The Services comprise mobile applications and related services (each, an “Application”), which enable users to arrange and schedule transportation, logistics and/or delivery services and/or to purchase certain goods, including with third party providers of such services and goods under agreement with the Company (“Third Party Providers”). In certain instances, the Services may also include an option to receive transportation, logistics and/or delivery services for an upfront price, subject to acceptance by the respective Third Party Providers. Unless otherwise agreed by the Company in a separate written agreement with you, the Services are made available solely for your personal, non-commercial use.
NOT A TRANSPORTATION PROVIDER
The company is a technology company that does not provide transportation services and the company is not a transportation provider. It is up to the third-party transportation providers to offer transportation services to you and it is up to you to accept such transportation services. The service of the company is to link you with such third-party transportation providers, but does not, and nor is it intended to, provide transportation services or any act that can be construed in any way as an act of a transportation provider.
Accordingly, you unconditionally understand and acknowledge that your ability to obtain transportation, logistics and/or delivery services through the use of the services does not establish the company as a provider of transportation, logistics or delivery services or as a transportation carrier and the company is not, in any whatsoever, responsible nor liable for the acts and/or omissions of any third party transportation provider and/or any transportation services provided to you.
RIGHT TO REFUSE AND BLACKLIST
Notwithstanding anything herein written, the Company may, at its sole and absolute discretion, blacklist you permanently or temporarily and reject your request to use the Application and / or Service or any part thereof for such reasons as it deems fit, including but not limited to receiving complaints about you from third party providers or employees of the Company about your behaviour or interaction with anyone whatsoever (including but not limited to third party provider, Company’s employees, law enforcement, government authorities) whilst and/or before using the Service.
REPRESENTATIONS AND WARRANTIES
You may only access the Service using authorized means. It is your responsibility to check and ensure that you have downloaded the correct Software for your device. The Company is not liable if you do not have a compatible device or if you have downloaded the wrong version of the Software to your device.
The Company reserves the unconditional right to not permit you to use the Service should you use the Application and/or the Software with an incompatible or unauthorized device or for purposes other than which the Software and/or the Application is intended to be used.
Without limitation to the generality of the foregoing, by using the Software or the Application and availing the services of Xpressy, you agree that:
You will only use the Service for lawful purposes;
You will only use the Service for the purpose for which it is intended to be used;
You will not use the Application for sending or storing any unlawful material or for fraudulent purposes;
You will not use the Application and/or the Software to cause nuisance, annoyance, inconvenience or make fake bookings;
You will not use the Service, the Application and/or the Software for purposes other than obtaining the Service;
You shall not contact the third-party transportation provider for purposes other than the Service;
You will not impair the proper operation of the network;
You shall not intentionally or unintentionally cause or attempt to cause damage to the third-party transportation provider;
You will not try to harm the Service, the Application and/or the Software in any way whatsoever;
You will not copy, or distribute the Software or other content without written permission from the Company;
You will only use the Software and/or the Application for your own use and will not resell it to a third party;
You will keep secure and confidential your account password or any identification we provide you which allows access to the Service;
You will provide the Company with proof of identity as it may reasonably request or require;
You agree to provide accurate, current and complete information as required for the Service and undertake the responsibility to maintain and update your information in a timely manner to keep it accurate, current and complete at all times during the term of this Agreement. You agree that the Company may rely on your information as accurate, current and complete. You acknowledge that if your information is untrue, inaccurate, not current or incomplete in any respect, the Company has the right but not the obligation to terminate this Agreement and your use of the Service at any time with or without notice;
You will only use an access point or data account which you are authorized to use;
You shall not employ any means to defraud the Company or enrich yourself, through any means, whether fraudulent or otherwise, through any event, promotion or campaign launched by the Company to encourage new subscription or usage of the Service by new or existing passengers;
You are aware that when requesting transportation services by SMS or use of the Service, standard telecommunication charges will apply;
You shall not impair or circumvent the proper operation of the network which the Service operates on;
You will not use the Service or any part thereof for carrying contraband items and if, in the event that you display suspicious behaviour, you will fully comply with the request of the third party service provider, any government authority and / or law enforcement, to inspect any bags and / or items you are carrying with you which may or may not be readily visible;
You when collecting goods from the Xpressy Rider, who is delivering the parcel/goods, the customer can only conduct an inspection of the exterior of the sealed package of the products in order to determine the condition of the products. If any defect is found upon this initial inspection, you can choose to reject the products. In any circumstance, you cannot open the sealed packages any of the products
You can also return the products after the collection of the goods, if found that the commodities are damaged inside the package, which cannot be ascertained by the exterior inspection.
You agree that the Service is provided on a reasonable effort basis; and
You may choose to pay for the transportation services by cash, MPESA and where available, by using Debit/Credit Card.
Once you have completed a journey using the Service, you are required to make payment in full to the third party transportation provider and such payment is non-refundable. If you have any complaints in relation to the transportation service provided, then that dispute must be taken up with the third party transportation provider directly.
You agree that this Agreement shall be subject to all prevailing statutory taxes, duties, fees, charges and/or costs, however denominated, as may be in force in Kenya and in connection with any future taxes that may be introduced at any point of time. You further agree to use your best efforts to do everything necessary and required by the relevant laws to enable, assist and/or defend the Company to claim or verify any input tax credit, set off, rebate or refund in respect of any taxes paid or payable in connection with the Service supplied under this Agreement.
LICENSE GRANT & RESTRICTIONS
(a) You shall not
license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Application and/or the Software in any way;
modify or make derivative works based on the Application and/or the Software;
create internet “links” to the Application or “frame” or “mirror” the Software on any other server or wireless or internet-based device;
reverse engineer or access the Software in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Application and/or the Software, or (c) copy any ideas, features, functions or graphics of the Application and/or the Software,
launch an automated program or script, including, but not limited to, web spiders, web crawlers, web robots, web ants, web indexers, bots, viruses or worms, or any program which may make multiple server requests per second, or unduly burdens or hinders the operation and/or performance of the Application and/or the Software,
use any robot, spider, site search/retrieval application, or other manual or automatic device or process to retrieve, index, “data mine”, or in any way reproduce or circumvent the navigational structure or presentation of the Service or its contents;
post, distribute or reproduce in any way any copyrighted material, trademarks, or other proprietary information without obtaining the prior consent of the owner of such proprietary rights,
remove any copyright, trademark or other proprietary rights notices contained in the Service.
(b) You may use the Software and/or the Application only for your personal, non-commercial purposes and shall not use the Software and/or the Application to:
send spam or otherwise duplicative or unsolicited messages;
send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including but not limited to materials harmful to children or violative of third party privacy rights;
send material containing software viruses, worms, trojan horses or other harmful computer code, files, scripts, agents or programs;
interfere with or disrupt the integrity or performance of the Software and/or the Application or the data contained therein;
attempt to gain unauthorized access to the Software and/or the Application or its related systems or networks; or
Impersonate any person or entity or otherwise misrepresent your affiliation with a person or entity
to abstain from any conduct that could possibly damage the Company’s reputation or amount to being disreputable.
INTELLECTUAL PROPERTY OWNERSHIP
You shall maintain in confidence all information and data relating to the Company, its services, products, business affairs, marketing and promotion plans or other operations and its associated companies which are disclosed to you by or on behalf of the Company (whether orally or in writing and whether before, on or after the date of this Agreement) or which are otherwise directly or indirectly acquired by you from the Company, or any of its affiliated companies, or created in the course of this Agreement. You shall further ensure that it, its officers, employees and agents only use such confidential information in order to perform the Service, and shall not without the Company’s prior written consent, disclose such information to any third-party nor use it for any other purpose. You shall only disclose such information to such officers, employees and agents as need to know it to fulfil its obligations under this Agreement.
The above obligations of confidentiality shall not apply to the extent that you can show that the relevant information:
was at the time of receipt already in your possession;
is, or becomes in the future, public knowledge through no fault or omission of you;
was received from a third-party having the right to disclose it; or
is required to be disclosed by law.
PERSONAL DATA PROTECTION
You agree and consent to the Company using and processing your Personal Data for the Purposes and in the manner as identified hereunder.
For the purposes of this Agreement, “Personal Data” means information about you, from which you are identifiable, including but not limited to your name, identification card number, birth certificate number, passport number, Huduma Number, nationality, address, telephone number, credit or debit card details, race, gender, date of birth, email address, any information about you which you have provided to the Company in registration forms, application forms or any other similar forms and/or any information about you that has been or may be collected, stored, used and processed by the Company from time to time and includes sensitive personal data such as data relating to health, religious or other similar beliefs.
The provision of your Personal Data is voluntary. However, if you do not provide the Company your Personal Data, your request for the Application may be incomplete and the Company will not be able to process your Personal Data for the Purposes outlined below and may cause the Company to be unable to allow you to use the Service.
The Company may use and process your Personal Data for business and activities of the Company which shall include, without limitation the following (the “Purposes”):
To perform the Company’s obligations in respect of any contract entered with you;
To process your participation in any events, promotions, activities, focus groups, research studies, contests, promotions, polls, surveys or any productions and to communicate with you regarding your attendance thereto;
To respond to questions, comments and feedback from you;
To communicate with you for any of the purposes listed herein;
For internal administrative purposes, such as auditing, data analysis, database records;
For purposes of detection, prevention and prosecution of crime;
For the Company to, its partners, advertisers and or sponsors;
To notify and invite you to events or activities organised by the Company, its partners, advertisers, and or sponsors; and/or
To share your Personal Data amongst the companies within the Company’s group of companies comprising the subsidiaries, associate companies and or jointly controlled entities of the holding company of the group (the “Group”) and with the Company’s and Group’s agents, third party providers, developers, advertisers, partners, event companies or sponsors who may communicate with you for any reasons whatsoever.
If you do not consent to the Company processing your Personal Data for any of the Purposes, please notify the Company using the support contact details as provided in the Application.
If any of the Personal Data that you have provided to us changes, for example, if you change your e-mail address, telephone number, payment details or if you wish to cancel your account, please update your details by sending your request to the support contact details as provided in the Application.
The Company will, to the best of its abilities, effect such changes as requested within fourteen (14) working days of receipt of such notice of change.
THIRD PARTY INTERACTIONS
REPAIR OR CLEANING FEES
DISCLAIMER OF WARRANTIES
The company makes no representation, warranty, or guarantee as to the reliability, timeliness, quality, suitability, availability, accuracy or completeness of the service, the application and/or the software. The company does not represent or warrant that (a) the use of the service, the application and/or the software will be secure, timely, uninterrupted or error-free or operate in combination with any other hardware, software, system or data, (b) the service will meet your requirements or expectations, (c) any stored data will be accurate or reliable, (d) the quality of any products, services, information, or other materials purchased or obtained bfy you through the application will meet your requirements or expectations, (e) errors or defects in the application and/or the software will be corrected, or (f) the application or the server(s) that make the application available are free of viruses or other harmful components, or (g) the application and/or the software tracks you or the vehicle used by the third party transportation provider. The service is provided to you strictly on an “as is” basis. All conditions, representations and warranties, whether express, implied, statutory or otherwise, including, without limitation, any implied warranty of merchantability, fitness for a particular purpose, or non-infringement of third party rights, are hereby excluded and disclaimed to the highest and maximum extent.
Furthermore, the company makes no representation, warranty, or guarantee as to the reliability, safety, timeliness, quality, suitability or availability of any services, including but not limited to the third party transportation services obtained by or from third parties through the use of the service, the application and/or the software. You acknowledge and agree that the entire risk arising out of your use of the service, and any third party services, including but not limited to the third party transportation services remains solely and absolutely with you and you shall have no recourse whatsoever to the company.
The service, the application and/or the software may be subject to limitations, delays, and other problems inherent in the use of the internet and electronic communications including the device used by you or the third party transportation provider being faulty, not connected, out of range, switched off or not functioning. The company is not responsible for any delays, delivery failures, damages or losses resulting from such problems.
LIMITATION OF LIABILITY
Any claims against the company by you shall in any event be limited to the aggregate amount of all amounts actually paid by and/or due from you in utilising the service during the event giving rise to such claims. In no event shall the company and/or its licensors be liable to you or anyone for any direct, indirect, punitive, economic, future special, exemplary, incidental, consequential or other damages or losses of any type or kind (including personal injury of any kind whatsoever including loss of life or limbs or serious harm of any kind whatsoever, emotional distress and loss of data, goods, revenue, profits, use or other economic advantage). The company and/or its licensors shall not be liable for any loss, damage or injury which may be incurred by or caused to you or to any person for whom you have booked the service for, including but not limited to loss, damage or injury arising out of, or in any way connected with the service, the application and/or the software, including but not limited to the use or inability to use the service, the application and/or the software, any reliance placed by you on the completeness, accuracy or existence of any advertising, or as a result of any relationship or transaction between you and any third party provider, advertiser or sponsor whose advertising appears on the website or is referred to by the service, the application and/or the software, even if the company and/or its licensors have been previously advised of the possibility of such damages.
The company does not and will not assess nor monitor the suitability, legality, ability, movement or location of any third party providers including third party transportation providers, advertisers and/or sponsors and you expressly waive and release the company from any and all liability, claims or damages arising from or in any way related to the third party providers including third party transportation providers, advertisers and/or sponsors.
The company will not be a party to disputes, negotiations of disputes between you and such third party providers including third party transportation providers, advertisers and/or sponsors. Unless you are a corporate customer with a current corporate account with the company, the company cannot and will not play any role in managing payments between you and the third party providers, including third party transportation providers, advertisers and/or sponsors. Responsibility for the decisions you make regarding services and products offered via the service, the software and/or the application (with all its implications) rests solely with and on you. You expressly waive and release the company from any and all liability, claims, causes of action, or damages arising from your use of the service, the software and/or the application, or in any way related to the third parties including third party transportation providers, advertisers and/or sponsors introduced to you by the service, the software and/or the application.
The quality of the third party transportation services scheduled through the use of the service is entirely the responsibility of the third party transportation provider who ultimately provides such transportation services to you. You understand, therefore, that by using the service, you may be exposed to transportation that is potentially dangerous, offensive, harmful to minors, unsafe or otherwise objectionable, and that you use the service at your own risk
The Company may give notice by means of a general notice on the Application, electronic mail to your email address in the records of the Company, or by written communication sent by registered mail or pre-paid post to your address in the record of the Company. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by registered mail or pre-paid post) or 1 hour after sending (if sent by email). You may give notice to the Company (such notice shall be deemed given when received by the Company) by letter sent by courier or registered mail to the Company using the contact details as provided in the Application.
In the event that the law in an Alternate Country does not allow jurisdiction to be that of the courts of Bangladesh or where judgment of a Bangladesh court is unenforceable in the Alternate Country.
The seat and venue of the arbitration shall be Nairobi, in the English language and the fees of the Arbitrator shall be borne equally by the parties, provided that the Arbitrator may require that such fees be borne in such other manner as the Arbitrator determines is required in order for this arbitration clause to be enforceable under applicable law.
You hereby agree that the Company is entitled to terminate this Agreement immediately in the event that you are found to be in breach of any of the terms stipulated in this Agreement. For the avoidance of doubt, the termination of this Agreement shall not require the Company to compensate, reimburse or cover any cost incurred by you in the course of you acquiring services from the third party transportation provider under this Agreement.