Version 1.0 as at 5th October 2020
Welcome to the mamboonline.com site (‘Site’) and its related mobile application (‘App’) [jointly referred to as the ‘Platform’] and our selling services (the ‘Services’). Any person who wants to access the Platform and use the Services to buy items must accept these terms and conditions (‘Terms and Conditions’) without change.
The Platform provides a marketplace where You can connect with Sellers to purchase items and more efficiently complete online transactions.
This agreement governs Your use of the Services and any transactions with Sellers that you first connect with via the Platform. You conclude this agreement with Us when you expressly accept this agreement by clicking a box indicating your acceptance. You incur the rights and obligations of a buyer when We generate user login credentials for You. The “effective date” of this agreement is the date that you accept these Terms and Conditions, subscribe to use the Platform and are issued with a User Account.
This Agreement is between You and Mambo Online (each, a ‘Party’ collectively, the ‘Parties’) and constitutes the entire understanding related to the subject matter. Mambo Online reserves the right, at any time and at Our sole discretion, to update, revise, supplement, and otherwise modify this Agreement or the Services, and to impose new or additional rules, policies, terms, or conditions on Your use of the Services. Before We make material changes to these Terms and Conditions, Mambo Online will provide prior written notice to You via your registered and operative email address. Continued use of the Platform after any such changes shall constitute Your consent to such changes.
Roles and Responsibilities
- Mambo Online’s Role. We provide Buyers and Sellers with access to the Services. Buyers and Sellers transact directly with each other by accessing and using the Platform. Mambo Online does not accept any responsibility for the composition of Products or for the legal and compliance obligations of Buyers or Sellers related to Products that are sold and procured by Sellers and Buyers, respectively, when accessing and using the Platform. If Buyers fail or Sellers fail to honor their contractual and legal obligations, Mambo Online may assert its own rights against the party in breach. We will also make good faith attempts to resolve any disputes between a Buyer and a Seller, but Mambo Online does not accept responsibility or liability for Buyers’ or Sellers’ obligations or liability to one another.
- Buyer’s Obligations to Mambo Online. As a Buyer, You must comply with all Applicable Laws and terms of this Agreement.
- Buyer’s Obligations to Sellers. In order to buy items on mamboonline.co.ke you must register with Mambo Online and use the mamboonline.com payment service (‘Payment Service’). You must pay the price displayed by each participating Seller for a given product (‘Product Costs’) and any transaction fees, commissions, processing charges, and any other fees and billing terms specified on the Order Form (‘Buyer Charges’) due to the Seller and/or Mambo Online, through the Payment Service.
- Conduct. Mambo Online and Buyers are independent persons (natural or legal), but the business practices and actions of Buyers and Sellers may significantly impact or reflect upon Mambo Online’s reputation and its brands. Accordingly, Mambo Online requires all Buyers to adhere to these Terms and Conditions while conducting business on the Platform. You shall ensure that You understand and comply with these Terms and Conditions through education, training, and awareness.
- Availability of Services. We will: (i) allow You access to the Services pursuant to these Terms and Conditions once You have registered and provided all the relevant subscription details; (ii) make technical support available to You through Our end user support team, at no additional charge; and (iii) use commercially reasonable efforts to make the Platform available 24 hours a day, 7 days a week, except for: (a) downtime for Scheduled Maintenance or emergency maintenance; and (b) any unavailability caused by circumstances beyond Our reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, hurricane, civil unrest, act of terror, strike or other labor problem, or internet service provider failure or delay.
- Scheduled Maintenance and Emergency Maintenance. Mambo Online will provide You with reasonable advance written notice through Your operative email of any scheduled maintenance, including the time and the length of the scheduled maintenance period (‘Scheduled Maintenance’). If Mambo Online deems it necessary to perform emergency maintenance (‘Emergency Maintenance’) on the Platform (meaning any downtime that is not Scheduled Maintenance), Mambo Online will use commercially reasonable efforts to provide You with reasonable notice via Your operative email.
- Security Measures. In order to protect the integrity and quality of Products sold on the Platform, Mambo Online may, without liability, suspend or terminate any or all access to the Services by revoking Your Mambo Online access: (i) following a possible or actual security breach or cyber-attack on the Platform; (ii) in order to protect Mambo Online’s network; (iii) if required by a governmental entity or law enforcement agency; (iv) if You are causing technical or other problems to the network; (v) upon the termination or expiration of a Your subscription; or (vi) as otherwise allowed under these Terms and Conditions.
Applicable Policies and Guidelines.
- You agree to abide by the procedures and guidelines contained in [INSERT LINK] for buying Products, which are incorporated by reference into, and made part of, these Terms and Conditions. The procedures and guidelines contained in [INSERT LINK] explain the processes and set out acceptable conduct and prohibited practices/products.
Buyer Invoicing and Payment
- Access to the Platform. You will be granted access to the Platform as a Buyer following Your subscription and creation of an e-wallet.
- Product Costs and Buyer Charges for E-Commerce Activity. Using the Platform, Buyers establish and agree to the pricing displayed for the Product by each Seller participating in the marketplace, which pricing becomes the Product Costs. In addition to the Product Costs You pay to the Sellers, You will be charged certain Buyer Charges including but not limited to shipment costs and any applicable taxes.
- Invoicing and Payment. Mambo Online will immediately invoice You for: (i) the Product Costs, and (ii) the Buyer Charges. After issuance of the invoice, You shall pay for all Product Costs and Buyer Charges using the Payment Service.
- Invoice Disputes. If You believe any invoice issued from Us is incorrect, You must contact Mambo Online in writing via our designated customer care email address or our designated telephone number, that is, 0110007000 prior to making a payment, setting forth the nature and amount of the requested correction.
- Mode of Payment. You may pay for the Products through any of the various payment options available. In order to pay with a credit card, You must provide the card details through the Platform as a payment method associated with Your User Account. Mambo Online does not store card numbers on its servers and can only view the last four digits of the card. The full information shall be stored on the servers of the payment service provider that makes the payments on behalf of Mambo Online. Payments made via mobile money or credit card may incur additional charges If payment for the Services cannot, for any reason, be taken from You, Your User Account shall be temporarily blocked until the situation has been rectified and the debt has been settled.
- Chargeback or Billing Disputes. In order to provide You with greater support, Mambo Online shall accept liability for payments made on the Platform. Such liability includes offering credits on Your e-wallet or issuance of vouchers. We encourage You to contact Mambo Online in writing via our designated customer care email address or call our designated telephone number, that is, 0110007000 to discuss any chargeback, billing or reconciliation disputes, noting, this is without prejudice to the fact that Mambo Online is not an agent for any Seller, except where Mambo Online is a Seller, in itself.
Access to and Use of Services
- Use of Services. Subject to Your compliance with these Terms and Conditions, You may access and use the Platform solely for Your personal use. We reserve the right to immediately terminate Your access to the Platform if We become aware You are in breach of any obligations under these Terms and Conditions.
- Your Responsibilities. You will be responsible for: (i) using reasonable efforts to prevent unauthorized access to or use of the Platform, and notifying Us of any unauthorized access or use; (ii) ensuring that You are accessing and using the Platform only in accordance with these Terms and Conditions; (iii) ensuring compliance with Applicable Laws related to concluding transactions (‘Transactions’). You are responsible for all activity conducted under Your User Account and shall abide by all Applicable Laws in connection with Your use of the Platform, including those related to age restrictions.
- Non-Circumvention. You shall not make any attempt to circumvent the intent or purpose of Platform by avoiding the payment of, or otherwise reducing, all or any portion of the payments, fees and charges payable to a Seller or Mambo Online (whether by simulation, side agreement, or understating). In addition, and for clarity, Buyers are prohibited from trying to circumvent use of the Platform with Sellers.
- Prohibited Uses. Your use of the Services shall not include the uses restricted as detailed in [INSERT LINK]. You shall not and shall not permit any third party to: (i) copy, translate, create derivative works of, reverse engineer, reverse assemble, disassemble, or decompile the Platform or any part thereof or otherwise attempt to discover any source code or modify the Platform in any manner or form, (ii) “frame” or “mirror” the Platform on any other server or wireless or Internet-based device, (iii) access, penetrate, probe or scan the Platform for purposes of monitoring availability, performance or functionality, or for any other benchmarking or competitive purposes, (iv) use the Platform to conclude fraudulent or otherwise illegal transactions; or (vi) use the Platform for the purpose of building a similar or competitive product or service. You shall not and shall not permit any third party under your control to use the Platform: (a) in violation of, or which would cause another person to be in violation of Applicable Laws; (b) to publish, post, upload, send, store or otherwise transmit material that is unlawful, harassing, libelous, defamatory, threatening or otherwise in violation of any third party rights of privacy or other intellectual property rights; (c) to publish, post, upload, or otherwise transmit material containing software viruses, worms, Trojan horses, or other harmful computer code, files, scripts, agents, or programs that are intended to interfere with or otherwise disrupt the integrity or performance of the Platform contained therein; or (d) in an attempt to gain unauthorized access to Platform or its related systems or networks.
- Confidentiality and Non-Disclosure. During the Term of this Agreement, each Party may be furnishing certain information (‘Disclosing Party’) to the other Party (‘Recipient’), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure (‘Confidential Information’). Our Confidential Information includes the Platform. The Confidential Information of the Parties includes this Agreement. As between You and Mambo Online, the Parties agree to hold Confidential Information in strict confidence and not to disclose such Confidential Information to any third parties. Confidential Information does not include any information that: (a) is, or later rightfully becomes, available to the public, (b) was in the Recipient’s rightful possession prior to receipt of the information from the Disclosing Party, (c) is later disclosed to the Recipient by a third party who has no obligation of confidentiality, (d) is independently developed by the Recipient without the use or benefit of the Confidential Information, or (e) is made available by You on the Platform. This Agreement does not prohibit the disclosure of Confidential Information to the extent required by applicable law, regulation or court order. Each Party agrees to use the same degree of care that it uses to protect the confidentiality of its own Confidential Information of like kind (at all times exercising at least a commercially reasonable degree of care) and not to use or disclose Confidential Information except to the extent necessary to perform its obligations or exercise rights under this Agreement or as directed by You or made available by You to Platform.
Property Rights and Responsibilities.
- Ownership of Mambo Online Technology. This Agreement contains a right to access and use the Platform during the duration of your subscription (‘Subscription Term’). As between You and Mambo Online, all Intellectual Property Rights in and to the data, metadata or other information that is learned, gathered, published, indexed, uploaded, created, bought or stored on the Platform (‘E-Commerce Data’), belongs exclusively to Mambo Online, to the extent allowed under Applicable Law. You are granted no licenses of any kind to any Intellectual Property Rights of Mambo Online. You shall not delete or in any manner alter the copyright, trademark, or other proprietary rights notices or markings that appear on the Platform, unless otherwise agreed by Mambo Online in writing. Mambo Online reserves the right to make changes and updates to the functionality or performance of the Platform from time to time at its sole discretion. To the extent You provide any suggestions, comments or other feedback related to the Platform (‘Feedback’), You grant Mambo Online a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, sublicensable, transferable license to use such Feedback or subject matter thereof in any way and without limitation. For the avoidance of doubt, Intellectual Property Rights means any copyrights (including, without limitation, the exclusive right to use, reproduce, modify, distribute, publicly display and publicly perform the copyrighted work), trademark rights (including, without limitation, trade names, trademarks, service marks, and trade dress), and patent rights (including, without limitation, the exclusive right to make, use and sell), trade secrets, moral rights, right of publicity, authors’ rights, contract and licensing rights, goodwill and all other intellectual property rights (whether registered or not) as may exist now and hereafter come into existence and all renewals and extensions thereof.
Warranties and Disclaimer.
- Disclaimer. The Platform is provided on an “as is” and “as available basis” “with all faults” and without warranty of any kind. To the full extent permitted by law, Mambo Online disclaims all warranties and representations of any kind, express or implied, or statutory, including without limitation all warranties of merchantability, fitness for a particular purpose, accuracy, and system integration or compatibility. Without limiting the foregoing, Mambo Online does not warrant or represent that the Services will be continuous, secure, reliable, accessible, uninterrupted, or error-free. The Services may be subject to limitations, delays, and other problems inherent in the use of the internet and electronic communications. Mambo Online is not responsible for any delays, delivery failures, or other damage resulting from such problems beyond its control.
- Indemnification by You. You shall indemnify and hold Mambo Online, and its subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all damages, liability, claims, losses, awards, judgments, settlements, expenses and costs (including reasonable attorneys’ fees and costs of defense) and defend Mambo Online against any actions, suits, litigation, claims, demands, arbitration or proceeding, and any threats thereof, resulting from or in connection with: (i) any claim alleging that any data published on the Platform by You infringes the rights of, or has caused harm to, a third party.
- Indemnification Procedures and Survival. In the event of a potential indemnity obligation under this Section 9, the indemnified Party shall: (i) promptly give written notice of the claim to the indemnifying Party; (ii) allow the indemnifying Party sole control of the defense and settlement of the claim (provided that the indemnifying Party may not settle or defend any claim unless it unconditionally releases the indemnified Party of all liability); and (iii) upon request of the indemnifying Party, cooperate in all reasonable respects, at the indemnifying Party’s cost and expense, with the indemnifying Party in the investigation, trial, and defense, of such claim and any appeal arising therefrom. The indemnification obligations under this Section 9 are expressly conditioned upon the indemnified Party’s compliance with this Section 9(b) except that failure to notify the Indemnifying Party of such claim shall not relieve that Party of its obligations under this Section 9 but such claim shall be reduced to the extent of any damages attributable to such failure. The indemnification obligations in this Section 9 shall survive termination of this Agreement for one year.
Limitation of Liability.
- In no event shall either Party be liable to anyone for indirect, special, incidental, punitive, or consequential damages (including, but not limited to, damages for the inability to use the Services or access data, loss of business, loss of profits, data breach, business interruption, or the like), arising out of the use of, or inability to use, the Platform based on any theory of liability including statute, breach of contract, breach of warranty, tort (including negligence), product liability or otherwise.
- General Indemnity. The maximum liability of either Party arising out of or in connection with this Agreement, whether such liability arises from any claim based on breach or repudiation of contract, breach of warranty, negligence, tort, statutory duty, or otherwise, shall be an amount limited to the Buyer Charges directly attributable to Mambo Online and paid by You for the Platform during the 12 months immediately preceding the date notice of the claim is given. Notwithstanding the foregoing, neither party shall be liable to the other party to the extent such liability would not have occurred but for the other party’s failure to comply with these Terms and Conditions.
- Specific Liability for Products: Mambo Online shall be liable for any products lost or damaged in transit to the extent that it is able to demonstrate that such loss or damage either: (i) was caused by a force majeure event; or (ii) was caused by Your negligence or willful misconduct.
Term and Termination.
- Subscription Term. This Agreement commences on the Effective Date and shall continue until Your subscription is terminated for any reason provided for in these Terms and Conditions.
- Termination of Agreement. Mambo Online, in its sole discretion, may terminate these Terms and Conditions, access to the Platform or the Services, immediately, without notice for any reason.
- Suspension for Nonpayment. Any breach of Your payment obligations will be considered a material breach of this Agreement. Mambo Online, in its sole discretion, may suspend Your use of the Services upon three (3) days’ notice until all undisputed Buyer Charges and Product Costs have been fully paid to Mambo Online.
- Effects of Termination. Upon termination of this Agreement, Your right to access or use the Services immediately ceases, and Mambo Online shall have no obligation to store, maintain, forward, or otherwise restore any data other than whatever data was previously uploaded or downloaded by You. The termination of this Agreement for any reason shall not affect: (i) obligations of the Parties to account for and pay to one another amounts owed under this Agreement for activity that occurred on the Platform (whether before or after the notice of termination), or (ii) any other obligation or liability which either You or Mambo Online has to the other under this Agreement and which, by its nature, would reasonably be expected to survive termination.
- Risk of Loss. All purchases of physical items from Mambo Online are made pursuant to an existing shipment contract with a licensed courier. The risk of loss and title for such items is borne by Mambo Online and will only pass on to you upon deliver, subject to clause 10 (c) above.
- Entire Agreement. These Terms and Conditions and the general terms and conditions of the Platform, including but not limited to the Privacy and Data Protection Policy, constitute the entire agreement of the parties with respect to the subject matter hereof, and supersede and cancel all prior and contemporaneous agreements, claims, representations, and understandings of the parties in connection with the subject matter hereof.
- Notice. Except as otherwise specified in this Agreement, all notices, demands or other communications to be given or delivered under or by reason of the provisions of this Agreement shall be in writing and shall be deemed to have been given to a Party when sent to the Party’s operative email address.
- Applicable Law. The Platform and the Services are arranged, sponsored, or managed by Mambo Online in Kenya. The laws of Kenya govern these Terms and Conditions, without giving effect to any principles of conflicts of laws. You agree that any action at law or in equity arising out of or relating to these Terms and Conditions shall be submitted to confidential arbitration in Nairobi, Kenya, except that, to the extent You have in any manner violated or threatened to violate Mambo Online’s intellectual property rights, Mambo Online may seek injunctive or other appropriate relief in any court of competent jurisdiction, and you consent to exclusive jurisdiction and venue in such courts.
- Dispute Resolution. An aggrieved Party shall notify the other Party in writing of the nature of any dispute with as much detail as possible about the deficient performance or otherwise of the other Party. Mambo Online’s Customer Care Representatives shall meet with the Seller or his/her/its representative (in person or by telephone) within seven (7) calendar days (or other mutually agreed upon date) after the date of the written notification to reach an agreement about the nature of the deficiency and the corrective action to be taken by the respective Parties. If the respective Parties do not meet or are unable to agree on corrective action, a senior manager of Mambo Online, having authority to resolve the dispute without the further consent of any other person (‘Management’) shall meet with the Seller or his/her/its representative or otherwise act to facilitate an agreement within fourteen (14) calendar days (or other mutually agreed upon date) of the date of the written notification. If Management and the Seller or his/her/its representative do not meet or cannot resolve the dispute or agree upon a written plan of corrective action to do so within seven (7) calendar days (or other mutually agreed upon date) after their initial meeting or other action, or if the agreed-upon completion dates in the written plan of corrective action are exceeded, either Party may request arbitration as provided for in this Agreement. Except as otherwise specifically provided, neither Party shall initiate arbitration or litigation unless and until this dispute resolution procedure has been substantially compiled with or waived. Failure of a Party to fulfill its obligations in this Section, including failure to meet timely upon the other Party’s notice, shall be deemed such a waiver. Arbitration under this agreement shall be conducted under the rules of arbitration (‘Rules’) then prevailing of the International Chamber of Commerce (‘ICC’) by a single arbitrator jointly chosen by the Parties or if the Parties are unable to choose an arbitrator, by the Chairman at the time being of the Chartered Institute of Arbitrators, Kenya Chapter. The arbitrator’s award shall be binding and may be entered as a judgment in any court of competent jurisdiction. To the fullest extent permitted by applicable law, no arbitration under this Agreement shall be joined to an arbitration involving any other party subject to this Agreement, whether through class arbitration proceedings or otherwise.
- Severability. If any provision of these Terms and Conditions shall be deemed unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these Terms and Conditions and shall not affect the validity and enforceability of any remaining provisions.
- No Waiver. We will not be considered to have waived any of our rights or remedies described in these Terms and Conditions unless the waiver is in writing and signed by us. No delay or omission by us in exercising our rights or remedies will impair or be construed as a waiver. Any single or partial exercise of a right or remedy will not preclude further exercise of any other right or remedy. Mambo Online’s failure to enforce the strict performance of any provision of these Terms and Conditions will not constitute a waiver of Mambo Online’s right to subsequently enforce such provision or any other provisions of these Terms and Conditions.