These Terms of Service (the “Terms”) and our Privacy Policy apply to and govern your use of Giftpesa service. To make these Terms easier to read, our service and App are collectively called the “Services.” Additionally, these Terms may not apply if you have entered into a separate agreement with Giftpesa that governs your relationship with us, such as a separately-negotiated enterprise agreement

Agreement to Terms

By using our Services, you agree to be bound by these Terms. If you do not agree to be bound by these Terms, do not use Giftpesa Service. If you are accessing and using the Services on behalf of a company (such as your employer) or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms. In that case, “you” and “your” will refer to that company or other legal entity. The Customer accepts and acknowledges that this is a legal and binding agreement between the customer and the Giftpesa.

Privacy Policy

Our Privacy Policy (available at www.giftpesa.com/privacypolicy explains how we collect, use and disclose information from our users. You acknowledge and agree that your use of the Giftpesa Service is subject to our Privacy Policy.

Changes to Terms Or Services

We may modify the Terms at any time, in our sole discretion. If we do so, we will let you know either by posting the modified Terms on the Site or through other communications. Your continued use of our Services after we have posted the modified Terms on the Site indicates that you agree to be bound by the modified Terms. If you do not agree to be bound by the modified Terms, then you may not use the Services anymore. Because our Services are evolving over time we may change or discontinue all or any part of the Services, at any time with or without notice, at our sole discretion.

Arbitration notice: unless you opt out of arbitration within 30 days of the date you first agree to these terms by following the opt-out procedure specified in the “arbitration” section below, and except for certain types of disputes described in the “arbitration “section below, you agree that disputes between you and Giftpesa will be resolved by binding, individual arbitration and you are waiving your right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding.

Who May Use the Services?

Eligibility

You may use the Services only if you are 18 years or older, capable of forming a binding contract with Giftpesa, and are not barred from using the Services under applicable law. The Company reserves the right to verify with relevant bodies the authenticity and status of your details.

Registration and Your Information

If you want to access our Services you will have to create an account (“Account”). Depending on the account type, you can do this via Giftpesa website or through Giftpesa USSD code. When you create an Account, you will be asked to change the password. You may not use an identifier that is used by someone else, is confusing or misleading, impersonates someone else (or attempts to do so) or otherwise violates these Terms. We reserve the right to reclaim any user name that violates these Terms. It is important that you provide us with true, accurate, complete and up-to-date information when creating your Account and you agree to update such information, as needed, to keep them accurate, complete and up-to-date. The Company reserves the right to request for further information from you pertaining your application for a Giftpesa Account at any time. Failure to provide such information within the time required by the Company may result in the Company declining your application, suspending and/or terminating your account. You acknowledge and accept that the acceptance by the company of your application for a Giftpesa Account does not create any contractual relationship between you and any other third party organization beyond this terms and conditions.

You agree that you will not disclose your Account password to anyone and you will notify us immediately of any unauthorized use of your Account. You are responsible for all activities that occur under your Account, whether or not you know about them. The Company reserves the right to decline your application for a Giftpesa Account or to revoke the same at any stage at the Company’s sole discretion and without assigning any reason or giving any notice thereto

Rights and Terms of the ‘’user’’

1. The Customer accepts responsibility for making sure he understands how to use the Giftpesa Services. Giftpesa shall not be responsible for any losses caused by the Customer’s failure to properly use the Service
2. Any person applying for Giftpesa Services will be deemed to have read, understood and agreed to be bound by these T & Cs.
3. Giftpesa reserve the right to determine the Services that will be offered and will from time to time determine or specify the scope and features of the Giftpesa Services and is entitled to modify, expand or reduce the same at any time without notice to the Customer. By making an application to use Giftpesa Services, the Customer agrees to be bound by any future modifications, expansions, enhancements, deletions or reductions made by Giftpesa.
4. The Customer shall indemnify and keep Giftpesa free and harmless from and against all actions, claims, demands, liabilities, losses, damages, legal fees, costs, and expenses of whatever nature that may result or which Giftpesa may sustain, suffer or incur as a result of negligence, fraud, collusion or violation of the terms of this agreement on the part of the Customer or third party. The Customer further agrees and confirms that this indemnity shall remain valid, subsisting and binding upon him notwithstanding withdrawal, either partially or in totality, of the Giftpesa Services
5. The Customer assumes full responsibility for the security and confidentiality of his SIM card, Mobile phone, mobile phone number and personal identification number (PIN), passwords and any other credentials that may be used in gaining access to the Giftpesa Services through the use of their mobile phone or the website accounts.
6. The Customer is duly bound to acquaint himself with the detailed process and operating instructions for using the Services upon registration. Giftpesa will not be held responsible for any error or omissions by the Customer.
7. The Client/Customer hereby confirms, declares and acknowledges that the phone number provided to Giftpesa is genuinely owned by them and is in their control and that any communication from and to the said phone is and shall be within his/her knowledge and within his/her control. The Customer shall in all circumstances accept full responsibility for any and all instructions sent to Giftpesa from the phone number and hereby authorize Giftpesa to act on the instructions and process any and all transactions.
8. Instructions in respect of an Account must be given by or on behalf of the Customer strictly in accordance with the authorizations or mandates for the time being in effect in respect of such Account. All such Instructions sent to Giftpesa from the allocated phone number shall be presumed to have been given in accordance with the authorizations or mandate in effect in respect of such Account.
9. The sole individuals and corporate organizations shall be considered as users of Giftpesa services. No responsibility shall be accepted by Giftpesa for the negligence, fraud, collision or misrepresentation while using Giftpesa service
10. The Customer acknowledges that the Giftpesa Service is dependent on Safaricom PLC (M-Pesa), Redemption partners, Network connectivity and mobile signal accessibility within Kenya. The Customer accepts that timeliness of Alerts sent by Giftpesa will depend on factors affecting the telecommunication industry. Giftpesa shall not be liable for non-delivery, error, loss, distortion in transmission of and wrongful transmission of Alerts to the Customer caused by the Giftpesa dependent services mentioned above.
11. Giftpesa shall endeavor to provide the Services on a best effort basis and the Customer shall not hold Giftpesa responsible or liable for non-availability of the Services or any loss or damage caused to the Customer as a result of the use of the Services. Giftpesa shall not be held liable in any manner to the Customer in connection with the use of the Services.
12. The Customer shall not hold Giftpesa liable for any loss sustained due to fraud on Giftpesa services occasioned by the Customer’s acts or omissions.
13. Upon clicking on the “Accept” option on the Giftpesa application form or signing at the bottom of the form, the Customer agrees to have understood, and accepted to abide by all the Terms & Conditions governing the Giftpesa Services including any subsequent variations or amendments.

Rights and Terms for Individual accounts

Rights Granted by Giftpesa

Subject to your compliance with these Terms, Giftpesa grants you a limited non-exclusive, non-transferable, non-sublicensable license to use Giftpesa on your mobile device that you own or control and to run such copies solely in connection with your permitted use of the Service.

Introduction

These terms and conditions apply if you have a Giftpesa Individual account. Our obligations to you and your obligations to us is as follows.

1. The Service
   1. We will provide the service (“the Service”) to you through your mobile phone. You must create an account for you to access the Service.
   2. The Service is only available to Giftpesa account holders. We reserve the right to accept or decline any application for the Service at its sole discretion.
   3. The Service will only be provided through the mobile service provider(s) which, we may at our sole discretion, determine from time to time.
   4. The processing of your application and the subsequent registration for the Service will be done within 4 business days of submitting your application.
   5. It is your sole responsibility to familiarize yourself with the operating procedures for the Service as will be provided by us upon your registration to the Service. We will not be liable for any losses incurred as a result of your errors either of commission and/or omission.
   6. You agree and undertake to be bound by and to comply with all of the Procedures as we may issue from time to time. We shall not be bound by or obliged to take any action on any instructions which do not properly comply with the procedures and we may reject such non-compliant Instructions.
   7. Your mobile phone is a personal property. You must keep safely protect your mobile phone against unauthorized access. You must take all reasonable care to prevent unauthorized or fraudulent use of your mobile phone. We will not be held liable for any losses arising from the unauthorized use of your mobile phone.
   8. The Provision of the Service is subject to the availability of the mobile telephony connectivity. We will not be held liable for non-delivery or delay in delivery or wrongful delivery of the Service, as a result of the failure of the mobile telephony connectivity.
   9. You agree that we shall not be held liable for any disputes that may arise between you and your mobile service provider.
   10. This service will be provided to you as long as you are the sole account holder of Your account(s).
   11. We will ensure as far as possible that any information supplied to You through the Service is accurate. We shall not be liable for any error which results in the provision of inaccurate information.
   12. The Service will only be available in geographical regions where the chosen mobile service provider(s) provide (s) mobile telephony connectivity.
   13. You undertake to keep your SIM card and cell phone safely. You must not leave your Mobile Phone unattended or permit any person access to your Mobile Phone in such a manner that he may use it and/or the Giftpesa platform whether with or without your consent.
   14. You must notify us immediately of theft or loss of your mobile phone/SIM Card, any unauthorized access to the Service or upon Your discontinuation of the telephony service with Your mobile service provider, through our Contact Centre. We shall not be held liable for any losses resulting from the loss of the SIM card and/or cell phone whatsoever caused.
   15. We reserve the right to enhance the Services at any time without notice to you. It is Your responsibility to keep updated with these enhancements. We will make all reasonable efforts to notify you of any changes or updates.
   16. We shall not be held liable for the quality of service of the mobile service provider and gives no warranty with respect to the quality of service by the mobile service provider.
   17. You must notify us of any changes in your account number, mobile telephone number, address and any other information that may affect your ability to access the Service.
   18. We will not be held liable for sending information to your mobile telephone number as contained in our records at any given time.
   19. You agree to bear all risks and consequences of the inability to send comply with any instruction sent using the Service due to errors in transmission of your instructions.

General Prohibitions and Giftpesa’s Enforcement Rights

You agree not to do any of the following:

Post, upload, publish, submit or transmit any Content that:

1. infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy;
2. violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability;
3. is fraudulent, false, misleading or deceptive;
4. is defamatory, obscene, pornographic, vulgar or offensive;
5. promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group;
6. promotes violence or actions that are threatening to any person or entity; or
7. promotes illegal or harmful activities or substances.

Use, display, mirror or frame the Services or any individual element within the Services, Giftpesa’s name, any Giftpesa trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, in ways inconsistent with Giftpesa’s Mission; Access, tamper with, or use non-public areas of the Services, Giftpesa’s computer systems, or the technical delivery systems of Giftpesa’s providers;

Attempt to probe, scan or test the vulnerability of any Giftpesa system or network or breach any security or authentication measures, except when explicitly requested to do so by Giftpesa for security testing purposes;

Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Giftpesa or any of Giftpesa’s providers or any other third party (including another user) to protect the Services or Content;

Attempt to access or search the Services or Content or download Content from the Services through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by Giftpesa or other generally available third-party web browsers;

Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation (including through the posting of User Content); Use any meta tags or other hidden text or metadata utilizing a Giftpesa trademark, logo URL or product name without Giftpesa’s express written consent;

Use the Services or Content, or any portion thereof, for the benefit of any third party or in any manner not permitted by these Terms;

Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Services or Content to send altered, deceptive or false source-identifying information;

Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Services or Content;

Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Services;

Impersonate or misrepresent your affiliation with any person or entity, except that you can anonymize your identity for your personal safety;

Violate any applicable law or regulation; or

Encourage or enable any other individual to do any of the foregoing. Although we’re not obligated to monitor access to or use of the Services or Content or to review or edit any Content, we have the right to do so for the purpose of operating the Services, to ensure compliance with these Terms, and to comply with applicable law or other legal requirements. We reserve the right, but are not obligated, to remove or disable access to any Content, at any time and without notice, including, but not limited to, if we, at our sole discretion, consider any Content to be objectionable or in violation of these Terms. We have the right to investigate violations of these Terms or conduct that affects the Services. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.

Links To Third Party Websites Or Resources

The Services may contain links to third-party websites or resources. We provide these links only as a convenience and are not responsible for the content, products or services on or available from those websites or resources or links displayed on such websites. You acknowledge sole responsibility for and assume all risk arising from, your use of any third-party websites or resources.

Giftpesa Account

• As a holder of a Giftpesa Account, you will be entitled, subject to these Terms and Conditions, to Buy, send and redeem an electronic voucher.
• You will not be required to notify the Company in advance of buying, Sending or redeeming of an evoucher with the Giftpesa Account.
• You will incur tariff charges when you share or redeem your evoucher. Giftpesa may vary tariff charges from time to time in its sole discretion determine.
• You are responsible for transaction Fees and applicable Bank fees, commissions and other charges charged on all transactions between your other Bank account (s) to Giftpesa Bank Account.
• There will be no restrictions on the number of buying, sending or redemption of the giftpesa e-voucher over any period of time.
• Subject to availability of sufficient funds to your Giftpesa wallet, you will be able to send and redeem a gift voucher at any of our selected merchants countrywide at any particular period of time.
• A giftpesa voucher has a validity period of six (12) months upon receipt and it will deemed inactive after the period has lapsed
• An inactive voucher will be refunded back to the original source for further re-allocation.
• If your Giftpesa Account will not have any transactions initiated by you for a continuous period of one (1) years after activation or if you shall not have communicated with us for a continuous period of one (1) years regarding your Giftpesa Account, such account will be presumed abandoned and transferred to the Unclaimed Financial Assets Authority as such.
• Giftpesa evoucher can never be substituted, exchanged, refunded or reimbursed in form of a cash at any particular time.
• Giftpesa will not disclose or share the account details, data or information of its clients and customer accounts as specified in our privacy policy available( www.giftpesa.com/privacypolicy) to anyone without written consent from the customer or without their knowledge at any time only with the exception of a government enforcement authority requiring the Company to do so, or the Company is otherwise required by law or pursuant to agreements with any tax authority to do so, or if the Company needs to comply with internal audit policies or with any applicable order or sanction.

Termination

We reserve the right to suspend, restrict access to, or terminate your Account, or delete any content posted through your Account, including but not limited to contacts, database, and any associated data or metadata, all at our sole discretion, at any time and without notice to you, if you violate or breach any provision of these Terms (or have acted in a manner which shows that you do not intend to, or are unable to comply with the provisions of these Terms). You may cancel your Account at any time by deleting it or by sending an email to us at info@localhost. Upon any termination, discontinuation or cancellation of Services or your Account, the following provisions will survive: Content Ownership, Responsibility and Removal (except for Rights in Content Granted by Giftpesa); Warranty Disclaimers; Indemnity; Limitation of Liability; Dispute Resolution; and General Terms.

Warranty Disclaimers

The services and content are provided “as is,” without warranty of any kind. without limiting the foregoing. we explicitly disclaim any warranties of merchantability, fitness for a particular purpose, quiet enjoyment or non-infringement, and any warranties arising out of course of dealing or usage of service. we make no warranty that the services will meet your requirements or be available on an uninterrupted, secure, or error-free basis. we make no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness or reliability of any content.

TAXES

All payments to be made by you in connection with these terms and conditions are calculated without regard to any taxes payable by you.it is your duty to pay all taxes levies and fees due on such incomes. Giftpesa shall not be liable to the client for any failure by the client to comply with their obligation and the client shall indemnify Giftpesa from any loss or damage arising from their failure to comply with the set obligations. Each party shall be responsible for their own, taxes, imposition, charges or levies imposed by law.

You consent and agree that the Company may withhold amounts in your Giftpesa Account or any other of your accounts held in the Company at any time, if any tax authority requires the Company to do so, or the Company is otherwise required by law or pursuant to agreements with any tax authority to do so, or if the Company needs to comply with internal policies or with any applicable order or sanction of a tax authority.

Indemnity

In consideration of Giftpesa providing Giftpesa Services, the Customer agrees to indemnify and keep Giftpesa safe and harmless from and against all actions, claims, demands, proceedings, loss, damages, costs, charges and expenses whatsoever which Giftpesa may at any time incur, sustain, suffer or be put to as a consequence of or arising out in good faith for acting on or omitting or refusing to act on any instructions given by use of the Giftpesa Service. You will indemnify and hold harmless Giftpesa and its officers, directors, employee and agents, from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees arising out of or in any way connected with (i) your access to or use of the Services or Content, (ii) your User Content, (iii) your violation of these Terms, or (iv) if you are a Primary Account Holder, any actions taken by End Users on our Services in violation of these Terms, including the posting and making available of User Content.

Limitation Of Liability

As between you and Giftpesa, Giftpesa shall not be liable for any incidental, special, exemplary or consequential damages, including lost profits, loss of data or goodwill, service interruption, computer damage or system failure or the cost of substitute services arising out of or in connection with these terms or from the use of or inability to use the services or content, whether based on warranty, contract, tort (including negligence), product liability or any other legal theory, and whether or not Giftpesa has been informed of the possibility of such damage, even if a limited remedy set forth herein is found to have failed of its essential purpose.

Dispute Resolution

Governing Law

These Terms and any action related thereto will be governed by the laws of the State of Kenya without regard to its conflict of law’s provisions.

Agreement to Arbitrate

You and Giftpesa agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services or Content (collectively, “Disputes”) will be settled by binding arbitration, except that each party retains the right: (i) to bring an individual action in small claims court and (ii) to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights (the action described in the foregoing clause (ii), an “IP Protection Action”). Without limiting the preceding sentence, you will also have the right to litigate any other Dispute if you provide Giftpesa with written notice of your desire to do so or by email at [email protected] or regular mail at Giftpesa within thirty (30) days following the date you first agree to these Terms (such notice, an “Arbitration Opt-out Notice”). If you don’t provide Giftpesa with an Arbitration Opt-out Notice within the thirty (30) day period, you will be deemed to have knowingly and intentionally waived your right to litigate any Dispute except as expressly set forth in clauses (i) and (ii) above. The exclusive jurisdiction and venue of any IP Protection Action or, if you timely provide Giftpesa with an Arbitration Opt-out Notice, will be the state and federal courts located in the Republic of Kenya and each of the parties hereto waives any objection to jurisdiction and venue in such courts. Unless you timely provide Giftpesa with an Arbitration Opt-out Notice, you acknowledge and agree that you and Giftpesa are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and Giftpesa otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Dispute Resolution” section will be deemed void. Except as provided in the preceding sentence, this “Dispute Resolution” section will survive any termination of these Terms.

Arbitration Rules

The arbitration will be administered by the Kenyan Arbitration in accordance with the Commercial Arbitration Rules. The Kenyan Arbitration Act will govern the interpretation and enforcement of this Section.

Arbitration Location and Procedure

Unless you and Giftpesa otherwise agree, the arbitration will be conducted in Kenya.

General Terms

These Terms constitute the entire and exclusive understanding and agreement between Giftpesa and you regarding the Services and Content, and these Terms supersede and replace any and all prior oral or written understandings or agreements between Giftpesa and you regarding the Services and Content. If any provision of these Terms is held invalid or unenforceable (either by an arbitrator appointed pursuant to the terms of the “Arbitration” section above or by court of competent jurisdiction, but only if you timely opt out of arbitration by sending us an Arbitration Opt-out Notice in accordance with the terms set forth above), that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect. You may not assign or transfer these Terms, by operation of law or otherwise, without Giftpesa’s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null. Giftpesa may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.

Any notices or other communications provided by Giftpesa under these Terms, including those regarding modifications to these Terms, will be given: (i) via email; or (ii) by posting to the Services. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.

Giftpesa’s failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Giftpesa. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.

INTELLECTUAL PROPERTY RIGHTS

You acknowledge that the intellectual property rights in the System (and any amendments, upgrades or enhancements thereto from time to time) and all associated documentation that the Giftpesa provides to you through the System or otherwise are vested either in the Company or in other persons from whom the Giftpesa has a right to use and to sub-license the System and/or the said documentation. You shall not infringe any such intellectual property rights. You shall not duplicate, reproduce or in any way tamper with the System and associated documentation without the prior written consent of the Giftpesa Company.

CUSTOMER COMPLAINTS

Complaints may be made in person, in writing, by post, email or by telephone. The company will take all measures within its means to resolve your complaints within a reasonable time. All complaints will be handled in accordance with the Company’s complaints handling procedures. Where a notification regarding your complaint or any other matter is expected from the Company but not received, the complaint must be made within a reasonable time after non-receipt of such notification. Applicable tariffs will be charged by your telephone and internet service provider (s) when communicating with the Customer Care Centre.