Terms and Conditions of Service
Please read these Terms and conditions of Service (the “Agreement”) carefully. Your use of the tibanet Platform (as defined below) constitutes your consent to this Agreement.
This Agreement is between yourselves and Chronic Drugs Medical Scheme (hereinafter referred to as “Company” or “we” or “us”) concerning your use of and access to the Company’s electronic commerce platform currently located at www.tibanet.co.ke (together with any materials and services available therein, and successor site(s) or app(s) thereto). This Agreement hereby incorporates by this reference any additional terms and conditions posted by the Company through the tibanet platform, or otherwise made available to you by the Company.
By using the tibanet platform, you affirm that you are of legal age to enter into this Agreement.
If you are an individual accessing or using the tibanet platform on behalf of, or for the benefit of, any corporation, partnership or other entity with which you are associated (an “Organization”), then you are agreeing to this Agreement on behalf of yourself and such Organization, and you represent and warrant that you have the legal authority to bind such Organization to this Agreement. References to “you” and “your” in this Agreement will refer to both the individual using the tibanet platform and to any such Organization.
This Agreement contains a mandatory arbitration provision that, as further set forth in Section 22 below, requires the use of arbitration on an individual basis to resolve disputes, rather than trials or any other court proceedings, or class actions of any kind.
We may change this Agreement from time to time by notifying you of such changes by any reasonable means, including by posting a revised Agreement through the tibanet platform. Any such changes will not apply to any dispute between you and us arising prior to the date on which we posted the revised Agreement incorporating such changes, or otherwise notified you of such changes.
Your use of the tibanet platform following any changes to this Agreement will constitute your acceptance of such changes. The “Last Updated” legend above indicates when this Agreement was last changed. We may, at any time and without liability, modify or discontinue all or part of the tibanet platform (including access to the tibanet platform via any third-party links); charge, modify or waive any fees required to use the tibanet platform; or offer opportunities to some or all tibanet platform users.
2. Information Submitted Through the Site.
3. Jurisdictional Issues.
The tibanet platform is controlled and operated from Kenya under Kenyan Laws and rules as provided under the Kenya Information and Communication Act (Amendment act) and the regulations as amended from time to time or any other law enacted thereafter; and is not intended to subject the Company to any non-Kenyan jurisdiction or law. The tibanet platform may not be appropriate or available for use in non- Kenyan jurisdictions. Any use of the tibanet Platform is at your own risk, and you must comply with all applicable laws, rules and regulations in doing so. We may limit the tibanet platform’s availability at any time, in whole or in part, to any person, geographic area or jurisdiction that we choose.
4. Rules of Conduct.
In connection with the tibanet Platform, you must not:
· Post, transmit or otherwise make available through or in connection with the tibanet platform any materials that are or may be: (a) threatening, harassing, degrading, hateful or intimidating, or otherwise fail to respect the rights and dignity of others; (b) defamatory, libelous, fraudulent or otherwise tortious; (c) obscene, indecent, pornographic or otherwise objectionable; or (d) protected by copyright, trademark, trade secret, right of publicity or privacy or any other proprietary right, without the express prior written consent of the applicable owner.
· Post, transmit or otherwise make available through or in connection with the tibanet platform any virus, worm, Trojan horse, Easter egg, time bomb, spyware or other computer code, file or program that is or is potentially harmful or invasive or intended to damage or hijack the operation of, or to monitor the use of, any hardware, software or equipment (each, a “Virus”).
· Use the tibanet platform for any commercial purpose that is not relevant to the Services offered through the tibanet platform, or for any purpose that is fraudulent or otherwise tortious or unlawful.
· Use the tibanet platform in violation of this Agreement.
· Harvest or collect information about users of the tibanet platform.
· Interfere with or disrupt the operation of the tibanet platform or the servers or networks used to make the tibanet platform available, including by hacking or defacing any portion of the tibanet platform; or violate any requirement, procedure or policy of such servers or networks.
· Restrict or inhibit any other person from using the tibanet platform.
· Reproduce, modify, adapt, translate, create derivative works of, sell, rent, lease, loan, timeshare, distribute or otherwise exploit any portion of (or any use of) the tibanet platform except as expressly authorized herein, without Company’s express prior written consent.
· Reverse engineer, decompile or disassemble any portion of the tibanet platform, except where such restriction is expressly prohibited by applicable law.
· Remove any copyright, trademark or other proprietary rights notice from the tibanet platform.
· Frame or mirror any portion of the tibanet platform, or otherwise incorporate any portion of the Site into any product or service, without Company’s express prior written consent.
· Systematically download and store tibanet platform content.
· Use any robot, spider, site search/retrieval application or other manual or automatic device to retrieve, index, “scrape,” “data mine” or otherwise gather tibanet Platform content, or reproduce or circumvent the navigational structure or presentation of the tibanet Platform, without Company’s express prior written consent. Notwithstanding the foregoing, and subject to compliance with any instructions posted in the robots.txt file located in the Company’s website’s root directory, Company grants to the operators of public search engines permission to use spiders to copy materials from the Company’s website for the sole purpose of (and solely to the extent necessary for) creating publicly available, searchable indices of such materials, but not caches or archives of such materials. Company reserves the right to revoke such permission either generally or in specific cases, at any time and without notice.
You are responsible for obtaining, maintaining and paying for all hardware and all telecommunications and other services needed to use the tibanet Platform.
5. The tibanet Platform.
The tibanet Platform is a web -based communications platform that enables the connection between Customers and Service Providers. “Customers” are individuals and/or businesses, who have registered with the tibanet Platform in accordance with Section 6 below, seeking to obtain products and services (“Services”) from Service Providers. “Service Providers” are individuals and/or businesses, who have registered with the tibanet Platform in accordance with Section 6 below, seeking to sell products and/or perform Services for Customers. Customers and Service Providers are collectively referred to in this Agreement as “Users.” Any decision by a User to offer or accept Services is a decision made in such User’s sole discretion. SERVICE PROVIDERS ARE INDEPENDENT SERVICE PROVIDERS AND NOT EMPLOYEES OF THE COMPANY. The tibanet platform only enables connections between Users for the performance of Services. The Company does not have control over the quality, timing, legality, failure to provide, or any other aspect whatsoever of Services, Service Providers, or Customers, nor to the integrity, responsibility, qualifications or any of the actions or omissions whatsoever of any Users. The Company makes no representations about the suitability, reliability, timeliness, or accuracy of the Services requested or provided by Users identified through the tibanet platform, whether in public, private, or offline interactions. COMPANY MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO ANY PRODUCTS OR SERVICES OR ANY USE THEREOF. THE COMPANY HEREBY EXPRESSLY DISCLAIMS ALL SUCH WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTIES ARISING OUT OF COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE.
6. Account Registration, Password and Security.
When and if you register with the tibanet platform, you agree to (a) provide accurate, current and complete information about yourself as prompted by our registration form (including your email address and, as applicable, professional license and/or certification registration information and substantiation) and (b) maintain and update your information (including your email address) to keep it accurate, current and complete. You acknowledge that, if any information provided by you is untrue, inaccurate, not current or incomplete, we reserve the right to terminate your access to and use of the tibanet platform. As part of the registration process, you will be asked to select a username and password and to provide a valid mobile phone number. We may refuse to grant you a User account if the mobile phone number you provide is already registered to another User account, or if your selected username impersonates someone else, is or may be illegal, is or may be protected by trademark or other proprietary rights law, is vulgar or otherwise offensive or may cause confusion, as determined by us in our sole discretion. You agree not to transfer or resell your use of or access to the tibanet platform to any third party. If you have reason to believe that your account with us is no longer secure, you must promptly change your password. YOU ARE ENTIRELY RESPONSIBLE FOR MAINTAINING THE CONFIDENTIALITY OF YOUR USERNAME AND PASSWORD AND FOR ANY AND ALL ACTIVITIES (INCLUDING PURCHASES, AS APPLICABLE) THAT ARE CONDUCTED THROUGH YOUR ACCOUNT.
By providing your mobile phone number and using the tibanet platform, you hereby affirmatively consent to our use of your mobile phone number for calls and texts (including prerecorded and/or by automatic telephone dialing systems) in order to (a) perform and improve upon the tibanet platform, (b) facilitate the carrying out Services through the tibanet Platform, (c) provide you with information and reminders regarding your registration, upcoming Services, changes and updates, service outages or alterations. These calls and texts may include, among other things, reminders about uncompleted or upcoming Services and/or in follow up to any push notifications delivered through our mobile application. The Company will not assess any charges for calls or texts, but standard message charges or other charges from your mobile telephone provider may apply. You may opt-out of receiving text messages from the Company by replying, “STOP” to unsubscribe or by emailing firstname.lastname@example.org and specifying you want to opt-out of text message communications from the Company. You may opt-out of receiving calls from us by stating that you no longer wish to receive calls during any call with us, or by emailing email@example.com and specifying you want to opt-out of phone call communications from the Company. You understand that we may send you a text confirming any opt-out by you. You acknowledge that opting out of text messages may impact your ability to use certain features of the tibanet platform.
7. Accessible Features. Subject to any limitations set forth in this Agreement, creation of a User account in accordance with Section 6 above enables Users to access the following features of the tibanet Platform:
· Service Provider profiles.
· Customer comments, feedback and ratings on Service Providers (and the ability to provide the same).
· Creation of a tibanet E Wallet.
· Service Providers who are contractors shall also have the ability to:
o Search for open requests for Services.
o Identify Workers with necessary skills and availability to perform Services.
o Manage the construction process and performance of Services.
8. User Vetting.
In the Company’s sole discretion, Users may be subject to an extensive vetting process via third-party background check services. Users hereby give consent to Company to conduct background checks as often as required in compliance with applicable laws. Although the Company may perform background checks of Users as outlined above, the Company is not required to do so and cannot confirm that each User is who they claim to be. Consequently, the Company cannot and does not assume any responsibility for the accuracy or reliability of identity or background check information or any information provided through the tibanet platform. When interacting with other Users, you should exercise caution and common sense to protect your personal safety and property, just as you would when interacting with other persons you do not know. NEITHER COMPANY NOR ITS AFFILIATES OR LICENSORS IS RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER OF THE TIBANET PLATFORM, AND YOU HEREBY RELEASE COMPANY AND ITS AFFILIATES OR LICENSORS FROM ANY LIABILITY RELETAED THERETO. COMPANY AND ITS AFFILIATES AND LICENSORS WILL NOT BE LIABLE FOR ANY CLAIM, INJURY OR DAMAGE ARISING IN CONNECTION WITH YOUR USE OF THE TIBANET PLATFORM OR YOUR PERFORMANCE OR RECEIPT OF SERVICES.
9. User Representations and Warranties.
Each User represents and warrants that you will: (i) respect the privacy, property, and data protection rights of other Users and that you will not record (by video, audio, or otherwise) any Services or any interaction by or with any User and/or Company in connection with the tibanet platform without the prior written consent of the applicable User; (ii) fulfill the commitments you make to other Users including paying/receiving payments, (iii) act professionally and responsibly in your interactions with other Users. In addition: (a) each Service Provider represents and warrants that you will: (i) provide timely, high quality Services to your Customer; (ii) only offer and provide Services for which you have the necessary skills and expertise; (iii) to the extent applicable, maintain any professional license and/or certifications necessary to provide Services.
Your use of the tibanet E Wallet may be subject to usage fees in accordance with the National Payment System Act 2011, No. 39 of 2011 and the National Payment System Regulations, 2013 or as directed by the Central Bank of Kenya.Users are responsible for any taxes required to be paid on the Services (other than taxes on tibanet’s income).
Customers agree to pay all charges incurred by Customer or on Customer’s behalf through the tibanet platform and at the prices agreed to.
- Company’s Proprietary Rights.
We own the tibanet platform, which is protected by proprietary rights and laws. Our trade names, trademarks and service marks include TIBANET and any associated logos. All trade names, trademarks, service marks and logos on the Site not owned by us are the property of their respective owners. You may not use our trade names, trademarks, service marks or logos in connection with any product or service that is not ours, or in any manner that is likely to cause confusion. Nothing contained on the tibanet platform should be construed as granting any right to use any trade names, trademarks, service marks or logos without the express prior written consent of the owner.
12. Third Party Materials; Links.
tibanet platform functionalities make available access to information, products, services and other materials made available by third parties, or allow for the routing or transmission of such Third Party Materials, including via links. By using such functionality, you are directing us to access, route and transmit to you the applicable Third Party Materials.
We neither control nor endorse, nor are we responsible for, any Third Party Materials, including the accuracy, validity, timeliness, completeness, reliability, integrity, quality, legality, usefulness or safety of Third Party Materials, or any intellectual property rights therein. Certain Third Party Materials may, among other things, be inaccurate, misleading or deceptive. Nothing in this Agreement shall be deemed to be a representation or warranty by the Company with respect to any Third Party Materials. We have no obligation to monitor Third Party Materials, and we may block or disable access to any Third Party Materials (in whole or part) through the tibanet Platform at any time. In addition, the availability of any Third Party Materials through the tibanet Platform does not imply our endorsement of, such Third Party Materials.
Your use of Third Party Materials is at your own risk and is subject to any additional terms, conditions and policies applicable to such Third Party Materials (such as Terms and conditions of Service or privacy policies of the providers of such Third Party Materials).
13 Third Party Financial Service Providers.
Financial service providers are independent and are not employees, partners or agents of the Company. The Company does not claim ANY authority or participation in the issuance or collection of loans. The financial service providers shall determine and manage the credit/loan terms and collections independently of the Company. The Company is NEITHER a lender NOR a collection agency. The Company does not share any liability or profit in the sale or management of loans requested or issued as a result of an interaction on the tibanet platform.
The tibanet Platform only enables connections between Users and the financial service providers. The company is not responsible for the performance of the financial service providers, nor does it have control over the terms and conditions, timing, legality, failure to provide, or any other aspect whatsoever of the financial services or financial service providers nor to the integrity, responsibility, legitimacy or any of the actions or omissions whatsoever of the financial service providers. The Company makes no representations about the suitability, reliability, timeliness, or legitimacy of the services provided by the financial service providers identified through the tibanet Platform, whether in public, private, or offline interactions. THE COMPANY MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO ANY SERVICES OR ANY USE THEREOF. THE COMPANY HEREBY EXPRESSLY DISCLAIMS ALL SUCH WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES ARISING OUT OF COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE.
14. Disclaimer of Warranties.
To the fullest extent permitted under applicable law: (a) the tibanet Platform and any Third Party Materials are made available to you on an “As Is,” “Where Is” and “Where Available” basis, without any warranties of any kind, whether express, implied or statutory; and (b) The Company disclaims all warranties with respect to the tibanet Platform and any Products and Third Party Materials, including the warranties of merchantability, fitness for a particular purpose, non-infringement and title. All disclaimers of any kind (including in this section and elsewhere in this Agreement) are made for the benefit of both the Company and its affiliates and their respective shareholders, directors, officers, employees, affiliates, agents, representatives, licensors, suppliers and service providers (collectively, the “Affiliated Entities”), and their respective successors and assigns.
While we try to maintain the timeliness, integrity and security of the tibanet Platform, we do not guarantee that the tibanet Platform is or will remain updated, complete, correct or secure, or that access to the tibanet Platform will be uninterrupted. The tibanet Platform may include inaccuracies, errors and materials that violate or conflict with this Agreement. Additionally, third parties may make unauthorized alterations to the tibanet Platform. If you become aware of any such alteration, contact us at firstname.lastname@example.org with a description of such alteration and its location on the tibanet Platform.
15. Limitation of Liability.
To the fullest extent permitted under applicable law: (a) the Company will not be liable for any indirect, incidental, consequential, special, exemplary or punitive damages of any kind, under any contract, tort (including negligence), strict liability or other theory, including damages for loss of profits, use or data, loss of other intangibles, loss of security of Submissions (including unauthorized interception by third parties of any Submissions), even if advised in advance of the possibility of such damages or losses; (b) without limiting the foregoing, the Company will not be liable for damages of any kind resulting from your use of or inability to use the tibanet Platform or from any Third Party Materials, including from any Virus that may be transmitted in connection therewith; (c) your sole and exclusive remedy for dissatisfaction with the tibanet Platform or any Products or Third Party Materials is to stop using the tibanet Platform; and (d) the maximum aggregate liability of Company for all damages, losses and causes of action, whether in contract, tort (including negligence) or otherwise, shall be the greater of $10.00 and the total amount, if any, paid by you to Company to use the tibanet Platform. All limitations of liability of any kind (including in this section and elsewhere in this Agreement) are made for the benefit of both Company and the Affiliated Entities, and their respective successors and assigns.
To the fullest extent permitted under applicable law, you agree to defend, indemnify and hold harmless the Company and the Affiliated Entities, and their respective successors and assigns, from and against all claims, liabilities, damages, judgments, awards, losses, costs, expenses and fees (including attorneys’ fees) arising out of or relating to (a) your use of, or activities in connection with, the tibanet Platform (including all Submissions); and (b) any violation or alleged violation of this Agreement by you.
This Agreement is effective until terminated. The Company may terminate or suspend your use of the tibanet Platform at any time and without prior notice, for any or no reason, including if the Company believes that you have violated or acted inconsistently with the letter or spirit of this Agreement. Upon any such termination or suspension, your right to use the tibanet Platform will immediately cease, and Company may, without liability to you or any third party, immediately deactivate or delete your user name, password and account, and all associated materials, without any obligation to provide any further access to such materials; provided that, to the extent you are owed money for Services performed or owe money for Services provided to you, your right to receive or obligation to pay any such amounts shall not be extinguished by any such termination or suspension and tibanet shall have the right (but not the obligation) to keep your tibanet Digital Wallet active until all such payments are made. Sections 2–5, 7–10 and 12–25 shall survive any expiration or termination of this Agreement.
18. Governing Law; Arbitration.
The terms of this Agreement are governed by the laws of the Republic of Kenya, without regard to its principles of conflicts of law, and regardless of your location. Except for disputes that qualify for small claims court, all disputes arising out of or related to this Agreement or any aspect of the relationship between you and Company, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, will be resolved through final and binding arbitration before a neutral arbitrator instead of in a court by a judge or magistrate. Such disputes include, without limitation, disputes arising out of or relating to interpretation or application of this arbitration provision, including the enforceability, revocability or validity of the arbitration provision or any portion of the arbitration provision. All such matters shall be decided by an arbitrator and not by a court or judge.
You agree that any arbitration under this Agreement will take place on an individual basis; class arbitrations and class actions are not permitted, and you are agreeing to give up the ability to participate in a class action.
The arbitration will be administered by the Chartered Institute of Arbitrators (Kenya Chapter) under its relevant Arbitration Rules, as amended by this Agreement. The arbitrator will conduct hearings, if any, by teleconference or videoconference, rather than by personal appearances, unless the arbitrator determines upon request by you or by us that an in-person hearing is appropriate. Any in-person appearances will be held at a location which is reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, such determination should be made by the arbitrator. The arbitrator’s decision will follow the terms of this Agreement and will be final and binding. The arbitrator will have authority to award temporary, interim or permanent injunctive relief or relief providing for specific performance of this Agreement, but only to the extent necessary to provide relief warranted by the individual claim before the arbitrator. The award rendered by the arbitrator may be confirmed and enforced in any court having jurisdiction thereof.
- Information or Complaints.
If you have a question or complaint regarding the tibanet Platform, please send an e-mail to email@example.com. Please note that e-mail communications will not necessarily be secure; accordingly, you should not include credit card information or other sensitive information in your e-mail correspondence with us.
This Agreement does not, and shall not be construed to, create any partnership, joint venture, employer-employee, agency or franchisor-franchisee relationship between you and the Company. If any provision of this Agreement is found to be unlawful, void or for any reason unenforceable, that provision will be deemed severable from this Agreement and will not affect the validity and enforceability of any remaining provision. You may not assign, transfer or sublicense any or all of your rights or obligations under this Agreement without our express prior written consent. We may assign, transfer or sublicense any or all of our rights or obligations under this Agreement without restriction. No waiver by either party of any breach or default under this Agreement will be deemed to be a waiver of any preceding or subsequent breach or default. Any heading, caption or section title contained herein is for convenience only, and in no way defines or explains any section or provision. All terms defined in the singular shall have the same meanings when used in the plural, where appropriate and unless otherwise specified. Any use of the term “including” or variations thereof in this Agreement shall be construed as if followed by the phrase “without limitation.” This Agreement, including any terms and conditions incorporated herein, is the entire agreement between you and the Company relating to the subject matter hereof, and supersedes any and all prior or contemporaneous written or oral agreements or understandings between you and Company relating to such subject matter. Notices to you (including notices of changes to this Agreement) may be made via posting to the tibanet Platform or by e-mail (including in each case via links), or by registered mail. Without limitation, a printed version of this Agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. The Company will not be responsible for any failure to fulfill any obligation due to any cause beyond its control.