplace Limited, a company incorporated under Companies Act, 2004 with head office at Morning Side Office Park Ngong Road Nairobi, Kenya and these terms and conditions constitute your binding obligations.

For the purpose of these terms of use, wherever the context so require, ‘You’ shall mean any natural or legal person who has agreed to become a member of the Website by providing Registration Data while registering on the Website as a Registered User.

When you use any of the services provided by Ndiema.market, including but not limited to, (e.g., Customer Reviews), you will be subject to the rules, guidelines, policies, terms, and conditions applicable to such service, and they shall be deemed to be incorporated into this Terms of Use and shall be considered as part and parcel of this Terms of Use. ndiema.market reserves the right, at its sole discretion, to change, modify, add or remove portions of these Terms of Use, at any time. It is your responsibility to check these Terms of Use periodically for changes. Your continued use of the Site following the posting of changes will mean that you accept and agree to the changes. As long as you comply with these Terms of Use, ndiema.market grants you a personal, non-exclusive, non-transferable, limited privilege to enter and use the Site.

ACCESSING, BROWSING OR OTHERWISE USING THE SITE INDICATES YOUR AGREEMENT TO ALL THE TERMS AND CONDITIONS IN THIS AGREEMENT, SO PLEASE READ THIS AGREEMENT CAREFULLY BEFORE PROCEEDING

Membership Eligibility

Use of the ndiema.market Website is available only to persons who can form legally binding contracts under Kenyan governing laws. If you are a minor i.e. under the age of 18 years, you shall not register as a member of ndiema.market and shall not transact or use ndiema.market website. As a minor if you wish to use or transact on ndiema.market, such use or transaction may be made by your legal guardian or parents who have registered as users of ndiema.market. Ndiema.market reserves the right to terminate your membership and refuse to provide you with access to ndiema.market if it is brought to Ndiema Online Marketplace Limited’s notice or if it is discovered that you are under the age of 18 years.

Your Account and Registration Obligations

If you use ndiema.market, you shall be responsible for maintaining the confidentiality of your User ID and Password and you shall be responsible for all activities that occur under your User ID and Password. You agree that if you provide any information that is untrue, inaccurate, not current or incomplete that ndiema.market has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, or not in accordance with this Terms of Use, ndiema.market has the right to indefinitely suspend or terminate or block access of your membership with ndiema.market and refuse to provide you with access to the Website.

Communications

When You use the Website or send emails or other data, information or communication to ndiema.market, You agree and understand that You are communicating with ndiema.market through electronic records and You consent to receive communications via electronic records from Ndiema.market periodically. Ndiema.market may communicate with You by email or by such other mode of communication, electronic or otherwise.

Charges

Membership on Ndiema.market is free, it does not charge any fee for browsing and buying on Ndiema.market. However, ndiema.market reserves the right to charge a fee and change its policies from time to time. In particular, Ndiema.market may at its sole discretion introduce new services and modify some or all of the existing services offered on Ndiema.market. In such an event ndiema.market reserves, without notice to You, the right to introduce fees for the new services offered or amend/introduce fees for existing services, as the case may be.Changes to the Fee and related policies shall automatically become effective immediately once implemented on  ndiema.market  Unless otherwise stated,all fees shall be quoted in Kenyan Shillings. You shall be solely responsible for compliance of all applicable laws including those in Kenya for making payments to ndiema.market.

Use of Ndiema.market Website

You agree, undertake and confirm that your use of ndiema.market shall be strictly governed by the following binding principles:

You shall not host, display, upload, modify, publish, transmit, update or share any information that:

a.       belongs to another person and to which You do not have any right.

b.       is grossly harmful, harassing, blasphemous, defamatory, obscene, pornographic, paedophilic, libellous, invasive of another's privacy, hateful, or racially, ethnically objectionable, disparaging, relating or encouraging money laundering or gambling, or otherwise unlawful in any manner whatever; or unlawfully threatening or unlawfully harassing including but not limited to "indecent representation of women" or misleading in any way.

c.       is patently offensive to the online community, such as sexually explicit content, or content that promotes obscenity, pedophilia, racism, bigotry, hatred or physical harm of any kind against any group or individual;

d.       harasses or advocates harassment of another person;

e.       involves the transmission of "junk mail," "chain letters," or unsolicited mass mailing or "spamming";

f.        promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous;

g.       infringes upon or violates any third party's rights [(including, but not limited to, intellectual property rights, rights of privacy (including without limitation unauthorized disclosure of a person's name, email address, physical address or phone number) or rights of publicity];

h.       promotes an illegal or unauthorized copy of another person's copyrighted work (see "Copyright complaint" below for instructions on how to lodge a complaint about uploaded copyrighted material), such as providing pirated computer programs or links to them, providing information to circumvent manufacture-installed copy-protect devices, or providing pirated music or links to pirated music files;

i.        contains restricted or password-only access pages, or hidden pages or images (those not linked to or from another accessible page);

j.        Provides material that exploits people in a sexual, violent or otherwise inappropriate manner or solicits personal information from anyone;

k.       provides instructional information about illegal activities such as making or buying illegal weapons, violating someone's privacy, or providing or creating computer viruses;

l.        contains video, photographs, or images of another person age 18 or older without his or her express written consent and permission or those of any minor (regardless of whether you have consent from the minor or his or her legal guardian).

m.      tries to gain unauthorized access or exceeds the scope of authorized access (as defined herein and in other applicable Codes of Conduct or End User Access and License Agreements) to the Sites or to profiles, blogs, communities, account information, bulletins, friend request, or other areas of the Sites or solicits passwords or personal identifying information for commercial or unlawful purposes from other users;

n.       engages in commercial activities and/or sales without Ndiema Market's prior written consent such as contests, sweepstakes, barter, advertising and pyramid schemes, or the buying or selling of "virtual" items related to the Sites. Throughout this Terms of Use, Ndiema Market "prior written consent" means a communication coming from Ndiema Market Legal department, specifically in response to your request, and specifically addressing the activity or conduct for which you seek authorization;

o.       Solicits gambling or engages in any gambling activity which Ndiema Market, in its sole discretion, believes is or could be construed as being illegal;

p.       interferes with another user's use and enjoyment of ndiema.market Website or any other individual's user and enjoyment of similar services;

q.       Refers to any website or URL that, in the sole discretion of Ndiema Market, contains material that is inappropriate for the ndiema.market Website or any other Website, contains content that would be prohibited or violates the letter or spirit of these Terms of Use.

r.        harm minors in any way;

s.       infringes any patent, trademark, copyright or other proprietary rights or third party’s trade secrets or rights of publicity or privacy or shall not be fraudulent or involve the sale of counterfeit or stolen items;

t.        violates any law for the time being in force;

u.       deceives or misleads the addressee/ users about the origin of such messages or communicates any information which is grossly offensive or menacing in nature;

v.       impersonate another person;

w.       Contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer resource; or contains any Trojan horses, worms, time bombs, cancelbots, easter eggs or other computer programming routines that may damage, detrimentally interfere with, diminish value of, surreptitiously intercept or expropriate any system, data or personal information;

x.       Threatens the unity, integrity, defence, security or sovereignty of The Federal Republic of Kenya, friendly relations with foreign states, or public order or causes incitement to the commission of any cognizable offence or prevents investigation of any offence or is insulting any other nation.


y.       Shall not be false, inaccurate or misleading;

z.       Shall not, directly or indirectly,offer, attempt to offer;trade or attempt to trade in any item, the dealing of which is prohibited or restricted in any manner under the provisions of any applicable law, rule, regulation or guideline for the time being in force.

aa.     Shall not create liability for us or cause us to lose (in whole or in part) the services of our ISPs or other suppliers;

bb.     You shall not use any “deep-link”, “page-scrape”, “robot”, “spider” or other automatic device, program, algorithm or methodology, or any similar or equivalent manual process, to access, acquire, copy or monitor any portion of the Website or any Content, or in any way reproduce or circumvent the navigational structure or presentation of the Website or any Content, to obtain or attempt to obtain any materials, documents or information through any means not purposely made available through the Website. Ndiema.market reserves the right to bar any such activity.

cc.      You shall not attempt to gain unauthorized access to any portion or feature of Ndiema.market website, or any other systems or networks connected to Ndiema.market Website or to any Ndiema.market server, computer, network, or to any of the services offered on or through Ndiema.market Website, by hacking, password “mining” or any other illegitimate means.

dd.     You shall not probe, scan or test the vulnerability of Ndiema.market website or any network connected to Ndiema.market website nor breach the security or authentication measures on Ndiema.market website or any network connected to the Website.

ee.     You may not reverse look-up, trace or seek to trace any information on any other user of or visitor to Ndiema.market Website, or any other customer of Ndiema.market, including any Ndiema.market account not owned by you, to its source, or exploit Ndiema.market Website or any service or information made available or offered by or through Ndiema.market Website, in any way where the purpose is to reveal any information, including but not limited to personal identification or information, other than your own information, as provided for by Ndiema.market Website.

ff.       You agree that you will not take any action that imposes an unreasonable or disproportionately large load on the infrastructure of Ndiema.market Website or Ndiema.market’s systems or networks, or any systems or networks connected to Ndiema.market.

gg.     You agree not to use any device, software or routine to interfere or attempt to interfere with the proper working of the Website or any transaction being conducted on the Website, or with any other person’s use of the Website.;

hh.     You may not forget headers or otherwise manipulate identifiers in order to disguise the origin of any message or transmittal you send to Ndiema.market on or through the Website or any service offered on or through the Website. You may not pretend that you are, or that you represent, someone else, or impersonate any other individual or entity.

ii.        You may not use the Website or any Content for any purpose that is unlawful or prohibited by these Terms of Use, or to solicit the performance of any illegal activity or other activity which infringes the rights of Ndiema.market or others.Solely to enable Ndiema.market to use the information you supply us with, so that we are not violating any rights you might have in Your Information, you agree to grant us a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sub-licensable (through multiple tiers) right to exercise the copyright, publicity, database rights or any other rights you have in Your Information, in any media now known or not currently known, with respect to Your Information. Ndiema.market will only use Your Information in accordance with the terms of use and Ndiema.market’s Privacy Policy. From time to time, you shall be responsible for providing information relating to the items or services proposed to be sold by you. In this connection, you undertake that all such information shall be accurate in all respects.

jj.       You shall not exaggerate or over emphasize the attributes of such items or services so as to mislead other Users in any manner.

kk.      You shall not lift (i.e. copy and paste) images of products you want to sell on Ndiema.market from other websites, images to be used must be original images and not stolen images or content posted on another site. And in the event that you violate this term, you hereby indemnify Ndiema.market of any third party claim thereon.

ll.        You shall not engage in advertising to, or solicitation of, other users of Ndiema.market to buy or sell any products or services, including, but not limited to, products or services related being displayed on Ndiema.market or related to Ndiema.market. You may not transmit any chain letters or unsolicited commercial or junk email to other users via Ndiema.market. It shall be a violation of these Terms of Use to use any information obtained from Ndiema.market in order to harass, abuse, or harm another person, or in order to contact, advertise to, solicit, or sell to another person outside of Ndiema.market without Ndiema.market’s prior explicit consent. In order to protect our users from such advertising or solicitation, Ndiema.market reserves the right to restrict the number of messages or emails which a user may send to other users in any 24-hour period which Ndiema.market deems appropriate in its sole discretion

III. You understand that Ndiema.market has the right at all times to disclose any information (including the identity of the persons providing information or materials on the Ndiema.market Website) as necessary to satisfy any law, regulation or valid governmental request. This may include, without limitation, disclosure of the information in connection with investigation of alleged illegal activity or solicitation of illegal activity or in response to a lawful court order or subpoena. In addition, we can (and you hereby expressly authorize us to) disclose any information about you to law enforcement or other government officials, as we, in our sole discretion, believe necessary or appropriate in connection with the investigation and/or resolution of possible crimes, especially those that may involve personal injury

Ndiema.market reserves the right, but has no obligation, to monitor the materials posted on Konga.com website. Ndiema.market shall have the right to remove or edit any Content that in its sole discretion violates, or is alleged to violate, any applicable law or either the spirit or letter of these Terms of Use. Notwithstanding this right of Ndiema.market,

YOU REMAIN SOLELY RESPONSIBLE FOR THE CONTENT OF THE MATERIALS YOU POST ON THE Ndiema.market WEBSITE AND IN YOUR PRIVATE MESSAGES.

Please be advised that such Content posted does not necessarily reflect the views of Ndiema.market. In no event shall Ndiema.market assume or have any responsibility or liability for any Content posted or for any claims, damages or losses resulting from use of Content and/or appearance of Content on Ndiema.market. You hereby represent and warrant that you have all necessary rights in and to all Content you provide and all information it contains and that such Content shall not infringe any proprietary or other rights of third parties or contain any libelous, tortious, or otherwise unlawful information

Your correspondence or business dealings with, or participation in promotions of, advertisers found on or through Ndiema.market, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such advertiser. Ndiema.market shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such advertisers on Ndiema.market.

It is possible that other users (including unauthorized users or “hackers”) may post or transmit offensive or obscene materials on Ndiema.market and that you may be involuntarily exposed to such offensive and obscene materials. It also is possible for others to obtain personal information about you due to your use of Ndiema.market, and that the recipient may use such information to harass or injure you. Ndiema.market does not approve of such unauthorized uses but by using the Ndiema.market Website you acknowledge and agree that Ndiema.market will not be responsible for the use of any personal information that you publicly disclose or share with others on Ndiema.market. Carefully select the type of information that you publicly disclose or share with others on Ndiema.market.

Ndiema.market shall have all the rights to take necessary action and claim damages that may occur due to your involvement/participation in any way on your own or through a group(s) of People, intentionally or unintentionally in DoS/DDoS (Distributed Denial of Services).

Contents Posted on Site

All text,graphics,user interfaces,visual interfaces, photographs,trademarks,logos,sounds,music,artwork and computer code (collectively, “Content”), including but not limited to the design, structure, selection, coordination, expression, “look and feel” and arrangement of such Content,contained on Ndiema.market is owned,controlled or licensed by or to Ndiema Online Marketplace Limited, and is protected by trade dress, copyright, patent and trademark laws, and various other intellectual property rights and unfair competition laws.

Except as expressly provided in these Terms of Use, no part of Ndiema.market and no Content may be copied,reproduced,re-published,uploaded,posted,publicly displayed, encoded, translated, transmitted or distributed in any way (including “mirroring”) to any other computer, server, website or other medium for publication or distribution or for any commercial enterprise,without Ndiema.market’s express prior written consent. You may use information on Ndiema.market products and services purposely made available by Ndiema.market for downloading from the site,provided that you

1.       do not remove any proprietary notice language in all copies of such documents,

2.       use such information only for your personal, non-commercial informational purpose and do not copy or post such information on any networked computer or broadcast it in any media,

3.       make no modifications to any such information, and

4.       not make any additional representations or warranties relating to such documents.

You shall be responsible for any notes, messages, e-mails, billboard postings, photos, drawings, profiles, opinions, ideas, images, videos, audio files or other materials or information posted or transmitted to the Sites (collectively,Content"). Such Content will become the property of Ndiema.market and you grant Ndiema Online Marketplace Limited the worldwide, perpetual and transferable rights in such Content. Ndiema.market shall be entitled to, consistent with our Privacy Policy, use the Content or any of its elements for any type of use forever, including but not limited to promotional and advertising purposes and in any media whether now known or hereafter devised, including the creation of derivative works that may include Content you provide. You agree that any Content you post may be used by Ndiema.market, consistent with our Privacy Policy and Rules of Conduct on Site as mentioned herein, and you are not entitled to any payment or other compensation for such use.

Other Businesses

Ndiema.market does not take responsibility or liability for the actions, products, content and services on Ndiema.market website, which are linked to Affiliates and / or third party websites using Ndiema.market APIs or otherwise. In addition, Ndiema.market may provide links to the third party websites of affiliated companies and certain other businesses for which, Ndiema.market assumes no responsibility for examining or evaluating the products and services offered by them, and Ndiema.market does not warrant the offerings of, any of these businesses or individuals or the content of such third party website(s). Ndiema.market does not in any way endorse any third party website(s) or content thereof.

Links

Ndiema.market welcomes links to this site. You may establish a hypertext link to Ndiema.market website, provided that the link does not state or imply any sponsorship or endorsement of your site by Ndiema.market. You must not use on your site or in any other manner any trademarks, service marks or any other materials appearing on Ndiema.market, including any logos or characters, without the express written consent of Ndiema.market and the owner of the mark or materials. You must not frame or otherwise incorporate into another third party website or present in conjunction with or juxtaposed against such a website any of the content or other materials on the Ndiema.market website without Ndiema.market’s prior written consent.

Privacy

We view protection of Your privacy as a very important principle. We understand clearly that you and Your Personal Information is one of our most important assets. We store and process Your Information on computers that may be protected by physical as well as reasonable technological security measures and procedures in accordance with Information Technology Act 2000 and rules there under. Our current Privacy Policy is available at Privacy-policy. If you object to your Information being transferred or used in this way, please do not use Ndiema.market website Information submitted may be made available to Ndiema.market partners who can in turn use it for verification purposes

MANDATORY DECLARATION

1.       You hereby declare that you have provided all necessary Legal Delivery Details for the shipment of the product to the destination specified by you in the Order.

2.       You further declare that the Product will be acquired for personal use of the Consignee and/or Buyer. The Product will not be sold, resold, bartered or in any way disposed for profit.

Disclaimer of Warranties and Liability

This website, all the materials and products (including but not limited to software) and services, included on or otherwise made available to you through this site are provided on Ndiema.market on “as is” and “as available” basis without any representation or warranties, express or implied except otherwise specified in writing. Without prejudice to the forgoing paragraph, Ndiema.market does not warrant that:

•         This website will be constantly available, or available at all; or

•         The information on this website is complete, true, accurate or non-misleading.

Ndiema.market will not be liable to you in any way or in relation to the contents of, or use of, or otherwise in connection with, Ndiema.market website.

Ndiema.market does not warrant that this site; information, content, materials, product (including software) or services included on or otherwise made available to you through Ndiema.market website; their servers; or electronic communication sent from Ndiema.market are free of viruses or other harmful components

Nothing on Ndiema.market constitutes, or is meant to constitute, advice of any kind.

All the products sold on Ndiema.market are governed by laws of The Republic of Kenya and if Ndiema.market is unable to deliver such products due to implications of the laws, Ndiema.market will return or will give credit for the amount received by Ndiema.market from the sale of such product, which could not be delivered to you.

You will be required to enter a valid phone number while placing an order on Ndiema.market. By registering your phone number with us, you consent to be contacted by Ndiema.market via phone calls and / or SMS notifications, in case of any order or shipment or delivery related updates. Ndiema.market will not use your personal information to initiate any promotional phone calls or SMS'.

Services

•         Payment

While availing any of the payment method(s) offered at Ndiema.market, Konga.com will not be responsible or assume any liability, whatsoever in respect of any loss or damage arising directly or indirectly to you due to:

1.       Lack of authorization for any transaction(s), or

2.       Exceeding the preset limit mutually agreed by you and between your "Bank(s)", or

3.       Any payment issues arising out of the transaction, or

4.       Decline of transaction for any other reason/s.

All payments made against the purchases/services on Ndiema.market by you shall be compulsorily in Kenyan Shillings acceptable by the Central Bank of Kenya. Ndiema.market does not accept any other form of currency with respect to the purchases made on Ndiema.market.

•         Wallet

The Wallet ("Wallet") is a pre-paid payment instrument which is associated with your Ndiema.market account. You can maintain a balance of money with Ndiema.market and redeem it at your convenience.

Ndiema.market will not pay any interest on the amount maintained by you in your Wallet.

Refill of Wallet: Your Wallet can be refilled, using any of the pre-paid payment options only. You will be able to recharge your Wallet up to an amount of Ksh1,000,000 in one instance. There is no need to maintain a minimum balance.

Refund of Wallet Amount: Your wallet comprises of three types of balances - Store credit (which is a credit granted by Ndiema.market typically in lieu of a cancelled order), Topped-up balance (which is a prepaid amount that you added to wallet to pay for future orders on Ndiema.market) and Promotional balance (which is credit granted by Ndiema.market purely for promotional or goodwill purposes). Topped-up balance (prepaid amount) as well as the Promotional balance added to the Wallet will be non-refundable While Store credit will continue to be entirely refundable.

Limitation of Liability: In no event will Ndiema.market be liable for any special, incidental, indirect or consequential damages or losses of any kind, arising from the use of Wallet or association with the Wallet.

•         Breach

Without limiting other remedies, Ndiema.market may limit your activity, immediately remove your information, warn other Users of your actions, immediately temporarily/indefinitely suspend or terminate or block your membership, and/or refuse to provide you with access to Ndiema.market website in the event, but not limited to:

1.       If you breach the Terms of Use or Privacy Policy or other rules and policies, if any;

2.       If Ndiema.market is unable to verify or authenticate any information you provide; or

3.       If it is believed that your actions may cause legal liability for you, other Users or Ndiema.market.

Ndiema.market may at any time at its sole discretion reinstate suspended users.A User that has been suspended or blocked may not register or attempt to register with Ndiema.market or use Ndiema.market Website in any manner whatsoever until such time that such User is reinstated by Ndiema.market. Notwithstanding the foregoing, if you breach the Terms of Use or Privacy Policy or other rules and policies, Ndiema.market reserves the right to recover any amounts due and owing by you to Ndiema.market and to take strict legal action including but not limited to a referral to the appropriate law enforcement or other authorities for initiating criminal or other proceedings against you.

•         Indemnity

You shall indemnify and hold harmless Ndiema.market its owner, licensee, affiliates, subsidiaries, group companies (as applicable) and their respective officers, directors, agents, and employees, from any claim or demand, or actions including attorneys' fees, made by you or any third party or penalty imposed due to or arising out of your use of the goods or services, or in the event you breach this Terms of Use, the Privacy Policy and other Policies, or your violation of any law, rules or regulations or the rights of a third party on Ndiema.market

•         Applicable Law

This Agreement shall be governed by and interpreted and construed in accordance with the laws of The Republic of Kenya. The place of jurisdiction shall be exclusively in Nairobi, Kenya.

•         Jurisdictional Issues/Sale in Kenya Only

Unless otherwise specified, the material on Ndiema.market is presented solely for the purpose of sale in Kenya. Ndiema.market makes no representation that materials/services in Ndiema.market are appropriate or available for use in other locations/Countries other than Kenya. Those who choose to access this site from other locations/Countries other than Kenya do so on their own initiative and Ndiema.market is not responsible for supply of goods/availability of services, refund for the goods or services ordered from other locations/Countries other than Kenya, compliance with local laws, if and to the extent local laws are applicable.

•         Trademark, Copyright and Restriction

This site is controlled and operated by Ndiema Online Marketplace Limited. All material on this site, including images, illustrations, audio clips, and video clips, are protected by copyrights, trademarks, and other intellectual property rights that are owned and controlled by us or by other parties that have licensed their material to us. Material on Ndiema.market web site owned, operated, licensed or controlled by us is solely for your personal, non-commercial use. You must not copy, reproduce, republish, upload, post, transmit or distribute such material in any way, including by e-mail or other electronic means and whether directly or indirectly and you must not assist any other person to do so. Without the prior written consent of the owner, modification of the materials, use of the materials on any other web site or networked computer environment or use of the materials for any purpose other than personal, noncommercial use is a violation of the copyrights, trademarks and other proprietary rights, and is prohibited. Any use for which you receive any remuneration, whether in money or otherwise, is a commercial use for the purposes of this clause.

•         Copyright complaint

We at Ndiema.market respect the intellectual property of others. In case you feel that your work has been copied in a way that constitutes copyright infringement you can write to us at admin@ndiema.market

•         Risk of loss

All items purchased from Ndiema.market are made pursuant to a shipment contract. This means that the Risk of Loss shall remain with Ndiema.market until the item is transferred to You. In the event that the items are damaged after receipt, the risk falls on the customer.

•         Product and Service Description

Ndiema.market tries to be as accurate as possible. However, Ndiema.market does not warrant that product or service description or other content of this site is accurate, complete, reliable, current, or error-free. If a product or service offered on Ndiema.market itself is not as described, your sole remedy is to return it in unused condition.

•         Pricing and Typographical error

If Ndiema.market comes across any difference in pricing resulting from typographic errors with regards to pricing or product/service information, Ndiema.market shall have the right to rectify the same or cancel the order(s) and refund monies, if any, collected from the customer within 10-15 business days of such corrective action taken. The mode of refund will be the same as at the time of placing the order. Cash on Delivery order refunds will be done by cheque.

•         Cancellation of order

Ndiema.market reserves the right to cancel any order without any explanation for doing so, under situation where Ndiema.market is not able to meet the requirement of the order placed or order so placed/cancelled does not comply with the Ndiema.market policy or for any reason. However, Ndiema.market will ensure that any communication of cancellation of an order is intimated within appropriate time to the concerned person and any applicable refund, will be made in reasonable time.

Note that in the event of cancellation of a ‘pay on delivery’ orders, Ndiema.market will not be liable in any form where the customer proceeds to receive orders following an earlier cancellation.

•         Termination of Service

Ndiema.market reserves the absolute right to modify, discontinue, temporarily or permanently, any and all portion of our goods and services with or without prior communications. You hereby consent that Ndiema.market will under no circumstance be liable to you or any third party for any modification or discontinuance of availability of goods or services on the website.

•         Limitation of Liability

IN NO EVENT SHALL Ndiema.market BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION WITH THIS AGREEMENT, EVEN IF Ndiema.market HAS BEEN INFORMED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES.

Ndiema.market’s AGGREGATE LIABILITY TO YOU, ANY INDIVIDUAL OR ANY THIRD PARTY IN ANY MATTER ARISING HEREFROM, RELATED OR CONNECTED TO OUR GOODS AND SERVICES IS AT THE COMPANY’S SOLE DISCRETION.

TERMS AND CONDITIONS FOR EATERIES FOOD AND DRINK OUTLET MERCHANTS GIFT CERTIFICATES & TERMS AND CONDITIONS FOR NON-EATERIES MERCHANT GIFT CERTIFICATES

This section of our terms and conditions covers;

Section A: “TERMS AND CONDITIONS FOR EATERIES, CAFES AND FOOD AND DRINK OUTLET MERCHANT GIFT CERTIFICATES” while

Section B: “TERMS AND CONDITIONS FOR NON-EATERIES MERCHANT GIFT CERTIFICATES”.

SECTION A -TERMS AND CONDITIONS FOR EATERIES, FOOD AND DRINK OUTLET MERCHANT GIFT CERTIFICATES

The terms and conditions in this section A and all other Terms and Conditions applicable to you as a Merchant govern all Merchants on Ndiema.market who sell a variety of edibles and beverages as its type of business and makes such available to Customers via Ndiema.market by giving the customers the opportunity to purchase same via Vouchers on Ndiema.market.

Every Voucher purchased by a customer on Ndiema.market will clearly have printed on it the number of times it can be redeemed. Please note that this is pre-determined by the Merchant and Restaurant.

Note the following;

•  The above certificate might not be eligible for alcoholic beverages unless the Eatery expressly permits same, taking into cognizance all restrictions on alcohol as stipulated by the governing law.

•  These Gift Certificates must not be used for tips, taxes, prior balances etc. unless the Resturant/Merchant expressly permits the same. The Merchant or Restaurant will not be responsible for lost, stolen certificates or their reference numbers.

•  Gift Certificates may only be used as stipulated on the coupon (i.e. “Dine in Only” or “Take-away”)

•  All Gift Certificates are void to the extent prohibited by law.

•  The Eatery is at liberty to determine whether Vouchers purchased here in can be used in conjunction with any other gift certificate, coupons etc.

•  No one has the right to purchase from the Ndiema.market platform and resell same to individuals.

•  In the event a Customer decides to redeem his Eatery Certificate without abiding with all terms and conditions herein stated, the gift certificate will be rendered invalid.

•  All Ndiema.market offers are governed by the validity dates specified on the Vouchers.

•  As earlier stated all vouchers for eateries may have statutory limitations on the amount of the voucher value which can be used to redeem alcohol. All Merchants must therefore comply with same.

•  A Merchant must have complied with all statutory requirements before enlisting their vouchers for purchase on Ndiema.market. Ndiema.market will not be held responsible for lack of compliance on the part of the Merchant.

•  All Ndiema.market offers (including but not limited to discounts, upon expiration of the date specified in the offer becomes invalid.

Section B: “TERMS AND CONDITIONS FOR NON-EATERIES MERCHANT GIFT CERTIFICATES”.

•  Only one certificate may be used per order, except this is expressly stated otherwise by the Merchant.

•  All Merchant Gift Certificate purchased on Ndiema.market strictly apply to products found thereon, this will therefore not suffice for shipping fees.

•  The Merchant is at liberty to offer credit if he wishes unless otherwise required by law.

•  In the event a customer misplaces (i.e. whether stolen or lost) his or her voucher, or reference number neither the Merchant nor Ndiema.market will be held responsible for same.

•  No one has the right to purchase from the Ndiema.market platform and resell same to individuals.

•  In the event a Customer decides to redeem his Gift Certificate without abiding with all terms and conditions herein stated, the gift certificate will be rendered invalid.

•  All Gift Certificates are void to the extent prohibited by law.

•  Gift Certificates cannot be combined with any other gift certificates, including but not limited to coupons, promotions, third party certificates etc., unless otherwise expressly specified by Merchant.

•  All Ndiema.market offers (including but not limited to discounts), upon expiration of the date specified in the offer becomes invalid.

•         Other Terms and Conditions

Please note that all Merchants who already have goods and services, or Prospective Merchants who have sent in request to have their goods and services uploaded or advertised on Ndiema.market in order to conduct transactions, including but not limited to;

o        Merchants who sell Goods on Ndiema.market

o        Merchants who offer Services on Ndiema.market

o        Firms/Organizations who choose to advertise on Ndiema.market’s website (i.e. Advertisers, either on a trade by barter basis with Ndiema.market or on a strictly Advertisement service level) are hereby governed by the Terms and Conditions here in.

o        ADVERTISING

Advertising Services offered by Ndiema.market include, but are not limited to the display of certain goods, services and information about your business from time to time, splashing adverts, direct calls to you and sending certain information to users of Ndiema.market via different means (i.e. SMS messages or emails).

o        VOUCHERS

All vouchers purchased and thereafter printed from the Ndiema.market platform are strictly promotional vouchers which are offered at prices below their face value and thereafter purchased by customers.

In light of the above they are subject to all Terms and Conditions of Ndiema Online Marketplace Limited as stipulated on this page and also the Terms and Conditions and Redemption Policies of the Merchant or Restaurant. All customers who intend to purchase on the Ndiema.market platform are subject to the specific limitations in relation to the goods or services. (i.e. if a Merchant specifies that only one Ndiema.market Voucher maybe purchased by a customer, the customer must abide by same, if the customer goes ahead to purchase more than stipulated and tries to redeem the excess, the Merchant is at liberty to refuse redemption of same without paying any compensation or refund whatsoever to the customer. In such an instance Ndiema.market will not compensate the customer for any such contraventions, neither will the customer receive a refund in relation to the purchase.

An Eatery Specific Gift Voucher is strictly issued by that Eatery, who is also a Merchant on our platform and not Ndiema.market. The Eatery or Merchant is therefore fully responsible for any and all injuries, illnesses, damages, claims, liabilities and costs suffered by or in respect of a customer, caused in whole or in part by the restaurant or the merchant, as well as for any unclaimed property liability arising from unredeemed Vouchers. Eatery -Specific Vouchers and Merchant Vouchers are redeemable “as is” only and may not be redeemed incrementally. A Ndiema.market Voucher can only be redeemed at the cash value paid by the customer for it (i.e. if you paid Ksh500.00 for a Ndiema.market  Voucher, but the voucher gives you Ksh3000.00 of value to the Merchant, the cash value that you paid is Ksh500.00 as opposed to the authentic value/actual value of Ksh3000.00).Please note all expiration dates on Vouchers are valid and therefore govern the last date which you can use the VOUCHER, in the event you do not redeem your voucher before the expiration, you automatically forfeit same, unless the law provides otherwise.

•         General

The Terms and Conditions and Privacy Policy as provided herein by Ndiema.market including but not limited to other guiding policies for Ndiema.market constitute the entire agreement between the parties with respect to the subject matter hereof. In the event Ndiema.market or you decide to waive any breach or default hereunder, the waiver will not suffice for any preceding or subsequent breach or default. The failure of either party to exercise any of its rights under this Agreement shall not be deemed a waiver or forfeiture of such rights or any other rights provided hereunder. The failure of either party to insist immediately upon the strict compliance and or performance of any of the terms and conditions herein breached shall not constitute a waiver of the right of either party, or constitute acquiescence therein and the same shall not affect or impair the later exercise of such right or be presumed to vary this terms and conditions in any manner whatsoever. When you place an order on Ndiema.market for goods or services, you hereby make an offer to us for the purchase of the goods or the vouchers for services. For more information, please view our privacy policy. Please note that all your purchases are either directly from Ndiema.market if the item is “Sold by Ndiema.market”, or from a Merchant in the event the goods or services are offered by the Merchant.In light of the above, goods or services sold by a Merchant are strictly redeemable from Merchants while those sold by Ndiema.market are redeemable from Ndiema.market.

•         Our Contact

Please send any questions or comments (including all inquiries unrelated to copyright infringement) regarding this Site to admin@ndiema.market or to our office at Morning Side Office Park Ngong Road,Kilimani, Nairobi.

Merchant Service Agreement

Introduction

As a demonstration of our commitment to Kenya and Kenyan entrepreneurs, Ndiema Online Marketplace Limited (“Ndiema.market”, “us”), Kenya’s Largest Online Mall opened up its online platform (“Mall”) to Kenyan businesses to enable merchants sell their products, giving instant nationwide access to their products. Merchants can also enjoy all the benefits that come with having an online store by being able to sell their products and offer services to customers all over Kenya. Businesses that sign up to Ndiema.market’s Mall will have a free microsite provided for them, and Ndiema.market will provide additional value-added services including but not limited to marketing, customer service and logistics partnerships to cater for customers in all 47 counties in Kenya. Ndiema.market will also provide dedicated account managers to all merchants. Merchants can greatly increase sales and revenue by partnering with us, while we worry about getting their products to customers all over Kenya. We also provide convenient payment terms for the proceeds of merchants’ sales. Ndiema.market offers its customers both prepaid and pay-on-delivery payment options for goods purchased. All merchants have to do to enjoy all these benefits is to review and accept the terms and conditions of the Ndiema.market Mall Service Agreement below. Ndiema.market reserves the right to alter these Terms & Conditions at any point without notice, by updating the content on the Ndiema.market website.

Agreement

In consideration of the mutual covenants set forth in this Agreement, Seller and Ndiema.market (jointly referred to as “Parties” and individually as a “Party”) hereby agree as follows:

1.     Services Rendered

The Seller agrees to compensate Ndiema.market for the services rendered listed in section 2 below (“Services”).

2.     Delivery of Services

Ndiema.market will use reasonable diligence in rendering the Services offered to the Seller, which include the following:

- Online storefront tailored to the Seller with payment gateway and escrow service at Ndiema.market;

- Access to SellerHQ and other account management systems;

- Access to a dedicated account officer and other account management services;

- Access to logistics partners;

- Provision of analytics;

- Seller Services Helpline Number (Mon – Fri; 08:00 – 18:00)

- E-marketing, and other marketing services as available and appropriate.

Ndiema.market may at its sole discretion add or remove Services from the above list from time to time and some of the new services may attract separate charges, in which case the Seller will be informed before provision of the said services.

Ndiema.market reserves the right to alter or vary the available Services, the nature of the Services and any charges at its sole discretion.

The Seller agrees to use reasonable diligence in providing Ndiema.market with genuine products, up-to-date product quantity information and accurate product information.

3.     Compensation

For all of the Services provided by Ndiema.market under this Agreement, the Seller shall compensate Ndiema.market, with commissions or other payments as required, in accordance with the terms of the ‘Commission Structure’, which will be communicated to all sellers; or agreed in advance between both parties, or detailed elsewhere on the Ndiema.market website.

Every Merchant shall have an opening/ minimum balance of Ksh2, 000.00 (Two Thousand Shillings) only in his/her Ndiema.market Wallet upon registration with Ndiema.market. Ndiema.market shall have the right to deduct commissions for all “Self-fulfilled Orders” directly from the Merchant’s Ndiema.market Wallet or from his/her designated Bank Account in the event his/her wallet is empty.

Ndiema.market will from time to time review the category commission structure and will notify the Seller of any changes by communicating directly to sellers, or publishing the same on the SellerHQ portal, or on Ndiema.market’s website not less than fourteen (14) days before any variation in commission rate or charging structure takes place. Ndiema.market will remit payments for sales generated by the Seller on its platform minus the agreed commission and all applicable taxes as soon as products sold have been delivered and applicable return period has lapsed, or as agreed between the Parties.

4.     Confidentiality

The Seller and Ndiema.market acknowledge and agree that the scope of work and all other documents and information related to the development of the Services (the “Confidential Information”) will constitute valuable trade secrets of Ndiema.market. Seller shall keep the Confidential Information in confidence and shall not at any time during or after the terms of this agreement, without Ndiema.market’s prior written consent, disclose or otherwise make available to anyone, either directly or indirectly, all or any part of the Confidential Information. Excluded from the “Confidential Information” definition is anything that can be seen by the public.

5.     Independent Contractor

Ndiema.market shall be deemed as an independent contractor. Ndiema.market will be fully responsible for payment of its own income taxes on all compensation earned under this Agreement. Seller will not withhold or pay any income tax, social security tax, or any other payroll taxes on Ndiema.market’s behalf. Ndiema.market is also not responsible for remitting or paying VAT (Value Added Taxes) on behalf of the Seller. Ndiema.market understands that it will not be entitled to any fringe benefits that Seller provides for its employees generally or to any statutory employment benefits, including without limitation, worker’s compensation or unemployment insurance.

6.     Entire Agreement

This Agreement contains the entire agreement between the Parties relating to the subject matter hereof and supersedes any and all prior agreements or understandings, written or oral, between the parties related to the subject matter hereof. Ndiema.market reserves the right to alter these terms and conditions at any point without notice, by updating the content on the Ndiema.market website.

7.     Indemnification

Seller warrants that everything it gives Ndiema.market to use in the delivery of the Services or any deliverable is legally owned or licensed to the Seller. The Seller agrees to indemnify and hold Ndiema.market, its employees and associates harmless from any and all claims brought in the performance of the Services.

Seller shall indemnify and hold Ndiema.market harmless in respect of any action that may be taken against it, or any claims that may be brought against it, for whatever reason and of whatever nature – including, but not limited to, breach of law, regulation and/or any of the obligations and warranties under this Contract – by any third party in respect of the Contents and/or the Services and/or any and all activities related and connected to the Contents and/or the Services, irrespective of any direct liability of the Seller (“Third Party Claim”).

8. Limitation of Liabilty

A) Not withstanding applicable returns policy, Merchant further covenants to:

- Pick up fresh returned orders from the Ndiema.market Pick Up Centres within 7 days of notification of such return via sms or e-mail, failing which, the order will be sent back to Ndiema.market’s Warehouse and another notification to the merchant to request for the delivery of same rates.

-If the item remains unrequested for a while at the Ndiema.market Warehouse, Konga shall send a notification of the daily cost of demurrage to the merchant at Ksh200.00.

- If the merchant fails to respond after 10 days, Ndiema.market shall notify merchant by sending reminder emails or smss every day, for an extra 4 days.;

- In the event that the goods are not picked up from the Pick Up Centres after 7 days and still remain un-requested for after 14 days elapses, such Merchant goods shall be destroyed by Ndiema.market.

B) Merchant agrees to indemnify, defend and hold harmless Ndiema.market against and from any third party claims (including reasonable legal or arbitration costs) arising from:

o        Any breach or default on the part of the merchant of any obligations

o        Negligent act or omission of merchant; or

o        Wilful violation of the law, wrong description and price of products advertised; or

o        An offence committed by merchant.

o        Provision of fake, inferior or substandard products that have been sold as genuine;

o        Listing and selling products that have not been authorized for sale by the appropriate regulatory body (including but not limited to the NCC, NAFDAC, SON etc);

o        Fails to meet the Quality of Service Standards (QoS) as defined in the SellerHQ ratings system (details on request);

o        Engages in any activity which would be considered illegal under Kenyan law, or engages in any activity that could be considered as fraudulent or misleading.

o        Set Off

The Seller hereby authorizes Ndiema.market to set-off by whatever means the whole or any part of Seller’s liabilities to Ndiema.market or its customers under this Agreement (or any other contract with us) against any funds or goods credited to or owing to the Seller under this Agreement (or any other contract with us). Ndiema.market may exercise this right of set-off at any time, without notice to the Seller, whether either liability is present or future, cash or assets, and whether or not either liability arises under this Agreement. If the liabilities to be set off are expressed in different currencies or forms, Ndiema.market may convert either liability at a market rate of exchange for the purpose of set-off. In the event such set-off does not fully reimburse Ndiema.market for the amount owed, the Seller shall immediately pay Ndiema.market such outstanding amount. The Seller shall hold harmless any financial institution that follows our request pursuant to this clause. Any exercise of Ndiema.market’s right under this provision is without prejudice and in addition to any rights or remedies available to Ndiema.market under this Agreement or otherwise.

Term & Termination

Either Party shall have the right to terminate this Agreement for cause immediately and without notice in the event of a breach of the obligation under this Agreement by the other Party.

Ndiema.market has the right to evict the Seller from Ndiema.market if any, or a combination, of the following breaches are committed:

o        Fails to make a product that has been sold on Ndiema.market Mall available for delivery within three (3) business days after it was supposed to be available for delivery;

o        Provides fake, inferior or substandard products that have been sold as genuine;

o        Provides used, refurbished or damaged products that has been sold as new or unused;

o        Lists and sells products that have not been authorized for sale by the appropriate regulatory body (including but not limited to the NCC, NAFDAC etc);

o        Fails to meet the Quality Of Service Standards (QoS) as defined in the SellerHQ ratings system (details on request);

o        Engages in any activity which would be considered illegal under Kenyan law, or engages in any activity that could be considered as fraudulent or misleading;

o        Engages in any activity that brings Ndiema.market, or any of Ndiema.market’s partners or other mall vendors into disrepute.

Ndiema.market reserves the right to alter these QOS rules at any time, and in the event of any changes Ndiema.market will inform the Seller by publishing the same on Ndiema.market’s website. Ndiema.market will send a formal warning to the Seller after each incident.

Force Majeure

The Parties agree that there shall attach no liability for any inability to carry out any obligations under this Agreement if is attributable to an event of force majeure including but not limited to systems downtime, server failure, civil commotion, strikes or lock outs, war, flood, insurrection and other acts of God PROVIDED however that where an event of force majeure subsists for more than One (1) month the Party affected by such force majeure event shall be deemed to have voluntarily excused itself from the transaction contemplated by this Agreement.

Entire Agreement

This Agreement contains the entire agreement between the Parties relating to the subject matter hereof and supersedes any and all prior agreements or understandings, written or oral, between the parties related to the subject matter hereof. Ndiema.market reserves the right to alter these terms and conditions at any point without notice, by updating the content on the Ndiema.market website.

Insurance

Sellers shall be responsible for insurance in relation to goods shipped to customers.

Copyright and Infringement Trademark

Ndiema.market respects all copyright and trademarks of others. As a Seller on our website you must in turn respect these rights. Ndiema.market will immediately terminate or suspend a seller who infringes another’s trademark or copyright.

Independent Contractors

The Parties hereby enter into this Agreement as independent contractors, and this Agreement will not be construed to create a partnership, joint venture, or employment relationship between them. Neither Party will represent itself to be an employee of the other or enter into any agreement or legally binding commitment or statement on the other’s behalf or in the other’s name.

Restrictions and Prohibitions

•         All product descriptions must be true, accurate and non-misleading.

•         Products sold by Sellers must not be fraudulently obtained or involve the sale of counterfeit or stolen items.

•         Sellers must not infringe or misappropriate any third party's copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy; Ndiema.market will in appropriate circumstances and at its sole discretion, disable and/or terminate the accounts of sellers who may be infringers.

•         Sellers must comply with governing laws, statute, ordinance or regulation (including, but not limited to, those governing privacy, publicity, export control, consumer protection, unfair competition, anti-discrimination or false advertising).

•         Products/description of products must not be defamatory, trade libelous, unlawfully threatening or harassing, or advocating, promoting or providing assistance involving violence, significant risk of death or injury, or other unlawful activities.

•         No display of images containing pornography is permitted.

•         You must not sublease Your account or give another access to Your account or sublease Your Store to third parties;

•         Sellers must not incur liability for Ndiema.market and its subcontractors or expose them to undue risk or otherwise engage in activities that Ndiema.market, in its sole discretion, determines to be harmful to Ndiema.market 's affiliates, operations, reputation, or goodwill.

•         Sellers must not post or display any materials that exploits or otherwise exploits children under age of 18 years.

•         Sellers must not conduct activities such as gambling, sweepstakes, raffles and lotteries.

Ndiema.market is compliant with all the Money Laundering Regulations and all Money Laundering activities are prohibited.

Governing Law and Dispute Resolution

As regards any dispute relating in any way to your use of any Ndiema.market Service, or to any products or services sold or distributed by Ndiema.market or through Ndiema.market, N-express, Ndiema Travels or NdiemaPay. Party do hereby covenant that he/she shall not commence or maintain any suit against Ndiema.market whether at law or in equity, but Parties shall use all reasonable endeavours to settle any dispute or difference of opinion between them, arising from or in connection with this Agreement amicably through mutual discussion. If the dispute cannot be resolved by mutual discussions within a period of fourteen (14) days from the date of notice, such dispute or claim will be resolved by binding arbitration, rather than in court. And the decision by the arbitrator shall be final. Each party shall provide his/her own arbitrator at their own cost. Both arbitrators shall agree on a neutral arbitrator whose decision will be final. The fee for the Neutral arbitrator shall be shared equally by both parties. The Arbitration shall be carried out in accordance with the provisions of the Arbitration and Conciliation Act Cap A18 Laws of the Federation 2004 or any amendment or re-enactment thereof. The Arbitration shall take place in Nairobi, Kenya and be conducted in English Language.