Terms And Conditions of This Site

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TERMS AND CONDITIONS OF THIS SITE

This agreement was last revised on 10th September 2010

bidorbuy.co.ke

of Office 6, 25 Parklands Rd

Parklands, Nairobi

Kenya

Bryanston, South Africa ("bidorbuy Head Office").

You have arrived at our terms and conditions for use of this Site by you. These terms and conditions, together with the Billing Statement, the Rating Systems Rules, Listing PolicyPrivacy Statement, Affiliate Terms and Conditions and "Annexures" form this Agreement.

This Agreement is a binding agreement between you and bidorbuy. It also sets out some of the terms and conditions governing you selling and purchasing goods and services on this Site, so please read it carefully. If you are uncertain, or you do not agree with the terms and conditions or any of the Annexures then you should not accept them.

We will provide you with the Services only once you have accepted the terms and conditions of this Agreement by clicking on the "I ACCEPT" button when registering with us.

PART 1: DEFINITIONS

"Agreement" means these terms and conditions, the Billing Statement, the Rating Systems Rules, the Listing PolicyPrivacy Statement, Affiliate Terms and Conditions and "Annexures";

"bidorbuy Guidelines" means the guidelines issued by bidorbuy from time to time governing the offering for sale and sale of, and the offering to purchase and purchase of, goods and services on this Site;

"bobPay" means the payment service offered by bidorbuy whereby bidorbuy acts as an agent collecting funds from Buyers on behalf of Sellers;

"Buyer" means a person, firm or company who makes a bid for, and/or purchases, any goods or services offered for sale on this Site;

"Buy Now Item" means an item in which a Buy Now Price has been specified for the relevant goods or services offered for sale by the Seller, and to which the item procedures as in Clause 6 (as applicable) apply, except that a bidder may at any time choose to purchase the relevant goods or services at the Buy Now Price;

"Buy Now Price" means the price specified by the Seller for goods or services offered by the Seller for sale at a Buy Now Item;

"Confirmation Notice" means the notification set out in Clause 10.1;

"Fees" means any charges which bidorbuy charge as per the Billing Statement;

"Indemnified Party" means each of bidorbuy, its officers, employees, contractors, consultants and agents from time to time, and any related entities, associates or affiliates of bidorbuy, and each of their respective officers, employees, contractors, consultants and agents from time to time;

"Intellectual Property Rights" means industrial and intellectual property whether protected by common law or under statute including (without limitation) copyright and neighbouring rights, all rights in relation to inventions (including registered patents and the benefit of any applications for a patent), plant varieties, plant breeders, registered and unregistered trade marks, registered and unregistered designs, circuit layouts and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields anywhere in the world;

"Listings" means the offering for sale, placing of or creating of any type of auction or buy now on this Site;

"Seller" means a person, firm or company who offers for sale, or sells goods or services on this Site:

"Services" means the online auction services provided by bidorbuy by which a person, firm or company may sell or buy goods or services on this Site;

"Site" means the Internet web site by which bidorbuy offers the Services from time to time, currently /

"Standard Auction" means an auction to which the auction procedures in Clause 6 (as applicable) apply;

"Trade" or "Trading" means any form of listing on the Site, including but not limited to, Standard Auctions, Buy Now Items, Reverse Auctions and Credit Card Guaranteed Auctions;

"user" or "users" for the purposes of Clauses 12 and 13, means any Buyer or Seller, or someone who is otherwise using the Site;

"VAT" means any value added tax, or other consumption tax;

"we", "us", "our", "ourselves" and "bidorbuy" are used interchangeably in this Agreement and all mean bidorbuy;

"you" or "your" means you, whether as a Buyer and/or you as a Seller, as the case requires, or otherwise, and your successors and permitted assigns; and

"your information" includes all information you provide to us in using this Site, including, without limitation, as applicable:

(a) your registration details, including name and address details;

(b) your credit card details;

(c) any and all feedback, comments and rating scores made by you and about you pursuant to the Rating Systems Rules

(d) the information about any goods and services that you post on this Site;

(e) the information that we learn about you as a result of your use of this Site, including without limitation, through the goods and services you post on this Site if you are a Seller, and the goods and services you bid for and/or acquire if you are a Buyer.

PART 2: AUCTION TERMS AND CONDITIONS

1 Trading on this Site

1.1 As we are not involved in any sale and purchase of any goods and services on this Site, save for providing a venue for an auction of goods and services, and as described in Clauses 10.1 and 10.3, you hereby agree and acknowledge that we:

1.1.1 are not, nor do we represent or hold ourselves out as the manufacturer of any goods offered for sale and/or sold on this Site;

1.1.2 have absolutely no control over, nor do we represent or hold out that we have any control over any one or more of the circumstances described in Clause 4.5

1.1.3 have absolutely no control over whether, nor do we represent or hold out that, the goods and services offered for sale on this Site are legally able to be sold.

1.1.4 cannot guarantee, nor do we represent or hold out that the descriptions of any goods and services on this Site will be accurate;

1.1.5 have absolutely no control over, nor do we represent or hold out that a Seller or Buyer will perform their respective sale and purchase obligations of goods or services auctioned on this Site;

1.1.6 cannot and do not control, nor do we represent or hold out that a Buyer will pay for the goods and services that he/she has successfully bid for in an auction on this Site;

1.1.7 cannot and do not control, nor do we represent or hold out that any goods and services will be delivered to a respective Buyer by the respective Seller

1.1.8 cannot and do not represent nor hold out that we can confirm that each Buyer and Seller is who they claim to be;

1.1.9 cannot and do not represent or hold out that we can exercise any practical control over what feedback, comments or rating scores will be provided about you pursuant to the Rating Systems Rules

1.1.10 cannot and do not, nor do we represent or hold out that we can or could, despite any verification checks we may have undertaken pursuant to Clause 10.3, confirm any matters relating to any credit card details supplied to us by a Buyer or Seller (as the case may be) under this Agreement, including without limitation, that the:

1.1.10.1 credit card details of any Buyer or Seller (as the case may be) are correct;

1.1.10.2 credit limit has not been exceeded;

1.1.10.3 credit card has not been reported stolen;

1.1.10.4 Buyer or Seller is entitled to authorised use of the credit card; or

1.1.10.5 credit card is otherwise being lawfully used; and

1.1.11 will not become involved in any dispute between any Buyer and Seller arising out of, or in connection with, the completion of any sale and purchase of any goods or services on this Site, or with this Agreement, whatsoever.

2 Provision of Services

2.1 We will provide you with the Services.

2.2 We will provide you with a username and password in order to login as required.

2.3 We reserve the right to alter or vary your preferred username and password at any time and will notify you of any such alteration (by email where possible).

2.4 You agree to provide all necessary equipment, network connections and software to access this Site.

3 Fees

3.1 Registering, bidding on, buying and creating items on this Site do not attract a fee.

3.2 Selling on bidorbuy will incur Success Fee charges to your bidorbuy Account. It is a condition of using the Services that you agree to this and the fee structure, billing and credit rules as described in the Billing Statement. If you do not agree to this condition, then please do not accept these terms and conditions.

3.3 We may choose in our sole discretion to change our fee structure, billing and credit rules from time to time and such changes shall be effective forthwith.

3.4 We may choose in our sole discretion to change our fee structure, billing and credit rules from time to time, for promotional events and such changes are effective for the dates specified when we post such a promotion on this Site.

3.5 We reserve the right in our sole discretion to alter or remove any Services or withdraw any Services offered. In the event that we introduce a new Service, any fees for that Service will take effect from the launch of that Service, unless otherwise stated.

3.6 Unless otherwise stated, all fees are quoted in Kenyan Shillings and are inclusive of VAT/Tax.

3.7 Users are given the right to sell items on this Site by paying the relevant fees. This does not involve purchasing the rights to the actual web pages, which remain the property of bidorbuy; we reserve the right in our sole discretion to place third party advertisements on the pages without your consent or payment to you.

4 Seller

4.1 Subject to this Clause 4 and Clause 9, you may post the goods and services that you wish to offer for sale on the Site.

4.2 You agree that we or our nominated agent may undertake any necessary credit checks on you and/or your credit card where applicable.

4.3 In addition to any other rights we may have under this Agreement, if you fail to comply with Clause 4.2, we may prevent you from participating in any auction on this Site, or using the Services.

4.4 If you do so, you agree and warrant to the Buyer of those goods and services and separately to us that:

4.4.1 your information:

4.4.1.1 is accurate and not false, misleading, deceptive or fraudulent;

4.4.1.2 does not breach any Intellectual Property Rights of a third party;

4.4.1.3 is made in compliance with all applicable laws, government regulations or guidelines;

4.4.1.4 is not forged, threatening or offensive or otherwise constitutes harassment;

4.4.1.5 does not contain confidential information or trade secrets of a third party unless you have obtained the consent of the third party owner;

4.4.1.6 does not contain any viruses, worms, trojan horses or other invidious programs or data, whether attached to or embedded in other programs or data or not;

4.4.1.7 will not defame (libel or slander) another person or transmit misleading or inaccurate information of any kind, whether of a personal or commercial nature; and

4.4.1.8 does not contain child pornography, bestiality or any other sexually explicit, obscene or offensive material;

4.4.2 you are the legal owner of the goods and services you are offering for sale on this Site and you have the legal capacity to conclude the sale and to pass the title in the goods and services to the successful Buyer;

4.4.3 you will not hyperlink to or include descriptions of goods and services that you are not offering for sale on this Site;

4.4.4 you will adhere to the Listing Policy.

4.5 In addition to Clause 4.4, you represent and warrant to us and separately to the successful Buyer that:

4.5.1 the goods and services you offer for sale and sell, on this Site:

4.5.1.1 are reasonably fit for the purpose or purposes for which goods of that kind are commonly bought as it is reasonable to expect having regard to matters including, without limitation, the description of those goods and their price; and

4.5.1.2 correspond with the description that you have posted on this Site; and

4.5.1.3 if sold in bulk, will correspond with any samples; and

4.5.1.4 are not defective; and

4.5.1.5 are free of any charge or encumbrance such that the Buyer will be able to enjoy quiet possession of those goods;

4.5.2 the services you offer for sale, and sell, on this Site:

4.5.2.1 will be rendered with due care and skill; and

4.5.2.2 any materials supplied in connection with any services will be reasonably fit for the purpose for which they have been supplied; and

4.5.2.3 if the Buyer has made it known to you the particular purpose for which the services are required or the result the Buyer wishes any services to achieve, then those services and any materials supplied in connection with those services will be reasonably fit for that purpose or are of such nature and quality that they might be reasonably expected to achieve that result;

4.5.3 the goods and/or services you offer for sale, and sell on this Site:

4.5.3.1 will be offered for sale, and sold, in compliance with the laws of Kenya;

4.5.3.2 are legally able to be offered for sale, and sold on this Site, and otherwise, that the offer and sale of those goods and services is not in contravention of any law.

4.6 The Seller may set a reserve price, or minimum price for the goods and services, but that reserve price or minimum price, as the case may be, must not be set out in the information provided about the goods or services to which that reserve price or minimum price, whichever is applicable, applies, or otherwise disclosed to any person at any time.

4.7 In the information provided about the goods or services the Seller offers for sale, or sells on this Site, the Seller must set out the terms and conditions for sale of those goods or services, including the following:

4.7.1 whether the auction is a Standard Auction, Credit Card Guaranteed Auction, or Buy Now Item, or a combination of any of the preceding auctions;

4.7.2 as applicable, the minimum bid increments;

4.7.3 in the case of a Buy Now Item, a Buy Now Price,

4.7.4 date and time of opening, and closing, of the auction;

4.7.5 payment terms;

4.7.6 terms of delivery;

4.7.7 returns policy;

4.7.8 taxes, duties and costs (including, without limitation, VAT, or other consumption taxes, customs and other import duties and tariffs) payable by the Buyer; and

4.7.9 unless stated to the contrary, any value will be construed to refer to Kenyan Shillings;

4.7.10 that both buy now and auction selling prices will be considered to include VAT;

and the Seller agrees that such terms and conditions will include any matters prescribed by us under this Agreement including the matters set out in Clauses 10.2.2, 10.2.4, and 10.4, as well as any matter specified in the bidorbuy Guidelines.

5 Buyer

5.1 You agree and warrant to each Seller and separately to us that:

5.1.1 your information:

5.1.1.1 is accurate and not false, misleading, deceptive or fraudulent;

5.1.1.2 does not breach any Intellectual Property Rights of a third party;

5.1.1.3 is made in compliance with all applicable laws, government regulations or guidelines;

5.1.1.4 is not forged, threatening or offensive or otherwise constitutes harassment;

5.1.1.5 does not contain confidential information or trade secrets of a third party unless you have obtained the consent of the third party owner;

5.1.1.6 does not contain any viruses, worms, trojan horses or other invidious programs or data, whether attached to or embedded in other programs or data or not;

5.1.1.7 will not defame (libel or slander) another person or transmit misleading or inaccurate information of any kind, whether of a personal or commercial nature;

5.1.2 you have the legal capacity to purchase any goods or services that you bid for, and, will not otherwise be breaching any law in purchasing those goods or services;

5.1.3 you will not bid for any goods or services on this Site unless you are able, and have sufficient, available capacity to pay for those goods or services;

5.1.4 the purchase of any goods and/or services on this Site is absolutely at your own risk;

5.1.5 to the extent permitted by law, the Seller may exclude all terms, conditions and warranties whether express, implied, statutory, common law, or otherwise, relating to those goods and services, in all of the Seller's dealings in connection with the goods and services that you may purchase from the Seller on this Site; and

5.1.6 if you are bidding for adult goods and services, that you have the legal right to purchase those goods and services.

6 Conduct of Auction

6.1 The rules for conducting auctions on this Site are as follows:

6.1.1 you must not engage in bid manipulation to unfairly induce any other person to make bids and/or manipulate the bid price;

6.1.2 no bids below the stated minimum price (if there is one) will be accepted;

6.1.3 if the highest bid does not reach the reserve price (if there is one), then no bid will be regarded as having been successful;

6.1.4 a Buyer must, if so requested, provide credit card details to us immediately before your first bid, if the Buyer has not already done so pursuant to Clause 8;

6.1.5 all bids are final and not retractable by the Buyer and a Buyer shall be deemed to be the successful bidder in the following order:

6.1.5.1 in the case of a Buy Now Item, the first bidder who placed a bid at the Buy Now Price;

6.1.5.2 the Buyer who placed the highest bid;

6.1.5.3 the Buyer who placed the bid for the greatest quantity of goods or services at the highest price;

6.1.5.4 the first Buyer who placed the bid for the greatest quantity of goods or services at the highest price;

6.1.6 if the Buyer is a successful bidder as determined by Clause 6.1.5, and that bid is accepted, or deemed to be accepted, by the Seller, the Buyer must complete the purchase of the goods or services, save in exceptional circumstances such as the following:

6.1.6.1 the description of the goods or services is materially altered following the commencement of bidding; or

6.1.6.2 the Buyer is unable to authenticate the identity of the Seller; or

6.1.6.3 the Seller fails to deliver the goods or services (or fails to procure delivery thereof, as required) to the Buyer, by the date agreed by the Seller and Buyer in Clause 10.2.5; and

6.1.7 Bid deletion is not permitted without a valid reason or without the permission of bidorbuy.

6.1.8 if a Seller receives more than one bid above its stated minimum price, or if it is a reserve auction, the reserve price, it must accept the highest bid and complete its sale of the goods or services to that Buyer save in exceptional circumstances such as the following:

6.1.8.1 the Buyer fails to complete the purchase of the goods or services (for example, the Buyer fails to pay for the goods or services); or

6.1.8.2 the Seller is unable to authenticate the identity of the Buyer or the creditworthiness of the Buyer and the Buyer's ability to pay for the goods or services.

 

7 Ratings, Comments and Feedback

7.1 It is a condition of using the Services that you agree that feedback, comments and ratings scores may be provided about you as described in the Rating System Rules. If you do not agree to this condition, then please do not accept these terms and conditions.

7.2 If you believe a statement made about you pursuant to Clause 7.1 is untrue, misleading or deceptive or defamatory (" Questionable Statement "), please contact us at hello@bidorbuy.co.ke and we will conduct an investigation. As a result of an investigation, we may (although we are not obliged to) remove the Questionable Statement. Whether or not we conduct an investigation, and irrespective of whether we remove the Questionable Statement, and even if we do not conduct an investigation, because you do not contact us or for any other reason, you hereby release us and forego any rights you may have had against us in relation to the Questionable Statement or any statement made about you pursuant to the Rating System Rules and agree that you will not make any claims or demands, or take any action, issue or maintain any proceedings or suits against us in relation to the Questionable Statement or any statement made about you pursuant to the Rating Systems Rules or otherwise, in connection with this Site, or your use of this Site.

8 Payment Details - Buyer

8.1 In addition to Clause 6.1.4, we may request you to provide your valid and current credit card or bank account details to us at any time, whether before or after the bidding commences in respect of any goods or services, or at any time whatsoever.

8.2 In addition to any other rights we may have under this Agreement, if you fail to comply with Clause 6.1.4 or 8.1, we may prevent you from participating in any auction in respect of any goods or services, or using the Services unless and until you provide those credit card details to us.

8.3 By initiating and sending payments through bobPay or adding funds to your balance, you appoint bidorbuy as your agent to obtain the funds on your behalf and to transfer the funds to the designated recipient. bidorbuy may obtain the funds by any one or combination of the following means; by debiting the funds from your bidorbuy account, obtaining the funds per your instructions by debiting a bank account that you designate or charging your credit card. When you send a payment, until that payment is accepted by the recipient (which may occur instantly), you remain the owner of those funds and bidorbuy holds those funds as your agent, but you will not be able to withdraw those funds or send the funds to any other recipient unless the initial transaction is cancelled. May no

8.4 In making use of the bobPay service you acknowledge that (i) bidorbuy is not a bank and the Service is a payment processing service rather than a banking service, and (ii) bidorbuy is not acting as a trustee, fiduciary or escrow with respect to your funds, but is acting only as an agent and custodian.

9 bidorbuy Discretion

9.1 We reserve the right in our sole discretion to alter or remove any information or withdraw any goods or services offered for sale by you, or a bid placed by you, if:

9.1.1 that information and/or those goods or services, as applicable;

9.1.1.1 infringe or is suspected of infringing the Intellectual Property Rights of any person (other than the Seller in question); or

9.1.1.2 may create any liability for us whatsoever;

9.1.2 in relation to the goods and services set out in Clause 4.5, if we are not entirely satisfied that you are legally permitted to offer for sale or sell, those goods and/or services;

9.1.3 you have not complied with Clause 3.2 or Clause 4.2;

9.1.4 in relation to a bid, we reasonably believe that bid is not a legitimate, or commercially realistic bid for the goods and/or services;

9.1.5 it is otherwise in our commercial interests to do so;

9.1.6 we are required by law to do so;

9.1.7 you breach any provision of this Agreement; or

9.1.8 for any other reason whatsoever,

and you irrevocably and unconditionally agree that any rights that you may have had against us in respect of any action we may have taken under this Clause 9, are hereby waived.

10 Completion of Sale and Purchase of Goods or Services

10.1 We will notify the Seller and the successful Buyer of the successful sale (if any) of any goods or services by automated email when an auction closes.

10.2 Following receipt of the Confirmation Notice the Seller and the successful Buyer will be solely responsible for the following matters, including, but not limited to:

10.2.1 implementation of the sale and purchase of the goods or services, including reaching agreement on when risk in relation to the goods or services is passed onto the Buyer, and when title in the goods or services will be delivered to the Buyer;

10.2.2 ensuring they comply with the laws applicable in the jurisdiction in which the Buyer and Seller are located, with respect to completion of the sale and purchase of the goods and services (including without limitation, any formalities required to be undertaken in relation to that sale and purchase) and, if the Buyer and Seller are from different jurisdictions, then the governing law of any resultant contract or agreement between the Buyer and Seller will be Gauteng, the Republic of Kenya;

10.2.3 arranging for payment of the goods or services;

10.2.4 arranging any insurance (if any) in respect of the goods or services;

10.2.5 as applicable, agreeing a date for delivery of the goods or services; and

10.2.6 payment of all applicable taxes, duties and costs (including, without limitation, VAT or other consumption taxes and customs and other import duties and tariffs) incurred in connection with the sale and purchase of the goods and services.

10.3 Each Buyer agrees that we, or our nominated agent, may undertake any necessary credit checks on that Buyer's credit card and authorise us to provide those credit card details to the Seller in the relevant Confirmation Notice where such information was required and specified by the Seller under Clause 4.7.

10.4 We have no involvement in the sale and purchase of any goods and services other than providing a venue for an auction and as described in Clauses 10.1 and 10.3 so we will never accept returns of any goods and services purchased on this Site as we are not the Seller. You must therefore direct all enquiries, of whatever nature, including, but not limited to, goods and services being of a defective nature, not fit for a particular purpose, or non-delivery of any goods and services, to the Seller, at whose sole discretion, the goods or services may be replaced or the price refunded.

PART 3: GENERAL TERMS AND CONDITIONS

11 bidorbuy May Change These Terms and Conditions

11.1 We have an absolute discretion to change the terms of this Agreement at any time. If we do so, we will post details of any changes on this Site that will be effective forthwith.

11.2 By accepting this Agreement, you also agree to accept and be bound by any changes made by us under this Clause 11. In any event, your continued use of the Services after any changes to the terms of this Agreement have taken effect in accordance with Clause 11.1, will be deemed to be your acceptance of those changes to the terms of this Agreement.

12 Compliance with These Terms and Conditions

12.1 You agree to promptly inform us of any breach by you of the terms of this Agreement and of any conduct of another user that you think may be a breach of this Agreement, whether the conduct has ceased, is continuing, or may occur in the future.

12.2 You agree that we may and will monitor your conduct if we believe that you are not complying with the terms of this Agreement. If we do, then we will respect your confidentiality, unless:

12.2.1 doing so would or could implicate us in criminal behaviour, a civil wrong, or any other claim by a person for which we may have to pay compensation;

12.2.2 the law compels, requires, or makes it prudent and desirable for us to divulge or disclose the information we hold or know or any documents we possess; or

12.2.3 we consider it necessary or desirable to make disclosures to preserve or enforce our interests or rights.

12.3 If we believe, whether or not we have conducted any monitoring, that you are not, or may be in danger of not, complying with any of the provisions of this Agreement, then we may send you a warning asking you to rectify your conduct (although we will not be obliged to do so).

12.4 If you:

12.4.1 infringe or are suspected of infringing the Intellectual Property Rights of any other person;

12.4.2 are suspected of having, or are found by conviction, settlement insurance or escrow investigation or otherwise, to have engaged in any fraudulent or other criminal activity in connection with this Site or any other web site; or

12.4.3 have an over due payment on your bidorbuy Account; or

12.4.4 otherwise breach this Agreement,

we may, in our absolute discretion:

12.4.5 withhold from you, your use of any or all of the Services, and access to your information;

12.4.6 delete or remove, without incurring any liability to you, any or all of your information and block in-coming and out-going data or message transfers;

12.4.7 restore the Services if and when you can demonstrate clear and complete adherence to the terms of this Agreement on a permanent and consistent basis; and

12.4.8 terminate the Agreement that we have entered into with you, and cancel our obligations to provide the Services, if we are not satisfied that you will clearly and completely adhere to the terms of this Agreement, on a permanent and consistent basis, if the Services are restored to you.

13 Use of Site

13.1 In using this Site, you must not:

13.1.1 illegally copy, store, use, alter, modify, impair, interfere with or attempt to interfere with, or distribute software or other data;

13.1.2 alter, damage, destroy, erase, interfere with or attempt to interfere with, or infect our files, data and other computer systems and network resources or those of other users or any other person, or access, copy, modify, remove or impair the reliability, security or operation of, any data or files or other information stored in these systems or network resources;

13.1.3 impair the electronic communications to or from, or interfere with or obstruct the lawful use of, or otherwise cause any unauthorised computer functions to our computer systems or those of other users or any other person;

13.1.4 offer, sell, export, bid for, or import any Prohibited Goods and Services;

13.1.5 offer, sell, export, bid for, or import any goods and services if this breaches any law applicable to you; and

13.1.6 engage in any practice or conduct that is unlawful under any laws applicable to you;

13.1.7 copy, modify, or distribute rights or content from our sites, services or tools or bidorbuy's copyrights and trademarks;

13.1.8 harvest or otherwise collect information about users (including email addresses), trades listed or sales activities conducted on bidorbuy without the express permission of bidorbuy;

13.2 Any links or references (direct or indirect) to other web sites on this Site are provided for your convenience only and do not, and are not an express or implied endorsement by us, of those web sites, or the products and services contained on those web sites.

13.3 The information and material contained on this Site has been prepared in accordance with the laws of the Republic of Kenya for use in the Republic of Kenya only. It may not comply with the laws of any other country. We make no representation that the information and material contained on this Site complies with the laws (including any intellectual property laws) of any country other than the Republic of Kenya. If you choose to access this Site from outside the Republic of Kenya, you do so at your own risk and will be responsible for ensuring compliance with the laws of the country in which you are located.

13.4 Using information about other bidorbuy users - 

 

13.4.1 You agree to use user information only in accordance with applicable laws and regulations (including, without limitation, data protection laws) and only for:

  • bidorbuy-transaction-related purposes that are not unsolicited commercial communications;
  • using services offered through bidorbuy; and
  • other purposes a user expressly agrees to.

13.4.2 You agree to respect other users' privacy and disclose your privacy and security policies to them. By law, you must give other users a chance to remove themselves from your database and a chance to review the information you have collected about them.

13.5 Notwithstanding, and in addition to any other provision of this Agreement, you agree to comply with any laws applicable to you when using this Site and the sale or purchases of goods or services that you undertake as a result of using this Site.

 

14 Entering into this Agreement

14.1 You represent and warrant to us:

14.1.1 if you are an individual that you are twenty-one (21) years of age or over and of full legal capacity and thus capable of entering into this Agreement and performing your obligations under this Agreement; or

14.1.2 if you are a juristic entity:

14.1.2.1 that you are duly incorporated and have been issued with a certificate of commencement of business and have the power to own/sell property; and

14.1.2.2 entering into this Agreement does not violate your Constitution; and

14.1.2.3 you have the power and have taken all corporate and other action required to enter into this Agreement and to authorise entering into this Agreement and performing your obligations under this Agreement.14.1 You represent and warrant to us:

14.2 Transactions in case of a minor

14.2.1 If you are under 21 years of age or if you are not legally permitted to enter into a binding and enforceable agreement, then you may not register as a user or make use of the services of bidorbuy, unless you are duly supervised by and you have obtained the consent of your parent or legal guardian or spouse.

14.2.2 If your parent or legal guardian supervises you and gives his/her consent, then such person hereby agrees to be bound and to be liable and responsible for you and for all your obligations or duties in terms of the agreement entered into between yourself and bidorbuy (Pty) Ltd. In addition if you are not legally permitted to enter into a binding and enforceable agreement due to being placed under curatorship or if you have been sequestrated or if you have been placed under debt review, then you must obtain the consent of your curator or trustee or debt councillor.

14.2.3 We strictly reserve our rights to refuse our service, terminate/suspend your account or cancel orders, should bidorbuy, in our sole discretion find that you have failed for whatsoever reason to comply with the aforementioned provisions or the remaining provisions of these terms and conditions, without prejudice to any other rights that we may have at law.

14.2.4 To the extent that you utilize our services, we shall deem it that you were / are supervised by and that you have obtained the consent of your parent or legal guardian or curator or trustee. The onus to prove that you were not supervised or did obtain the requisite consent shall rest with you.

15 Licence of, and Use of, your Information

15.1 You hereby grant to us a non-exclusive, irrevocable, worldwide, perpetual, royalty-free right to exercise the Intellectual Property Rights you have in your information, in whatever medium.

15.2 Subject to Clause 15.1, we agree to use your information only in accordance with the Privacy Statement. If you do not agree with the terms of the Privacy Statement, please do not accept these terms and conditions.

16 User Traffic and its Content

16.1 While we will always endeavour to maintain ongoing access, and, prevent and correct disruptions and failures on this Site, we cannot and do not exercise control over the data, files and other information passing through our computer systems and network resources. Therefore you agree that you:

16.1.1 are responsible for the flow and storage of your information through our computer systems and network resources;

16.1.2 take full responsibility for data, files and other information you own, send, or receive and ensure that at all times you maintain adequate backup copies as appropriate;

16.1.3 must not engage in mass postings of messages, either through e‑mail or onto newsgroups, or engage in any harassment, 'electronic stalking' or 'spam';

16.1.4 must respect and abide by the conventions and rules governing the use of newsgroups, lists, discussion forums (such as ICQ and internet relay chat or similar channels), and networks, and must not post messages or otherwise communicate inappropriately, or send unsolicited messages (commercial or otherwise); and

16.1.5 accept that certain content on this Site, despite any steps we may take may contain material that you may find inappropriate, offensive, inflammatory, or adult in nature and further accept that we do not endorse such materials and disclaim any and all liability for their contents.

16.2 We cannot and do not know whether you have given access to your bidorbuy account to other people. You are therefore totally responsible for:

16.2.1 when and how your account with us is used; and

16.2.2 the actions of the people (if any) you allow to access, or transmit information through this Site, our computer systems and network resources or otherwise utilise the Services (whether or not you have given them your login and password details or not).

17 Commercial Uses of bidorbuy Services

17.1 We cannot and do not take any responsibility for any commercial enterprises you may conduct as the proprietor of any goods or services that you have chosen to sell or buy in reliance on this Site, our computer systems, network resources or the Services as part of a business or profit-making activity. Specifically:

17.1.1 if you, or those whom you permit to use your account, choose to rely upon this Site, our computer systems, network resources or the Services in any manner to support a business or other profit-making activity, you do so at your own risk absolutely; and

17.1.2 advertising, credit card payment channels, direct-debit facilities, and electronic registration forms are all examples of commercial uses of the Services where you must bear the risk absolutely.

17.2 The Services on this Site are provided to you personally and you must never resell, trade, or barter your rights to use the Services to another person or persons nor permit any third party to use the Services.

18 Relying Upon bidorbuy's Services

18.1 Whether you are using the Services for private or commercial purposes, or both, the quality and continuity of our Services depends on many factors over which we have no control and cannot seek to control. While we will always endeavour to maintain ongoing access, disruptions and failures of this Site, any or all computer systems, network resources and the Services, are probable in such an operating environment. Recognising this, you agree that:

18.1.1 we cannot and do not guarantee, warrant or otherwise imply that:

18.1.1.1 you will receive constant and uninterrupted access to this Site or the Services; or

18.1.1.2 you will receive unlimited access to all of the content available on the Site at any given time;

18.1.2 we cannot always ensure that this Site, its computer systems and network resources will be fully or continually protected from unlawful access by others, including the infection of data or other information by viruses, or the alteration, misuse, or stealing of data or other information or that any of these activities will be detected.

19 Disclaimer and Limitation of Liability

19.1 Notwithstanding, and in addition to any other provision in this Agreement, you agree that we will not be liable to you or any other person for any loss, damage, expense, or other amounts incurred, savings foregone, or hardship suffered, by any person however arising (including where the cause cannot be determined), or whether it arose directly or indirectly from any authorised or unauthorised use of, access to, reliance on, or any inability to use or access this Site, the Services, or as a consequence of such use, access, reliance, or inability to access, including, but not limited to any loss relating to one or more, or a combination, of the following:

19.1.1 a failure, or error in the operation, of all or any part of this Site, our computer systems, network resources, the Services, or any other computer systems or network resources to which they may be connected or upon which they may rely, or the taking offline of any of those computer systems or network resources for any reason;

19.1.2 any circumstances which produce or have the consequence of producing a degradation, fall-off, or complete severance of access to this Site or network resources or any other computer systems or network resources to which they may be connected by any person;

19.1.3 in relation to an auction on this Site, that bids were not processed or accepted due to technical difficulties or for any reason whatsoever;

19.1.4 whether we or another person could have foreseen such a loss or type of loss, or were negligent or reckless, whether or not the loss was suffered in connection with a business or commercial enterprise, including, but not limited to, any economic or consequential loss or damage, any and all damage to, or loss of, any equipment, property, data, or other information possessed by you or any other person, any loss of profits, and any losses relating to contracts, business, revenue, goodwill, or any anticipated savings;

19.1.5 any personal losses or hardship, stress and anxiety, nervous shock, or other personal suffering or condition;

19.1.6 any errors or omissions in any documentation or other literature provided by us, any errors or omissions in any data, on this Site, or any breach of contract or negligence on the part of us, our employees, agents or authorised representatives;

19.1.7 any reliance on, the information and material contained on this Site about any goods and services or any other information or material whatsoever, or any information and material contained on, and the privacy of, web sites linked to this Site;

19.1.8 any one or more of the circumstances described in Clauses 1.1, 7.2, 13.3, 13.4, 16.2, 17.1 or 18.1;

19.1.9 any feedback, comments or rating scores made by you, or about you, pursuant to the Rating Systems Rules;

19.1.10 any action taken by us under this Agreement, including, but not limited to, action taken under Clauses 12.1 to 12.4 (inclusive); or

19.1.11 any conduct, act or omission, whether negligent, reckless, or otherwise, whether within any actual, ostensible, or apparent authority or not, at all on the part of our employees, agents, or authorised representatives.

19.2 To the extent permitted by law, all terms, conditions and warranties or representations, or representation whether express, implied, statutory, common law or otherwise relating to the Services or anything in these terms and conditions, are excluded unless expressly included in this Agreement.

19.3 If any legislation or law implies in this Agreement any term or warranty and also prohibits provisions in a contract excluding the application of or exercise of that term or warranty then, to the maximum extent permitted by law, our liability for a breach of such a term or warranty will be limited, at our option to any one or more of the following:

19.3.1 if the breach relates to goods:

19.3.1.1 the replacement of the goods or the supply of equivalent goods;

19.3.1.2 the repair of such goods;

19.3.1.3 the payment of the cost of replacing the goods or of acquiring equivalent goods; or

19.3.1.4 the payment of the cost of replacing the goods repaired; and

19.3.2 if the breach relates to services:

19.3.2.1 the supplying of the services again; or

19.3.2.2 the payment of the cost of having the services supplied again.

19.4 Notwithstanding anything else in this Agreement if an Indemnified Party is liable to you, whether in respect of negligence or other delict, breach of contract or warranty, breach of statute or statutory duty, equity or otherwise directly or indirectly in relation to the performance of or any delay or failure in the performance of its obligations under this Agreement, the maximum aggregate liability of an Indemnified Party, in respect of all claims made by you for every 12 month period commencing on the execution of this Agreement or the anniversary thereof shall be KSh1000.

20 Release and Indemnity

20.1 Notwithstanding, and in addition to any other provision in this Agreement, to the maximum extent permitted by law, you agree to release from, and indemnify, each Indemnified Party, against, any claims, losses, liabilities, suits, demands, proceedings, costs or expenses (including legal costs on a full indemnity basis) directly or indirectly related to, or, arising out of:

20.1.1 your use of the Services;

20.1.2 your offering for sale and the sale of, and/or, your bidding for and the purchase of, any goods and services as a result of using the Services;

20.1.3 the reproduction, broadcast, transmission communication or making available of any information or material (including credit card details) by us or any users (other than you) made available by use of the Services;

20.1.4 any one or more of the circumstances described in Clause 19.1;

20.1.5 any alleged breach of a person's rights (including, but not limited to, defamation or misleading or deceptive conduct) by a communication, broadcast or transmission made available by means of the Services; or

20.1.6 any claim by any person arising out of, or in connection with any cessation (temporary or permanent) of the supply of the Services in accordance with this Agreement.

20.2 The indemnity under Clause 20.1 does not extend to:

20.2.1 expenses incurred by us that are unreasonable; or

20.2.2 losses occasioned by us as a result of this Agreement proving not to be profitable to us.

21 Disputes

21.1 You and bidorbuy must follow the procedure for resolving any dispute in connection with or arising out of this Agreement, in accordance with this Clause 21 before starting any proceedings (except proceedings seeking urgent interlocutory relief).

21.2 The procedure for resolving a dispute is as follows:

21.2.1 first, either you or bidorbuy may give notice to the other about the nature of the dispute (" Notice ") and you and bidorbuy will seek to negotiate a settlement within 14 working days of receipt of the Notice;

21.2.2 second, to the extent those negotiations fail, you and bidorbuy will seek, within a further 2 days, to reach agreement on the appointment of a mediator for resolving the dispute, and failing any such agreement, the mediator shall be appointed by bidorbuy; and

21.2.3 failing such a resolution, the dispute, if arbitrable in law, shall be finally resolved in accordance with the laws and regulations set out under Kenyan law.

22 Entire Agreement

This Agreement constitutes the entire agreement between you and bidorbuy.

23 Remedies Cumulative

All rights and remedies provided in this Agreement are cumulative and are not exclusive of any rights or remedies provided by law.

24 Relationship Of Parties

Nothing in this Agreement shall be deemed to constitute any party as the agent, partner or joint venturer of another party.

25 Further Assurances

A party shall take all such steps, execute all such documents and do all such acts and things as may be reasonably required by another party to give effect to any of the transactions contemplated by this Agreement.

26 Non-Waiver

Other than as otherwise specified in this Agreement, neither the failure of a party to enforce at any time any of the provisions of this Agreement nor the granting of any time or other indulgence shall be construed as a waiver of that provision or of the right of that party thereafter to enforce that or any other provision.

27 Governing Law

This Agreement will be governed by the laws in force in the Republic of Kenya and each party unconditionally submits to the non-exclusive jurisdiction of the Courts of the Republic of Kenya in relation to any legal action, suit or proceeding arising out of or with respect to this Agreement.

28 Notices

Any notice to be served by either party to the other must be in writing and will be sent by hand delivery, post or facsimile, or email to the relevant party to this agreement at its respective address as specified on the application for registration on this Site and, in the case of bidorbuy, bidorbuy Head Office, Ground Floor, Building 2, Silverpoint Office Park, 22 Ealing Crescent, Bryanston, South Africa and in the case of mail will be deemed to have been served three (3) business days after posting. In the case of a facsimile it will be deemed to have been served on receipt of a successful transmission notice and in the case of email it will be deemed to have been served if no return email stating that the email cannot be delivered is received.

 

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