Terms of Service
Last Updated Date: April 2021
Effective Date: April 2021
These Terms of Service constitute a legally binding Agreement between you and Bingwa governing your use of the Platform (as defined below), BINGWA’s website (https://www.bingwa.ke (hereinafter the “Site”) and Mobile Applications (the “App”), the Bingwa Platform and related services provided by the Bingwa, the Site and Apps, including without limitation communications, information, data (whether in writing, orally or otherwise howsoever) provided by/to the BINGWA to/by potential and actual Bingwas, Bingwa Partners or Bingwa Consultants, (both as defined under Clause 9) in relation to services, materials, supplies, items or consultancy, together are hereinafter collectively referred to as the (“Platform”)
Any personal data you submit to the Platform or which the Bingwa/Platform collect about you is governed by our Privacy Policy. A Copy of our privacy policy is available on https://www.bingwa.ke/app/terms-and-conditions You acknowledge that by using the Platform you have reviewed the Privacy Policy.
By accessing or using the Site, the Platform and/or services, BINGWA Platform Agents (“Agent” as defined under Clause 12 below) or any applications (including mobile applications) made available by the Bingwa (together, the "Service"), however accessed, you agree that:
a) You have read, understand, and agree to be bound by this Terms ("Terms of Use/Service") as well as Bingwa’s Privacy Policy available at https://www.bingwa.ke/app/terms-and-conditions ("the Privacy Policy");
b) You have the authority to enter into these Terms (including all of the terms and conditions specified or referenced below, including the Privacy Policy). The Service is owned or controlled by the Bingwa. These Terms of Use affect your legal rights and obligations. If you do not agree to be bound by all of these Terms of Use, do not access or use the Service.
1. Basic Rules
a) The Bingwa hereby grants you a non-exclusive, non-transferable, revocable, limited license, without the right to grant or authorize sub-licenses, to use the services, provided that you will use the services only as permitted by these Terms.
b) You must be 18 years old or at least the legally required age in the jurisdiction in which you reside, and otherwise capable of entering into binding contracts, in order to use or access the Platform. If you are under 18 years old or the age of majority in your jurisdiction, then you may not use or access the Platform.
c) Children under 14 years old are prohibited from accessing the Platform or otherwise providing any personal information to the Bingwa unless the same is done through a registered adult.
d) You may not post violent, nude, partially nude, discriminatory, unlawful, infringing, hateful, pornographic or sexually suggestive photos or other inappropriate content via the Platform/Service.
e) You are responsible for any activity that occurs through your account and you agree you will not sell, transfer, license or assign your account, username, or any account rights. With the exception of people or businesses that are expressly authorized to create accounts on behalf of their employees or clients, the Bingwa/Platform prohibits the creation of and you agree that you will not create an account for anyone other than yourself. You also represent that all information you provide or provided to the Bingwa/Platform upon registration and at all other times will be true, accurate, current and complete and you agree to update your information as necessary to maintain its truth, up-to-date and accuracy.
f) You agree that you will not solicit, collect or use the login credentials of other service users.
g) You agree that you will NOT hack, interfere or access the accounts of other users.
h) You are responsible for keeping your password secret and secure.
i) You must not defame, stalk, bully, abuse, harass, threaten, impersonate or intimidate people or entities on the Site/ Platform.
j) You may not use the Service for any illegal or unauthorized purpose. You agree to comply with all laws, rules and regulations applicable to your use of the Service and your Content (defined below), including but not limited to, copyright laws.
k) You are solely responsible for your conduct and any data, text, files, information, usernames, images, graphics, photos, profiles, audio and video clips, sounds, musical works, works of authorship, applications, links and other content or materials (collectively, "Content") that you submit, post or display on the Site or via the Service.
l) You must not change, modify, adapt or alter the Service/Site/App/ Platform or change, modify or alter another website so as to falsely imply that it is associated with the Service or the Bingwa/ Platform.
m) You must not access the Site, the Bingwa’s/Platform’s private API by means other than those permitted by the Bingwa.
n) You must not create or submit unwanted email, comments, likes or other forms of commercial or harassing communications (a.k.a "spam") to any Service/Platform users.
o) You must not use domain names or web URLs in your username without prior written consent from the Bingwa/ Platform.
p) You must not interfere or disrupt the Service or servers or networks connected to the Service, including by transmitting any worms, viruses, spyware, malware or any other code of a destructive or disruptive nature. You may not inject content or code or otherwise alter or interfere with the way any of the Bingwa’s/ Platform’s page is rendered or displayed in a user's browser or device.
q) You must not create accounts with the Service/on the Platform through unauthorized means, including but not limited to, using an automated device, script, bot, spider, crawler or scraper.
r) You must not attempt to restrict another user from using or enjoying the Service/Platform and you must not encourage or facilitate violations of these Terms of Use or any other Bingwa’s/Platform’s terms.
s) Violation of these Terms of Use may, in the Bingwa’s/Platform’s sole discretion, result in termination of your Account. You understand and agree that the Bingwa/ Platform cannot and will not be responsible for the content posted on the Service/Platform and you use the Service/Platform at your own risk. If you violate the letter or spirit of these Terms of Use, or otherwise create risk or possible legal exposure for the Bingwa/ Platform, we can stop providing all or part of the Service to you.
t) While the Bingwa/ Platform prohibits certain conduct and content on its Service/Platform, the Bingwa/Platform does not and has no obligation to monitor users’ actions, commissions, omissions etc, and the Bingwa/ Platform is not responsible for, user content or activities of the users of the Service/Platform.
2. Registration data and Account Security
You may need to create a Bingwa Account (“Account”) to use certain Services/the Platform or access some of the features of the Platform. You understand that we may send notices, e-mails, statements, referencing, announcements and other account-related information to you using the information on your Account, and you hereby consent to us doing so. You represent and warrant that your Account information is accurate and complete, and you agree to keep your Account information up-to-date, accurate and complete. You are solely responsible for the security of your Account, including for keeping any access credentials (such as user IDs, passwords and other access credentials) secure. You must not share your access credentials with any other person or entity and, in case of any security breach; you must promptly notify the Bingwa/Platform and change your access credentials immediately. You are solely responsible for all activities that occur on or through your Account, including any purchases and/or procurement of services. In no event will the Bingwa/ Platform be responsible for any activity, damages, liability or losses arising out of or resulting from the unauthorized use of your Account or from your failure to keep your Account information and access credentials secure, accurate and complete.
3. User Rights/User Content/Acceptable Use
a) The Bingwa/ Platform does not claim ownership of any Content that you post on or through the Service. However, you hereby grant the Bingwa a non-exclusive, royalty-free, transferable, sub-licensable, worldwide license to use the Content that you post on or through the Service/Platform, subject to the Service’s Privacy Policy.
b) When you post to Bingwa/Platform but do not share publicly, your Content is not made available to third parties. However, if the Content has been uploaded to the Site/ Platform, Bingwa staff is able to see it. Bingwa endeavour to keep your private Content private, but please keep in mind that no technology is 100% secure, and it is possible that unauthorized third parties could defeat our security measures and access your private Content. Please note that if you make Content public and later switch it to private or delete it, we may not be able to remove it from the Servers.
c) Except as otherwise described in the Bingwa’s/ Platform Privacy Policy, as between you and the Bingwa/Platform, any Content will be non-confidential and non-proprietary and we will not be liable for any use or disclosure of any Content. You acknowledge and agree that your relationship with the Bingwa/Platform is not a confidential, fiduciary, or other type of special relationship, and that your decision to submit any Content does not place the Bingwa/Platform in a position that is any different from the position held by members of the general public, including with regard to your Content. None of your Content will be subject to any obligation of confidence on the part of the Bingwa/Platform, and the Bingwa/Platform will not be liable for any use or disclosure of any Content you provide.
d) When you post to the Service/ Platform publicly, your Content is made available to the public. This typically means that anyone who is on the site can see it, as well as anyone who searches for the nametag(s) with which you label the Content. It also means that your Content might be featured in our applications (“Apps”) or website, or might appear in our emails or other communications.
e) Subject to the terms and conditions of this Agreement, the Bingwa/Platform grants you a personal, non-transferable, non-exclusive, non-sub licensable, limited, revocable license to use the Service(s) that the Bingwa/ Platform makes accessible to you, provided you use the Service solely and strictly in accordance with this Agreement and any applicable Guidelines.
f) You are solely responsible for User Content, User Data and your use of the Site/Services/Platform. We do not endorse User Content or User Data, we have no obligation to monitor any User Content or User Data, and assume no responsibility whatsoever for these materials. In all cases, the Bingwa/ Platform reserves the right to remove or disable access to any User Content or User Data without liability to you for any or no reason, including to account for changes to Services/Platform or to prevent breaches of this Agreement, harm to other users, or liability to third parties. The Bingwa/Platform may take these actions without prior notification to you or any third party. Removal or disabling of access to these materials shall be at our sole discretion, and we do not promise to remove or disable access to any specific User Content or User Data. You are solely responsible for maintaining additional backup of User Content and any User Data, and the Bingwa/ Platform is not responsible for loss or destruction of these materials.
g) The Service contains content owned or licensed by the Bingwa/Platform ("Platform/Bingwa Content"). The Bingwa’s/Platform’s Content is protected by copyright, trademark, patent, trade secret and other laws, and, as between you and the Bingwa/Platform, The Bingwa/Platform owns and retains all rights in the Bingwa’s/Platform’s Content and the Service. You will not remove, alter or conceal any copyright, trademark, service mark or other proprietary rights, notices incorporated in or acBingwaing the Bingwa’s/Platform’s Content and you will not reproduce, modify, adapt, prepare derivative works based on, perform, display, publish, distribute, transmit, broadcast, sell, license or otherwise exploit the Bingwa’s/Platform’s Content.
h) You agree that the Bingwa/Platform is not responsible for, and does not endorse, Content posted within the Service.
4. Use of the Bingwa’s Logos
The Bingwa’s and/or Platform’s logos are the corporate identifier and official seal of the Organization, and are protected under international treaties and conventions on intellectual property. Their use is highly restricted and is prohibited without prior permission. Requests for use of the Bingwa’s/Platform’s logos for any reason whatsoever, whether or not in association with other logos, must be addressed to the Bingwa. If permission for use of the Bingwa’s/Platform’s logos is granted, instructions for its/their placement and display, including related disclaimers, must be strictly adhered to. The use and reproduction of content containing the Bingwa’s/Platform’s logos must not be in association with advertising or with the names of proprietary products and must not imply the Bingwa’s/Platform’s endorsement of products or services in any way unless the Bingwa/Platform has expressly authorised in writing its logos to be used as an endorsement of products or services. The Bingwa reserves the right to request the immediate removal of its logos from unauthorized websites or products.
5. Third Parties
The Service may contain links to independent third-party websites and services (collectively, "Third Party Sites"). Third Party Sites are not under the Bingwa’s/Platform’s control, and the Bingwa does not endorse, is not responsible for, and shall have no liability to you with respect to the business practices, privacy practices, or content including, without limitation, any and all materials, information, merchandise, products or services displayed, featured, mentioned, advertised, distributed or sold on or through such Third Party Sites. If you access any Third Party Site, you acknowledge and agree that you do so at your own risk and that it is your responsibility to read and understand the privacy, membership, payment and other policies of the Third Party Sites and to determine whether or not you will have any interaction with any of those sites.
6. Disclaimer of Warranties
THE SERVICES AND THE BINGWA’S/PLATFORM’S CONTENT ARE PROVIDED ON AND "AS IS," "AS AVAILABLE" AND "WITH ALL FAULTS" BASIS. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, THE BINGWA/PLATFORM MAKES NO REPRESENTATIONS OR WARRANTIES OR ENDORSEMENTS OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, AS TO: (A) THE SERVICES; (B) THE PLATFORM/ THE BINGWA CONTENT; (C) USER CONTENT; OR (D) SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION TO THE BINGWA OR VIA THE SERVICES. THE BINGWA/PLATFORM HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND SATISFACTORY PURPOSE.
THE BINGWA/PLATFORM DOES NOT REPRESENT OR WARRANT THAT THE SERVICES WILL BE ERROR-FREE, UNINTERRUPTED, OR SECURE; THAT USER CONTENT MARKED AS PRIVATE WILL NOT BECOME PUBLIC; THAT DEFECTS WILL BE CORRECTED; OR THAT THE SERVICES ARE FREE FROM ANY HARMFUL COMPONENTS, INCLUDING, WITHOUT LIMITATION, VIRUSES. THE BINGWA/PLATFORM DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES THAT THE CONTENT (INCLUDING ANY USER CONTENT OR THE BINGWA/PLATFORM CONTENT) AVAILABLE ON OR THROUGH THE SERVICES IS ACCURATE, COMPLETE, OR USEFUL. YOU ACKNOWLEDGE THAT YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. THE BINGWA/PLATFORM DOES NOT WARRANT THAT YOUR USE OF THE SERVICES IS LAWFUL IN ANY PARTICULAR JURISDICTION, AND THE BINGWA/PLATFORM SPECIFICALLY DISCLAIMS SUCH WARRANTIES.
YOU SPECIFICALLY ACKNOWLEDGE THAT THE BINGWA/PLATFORM DOES NOT ENDORSE ANY USER CONTENT OR OTHER THIRD PARTY CONTENT AND SPECIFICALLY DISCLAIMS ANY RESPONSIBILITY OR LIABILITY TO ANY PERSON OR ENTITY FOR ANY LOSS, DAMAGE (WHETHER ACTUAL, CONSEQUENTIAL, PUNITIVE OR OTHERWISE), INJURY, CLAIM, LIABILITY OR OTHER CAUSE OF ANY KIND OR CHARACTER ARISING OR RESULTING FROM ANY CONTENT (INCLUDING, WITHOUT LIMITATION, USER CONTENT), INTERACTIONS BETWEEN USERS OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU.
7. Indemnity
You agree to defend (at the Bingwa’s/Platform’s request), indemnity and hold the Bingwa/Platform and its affiliates, directors, officers, employees, contractors, and agents harmless from and against any claims, liabilities, damages, losses, and expenses, including without limitation, reasonable attorney's fees and costs, arising out of or in any way connected with any of the following (including as a result of your direct activities in connection with the Services or those conducted on your behalf): (i) your User Content or your access to or use of the Services; (ii) your breach or alleged breach of these Terms; (iii) your violation of any third-party right, including without limitation, any intellectual property right, publicity, confidentiality, property or privacy right; (iv) your violation of any laws, rules, regulations, codes, statutes, ordinances or orders of any governmental authorities, including, without limitation, all regulatory, administrative and legislative authorities; or (v) any misrepresentation made by you. You will cooperate as fully required by the Bingwa/ Platform in the defence of any claim. The Bingwa/Platform reserves the right to assume the exclusive defence and control of any matter subject to indemnification by you, and you will not in any event settle any claim without the prior written consent of Platform/the Bingwa .
8. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE BINGWA/ PLATFORM, ITS AFFILIATES, LICENSORS, SPONSORS, OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS, BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OR FOR ANY LOST PROFITS, COST OF COVER, LOSS OF DATA, USE, GOOD-WILL, OR OTHER INTANGIBLE LOSSES WHATSOEVER ARISING OR RESULTING FROM (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT DISPLAYED ON OR THROUGH THE SERVICES, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND/OR USE OF (OR YOUR INABILITY TO ACCESS AND USE) THE SERVICES, INCLUDING, WITHOUT LIMITATION, MAKING PRIVATE CONTENT PUBLIC OR ANY DAMAGE CAUSED TO YOUR COMPUTER OR SOFTWARE OR INFORMATION STORED THEREON, (III) ANY CONDUCT OR CONTENT OF ANY THIRD PARTY OBTAINED ON OR THROUGH THE SERVICES, INCLUDING WITHOUT LIMITATION, ANY DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD PARTIES (IV) ANY UNAUTHORIZED ACCESS TO OR USE OF SERVICES AND/OR ANY AND ALL PERSONAL, PRIVATE, AND/ OR OTHER INFORMATION STORED THEREIN, (V) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICES OR THROUGH THE SERVICES, (VI) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH THE SERVICES BY ANY THIRD PARTY, (VII) UNAUTHORIZED ACCESS, USE OR ALTERATION OF YOUR TRANSMISSIONS OR USER CONTENT, (VIII) EMAILS OR OTHER TRANSMISSIONS OR COMMUNICATIONS MADE TO YOU THROUGH THE SERVICES AND/OR (IX) ANY ERRORS OR OMISSIONS IN ANY CONTENT (INCLUDING THE BINGWA’S CONTENT OR USER CONTENT) OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF YOUR USE OF ANY CONTENT (INCLUDING USER CONTENT) OR SERVICES POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THE BINGWA/PLATFORM IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE BINGWA’S AGGREGATE CUMULATIVE LIABILITY FOR ANY CLAIMS ARISING OUT OF OR RELATED TO THESE TERMS OR THE SERVICES, EXCEED ONE THOUSAND KENYA SHILLINGS (KES.1000.00). THE EXISTENCE OF ONE OR MORE CLAIMS WILL NOT SERVE TO ENLARGE THIS LIMIT. THIS LIMITATION WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY SET FORTH HEREIN. YOU ACKNOWLEDGE THAT THE DISCLAIMERS AND LIMITATIONS HEREIN ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES.
The limitations or exclusions of warranties and remedies contained in the Terms shall apply to you as a consumer/user of the Platform only to the extent such limitations or exclusions and remedies are permitted under the laws of Kenya.
9. General Release
You acknowledge that the Bingwa/ Platform does not control the interactions between any user and you, or any user and an Agent, any user and a Client, any user and a Bingwa or Partners, nor does the Bingwa/Platform control or monitor any User Content. You acknowledge and agree that the Bingwa/Platform does not assume any responsibility or liability for User Content generated by you or any user of the Services posted anywhere, including without limitation, personally identifiable information posted publicly, or the conduct of you or any user, and you bear the entire risk of your continued use of the Services, including your interactions with other users. You agree that the Bingwa/Platform will not be responsible for any claim, loss, liability, personal injury (including death), damage, cost or expense (including attorneys' fees), incurred as the result of or relating to any User Content, or any interactions with other users or third parties, including disputes between you and other users regarding User Content, user dissemination of your User Content or any other User Content, and any and all other disputes or conflicts arising from your use of the Services. If there is a claim or dispute between you and any other user or third party, the Bingwa is under no obligation to become involved. You understand and agree that the Bingwa/Platform is not responsible or liable in any way for any communication, actions, or conduct between you and other users. You, on behalf of you and your heirs, successors and assigns, hereby release and forever discharge the Bingwa/Platform , and its affiliates, employees, contractors, agents, successors, and assigns, from, and hereby waive and relinquish, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injury, death, and property damage), that has arisen or arises directly or indirectly out of, or relates directly or indirectly to the Terms, your use of the Services, any User Content, or any of your interactions with other users or third parties.
10.Video/Photographic Image Release
Bingwas, Bingwa Partners, Bingwa Consultants and Clients who participate in BINGWA’s programs, training and activities by attending such trainings and activities they hereby consent that the Platform, its related and affiliated entities, officers/directors, employees, agents, successors and assigns to can take videos and photographic images, or other reproductions or likenesses in any media form (collectively “Images”) of the Bingwas, Bingwa Partners or Bingwa Consultants and Clients and their participation in the programs, training and activities. Bingwas, Bingwa Partners, Bingwa Consultants and Clients attending such trainings and activities, by virtue of their attendance hereby consent to, authorize and license the Platform to use their likeness and the Images in advertisements and training presentations, the Platform’s training materials, on the Platform/Site website (currently at: www.bingwa.ke ), and in other lawful uses in any medium.
Bingwas, Bingwa Partners, Bingwa Consultants and Clients that attend the trainings, by virtue of their attendance hereby agree that all Images are and shall remain the property of the Platform. They irrevocably transfer and assign to the Platform their entire right, title and interest, if any, in and to the Images taken at the said training and/ or activities. They hereby agree that all copyrights, rights of publicity and other intellectual property rights in the Images shall belong to the Platform. If requested, they will execute any additional agreements to evidence these rights. They acknowledge that the Platform has no obligation to use the Images.
They acknowledge that use of the Images by the Platform may be undertaken without prior notice. All use of the Images will be without compensation to them
They hereby release the Platform from all liability, claims or demands arising from or in connection with the use of Images, (including, without limitation, editing or alteration or the Images), including but not limited to all claims for invasion of privacy or right of publicity.
This Release is effective immediately and will remain in effect unless withdrawn in writing. Consent may be withdrawn at any time as to future use of the Images provided that the withdrawal is in writing. The Platform cannot withdraw Images already published. This Release is the entire understanding between Bingwas, Bingwa Partners, Bingwa Consultants and Clients who participate in the trainings and activities of the Platform and Bingwas, Bingwa Partners, Bingwa Consultants and Clients regarding the Images and the Bingwas, Bingwa Partners, Bingwa Consultants and Clients hereby voluntarily declare that they are not relying on any representations or promises from Platform that are not in this Release. This Release is binding upon Bingwas, Bingwa Partners, Bingwa Consultants and Clients’ heirs and assigns. If any part of this Release is invalid, illegal or unenforceable in any jurisdiction, that part shall be removed but all other parts shall remain effective.
11.The Bingwa Platform Connects Bingwas, Bingwa Partners, Bingwa Consultants and Clients, Suppliers and Clients
The Platform is a web-based communications platform which enables connections between Clients, Suppliers, Bingwas, Bingwa Partners, and Bingwa Consultants. “Clients” are individuals and/or businesses seeking to obtain services/goods from Bingwas, Bingwa Partners or Bingwa Consultants and Suppliers and are therefore Clients of Bingwas, Bingwa Partners, Bingwa Consultants and Suppliers. “Bingwas, Bingwa Partners or Bingwa Consultants and Clients” are individuals and/or businesses who have the expertise, experience, knowledge, know how to execute specific task and/or provide specific service sought by Clients. Suppliers are individuals and/or business who have the materials required by the Bingwas, Bingwa Partners or Bingwa Consultants and Clients in execution of their tasks and/or provision of their services or required by Clients for purposes of execution of tasks or provision of services by Bingwas, Bingwa Partners, or Bingwa Consultants. Clients, Suppliers, Agents, Bingwas, Bingwa Partners or Bingwa Consultants together are hereinafter referred to as “Users.” If you agree on the terms of a service /sale of goods with another User, you and such other User form a Service Agreement directly between the two of you. The Bingwa/Platform is not a party to the said Service Agreement and each User is independently liable for his/her/it/actions, commissions and omissions.
12. SUPPLIERS AND BINGWAS, BINGWA PARTNERS OR BINGWA CONSULTANTS, ARE INDEPENDENT CONTRACTORS OF CLIENTS AND NOT EMPLOYEES, PARTNERS, REPRESENTATIVES, AGENTS, JOINT VENTURERS, INDEPENDENT CONTRACTORS OR FRANCHISEES OF BINGWA. BINGWA DOES NOT PERFORM TASKS/SELL MERCHANDISE/PROVIDE SERVICES TO CLIENTS AND DOES NOT EMPLOY INDIVIDUALS TO PERFORM TASKS/ PROVIDE SERVICES/SELL GOODS/MATERIALS. USERS HEREBY ACKNOWLEDGE THAT BINGWA DOES NOT SUPERVISE, DIRECT, CONTROL OR MONITOR A BINGWA’S/SUPPLIER’S WORK/MATERIAL/GOOD AND EXPRESSLY DISCLAIMS ANY RESPONSIBILITY AND LIABILITY FOR THE WORK PERFORMED/SERVICES PROVIDED AND THE TASKS PERFORMED/SERVICES PROVIDES BY BINGWAS, BINGWA PARTNERS OR BINGWA CONSULTANTS AND CLIENTS IN ANY MANNER, INCLUDING BUT NOT LIMITED TO A WARRANTY OR CONDITION OF GOOD AND WORKMANLIKE SERVICES, WARRANTY OR CONDITION OF QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, OR COMPLIANCE WITH ANY LAW, REGULATION OR CODE.
13.The Bingwa Platform only enables connections between Users for the fulfillment of tasks/provision of services. The Bingwa/Platform is not responsible for the performance or communications of Users, nor does it have control over the quality, timing, legality, failure to provide, or any other aspect whatsoever of tasks/services, Bingwas, Bingwa Partners, Bingwa Consultants, Suppliers, Clients, nor of the integrity, responsibility, competence, qualifications, or any of the actions or omissions whatsoever of any Users, or of any ratings provided by Users with respect to each other. Bingwa makes no warranties or representations about the suitability, reliability, timeliness, or accuracy of the tasks requested or services provided by, or the communications of or between, Users identified through the Platform, whether in public, private, or offline interactions or otherwise howsoever.
14.Independent Agents
a) Independent Agents (“Agent”) means a person who enters into an independent contract with a Client, Supplier, Consultant or Bingwa for purposes of enabling the said Client, Supplier, Consultant or Bingwa to access and get better experience and value on the Platform. These are persons retained by Client’s, Supplier’s, Consultant’s or Bingwa’s with or without an access with a gadget/device that can access the Site/Platform). They could also be persons appointed by Clients, Suppliers, Consultants or Bingwa but themselves as Users on the platform.
b) The Relationship between an Agent and a Client, Supplier, Consultant, Bingwa is specific to the Agent and the Client/Bingwa/Consultant/Supplier involved and the Bingwa/Platform is not party such a contract or transaction.
c) When a Bingwa/Client/Consultant/Supplier retains the services of an Agent, the said Agent and Bigwig/Client/Consultant/Supplier enter into a Service Agreement and the Bingwa/Platform is not a party to the said Service Agreement.
d) The Agents must not give job opportunities to Bingwas, Bingwa Partners or Bingwa Consultants and Clients not registered on the Platform and claim commissions as this will be declared null and void.
e) The Agents must keep their login credentials private, as Platform/Bingwa will not be liable if unauthorized persons access their accounts.
f) The Agents must not partner with the Bingwas, Bingwa Partners, Bingwa Consultants and Clients/Suppliers/Consultants/Clients to defraud the Bingwa. In case the Bingwa establishes or suspects that an Agent and a Bangla/User are cohooting to defraud the Bingwa, the Independent Agent and the Bingwa, Bingwa Partners or Bingwa Consultants and Clients user Account’s will be suspended and or terminated at the Bingwa’s discretion. The Agent and the Bingwa/User shall also refund the Bingwa all the monies that Bingwa may have lost or refund the Client, Consultant, Supplier or any other person affected by their fraudulent actions, commissions/omissions.
g) When a Bingwa is engaged he/she will be compensated his/her transport, if he/she chooses to and has stated as so on the platform upon registration before the work is done. This is where the Bingwa comes to assess the task and gives an expert opinion on the service requirements. Distance less than 5 Km will not require compensation. Where the Bingwa needs to be compensated for the transport, the Bingwa needs to have travelled beyond 5 Km and a fee of Ksh 200 or equivalent in currency or as stated upon registration. Every extra 5 Km, an additional Ksh 50 shall be added or equivalent agreed currency.
15.Variation of Contract
The Users of the Bingwa Platform have the right to negotiate for variation of the terms with the client and both agree on the change order on the platform. The reasons for variation must be justified by the party requesting for variation. The Party being requested for variation has the right to declined or accept the variation(s) provided that consent to the variation(s) is not unreasonably withheld. The negotiations must happen on the Bingwa platform.
16.Selection of Bingwas, Bingwa Partners or Bingwa Consultants and Clients
Clients have the option of selecting their own Bingwas, Bingwa Partners or Bingwa Consultants or allowing the App to select Bingwas, Bingwa Partners or Bingwa Consultants for them. The App will select three (3) Bingwas, Bingwa Partners or Bingwa Consultants for them guided by their filters (distance, service fee, time scheduling, rating, experience, references, completed tasks etc.) and they can pick one from the three system selected Bingwas, Bingwa Partners or Bingwa Consultants where the registered Bingwas, Bingwa Partners or Consultants have registered more than 3 in the requested Line Of Business and are available. The Bingwa Platform has no liability for the commission, omissions and/or act of the recommended/selected Bingwas, Bingwa Partners or Bingwa Consultants.
17.Governing Law
The laws of Kenya govern this Agreement. Nothing herein shall constitute or be considered to be a limitation upon or a waiver of the privileges and immunities of Bingwa, which are specifically reserved.
18.Dispute Resolution
a) Most disputes can be resolved without resorting to litigation. Before initiating arbitration, the parties agree to use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation with the Bingwa Platform.
b) If the parties do not reach an agreed-upon solution within a period of thirty (30) days from the time informal dispute resolution is initiated under the provision above, then the Bingwa/Platform may waive its immunities and initiate binding arbitration as the sole means to resolve any dispute. Specifically, all disputes (including but not limited to any claims arising out of or relating to this Agreement, any Services, and/or any aspect of the relationship between the two) shall be finally settled by binding arbitration PROVIDED that the Bingwa submits to Arbitration.
c) Such arbitration shall be resolved in accordance with Kenya Commission on Trade Law Arbitration Rules.
d) The tribunal shall consist of one arbitrator to be agreed upon between the Parties failing which the Chartered Institute of Arbitration – Kenya Branch Chairperson will appoint the same.
e) The seat of the arbitration shall be Nairobi, Kenya.
19.Complains and Order Mid-Stream Cancellation
If a User of the Platform has a complaint, the same can be lodged by contacting BINGWA Customer Service. The Person complaining (Complainant) will categorically state their complain and support the same with any available documents. The Platform will evaluate the complaint and responded accordingly to the User.
Where execution of works is cancelled mid-stream by either the Bingwa, Supplier, Consultant or Client. The party cancelling can initiate the cancellation and state the reasons for the cancellation. If the parties cannot agree to the terms of the cancellation, an evaluation of the works done will be conducted and liability will be apportioned between the parties. The evaluation costs will paid by the parties involved based on the apportioned liability to each party.
The liable party has the option of issuing a discount or surcharge the other party instead of submitting the matter for evaluation. This is agreed and consented on the platform.
20.Waiting and Cancellation Charges
Waiting Charges will be incurred by the party that makes the other party wait for more than ten (10) minutes after task start time lapsing. A party that terminates a contract after the Bingwas, Bingwa Partners, Bingwa Consultants or Supplier has left their work station will be charged cancellation charges.
Delayed orders will be automatically cancelled by the App and allocated to someone else (preferably one of the 3 system selected Bingwas), thus when Bingwas, Bingwa Partners, Bingwa Consultants or Suppliers picks/accepts to contract, they must respond within 5 minutes or the same will be automatically terminated with no costs to the Clients.
21.General Provisions
a) The Bingwa’s/Platform’s Privacy Policy and any applicable Guidelines are a part of and are hereby incorporated into this Agreement. This Agreement (including policies and guidelines) is the entire agreement between you and the Bingwa relating to the Services/Platform or any other subject matter covered by this Agreement, and it supersedes all other oral or written communications, proposals, discussions, and representations with respect to Service.
b) The Bingwa/ Platform reserve its exclusive right in its sole discretion to alter, limit or discontinue the Services or any Materials in any respect. The Bingwa shall have no obligation to take the needs of any User into consideration in connection therewith.
c) The Bingwa/ Platform reserve the right to deny in its sole discretion any User access to its Service/Platform or any portion thereof without notice.
d) The Bingwa/ Platform reserve the right, at its sole discretion, to modify these Terms, at any time and without prior notice. If we modify this Agreement, we will post the modification on the Site. We will also update the “Last Updated Date” at the top of this Agreement. By continuing to access or use the Service/Platform after we have posted a modification on the Site/Platform/ Service or have otherwise provided you with notice of a modification, you are indicating that you agree to be bound by the modified Agreement.
e) If any provision of this Agreement is held to be illegal, invalid, or unenforceable, then the provision shall be performed and enforced to the maximum extent permitted by law, and the remaining provisions of this Agreement shall continue to remain in full force and effect