1. Contractual Relationship
PLEASE READ THESE TERMS CAREFULLY BEFORE ACCESSING OR USING THE SERVICES.
Your access and use of the Services constitutes your agreement to be bound by these Terms, which establishes a contractual relationship between you and SmatBeba. If you do not agree to these Terms, you may not access or use the Services. These Terms expressly supersede prior agreements or arrangements with you. SmatBeba may immediately terminate these Terms or any Services with respect to you, or generally cease offering or deny access to the Services or any portion thereof, at any time for any reason.
Supplemental terms may apply to certain Services, such as policies for a particular event, activity or promotion, and such supplemental terms will be disclosed to you in connection with the applicable Services. Supplemental terms are in addition to, and shall be deemed a part of, the Terms for the purposes of the applicable Services. Supplemental terms shall prevail over these Terms in the event of a conflict with respect to the applicable Services.
SmatBeba may amend the Terms related to the Services from time to time. Amendments will be effective upon SmatBeba’s posting of such updated Terms at this location or the amended policies or supplemental terms on the applicable Service. Your continued access or use of the Services after such posting constitutes your consent to be bound by the Terms, as amended.
2. The Services
The Services constitute a technology platform that enables users of SmatBeba’s mobile applications or websites provided as part of the Services (each, an “Application”) to arrange and schedule transportation and/or logistics services with independent third party providers of such services, including independent third party transportation providers and independent third party logistics providers under agreement with SmatBeba or certain of SmatBeba’s affiliates (“Third Party Providers”). Unless otherwise agreed by SmatBeba in a separate written agreement with you, the Services are made available solely for your personal, noncommercial use. YOU ACKNOWLEDGE THAT SMATBEBA DOES NOT PROVIDE TRANSPORTATION OR LOGISTICS SERVICES OR FUNCTION AS A TRANSPORTATION CARRIER AND THAT ALL SUCH TRANSPORTATION OR LOGISTICS SERVICES ARE PROVIDED BY INDEPENDENT THIRD PARTY CONTRACTORS WHO ARE NOT EMPLOYED BY SMATBEBA OR ANY OF ITS AFFILIATES.
Subject to your compliance with these Terms, SmatBeba grants you a limited, non-exclusive, non-sublicensable, revocable, non-transferrable license to: (i) access and use the Applications on your personal device solely in connection with your use of the Services; and (ii) access and use any content, information and related materials that may be made available through the Services, in each case solely for your personal, noncommercial use. Any rights not expressly granted herein are reserved by SmatBeba and SmatBeba’s licensors.
You may not: (i) remove any copyright, trademark or other proprietary notices from any portion of the Services; (ii) reproduce, modify, prepare derivative works based upon, distribute, license, lease, sell, resell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Services except as expressly permitted by Smatbeba; (iii) decompile, reverse engineer or disassemble the Services except as may be permitted by applicable law; (iv) link to, mirror or frame any portion of the Services; (v) cause or launch any programs or scripts for the purpose of scraping, indexing, surveying, or otherwise data mining any portion of the Services or unduly burdening or hindering the operation and/or functionality of any aspect of the Services; or (vi) attempt to gain unauthorized access to or impair any aspect of the Services or its related systems or networks.
Provision of the Services
You acknowledge that portions of the Services may be made available under Smatbeba’s various brands or request options associated with transportation or logistics, including the transportation request brands currently referred to as “Let’s Move,” “Beba Construction,” “Beba Fragile & Perishables,” “Beba Retail,” “Beba Tourism,” “Beba Consultancy”. You also acknowledge that the Services may be made available under such brands or request options by or in connection with: (i) certain of Smatbeba’s subsidiaries and affiliates; or (ii) independent Third Party Providers, including transportation network company drivers, transportation charter permit holders or holders of similar transportation permits, authorizations or licenses.
Third Party Services and Content.
The Services and all rights therein are and shall remain SmatBeba’s property or the property of SmatBeba’s licensors. Neither these Terms nor your use of the Services convey or grant to you any rights: (i) in or related to the Services except for the limited license granted above; or (ii) to use or reference in any manner SmatBeba’s company names, logos, product and service names, trademarks or services marks or those of SmatBeba’s licensors.
3. Your Use of the Services
In order to use most aspects of the Services, you must register for and maintain an active personal user Services account (“Account”). You must be at least 18 years of age, or the age of legal majority in your jurisdiction (if different than 18), to obtain an Account. Account registration requires you to submit to SmatBeba certain personal information, such as your name, address, mobile phone number and age, as well as at least one valid payment method (either a credit card or accepted payment partner). You agree to maintain accurate, complete, and up-to-date information in your Account. Your failure to maintain accurate, complete, and up-to-date Account information, including having an invalid or expired payment method on file, may result in your inability to access and use the Services or SmatBeba’s termination of these Terms with you. You are responsible for all activity that occurs under your Account, and you agree to maintain the security and secrecy of your Account username and password at all times. Unless otherwise permitted by SmatBeba in writing, you may only possess one Account.
User Requirements and Conduct.
The Service is not available for use by persons under the age of 18. You may not authorize third parties to use your Account, and you may not allow persons under the age of 18 to receive transportation or logistics services from Third Party Providers unless they are accompanied by you. You may not assign or otherwise transfer your Account to any other person or entity. You agree to comply with all applicable laws when using the Services, and you may only use the Services for lawful purposes (e.g., no transport of unlawful or hazardous materials). You will not, in your use of the Services, cause nuisance, annoyance, inconvenience, or property damage, whether to the Third Party Provider or any other party. In certain instances you may be asked to provide proof of identity to access or use the Services, and you agree that you may be denied access to or use of the Services if you refuse to provide proof of identity.
By creating an Account, you agree that the Services may send you text (SMS) messages as part of the normal business operation of your use of the Services. You may opt-out of receiving text (SMS) messages from SmatBeba at any time. You acknowledge that opting out of receiving text (SMS) messages may impact your use of the Services.
SmatBeba may, in SmatBeba’s sole discretion, create promotional codes that may be redeemed for Account credit, or other features or benefits related to the Services and/or a Third Party Provider’s services, subject to any additional terms that SmatBeba establishes on a per promotional code basis (“Promo Codes”). You agree that Promo Codes: (i) must be used for the intended audience and purpose, and in a lawful manner; (ii) may not be duplicated, sold or transferred in any manner, or made available to the general public (whether posted to a public form or otherwise), unless expressly permitted by SmatBeba; (iii) may be disabled by SmatBeba at any time for any reason without liability to SmatBeba; (iv) may only be used pursuant to the specific terms that SmatBeba establishes for such Promo Code; (v) are not valid for cash; and (vi) may expire prior to your use. SmatBeba reserves the right to withhold or deduct credits or other features or benefits obtained through the use of Promo Codes by you or any other user in the event that SmatBeba determines or believes that the use or redemption of the Promo Code was in error, fraudulent, illegal, or in violation of the applicable Promo Code terms or these Terms.
User Provided Content
SmatBeba may, in SmatBeba’s sole discretion, permit you from time to time to submit, upload, publish or otherwise make available to SmatBeba through the Services textual, audio, and/or visual content and information, including commentary and feedback related to the Services, initiation of support requests, and submission of entries for competitions and promotions (“User Content”). Any User Content provided by you remains your property. However, by providing User Content to SmatBeba, you grant SmatBeba a worldwide, perpetual, irrevocable, transferrable, royalty-free license, with the right to sublicense, to use, copy, modify, create derivative works of, distribute, publicly display, publicly perform, and otherwise exploit in any manner such User Content in all formats and distribution channels now known or hereafter devised (including in connection with the Services and SmatBeba’s business and on third-party sites and services), without further notice to or consent from you, and without the requirement of payment to you or any other person or entity.
You represent and warrant that: (i) you either are the sole and exclusive owner of all User Content or you have all rights, licenses, consents and releases necessary to grant SmatBeba the license to the User Content as set forth above; and (ii) neither the User Content nor your submission, uploading, publishing or otherwise making available of such User Content nor SmatBeba’s use of the User Content as permitted herein will infringe, misappropriate or violate a third party’s intellectual property or proprietary rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
You agree to not provide User Content that is defamatory, libelous, hateful, violent, obscene, pornographic, unlawful, or otherwise offensive, as determined by SmatBeba in its sole discretion, whether or not such material may be protected by law. SmatBeba may, but shall not be obligated to, review, monitor, or remove User Content, at SmatBeba’s sole discretion and at any time and for any reason, without notice to you.
Network Access and Devices
You are responsible for obtaining the data network access necessary to use the Services. Your mobile network’s data and messaging rates and fees may apply if you access or use the Services from a wireless-enabled device and you shall be responsible for such rates and fees. You are responsible for acquiring and updating compatible hardware or devices necessary to access and use the Services and Applications and any updates thereto. SmatBeba does not guarantee that the Services, or any portion thereof, will function on any particular hardware or devices. In addition, the Services may be subject to malfunctions and delays inherent in the use of the Internet and electronic communications.
You understand that use of the Services may result in charges to you for the services or goods you receive from a Third Party Provider (“Charges”). After you have received services or goods obtained through your use of the Service, SmatBeba will facilitate your payment of the applicable Charges on behalf of the Third Party Provider as such Third Party Provider’s limited payment collection agent. Payment of the Charges in such manner shall be considered the same as payment made directly by you to the Third Party Provider. Charges may include other applicable fees, tolls, and/or surcharges including a booking fee, national, provincial and municipal tolls, airport surcharges and processing fees for split payments, and will be inclusive of applicable taxes where required by law. Charges paid by you are final and non-refundable, unless otherwise determined by SmatBeba. You retain the right to request lower Charges from a Third Party Provider for services or goods received by you from such Third Party Provider at the time you receive such services or goods. SmatBeba will respond accordingly to any request from a Third Party Provider to modify the Charges for a particular service or good.
All Charges are due immediately and payment will be facilitated by SmatBeba using the preferred payment method designated in your Account, after which SmatBeba will send you a receipt by email. If your primary Account payment method is determined to be expired, invalid or otherwise not able to be charged, you agree that SmatBeba may, as the Third Party Provider’s limited payment collection agent, use a secondary payment method in your Account, if available.
As between you and SmatBeba, SmatBeba reserves the right to establish, remove and/or revise Charges for any or all services or goods obtained through the use of the Services at any time in SmatBeba’s sole discretion. Further, you acknowledge and agree that Charges applicable in certain geographical areas may increase substantially during times of high demand. SmatBeba will use reasonable efforts to inform you of Charges that may apply, provided that you will be responsible for Charges incurred under your Account regardless of your awareness of such Charges or the amounts thereof. SmatBeba may from time to time provide certain users with promotional offers and discounts that may result in different amounts charged for the same or similar services or goods obtained through the use of the Services, and you agree that such promotional offers and discounts, unless also made available to you, shall have no bearing on your use of the Services or the Charges applied to you. You may elect to cancel your request for services or goods from a Third Party Provider at any time prior to such Third Party Provider’s arrival, in which case you may be charged a cancellation fee.
This payment structure is intended to fully compensate the Third Party Provider for the services or goods provided. Except with respect to taxicab transportation services requested through the Application, SmatBeba does not designate any portion of your payment as a tip or gratuity to the Third Party Provider. Any representation by SmatBeba (on SmatBeba’s website, in the Application, or in SmatBeba’s marketing materials) to the effect that tipping is “voluntary,” “not required,” and/or “included” in the payments you make for services or goods provided is not intended to suggest that SmatBeba provides any additional amounts, beyond those described above, to the Third Party Provider. You understand and agree that, while you are free to provide additional payment as a gratuity to any Third Party Provider who provides you with services or goods obtained through the Service, you are under no obligation to do so. Gratuities are voluntary. After you have received services or goods obtained through the Service, you will have the opportunity to rate your experience and leave additional feedback about your Third Party Provider.
Repair or Cleaning Fees.
You shall be responsible for the cost of repair for damage to, or necessary cleaning of, Third Party Provider vehicles and property In the event that a Third Party Provider reports the need for Repair or Cleaning, and such Repair or Cleaning request is verified by SmatBeba in SmatBeba’s reasonable discretion, SmatBeba reserves the right to facilitate payment for the reasonable cost of such Repair or Cleaning on behalf of the Third Party Provider using your payment method designated in your Account. Such amounts will be transferred by SmatBeba to the applicable Third Party Provider and are non-refundable.
5. Disclaimers; Limitation of Liability; Indemnity.
The services are provided “as is” and “as available.” SmatBeba disclaims all representations and warranties, express, implied or statutory, not expressly set out in these terms, including the implied warranties of merchantability, fitness for a particular purpose and non-infringement. In addition, SmatBeba makes no representation, warranty, or guarantee regarding the reliability, timeliness, quality, suitability or availability of the services or any services or goods requested through the use of the services, or that the services will be uninterrupted or error-free. SmatBeba does not guarantee the quality, suitability, safety or ability of third party providers. You agree that the entire risk arising out of your use of the services, and any service or good requested in connection therewith, remains solely with you, to the maximum extent permitted under applicable law.
Limitation of Liability
SmatBeba shall not be liable for indirect, incidental, special, exemplary, punitive or consequential damages, including lost profits, lost data, personal injury or property damage related to, in connection with, or otherwise resulting from any use of the services, even if SmatBeba has been advised of the possibility of such damages. SmatBeba shall not be liable for any damages, liability or losses arising out of: (i) your use of or reliance on the services or your inability to access or use the services; or (ii) any transaction or relationship between you and any third party provider, even if SmatBeba has been advised of the possibility of such damages. SmatBeba shall not be liable for delay or failure in performance resulting from causes beyond SmatBeba’s reasonable control. You acknowledge that third party transportation providers providing transportation services requested through some request brands may offer ridesharing or peer-to-peer transportation services and may not be professionally licensed or permitted. In no event shall SmatBeba’s total liability to you in connection with the services for all damages, losses and causes of action exceed five hundred US Dollars ($500).
SmatBeba’s services may be used by you to request and schedule transportation, goods or logistics services with third party providers, but you agree that SmatBeba has no responsibility or liability to you related to any transportation, goods or logistics services provided to you by third party providers other than as expressly set forth in these terms.
The limitations and disclaimer in this section 5 do not purport to limit liability or alter your rights as a consumer that cannot be excluded under applicable law.
You agree to indemnify and hold SmatBeba and its officers, directors, employees and agents harmless from any and all claims, demands, losses, liabilities, and expenses (including attorneys’ fees) arising out of or in connection with: (i) your use of the Services or services or goods obtained through your use of the Services; (ii) your breach or violation of any of these Terms; (iii) SmatBeba’s use of your User Content; or (iv) your violation of the rights of any third party, including Third Party Providers.
6. Lost Property
You understand and agree that it is your responsibility to ensure that you remove your property from the vehicle of a Third Party Provider when disembarking. Should you leave your property in the vehicle of a Third Party Provider, the Third Party Provider may hand over your property to you, SmatBeba or to the SmatBeba local service entity.
Whilst you may expect Third Party Providers to hand over your property to you, the offices of SmatBeba or the SmatBeba local service entity, SmatBeba or the SmatBeba local service entity shall not be held liable in the event of the Third Party Provider not handing over your property as expected. Moreover, SmatBeba or the SmatBeba local service entity shall not be liable for the loss or damage to your property whilst it is in transit.
Whilst SmatBeba or the SmatBeba local service entity will take reasonable steps to establish the owner of property left in a Third Party Provider’s vehicle if returned to the offices of SmatBeba or the SmatBeba local service entity, when your property is in SmatBeba’s or the SmatBeba local service entity’s possession, you understand and agree that: (i) SmatBeba or the SmatBeba local service entity will only keep your property in its possession for a maximum period of three months from the date on which the Third Party Provider handed your property to SmatBeba or the SmatBeba local service entity; and (ii) should you fail to collect your property from SmatBeba or the SmatBeba local service entity before the expiry of the three month period stipulated, SmatBeba or the SmatBeba local service entity will be entitled to deal with your property as it deems fit and you shall have no claim whatsoever against SmatBeba or the SmatBeba local service entity in respect of your unclaimed property.
7. Governing Law; Arbitration
Except as otherwise set forth in these Terms, these Terms shall be exclusively governed by and construed in accordance with the laws of Kenya, excluding its rules on conflicts of laws. The language of the mediation and/or arbitration shall be English, unless you do not speak English, in which case the mediation and/or arbitration shall be conducted in both English and your native language.
8. Other Provisions
You may not assign or transfer these Terms in whole or in part without SmatBeba’s prior written approval. You give your approval to SmatBeba for it to assign or transfer these Terms in whole or in part, including to: (i) a subsidiary or affiliate; (ii) an acquirer of SmatBeba’s equity, business or assets; or (iii) a successor by merger. No joint venture, partnership, employment or agency relationship exists between you, SmatBeba or any Third Party Provider as a result of the contract between you and SmatBeba or use of the Services.
If any provision of these Terms is held to be illegal, invalid or unenforceable, in whole or in part, under any law, such provision or part thereof shall to that extent be deemed not to form part of these Terms but the legality, validity and enforceability of the other provisions in these Terms shall not be affected. In that event, the parties shall replace the illegal, invalid or unenforceable provision or part thereof with a provision or part thereof that is legal, valid and enforceable and that has, to the greatest extent possible, a similar effect as the illegal, invalid or unenforceable provision or part thereof, given the contents and purpose of these Terms. These Terms constitute the entire agreement and understanding of the parties with respect to its subject matter and replaces and supersedes all prior or contemporaneous agreements or undertakings regarding such subject matter. In these Terms, the words “including” and “include” mean “including, but not limited to.”