Privacy
Agreement
1. Contractual Relationship
These Terms of Use (“Terms”) govern the
access or use by you, an individual, from within any country in the world
(excluding the United States and its territories and possessions and Mainland
China) of applications, websites, content, products, and services (the
“Services”) made available by Smatbeba Limited, a private limited liability
company established in Kenya, registered at the Registrar of Companies under the
Companies Act, 2015 under number PVT-7LUJVBL.
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.
Our collection and
use of personal information in connection with the Services is as provided in SmatBeba’s
Privacy Policy. SmatBeba may provide to a claims processor or an insurer any
necessary information (including your contact information) if there is a
complaint, dispute or conflict, which may include an accident, involving you
and a Third Party Provider (including a transportation network company driver)
and such information or data is necessary to resolve the complaint, dispute or
conflict.
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.
License.
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.
Restrictions.
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 may be
made available or accessed in connection with third party services and content
(including advertising) that SmatBeba does not control. You acknowledge that
different terms of use and privacy policies may apply to your use of such third
party services and content. SmatBeba does not endorse such third party services
and content and in no event shall SmatBeba be responsible or liable for any
products or services of such third party providers. Additionally, Apple Inc.,
Google, Inc., Microsoft Corporation or BlackBerry Limited and/or their
applicable international subsidiaries and affiliates will be third-party
beneficiaries to this contract if you access the Services using Applications
developed for Apple iOS, Android, Microsoft Windows, or Blackberry-powered
mobile devices, respectively. These third party beneficiaries are not parties
to this contract and are not responsible for the provision or support of the
Services in any manner. Your access to the Services using these devices is
subject to terms set forth in the applicable third party beneficiary’s terms of
service.
Ownership
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
User
Accounts.
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.
Text
Messaging.
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.
Promotional
Codes.
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.
4. Payment
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.
DISCLAIMER
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.
Indemnity
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.”