This User Agreement is effective after acceptance
for new users, and from August 24, 2023 for existing users. This User Agreement
has no previous version and serves as the first version. We reserve the right
to amend any section of this document without notice to users. We advise users
to always go through this User Agreement to confirm they aren’t in violation of
any terms stated herein. This User Agreement has been signed and stamped by an attorney, and herein is legally binding in accordance with the Kenyan Law.
1. Introduction
The terms stated herein are effective after
a user creates an account on our website. The terms and conditions, policies,
and additional terms posted on this website, services, and applications set out
the terms upon which Kyivamall offers users access to its products and
services. Reading this document, you will find our policies, agreements, terms,
and conditions that guide our interaction with customers and operations. You
immediately agree to these terms and conditions when you access our services or
create an account with us.
The entity that you agree to contract with
is Kyivamall Limited, Nairobi, Kenya. Persons from any part of the country
inclusive contracts with the entity. In this User Agreement, the entities are
collectively and individually referred to as “Kyivamall,” “us,” and “we.”
Be informed that the terms stated in this
document pertain to claims you have against the stated entity, including
disputes. If you don’t agree to any of the stated terms, we advise you don’t
access our services, including using our website, purchasing any product from
us, or communicating in any manner as these means agreement to our policies and
terms.
2. About Kyivamall
Kyivamall is an online mall that houses
businesses or verified individuals from different parts of the country who
agree to our terms to do business with us. However, Kyivamall is just but an
online selling site, henceforth is not an entity to contract for sales nor an
auctioneer. The guidance provided here including delivery, listing, pricing,
and sourcing is meant for information.
3. Using our Site
When a user creates an account with us, they agree to comply with this Terms of Use, our policies, rules, regulations, and all applicable laws within the jurisdiction of the Kenyan law. Users agree not to:
Breach any Kenyan or international law, our
systems or third-party rights, policies, rights, or determination of the status
of your account.
Fail to deliver the item purchased by a
buyer (s), unless the existence of a valid reason outlined in Kyivamall policy,
including when a buyer (s) can’t be reached through phone call or email.
Use our services if the seller can’t form a
legally binding contracts, for example, if a buyer is under 18 years old), or
indefinitely or temporarily suspended from using our services, or the buyer is
whom their transactions are prohibited under Kenyan or International trade or
economic sanctions.
Change the price of an item after a buyer
has made purchase; for example, increase the price of an item after a purchase
Take an action that interfere with the
ratings or feedback on our system, including calling a buyer to change their
comment or rating to suite you.
Transfer to another seller or buyer your
user account with consent. Creating an account with us is completely free,
henceforth we don’t permit account exchange.
Create an ad, listing or upload content in
inappropriate categories on our sites
Post inaccurate, false, deceptive,
defamatory, or misleading content. We will take legal action against any person
who post such content.
Post or distribute spam, bulk or
unsolicited electronic communications, chain letters or pyramid schemes that
aim to fraud users or corrupt our systems
Distribute viruses or any entity that could
possibly harm our systems, property or interests of users
Use any automated tools or methods, such as
robots, spiders, scrapers, or data mining tools, to access our Services without
obtaining prior express permission from Kyivamall.
Attempt to bypass any technical measures in
place to provide our Services. It is prohibited to disrupt the functioning of
our Services by placing an unreasonable or disproportionately large load on our
infrastructure.
Attempt to circumvent any technical
measures we use to provide services
Attempt to affect the function of our
system or services by imposing an unreasonable or disproportionately large
content or load on our site
Infringe the trademark, copyright,
publicity, patent, database, moral, or any intellectual property rights that
belong to or that which is licensed by Kyivamall. Some of the content that
constitute infringement are performing, reproducing, distributing, displaying,
reverse-engineering, copying, decompiling, preparing or posting derivative
works from content from someone else or that which belongs to Kyivamall.
Kyivamall may provide our sellers with original photos, arrange for item
photo-shoot, or ask sellers to photograph items they post on our site to avoid
infringement to works from other parties.
Infringe Intellectual Property Rights that
belong to other parties that could be affected by use of content derived or
copied from their platforms or services.
Commercialize any application from
Kyivamall or any information, software or data associated with such
application,except when Kyivamall gives content.
Collect or use information about our uses
with consent from associated users.
Kyivamall periodically sets minimum
performance standards, which sellers must meet. Failure to meeting these
standards may lead to Kyivamall charging sellers extra fees, limiting,
suspending or restricting sellers’ account. If beyond reasonable doubt, we
believe you are violating the terms stated herein or any of our policies, or
believe you are abusing Kyivamall or its services in any way, we may in sole
discretion limit, terminate or suspend your user account or access to any of
our services, remove or delay hosted content or deny special status linked to
your user account or take legal action to prevent you or any user intending to
act the same from our services. Kyivamall offers a process that allows users to
report claimed violations or abuse to consider and handle through any of these
options, all in our sole discretion.
If Kyivamall believes you violate any of
our policies that prohibit offers to buy or sell outside our site, you may be
subject to several actions, including limitations to your buying or selling
privileges, limitations on listings and some account features, suspension of
user account, charging of specific fees and recovery of costs for policy
enforcement and monitoring. The fees and taxes section provides the actions we
would take if we believe you have violated or violating our policies on buying
or selling outside Kyivamall’s online mall; you have incur charged fees for
such violations.
Kyivamall reserves the right to cancel
unverified accounts that have been inactive for a specific period of time. In addition,
we reserve the right to modify, terminate or refuse any part of our services to
any person (s) for reasons at our sole discretion.
4. Policy Enforcement
In the event that a buyer or seller issues arises, we may consider the history performance of a user and the specific situation to apply a certain policy (s). Kyivamall may choose to exercise leniency with policy enforcement to do the right thing for both sellers and buyers. The forgoing will not limit or affect Kyivamall’s right to modify, terminate or refuse all or a section of our services to any person (s) or terminate this agreement with any person (s) for a reason at out discretion.
5. Fees and Taxes
We charge sellers for using our services, a charge not more than 10% on all successful sales. However, we don’t charge sellers for branded packaging materials or stickers. The delivery of an item is the sole responsibility of a seller who makes necessary arrangements to ensure an item purchased from their online shop reaches the right buyer, in the right condition and quantity. A seller may contact Kyivamall to arrange for shipping. We expect buyers to pay for shipping and special packaging.
The fees we charge sellers for listing their items on our online mall are listed on our selling fees page. Kyivamall reserves the right to change selling fees from time to time by updating the changes 14 days in advance. We may not provide advance notice pertaining to the changes.
If you're a seller, you're responsible for covering fees associated with any sales conducted through some or all of our Services. This applies even if the sales arrangement is finalized or payment occurs outside of Kyivamall. Specifically, if you share your contact information or request a buyer's contact information in the context of a transaction conducted outside of Kyivamall, you may be obligated to pay a final value fee for that item. This obligation exists regardless of whether the item ultimately sells, as it stems from your use of our Services to connect with a potential buyer.
As a seller, it's necessary for you to have
a valid payment method on file when using our selling Services. You are also
required to settle all fees and applicable taxes related to your use of our
Services by the specified payment due date. If your payment method fails or
your account becomes overdue, we may impose restrictions on your account.
Additionally, Kyivamall Payments Entities (defined below) may pursue the
collection of owed amounts in accordance with the terms outlined in the
Payments Terms of Use, and late fees may be evaluated.
6. Listing Conditions
When a user opts to list their products on our services, they agree to comply with Kyivamall’s Listing policies and Selling practices policy. They also agree that:
When a user opts to list their products on
our services, they agree to comply with Kyivamall’s Listing policies and
Selling practices policy. They also agree that:
A user assumes responsibility for the
product they offer and the content and accuracy of their listing, including
listing content generated using tools Kyivamall offers or third parties
contracted by the user or the company such as image editing, translation, and
generative artificial intelligence (AI) tools.
The fixed price of a listing may
automatically be renewed each month based on the terms which applies to the
item per the time until the item or quantity sells or the product listed is
deleted or the offer offered at the time expires.
The listing a user posts on Kyivamall’s
website may not be immediately be seachable by category or keyword for several
hours on Google Search for a period upto 24 hours or more at times depending on
a item’s unique description or title. Kyivamall cannot guarantee a user’s
listing Google will update immediately on their search engines. We highly
recommend all listing have unique title, description and images to shorten the
duration Google to index and item.
The listings a user posts on Kyivamall’s
site complies with policies, including videos, text and images.
Kyivamall reserves the right to modify,
delete or obfuscate at its sole discretion, items that violates listing
policies or terms of use stated herein.
We reserve the right to update or modify
the product information linked to listings, which could involve adding,
removing, or correcting details.
We aim is to create a marketplace that
helps buyers easily find what they are searching for. The visibility and
placement of listings in search and browse results depend on various factors,
including:
The buyer's location, search query,
browsing history, and site usage.
The item's location, listing format, price,
shipping cost, terms of service, end time, history, and relevance to the user's
query.
The seller's history, encompassing listing practices, Detailed Seller Ratings, compliance with Kyivamall policies, feedback, and defect rate.
The number of listings that match the
buyer's query.
In order to provide a positive user
experience, some listings may not appear in certain search and browse results,
regardless of the sorting method chosen by the buyer.
Certain advanced listing upgrades may only
be visible on specific parts of our Services. Additionally, Kyivamall's
Duplicate listings policy can influence whether your listing appears in search
results.
Metatags and URL links included in a
listing may be edited or removed as needed. We may offer optional information
to consider when creating listings, based on aggregated sales and performance
data from similar sold and/or current listings. Please note that results may
vary for individual listings. You agree that we may display the sales and
performance history of your individual listings to other sellers.
We may utilize artificial
intelligence-based tools to provide you with content, but the availability and
accuracy of these tools and content are not guaranteed.
For certain categories, programs, and price points, Kyivamall may require specific payment methods in accordance with our Payments methods policy. This could apply, for instance, to items covered by authentication or storage services, which may involve escrow and/or payment handling requirements for buyers and sellers.
You are responsible for promptly removing
listings for any product recalled by a manufacturer or governmental agency if
selling the product is prohibited by law or poses a health or safety hazard. Kyivamall
assumes no responsibility or liability for the safety or performance of any
product listed or sold through our Services, including products subject to
recalls. You are solely accountable for any non-compliance or defect related to
a public or private product recall.
We may promote and feature your listings,
along with related content like your username, product reviews, and feedback,
on other websites, applications, services, and tools operated by Kyivamall
Limited or collaborating third-party operators.
Please note that selling fees do not
guarantee exclusive exposure for your items on our Services. We reserve the
right to display third-party advertisements, including links and references,
throughout our Services at our discretion, without requiring consent, payment,
fee reductions, or other credits to sellers.
7. Purchasing Conditions
When you use our Services to purchase an
item, you acknowledge and accept the Rules and policies for buyers, which
entail the following:
You are responsible for thoroughly
reviewing the complete item listing before placing a bid, making an offer,
completing a purchase, or committing to buy.
You enter into a legally binding agreement
to acquire an item in the following circumstances: when you buy the item,
commit to buy it, have your offer for the item accepted, possess the winning
bid for the item, or when your bid for the item is otherwise accepted. This
binding agreement is in effect regardless of when payment is due or when it is
received.
In the case of motor vehicles and real
estate, a bid or offer serves as the initiation of a non-binding transaction,
signifying a serious expression of interest by the buyer in purchasing the
seller's item. It does not establish a formal contract between the buyer and
the seller.
We do not transfer legal ownership of items
from the seller to you.
The transfer of ownership between the buyer
and the seller is governed by the Kenyan Law, unless the buyer and the seller
mutually agree to different terms.
8. Content
When you offer content using our Services,
either directly or indirectly, you grant us a non-exclusive, worldwide,
perpetual, irreversible, royalty-free, and sublicensable (through multiple
tiers) right to utilize any and all Intellectual Property Rights associated
with that content. This usage is in connection with our operation, expansion,
and promotion of our Services, including the development of new features and
offerings as part of our Services. This right extends to any media, whether
presently known or developed in the future. To the maximum extent allowed by
applicable law, you relinquish your ability to enforce your Intellectual
Property Rights concerning that content against Kyivamall, our assignees, our
sublicensees, and their assignees when it pertains to our, their, or their
sublicensees' utilization of that content in relation to our Services.
You declare and guarantee that, for all
content you provide, you either own or have the necessary rights to do so, and
that you can fulfill your obligations under this User Agreement. You further
assert that such content is accurate, suitable, and lawful. You also affirm
that the use of such content (including derivative works) by us, our users, or
others in association with us and in compliance with this User Agreement, does
not and will not infringe upon any third party's Intellectual Property Rights. Kyivamall
assumes no responsibility and accepts no liability for any content supplied by
you or any third party.
We make available product data, including
images, descriptions, and specifications, provided by third parties, including Kyivamall users. You may use this content solely within your Kyivamall listings. Kyivamall
reserves the right to modify or withdraw this permission at any time, at our
sole discretion. The product data may contain copyrighted, trademarked, and
other proprietary materials. You agree not to remove any copyright,
proprietary, or identification markings from the product data and not to create
derivative works based on this data, except by incorporating the data into your
listings.
While we aim to provide reliable product
data, we cannot guarantee that the content available through our Services will
always be accessible, accurate, complete, or up-to-date. You acknowledge that Kyivamall
is not responsible for reviewing or guaranteeing the listings or content
provided by third parties via our Services, and you will not attempt to hold us
or our data providers accountable for inaccuracies.
The name "Kyivamall" and other Kyivamall
marks, logos, designs, and phrases used in connection with our Services are
trademarks, service marks, or trade dress of Kyivamall in Kenya and other
countries. Their use requires the express of our prior written permission.
9. Claims of Intellectual Property Violations
and Copyright Infringement
Kyivamall responds to notices of alleged infringement to copyright under Section 26 Copyright Act Kenya. Our support works to ensure that content and items listed using our Services don’t infringe the trademark, copyright or other intellectual property rights of third parties. In the event any person (s) believes that their intellectual property rights have been infringed, they should notify our support team immediately for investigation.
Maintaining Others’ Privacy
When upon request, Kyivamall provides you
with information about items listed or information about user (s), you agree to
use the information for reasons for which it was dispatched. You agree not to
distribute or disclose such information to third parties for reasons unrelated to
our Services. You also agree to use the information for purposes of sending
marketing communication to whom consent to receiving such communications as per
the applicable Kenyan Laws.
10. Supplementary Terms
A. Returns and Cancellations for Sellers
When using our Services, sellers don’t have
the right to create rules to automate returns, replacements and refunds under
any circumstances. For all sellers, Kyivamall will set a default rule that
would automate return, refund and replacement processes.
In the event of a return, or cancelled transaction after complete payment, Kyivamall may issue a refund to the buyer on the behalf of the seller and charge the seller for the amount. Additionally, Kyivamall will charge sellers for the delivery costs and other reasonable charges from sellers when:
When Kyivamall-generated return shipping
label is utilized, and the cost is borne by the seller.
When returns are processed through
automated procedures.
If the seller fails to provide a return
shipping label to the buyer, resulting in the use of Kyivamall-generated
shipping label.
When an item does not match the description
in the listing and is returned in compliance with Kyivamall Money Back
Guarantee or other applicable terms.
B. Returns and Cancellations for Buyers
Generally, buyers do not have the right to
cancel any order. However, buyers have the right to request for return, refund,
or exchange of their purchase (s). This is subject to our refund and return
policy. In the case of return or exchange, sellers are liable for the cost of
delivery and return to their place of business. This means that sellers must
deliver the right product of the quality and quantity buyer (s) order from
them.
Most sales done through our website go
smoothly but if there is a problem with a purchase, buyers can get their money
back if their purchase wasn’t delivered, was faulty, or doesn’t match the
listing. Buyers and sellers agree to comply with our policy and allow us to
make the final decision on disputes that qualify for refunds. If a seller
chooses to refund a buyer or Kyivamall requests a seller to issue a refund,
Kyivamall's finance department may invoice the seller in the amount of the
refund or collect the equivalent amount from a seller as described in the terms
of use regarding payments. If a seller fails to refund, Kyivamall reserves the
right to take legal action, including termination of vendor accounts.
Kyivamall reserves the right to suspend the
refund policy in part or entirely without notice if, under no reasonable doubt,
we suspect abuse of the policy interferes with the policy’s proper working.
Users agree to make us whole for any losses that include expenses that accrue
due to losses that arise because of abuse of the policy or fraud committed in
connection to the refund policy.
C. Money Back Guarantee
While most Kyivamall transactions proceed
smoothly, if there's an issue with a purchase covered by Kyivamall Money Back
Guarantee, buyers have the option to receive a refund in cases where an item
didn't arrive, is defective or damaged, or doesn't match the description in the
listing. By using our platform, you agree to abide by this policy and allow us
to make the final decision in any Kyivamall Money Back Guarantee case.
If you, as a seller, decide to refund a
buyer or are obligated to do so under Kyivamall Money Back Guarantee, Kyivamall
or Kyivamall Payments Entities may send you an invoice for the reimbursement
amount, or they may collect the reimbursement directly from you as explained in
the Payments Terms of Use. In instances where we are unable to recover the
reimbursement from you, we may resort to alternative collection methods,
including engaging collection agencies.
We reserve the right to temporarily or
entirely suspend Kyivamall Money Back Guarantee without prior notice if we
suspect misuse or interference that disrupts the proper operation of the
policy. In such cases, you agree to indemnify us for any losses, including
expenses incurred in recovering these losses, stemming from any misuse or
fraudulent activities related to Kyivamall Money Back Guarantee.
D. Recommendations
Kyivamall may offer personalized
suggestions to enhance your experience, assisting you in buying or selling
items of interest. These recommendations are tailored based on data related to
your Kyivamall activity, the item in question, seasonal trends, and other
relevant factors.
11. Accepted Payment Services
Payments for items sold through our Services are facilitated by designated Kyivamall entities, referred to as "Kyivamall Payment Entities," in accordance with the Payments Terms of Use. You must adhere to the applicable portions of the Payments Terms of Use in order to receive payment for items you've sold using our Services. This entails providing Kyivamall Payment Entities with information about yourself, your business, and the financial account you'll use to receive payments. The main Kyivamall Payment Entity is M-Pesa, a Kenyan Mobile Payment Service.
If you're a buyer:
You have the option to make payments for items and services using the payment methods offered by Kyivamall Payment Entities. These entities will handle the payment settlement process for sellers. When you make a purchase on our Services, you grant authorization to Kyivamall Payment Entity to initiate payments using your selected payment method and collect the transaction amounts on behalf of the seller. Therefore, any payments made to Kyivamall Payment Entity by you will fulfill your obligation to pay the seller the corresponding amount.
In certain situations, your transaction may be declined, temporarily held, or frozen for various reasons, including suspicion of fraud, compliance with Anti-Money Laundering (AML) regulations, adherence to economic or trade sanctions, Kyivamall's internal risk controls, or potential violations of Kyivamall's or Kyivamall Payment Entity's policies, or those of third-party payment service providers.
Kyivamall, Kyivamall Payment Entity, or its affiliates may store your payment information, such as credit or debit card numbers and expiration dates, when you enter them on our Services for transactions like purchases, coupon redemptions, or other payment-related activities. This stored payment information may become your default payment method for future transactions on our Services. You have the option to update or enter new card information at any time, and the new details will then be stored as your default payment method. You can make changes to your default payment method. It is your responsibility to ensure the accuracy of the information we have on record, and you consent to Kyivamall updating this stored information periodically based on information provided by you, your bank, or other payment services providers. You should only provide information about payment methods that you are authorized to use. By placing a payment method on file with us, you authorize Kyivamall Payment Entities to charge your payment method(s) for any amounts related to your use of our Services, including charges for recovering proceeds from any fraud committed by you or charges to reclaim erroneously refunded amounts.
You have the option to request returns or cancellations on our Services or file Kyivamall Money Back Guarantee claims. If you are eligible for a refund, Kyivamall Payment Entities will process the refund if they were responsible for the initial payment processing. The timing of refunds may vary based on the rules of third-party entities, such as credit and debit card networks.
You agree to comply with all applicable laws, regulations, rules, and terms and conditions when using the services provided by Kyivamall Payment Entities. You understand that some third parties, such as credit and debit card issuers, credit and debit card networks, and payment services providers, may have their own terms and conditions related to the payment or settlement methods you choose to use for managed payments transactions. Failure to adhere to these third-party terms and conditions may result in fees being assessed to you (e.g., currency conversion fees from your credit card issuer if the transaction currency differs from your credit card currency) or other actions taken by these third parties. You acknowledge that Kyivamall Payment Entity has no control over, and assumes no responsibility or liability for, such fees or actions.
11. Limitation of Liability; Disclaimer of Warranties
We strive to maintain the safety, security, and proper functioning of our Services; however, we cannot guarantee uninterrupted operation or access to our Services. Functions like bid updates and notifications in Kyivamall's applications may not occur in real-time and may be subject to delays that are beyond Kyivamall's control.
By using our Services, you acknowledge that you do so at your own risk, and they are provided to you on an "AS IS" and "AS AVAILABLE" basis. Therefore, to the extent permitted by applicable law, we disclaim all express or implied warranties, conditions, and terms, including but not limited to implied warranties of merchantability, fitness for a particular purpose, and non-infringement.
Additionally, to the extent permitted by applicable law, under no circumstances will Kyivamall (including our parent company, subsidiaries, affiliates, officers, directors, agents, and employees) be liable to you or any third party for any claims, whether in law or equity, for any consequential damages or losses. These may include, but are not limited to, financial losses, damage to goodwill or reputation, loss of profits, intangible losses, or any special, indirect, or consequential damages. All such damages or losses are explicitly excluded by this User Agreement, regardless of whether they were foreseeable or Kyivamall was informed of such damages or losses.
Specifically, we (including our parent company, subsidiaries, affiliates, officers, directors, agents, and employees) are not liable, and you agree not to hold us responsible, for any damages or losses stemming directly or indirectly from:
The content you provide (either directly or indirectly) using our Services.
Your use of our Services or any limitations you encounter while using them.
Guidance provided by Kyivamall regarding pricing, shipping, format, or other aspects.
Delays or interruptions in our Services.
Viruses or other malicious software obtained through access to or linking with our Services.
Technical issues, errors, or inaccuracies of any kind in our Services.
Damage to your hardware or device resulting from using any Kyivamall Service.
The content, actions, or inactions of third parties, including items listed using our Services or the alleged counterfeit of items.
Suspension or other actions taken regarding your account or a breach of the Using Kyivamall section above.
The duration or presentation of your listings in search results, as outlined in the Listing Conditions section above.
Any changes to this User Agreement or our policies that require you to adjust your practices, content, or behavior, or result in your loss of business.
Please note that some jurisdictions do not allow the disclaimer of warranties or the exclusion of damages, so these disclaimers and exclusions may not apply to you.
However, irrespective of the preceding paragraphs, if we are found liable, our liability to you or any third party is limited to the greater of (a) any amounts due under Kyivamall Money Back Guarantee, up to the price the item sold for on Kyivamall (including applicable sales tax) plus its original shipping costs, (b) the amount of fees in dispute, not exceeding the total fees paid to us in the 12 months prior to the event giving rise to the liability.
12. Release
If a seller (you) find themselves in a
dispute with one or more users, you release us, along with our affiliates,
subsidiaries, and all respective officers, directors, employees, and agents,
from any claims, demands, and damages—whether they are actual or consequential,
and of any kind or nature, whether known or unknown—arising from or connected
to such disputes. By agreeing to this release, you explicitly waive any protections,
whether provided by law or otherwise, that might otherwise limit the scope of
this release to cover only those claims that you may be aware of or suspect to
be in your favor at the time you accept this release.
13. Indemnity
You agree to indemnify and protect us, including our affiliates, subsidiaries, as well as our and their respective officers, directors, employees, and agents, from any claims or demands, including reasonable legal fees, made by any third party due to or resulting from your violation of this User Agreement, your improper use of our Services, or your breach of any laws or the rights of a third party.
PLEASE TAKE YOUR TIME TO CAREFULLY READ THIS SECTION AS IT WILL AFFECT YOUR RIGHTS AND OUTLINES THE PROCESS FOR RESOLVING ANY CLAIMS OR DISPUTES BETWEEN YOU, AS A BUYER, SELLERS AND KYIVAMALL.
In this section on Legal Disputes, the term "related third parties" encompasses both your and Kyivamall's respective affiliates, subsidiaries, parent companies, predecessors, successors, assigns, as well as employees and agents associated with you, Kyivamall, and these entities. You and Kyivamall mutually agree that any claim or dispute, whether at law or equity, that has arisen or may arise between you and Kyivamall (or any related third parties) and is connected in any way to or arises from this Terms of Use, your use of the Services, actions by Kyivamall or its agents, or any products or services bought or sold through the Services, will be resolved in accordance with the provisions specified in this Legal Disputes section.
A. Applicable Law
Users on our site consent, except in the case of inconsistencies or preempted by Kenyan law without regard to principles relevant to conflict of laws, will govern this Terms of Use and any dispute or claim that arise or will arise between sellers and buyers, except stated otherwise in this Terms of Use.
B. Agreement to Arbitrate
You and Kyivamall agree that all claims of disputes that will arise between you and Kyivamall or related third parties that do business using our name that relates in any manner, your use of our services, the actions of our agents, employees, or Kyivamall entirely, or products or services sold or offered through this service will be resolved through binding and final arbitration instead of involving courts. You also have the option to assert claims or present your claim before courts if such claims qualify and when the matter is before such courts and advances only on an individual rather than basis or non-representative or non-class.
Contrary to this User Agreement advice on
settling disputes through arbitration, either party has the option to seek
resolution in a small claims court for disputes or claims that fall under the
jurisdiction of that court, and this must be pursued on an individual basis,
not as part of a class action. If one party initiates an arbitration
proceeding, asserting a claim that falls within a small claims court's
jurisdiction, the other party may, at its discretion, insist that the
arbitration request be withdrawn and that the claim be filed in the small
claims court. Any disagreement regarding whether a particular claim falls
within the jurisdiction of a specific small claims court will be determined by
that court, not by an arbitrator. If such a jurisdictional dispute arises, the
arbitration process will remain suspended until the small claims court issues a
decision indicating that the claim should proceed through arbitration.
2. Prohibition of Collective and
Representative Actions and Non-Individualized Relief
BOTH YOU AND KYIVAMALL ACKNOWLEDGE AND
AGREE THAT EACH OF US HAS THE RIGHT TO BRING CLAIMS AGAINST THE OTHER PARTY
ONLY ON AN INDIVIDUAL BASIS. WE MAY NOT BRING SUCH CLAIMS AS PLAINTIFFS OR
MEMBERS OF A CLASS, OR AS PART OF ANY PURPORTED CLASS, REPRESENTATIVE, OR
PRIVATE ATTORNEY GENERAL ACTION OR LEGAL PROCEEDING. UNLESS BOTH YOU AND
KYIVAMALL MUTUALLY AGREE OTHERWISE, THE ARBITRATOR IS NOT ALLOWED TO
CONSOLIDATE OR COMBINE CLAIMS FROM MORE THAN ONE PERSON OR PARTY, AND THEY
CANNOT OVERSEE ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, CLASS, OR PRIVATE
ATTORNEY GENERAL ACTION OR PROCEEDING. FURTHERMORE, ANY RELIEF GRANTED BY THE
ARBITRATOR, INCLUDING MONETARY, INJUNCTIVE, OR DECLARATORY RELIEF, CAN ONLY BE
AWARDED IN FAVOR OF THE INDIVIDUAL PARTY SEEKING SUCH RELIEF, AND ONLY TO THE
EXTENT NECESSARY TO ADDRESS THE ISSUES RAISED BY THAT PARTY'S INDIVIDUAL
CLAIMS. SUCH RELIEF CANNOT BE EXTENDED TO OR IMPACT OTHER USERS.
If a court determines that applicable law
prevents the enforcement of any of the limitations described in this paragraph
concerning a specific claim or a particular request for a remedy (e.g., a
request for injunctive relief), then that particular claim or remedy request
(and only that claim or remedy request) must be separated from the arbitration
process and may be pursued in a court, while preserving both your and Kyivamall's
right to appeal the court's decision. All other claims will proceed through
arbitration.
3. Arbitration Procedures
Arbitration is less formal compared to a courtroom lawsuit. In arbitration, a neutral arbitrator is used instead of a judge or jury, and the scope of court review of an arbitration award is quite limited. Nevertheless, an arbitrator has the authority to grant the same remedies and damages to an individual as a court would. Arbitration in Kenya is governed by the Arbitration Act, No. 4 of 1995 and its subsequent amendments (the “Kenyan Arbitration Act” or the “KAA”).
The arbitrator will
apply the terms of the User Agreement in the same way a court would. All
matters are within the arbitrator's purview to resolve, with the exception of
issues related to whether a dispute should be subject to arbitration, the
extent or enforceability of this Agreement to Arbitrate, or the interpretation
of Section 2 of this Agreement to Arbitrate, which deals with the prohibition
of collective actions and non-individualized relief. These particular issues
are reserved for a competent court to adjudicate.
C. Judicial Forum for Legal Disputes
If the Agreement to Arbitrate stated herein
is determined not to be applicable to you or to a specific claim or dispute,
whether due to your choice to opt out of the Agreement to Arbitrate or due to a
decision made by the arbitrator or a court order, you consent to the exclusive
resolution of any claim or dispute between you and Kyivamall through legal
proceedings in a state or federal court situated within your county of
residence. Both you and Kyivamall willingly subject yourselves to the
jurisdiction of the courts located within your county of residence, solely for
the purpose of addressing and resolving all such claims, disputes, or issues.
14. General Terms
Unless stated otherwise in this User
Agreement, if any provision of this User Agreement is deemed invalid, void, or
unenforceable for any reason, that particular provision will be removed and
will not affect the validity and enforceability of the remaining provisions. We
may, at our sole discretion, assign this User Agreement, and if we do so, we
will notify you through www.kyivamall.co.ke
for Kenyan users and www.kyivamall.com
for international users.
The section headings are provided for
reference purposes only and do not limit the scope or extent of the respective
section. Our decision not to take action regarding a breach by you or others
does not waive our right to act regarding subsequent or similar breaches.
Please note that we do not guarantee that we will address every breach of this
User Agreement.
We reserve the right to make amendments to
this User Agreement at any time by posting the revised terms on www.kyivamall.co.ke or www.kyivamall.com.
This includes the right to modify, add, or remove terms within the User
Agreement. We will provide you with a 30-day notice by posting the updated
terms and, additionally, by notifying you through Kyivamall Message Center
and/or via email. Your continued use of our Services after this notification
constitutes your acceptance of the revised terms. We may also request your
acknowledgment of the User Agreement changes through an electronic
click-through process. Any amendments to this User Agreement must be mutually
agreed upon by you and an Kyivamall representative who is authorized to make
such amendments.
While Kyivamall retains the right to
refuse, modify, or terminate all or part of our Services, we also maintain the
ability to terminate this Agreement with any individual at any time and for any
reason at our sole discretion, by providing notice of such termination.
The policies and terms displayed on our
Services may be updated periodically, and these changes become effective when
we post them on the Kyivamall Service.
If you create or use an account on behalf
of a business entity, you affirm that you have the authority to represent the
business and bind it to this User Agreement. Such accounts are owned and
controlled by the business entity. This User Agreement does not establish an
agency, partnership, joint venture, employer-employee, or franchiser-franchisee
relationship.
The User Agreement, along with all terms
and policies accessible through our Services, constitutes the complete
understanding and agreement between you and Kyivamall, supersedes all prior
agreements between the parties.
The following sections of this User Agreement remain in effect even after the termination of this Agreement: Fees and Taxes, Content, Holds and Restricted Funds, Additional Terms, Payment Services, Disclaimer of Warranties; Limitation of Liability; Release, Indemnity, Legal Disputes, and General.
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