IMPORTANT – PLEASE READ THESE TERMS OF USE CAREFULLY BEFORE USING THE AVPA DEAL SHARE PLATFORM. THESE TERMS OF USE ARE AN IMPORTANT LEGAL DOCUMENT AND BY ACCESSING AND USING THE AVPA DEAL SHARE PLATFORM, YOU AGREE THAT YOU HAVE READ, UNDERSTOOD, ACCEPTED AND AGREED TO BE BOUND BY, AND COMPLY WITH, THESE TERMS AND CONDITIONS OF USE. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS CONTAINED HEREIN, PLEASE DO NOT ACCESS OR USE THE AVPA DEAL SHARE PLATFORM.
The African Venture Philanthropy Alliance Limited (AVPA), a NPO registered in accordance with the laws of the Republic of Kenya under company number CLG-R9FMM6, developed the deal share platform (the Platform) which is made available via the website, www.avpa.africa. Subscribers to the Platform (the Subscribers) are, subject to the additional requirements set out herein, individuals or organisations looking to support capital- or fund-seeking individuals and/or organisations (the Capital Seeker(s)). The Platform aims to facilitate information-sharing about Capital Seekers and/or potential investment opportunities or request for capital/funding (Opportunities), in each case that are endorsed by Subscribers, with other Subscribers. The Platform functions only as a directory for Subscribers seeking to collaborate in respect of Subscriber-endorsed Capital Seekers and/or Opportunities, and AVPA does not purport to render any advice or information on which you should rely.
As part of their membership entitlements, AVPA Members are given access to the Platform and may use the Platform in the same capacity as Subscribers, subject to the terms set out herein. AVPA Members may also access restricted content made available by AVPA (if any) via the Platform or the website from time to time in such manner as may be prescribed by AVPA from time to time.
DISCLAIMER
IN ADDITION TO THE DISCLAIMERS SET OUT IN THE PARAGRAPHS THAT DIRECTLY FOLLOW, IMPORTANT DISCLAIMERS ARE SET OUT IN THE BODY OF THESE TERMS OF USE. PLEASE READ ALL DISCLAIMERS CAREFULLY BEFORE USING THE PLATFORM TO ENGAGE WITH OTHER SUBSCRIBERS.
AVPA does not provide personal investment, financial or legal advice nor does it advocate the purchase or sale of any security or investment, or the use of any financial or legal strategy. AVPA is not and does not function as an agent, banker, broker, escrow agent, capital markets intermediary or moneylender under any circumstances and is not involved in any way in the actual provision (or procuring) of any donation(s), fund(s), investment(s), loan(s) and/or service(s). It is entirely up to you, as a Subscriber, to choose whether to contact the Capital Seekers and offer any such donation(s), fund(s), investment(s), loan(s) and/or service(s) as the Capital Seekers may require.
You should not use the Platform if you are not aware of and familiar with the complexities of, and risks associated with, various forms of private company finance, grant-making and financing non-profit organisations.
AVPA is not and cannot be held responsible and/or liable for the information or material uploaded onto, published and maintained on the Platform and/or any loss arising from your or any Subscriber or other person’s access, use and/or reliance on the Platform or the information.
- BY USING THE PLATFORM YOU ACCEPT THESE TERMS
By accessing and using the Platform, you agree that you have read, understood, accept and agree to be bound by, and to comply with, these terms and conditions of use (Terms). These Terms constitute a legal contract and binding agreement between you and AVPA, and govern your access to and use of the Platform. If you do not agree to be bound by all terms and conditions contained herein, please do not access or use the Platform. - WE MAY MAKE CHANGES TO THESE TERMS AND/OR THE PLATFORM
AVPA reserves the right, at its sole discretion, to change, modify and/or vary these Terms and/or its policies relating to the Platform, and the use thereof, at any time as it deems fit, whether in whole or in part, without providing you with any reason. Such modifications, variations and or changes to these Terms shall be effective upon the posting of an updated version of the Terms on the Platform, or notified to you via email. The latest of the updates shall prevail over these Terms in the event of any inconsistency. It is your responsibility to review these Terms regularly, and your continued access or use of the Platform constitutes acceptance of the updated Terms. If you do not accept the updated Terms, you must not continue using the Platform. AVPA also reserves the right, at its sole discretion, to change, modify, vary, suspend, withdraw or terminate access to the Platform alone, at any time as it deems fit, whether in whole or in part, without providing any reason. To the extent permitted by applicable laws, we will notify you in advance of such change, modification, variation, suspension, withdrawal or termination. - PRIVACY POLICY AND PERSONAL DATA PROTECTION
3.1 AVPA will mainly process your personal data as a Subscriber or Capital Seeker for the proper functioning of the Platform and its purpose, as set out in clause 6. Under applicable data protection laws, AVPA is required to provide certain information about AVPA, how and for what purposes it processes personal data, the rights of data subjects in relation to personal data and how to exercise them. This information is provided in AVPA’s Privacy Policy, which is available at www.avpa.africa.
3.2 AVPA will comply with its Privacy Policy relating to the privacy of personal data.
3.3 By using the Platform, you consent to the Privacy Policy relating to the use of personal data. - COOKIES
4.1 AVPA uses cookies to distinguish you from other users of the Platform. This helps us to provide you with a good experience when you use the Platform and allows us to improve the Platform and the services we provide.
4.2 A cookie is a small file of letters and numbers that we store on your browser or the hard drive of your computer if you agree to the use of cookies. Cookies contain information that is transferred to your computer’s hard drive.
4.3 AVPA may share information collected by cookies with third party service providers for the purpose of tracking and collecting analytics in relation to a Subscriber’s Platform usage. The tracking and collection of such analytics will be conducted in accordance with applicable laws.
4.4 You can block cookies by activating the setting on your browser that allows you to refuse the setting of all or some cookies. However, if you use your browser settings to block all cookies (including essential cookies) you may not be able to access all or parts of the Platform. - DO NOT RELY ON INFORMATION OR LINKS ON THE PLATFORM
5.1 The content on the Platform (including Information uploaded by Subscribers to the Platform) is provided for general information only. It is not intended to amount to advice on which you should rely. If you take, or refrain from taking, any action based on the content on the Platform, you do so at your sole discretion and risk.
5.2 Where the Platform contains links to other websites and resources provided by third parties, these links are provided for your information only. The presence of such links should not be interpreted as approval by AVPA of those linked websites or information you may obtain from them. AVPA has no control over the contents of those sites or resources and they are accessed at your own risk and subject to the terms and conditions of the relevant linked third party site. APVA does not accept any responsibility or liability for policies whatsoever as we have no control over them. AVPA has no control over the contents of those sites or resources and they are accessed at your own risk and subject to the terms and conditions of the relevant linked third party site. APVA does not accept any responsibility or liability for policies whatsoever as we have no control over them.
5.3 Although, where applicable, AVPA makes reasonable efforts to update the information on the Platform, AVPA makes no representations, warranties or guarantees, whether express or implied, that the information on the Platform (including information uploaded by Subscribers) is accurate, complete or up to date. - THE PLATFORM
6.1 Description of the Platform and its purpose
6.1.1 The Platform is made available to Subscribers via the Platform. It is a platform established for the purpose of facilitating information-sharing about Capital Seekers and Opportunities, in each case that are endorsed by Subscribers, with other Subscribers. The Platform functions only as a directory for Subscribers seeking to collaborate in respect of Subscriber-endorsed Capital Seekers and/or Opportunities, and AVPA does not purport to render any advice or information on which you should rely.
6.1.2 If you are a Subscriber, you may access and use the Platform to upload information relating to Capital Seekers for publication on the Platform, including the Opportunities and contact details of such Capital Seekers (although these contact details will not be visible to other users). The Platform also enables you to connect with other Subscribers.
6.2 Access to and use of the Platform
6.2.1 You may only access and/or use the Platform to upload and/or access information if you are a Subscriber. An investor can only become a Subscriber by completing the registration procedure and being approved by AVPA.
6.2.2 You may only access and use the Platform in accordance with these Terms and the Code of Conduct as listed in clause 9.
6.2.3 You must keep your account details, password and any other information required as part of AVPA’s security procedures safe, and treat such information as confidential. You must not disclose your password to any third party.
6.2.4 AVPA reserves the right to disable any user identification code or password, whether chosen by you, the Subscriber, or allocated by AVPA, at any time, if in AVPA’s reasonable opinion you have failed to comply with any of the provisions of these Terms.
6.2.5 If you know or suspect that anyone other than you knows your user identification code or password, you must promptly notify AVPA at info@avpa.africa and change your password.
6.3 Uploading information
6.3.1 You, as a Subscriber, hereby agree and warrant that:
6.3.1.1 by uploading information about a Capital Seeker and/or Opportunity to the Platform, you specifically endorse and confirm to other Subscribers that you endorse the Capital Seeker and/or Opportunity;
6.3.1.2 your endorsement of the Capital Seeker and/or Opportunity serves as an indication to other Subscribers that you are familiar with and currently or previously supported the Capital Seeker and/or the Opportunity, as applicable;
6.3.1.3 you shall ensure that any and all information you upload on the Platform is complete, true and accurate in all material respects on and as at the date it was provided and/or as at the date at which it is stated (if any); and
6.3.1.4 you have obtained and secured all necessary rights to access, upload, use and make available all information you upload on the Platform in their entirety, including the consents (such as consent to sublicence) required to grant AVPA the licence as described in clause 8.2.
6.4 Agreements, arrangements or other relationships with Subscribers and Capital Seekers
6.4.1 If you connect with another Subscriber and/or a Capital Seeker by using information, and this results in an offer being made, or an agreement, contract and/or arrangement for the provision of donations, funds, investments, loans and/or services to the Capital Seeker, you expressly acknowledge that such offer made or such agreement, contract and/or arrangement entered into for the provision of donations, funds, investments, loans and/or services to the Capital Seeker is entered into independently, separately and directly between you and the Subscriber and/or the Capital Seeker. The ultimate provision of such donations, funds, investments, loans and/or services is therefore subject to the conclusion of a further agreement and/or contract which is concluded at your sole discretion and risk.
6.4.2 AVPA does not conduct any due diligence in respect of Subscribers or the Capital Seekers/Opportunities that Subscribers upload to the Platform. You are responsible for conducting an in-depth due diligence of any Subscribers or Capital Seekers before entering into any agreement or arrangement or committing any donations, funds, investments, loans and/or services to the Subscribers or Capital Seeker..
6.5 Regulation of information
6.5.1 In addition to AVPA’s right set out at clause 9.2.4 below, AVPA may, in its sole and absolute discretion, amend and/or remove any information from the Platform by providing reasonable notice by email to the Subscriber who uploaded such information.
6.5.2 Notwithstanding clause 6.5.1 above, AVPA is under no obligation to review the information uploaded by Subscribers to the Platform. Information on the Platform has not been verified or approved by AVPA. The views or values expressed by Subscribers on the Platform do not represent AVPA’s views or values.
6.6 The Platform as a Free Service for a limited time only
Access and use of the Platform is a free service provided by AVPA. AVPA reserves the right, and as of April 2021 intends to exercise such right, to charge a fee for access and/or use of the Platform (Platform Usage Fee). Details regarding how much the Platform Usage Fee is, and how it must be paid, will posted by way of an update to these Terms. For the avoidance of doubt, AVPA does not charge or receive any fee or commission for provision of any donation(s), fund(s), investment(s), loan(s) and/or service(s) that may arise as a result of a Subscriber’s access or use of the Platform or any offer, agreement and/or contract concluded between any Subscribers and a Capital Seeker. If you do not pay the Platform Usage Fee your access and use of the Platform will be suspended. - INFORMATION UPLOADED BY SUBSCRIBERS
7.1 This clause is in addition to, and in no way detracts from, the disclaimers set out in the introduction, at clause 5 and clause 11.2 below, and generally throughout these Terms.
7.2 The information is provided for the purpose described at clause 6.1 above and accordingly for information-sharing purposes only. No information shall be regarded as advice, or an endorsement, invitation, offer, recommendation or solicitation to offer or enter into any agreement or contract. No information constitutes or can be construed to constitute legal, tax, investment, business, strategic or other advice.
7.3 As a Subscriber, you expressly agree that you will only use the information strictly as contemplated in these Terms.
7.4 AVPA does not vet or verify the completeness, truthfulness or accuracy of the information uploaded by the Subscribers, which includes their factual and grammatical substance. Accordingly, AVPA makes no assurance, guarantee, representation or warranty as to the completeness, truthfulness or accuracy of the information, or any information uploaded by any Subscriber.
7.4.1 You expressly and specifically acknowledge and agree that:
7.4.1.1 you should conduct your own appropriate due diligence on another Subscriber or Capital Seeker before engaging with that Subscriber or Capital Seeker in any way; and
7.4.1.2 you are responsible for your own risk assessment before acting upon any information. Before concluding any agreement or arrangement or pursuing any legal or financial strategy, or taking any decision at all, you should consult with your legal or financial advisor, accountant or other appropriate professional.
7.5 You expressly acknowledge and agree that AVPA is not and cannot be held responsible and/or liable for: (i) any information; (ii) any loss arising from your use of, and/or reliance on, any information; or (iii) any cost, loss or liability you may otherwise incur from or in connection with your use of the Platform.
7.6 You are solely responsible for the information that you upload on the Platform. For the avoidance of doubt, you expressly agree that you may be held liable, and hereby indemnify AVPA, for any loss or damage arising from the information that you upload on the Platform. - INTELLECTUAL PROPERTY RIGHTS
8.1 Subject to clause 8.2, AVPA is the owner or the licensee of all intellectual property rights in and to the Platform. Except as expressly stated herein, these Terms do not grant you any rights to, under or in, any patents, copyright, designs, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Platform. All such rights are reserved. You may not reproduce, duplicate, copy or re-sell any part of the Platform.
8.2 AVPA does not claim ownership of any information or intellectual property uploaded to the Platform by or on your behalf. However, you hereby grant AVPA a non-exclusive, fully paid-up, irrevocable and royalty-free worldwide licence to compile and publish such information and intellectual property on the Platform, amend and/or remove such information, and to otherwise use such information as contemplated in these Terms and to enable the Platform to fulfil its purpose as stated in clause 6.1. You shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such information or intellectual property.
8.3 In addition to the licence granted to AVPA in terms of clause 8.2 above, you agree that AVPA may use any information uploaded to the Platform as set out in its Privacy Policy. - CODE OF CONDUCT
9.1 You may only use the Platform for lawful purposes. You may not use the Platform in any way that breaches any applicable local, national or international law or regulation or that is unlawful or fraudulent or has any illegal, unlawful or fraudulent purpose or effect.
9.2 Content Standards
9.2.1 Any material or information that you contribute to the Platform must be accurate and complete (where it states facts) and be genuinely held (where it states opinions).
9.2.2 You expressly agree that you shall not upload any material or information to the Platform that:
9.2.2.1.1 is abusive, defamatory, harmful, harassing, hateful, inappropriate, indecent, invasive, obscene, objectionable, offensive, oppressive, threatening, vulgar or unlawful;
9.2.2.1.2 is in breach of any applicable law;
9.2.2.1.3 is in furtherance of a prohibited use set out at clause 9.3 below, or in contravention of these Terms generally;
9.2.2.1.4 is deceptive, false, inaccurate, misleading or untruthful;
9.2.2.1.5 is third party material or information protected by patent, trade secret, trade mark, copyright or any other type of intellectual property right without the approval, permission or licence necessary to permit the legal access to, use of, uploading onto or making available on the Platform;
9.2.2.1.6 you do not have a right to make available under applicable law or under any contractual or fiduciary relationship, including confidential information obtained as part of employment relationships or under non-disclosure agreements;
9.2.2.1.7 is detrimental or harmful to AVPA, the Platform, any Subscriber, Capital Seeker and/or other third parties; or
9.2.2.1.8 gives the impression that the material or information emanates from AVPA, if this is not the case.
9.2.3 You warrant that any such contribution or information that you upload to the Platform will comply with the requirements set out in this clause 9.2, and you may be liable to, and indemnify, AVPA for any breach of this warranty. This means you may be responsible for any reasonable loss or damage AVPA suffers as a result of your breach of warranty
9.2.4 AVPA has the right to remove immediately and without notice any post you make on the Platform if, in AVPA’s opinion, your post does not comply with this clause 9.2.
9.3 Prohibited uses
9.3.1 You expressly agree and warrant that: (i) you shall comply with all applicable laws and regulations with respect to your activities under these Terms; and (ii) you will obtain all licences, consents, and permissions necessary in relation to the information submitted by you to the Platform and for such information to be used as contemplated in these Terms. You further agree and warrant that you shall not:
9.3.1.1 access or use the Platform:
9.3.1.1.1 to annoy, pester, stalk or otherwise harass another person;
9.3.1.1.2 to collect, compile, upload, make available or store data or information about any Subscriber, Capital Seeker or third party, including Opportunities, without their express written consent;
9.3.1.1.3 to impersonate another person;
9.3.1.1.4 for the purpose of harming or attempting to harm minors in any way;
9.3.1.1.5 to transmit, or procure the sending of, any unsolicited or unauthorised advertising or promotional material or any other form of similar solicitation (spam);
9.3.1.1.6 for any purposes that are abusive, defamatory, harmful, hateful, inappropriate, indecent, invasive, obscene, objectionable, offensive, oppressive, threatening, vulgar, unlawful or in breach of any applicable law;
9.3.1.2 except as may be allowed by any applicable law which is incapable of exclusion by agreement:
9.3.1.2.1 attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Platform in any form or media or by any means;
9.3.1.2.2 attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Platform; or
9.3.1.2.3 access all or any part of the Platform in order to build a product or service which competes with the services provided by AVPA;
9.3.1.3 licence, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Platform available to any third party; or
9.3.1.4 attempt to obtain, or assist third parties in obtaining, access to the Platform, other than as provided in these Terms.
9.3.2 AVPA reserves the right, without liability or prejudice to its other rights under these Terms, to terminate or to disable your access to the Platform if you breach the provisions of this clause 9.
9.3.3 You will be liable to, and hereby indemnify, AVPA for any breach of this clause 9.3. This means you will be responsible for any loss or damage AVPA suffers as a result of your breach.
9.4 Linking
9.4.1 You may link to AVPA’s home page, provided you do so in a way that is fair and legal and does not damage AVPA’s reputation or take advantage of it.
9.4.2 You must not establish a link in such a way as to suggest any form of association, approval or endorsement on AVPA’s part where none exists.
9.4.3 You must not establish a link to the Platform in any website that is not owned by you, unless you have permission to do so.
9.4.4 The Platform must not be framed on any other site.
9.4.5 The website in which you are linking must comply in all respects with the content standards set out in clause 9.2.
9.4.6 AVPA reserves the right to withdraw linking permission without notice. - VIRUSES
10.1 AVPA does not guarantee that the Platform will be secure or free from bugs or viruses.
10.2 You are responsible for configuring your information technology, computer programmes and platform to access the Platform. You should use your own virus protection software.
10.3 You must not misuse the Platform by knowingly introducing viruses, trojans, worms, logic bombs or other material that is malicious or technologically harmful. You must not attempt to gain unauthorised access to the Platform, the server on which the Platform is stored, or any server, computer or database connected to the Platform. You must not attack the Platform via a denial-of-service attack or a distributed denial-of service attack. If you breach this clause 10.3, your right to use the Platform will cease immediately. - WARRANTIES, INDEMNITIES, DISCLAIMERS AND LIMITATIONS OF LIABILITY
11.1 Subscribers’ warranties and indemnities
11.1.1 In addition to the warranties set out in these Terms, you expressly represent, warrant and guarantee that:
11.1.1.1 you have the legal capacity to enter into, perform and deliver these Terms, and to perform your obligations under these Terms;
11.1.1.2 there is no action, claim, proceeding or suit at law, or before any court, tribunal, governmental body, agency or official or any arbitrator (whether pending or threatened) that is likely to affect the legality, validity or enforceability of these Terms, or affect your ability to perform your obligations under these Terms; and
11.1.1.3 you access and use the Platform and/or the information out of your own free will with full knowledge of all risks involved, and thereby accept all responsibility and risk on “as is” and “as available” basis to the maximum extent allowed by applicable law.
11.1.2 To the full extent permitted by the applicable law, you will be liable to, and indemnify, defend and hold harmless AVPA and its officers, directors, employees, agents and representatives alike from any and all claims, suits, demands, liabilities, expenses (including reasonable attorneys’ fees and other legal costs) and/or all direct, indirect, incidental, special, exemplary or consequential damages and/or loss (including regulatory penalties, lost profits business or revenue, loss of investments, business opportunity or other economic advantages, lost goodwill, data or other intangible losses, personal injury or property damage) related to, in connection with, or otherwise resulting from arising out of or in connection with:
11.1.2.1 your access to, use of and reliance on the Platform and/or the information in breach of these Terms;
11.1.2.2 your uploading of any information on the Platform;
11.1.2.3 any transaction or relationship between you and any other Subscriber and/or Capital Seeker, in particular, any and all offer(s), agreement(s), contract(s) and/or alike to provide donation(s), fund(s), investment(s), loan(s) and/or service(s);
11.1.2.4 your breach or violation of the applicable law, whether or not referenced herein;
11.1.2.5 your breach of, violation of, or failure to fulfil your obligations under these Terms; and/or
11.1.2.6 your violations of any rights of third parties, including but not limited to any Subscriber or Capital Seeker.
11.2 Additional disclaimers
11.2.1 To the extent permitted by applicable laws, AVPA expressly and specifically disclaims, and you expressly and specifically acknowledge and accept such disclaimers of, all representations, warranties and guarantees, whether express, implied or statutory, unless these Terms expressly state otherwise. This includes the reliability, fitness, timeliness, quality, availability, completeness or non-infringement of the Platform and/or the information.
11.2.2 The Platform and the information are provided strictly on an “as is” and “as available” basis, and you therefore expressly agree that the entire risk arising out of your access to, and/or use of and/or reliance on, the Platform and the information remain solely and absolutely with you to the maximum extent permitted under applicable law (for the avoidance of doubt, any reliance on this Platform or the information amounts to a breach of the terms of these Terms). In particular, you acknowledge and accept the specific and limited nature of the information and its permitted use and the according responsibilities and liabilities as stated in these Terms.
11.2.3 AVPA does not warrant that: (i) your use of the Platform will be uninterrupted or error-free; (ii) the Platform, any documentation and/or the information that you obtain through the Platform will meet your requirements; (iii) the Platform will be free from vulnerabilities, bugs or viruses; or (iv) the Platform will comply with any cybersecurity requirements that are applicable to you, but not to AVPA.
11.2.4 AVPA is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and you acknowledge that the services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
11.3 Limitation of liability
11.3.1 Subject to clause 11.3.4 below, AVPA shall not be liable for any and all direct, indirect, incidental, special, exemplary, punitive or consequential damages and/or loss, regulatory penalties, lost profits business or revenue, loss of investments, business opportunity or other economic advantages, lost goodwill, data or other intangible losses, personal injury or property damage related to, in connection with, or otherwise resulting from any access, use or reliance on the Platform and/or the information or howsoever arising under these Terms (including breach thereof) to the full extent permitted under the applicable law. This is applicable even if AVPA has been advised of the possibility of such damage, liability and/or losses.
11.3.2 Without limiting the aforegoing, AVPA shall not be liable for any damage, liability whether in contract, delict, tort (including negligence), breach of statutory duty, or otherwise, even if foreseeable, arising under or in connection with or losses arising out of:
11.3.2.1 your access to, use of or reliance on the Platform and/or the information;
11.3.2.2 your uploading of any information on the Platform;
11.3.2.3 your inability to access or use the Platform and/or the information;
11.3.2.4 errors, defects, malware and viruses which may be accessible on the Platform;
11.3.2.5 a force majeure event, including an act of God or any event beyond the reasonable control of AVPA; and/or
11.3.2.6 any transaction or relationship between you and any Subscribe rand/or Capital Seeker, in particular any and all offer(s), agreement(s), contract(s) and/or alike to provide donation(s), fund(s), investment(s), loan(s) and/or service(s).
11.3.3 Without limiting the provisions of clauses 11.3.1 and 11.3.2 above, and only to the extent that AVPA’s liability cannot be excluded under applicable laws, AVPA’s total aggregate liability to you in respect of any and all claims or losses shall be limited to the Platform Usage Fee (if any) paid by the Subscriber in the 12 month period preceding the date of the claim.
11.3.4 Nothing in these Terms shall limit or exclude a party’s liability for: (i) death or personal injury caused by its negligence, or the negligence of its personnel, agents or subcontractors; (ii) fraud, fraudulent misrepresentation or willful misconduct; (iii) claims for which a party is indemnified; or (iv) any other liability which cannot be limited or excluded by applicable law.
11.4 The provisions of this clause 11.4 shall survive the termination of these Terms for any reason. - GENERAL
12.1 Confidentiality. Each party agrees and undertakes that, during the term of these Terms and for a period of 5 years thereafter, it shall keep confidential and shall not use for its own purposes, except (in the case of AVPA) for the purposes of giving effect to these Terms, providing the services and/or operating the Platform, or without the prior written consent of the other party disclose to any third party, all information of a confidential nature unless the information: (i) is public knowledge; or (ii) is already known to that party at the time of disclosure; or (iii) subsequently becomes public knowledge other than by breach of these Terms; or (iv) subsequently comes lawfully into the possession of that party from a third party; or (v) is required to be disclosed under any applicable law. The above provisions of this clause shall survive termination of these Terms, however arising.
12.2 Governing Law. The validity of these Terms, its interpretation, the respective rights and obligations of the Parties and all other matters arising in any way out of or in connection with it or its expiration or earlier termination for any reason shall be determined in accordance with the laws of the Republic of Kenya
12.3 Dispute Resolution. In the event of any dispute, conflict, claim or controversy arising out of or broadly in connection with or relating to the Platform, the information, your uploading of any information on the Platform and all such information uploaded on the Platform, or these Terms, including those relating to its validity, its construction or its enforceability (Dispute), the parties undertake that they shall seek to have the Dispute resolved amicably by mediation. All rights of the parties in respect of the Dispute are and shall remain fully reserved. The entire mediation shall be strictly confidential to the parties. The venue of the mediation shall be [Nairobi, Kenya], in the English language. Each party shall bear their own respective costs incurred in the mediation regardless of the outcome of the mediation. If the Dispute is not resolved to the satisfaction of either parties within 60 days of service of the notice initiating mediation, or if either party fails or refuses to participate in the mediation, of if either party serves written notice terminating the mediation under this clause, then either party may refer the Dispute to arbitration in accordance with UNCITRAL Arbitration Rules in force at the time of the Dispute. The arbitration shall be conducted by a sole arbitrator appointed by the mutual agreement of the parties. Should the Parties be unable to agree on an arbitrator, the appointing authority in terms of the UNCITRAL Arbitration Rules shall be the Chairperson of Chartered Institute of Arbitrators, Kenya (CIArb). The seat and venue of the arbitration shall be Nairobi, Kenya in the English language, and the fees of the arbitrator shall be borne equally by the Parties, provided that the arbitrator may require that such fees be borne in such other manner as the arbitrator determines is required in order for this arbitration clause to be enforceable under applicable law. The governing procedural law of the arbitration shall be the law of Kenya (unless otherwise agreed between us). The arbitrator shall have the same remedial powers as a court of law in Kenya would have, were it adjudicating the Dispute. The arbitrator shall deliver an award together with written reasons within 20 business days from the date upon which the arbitration ends. The decision of the arbitrator shall be final and binding. Nothing in this clause shall preclude a party from seeking interim or urgent relief from a court of competent jurisdiction.
12.4 Jurisdiction. Subject to clause 12.3 above, the Parties consent and submit to the non-exclusive jurisdiction of the courts of the Republic of Kenya in any dispute arising from or in connection with these Terms.
12.5 Force Majeure. AVPA shall not be in breach of these Terms nor be liable for delay in performing, or failure to perform, any of its obligations under these Terms or any disruption to the Platform if such delay, failure or disruption results from any exceptional event or circumstance beyond its reasonable control, including without limitation, any of the following: act of God, governmental act, pandemic, war, fire, flood, explosion, industrial dispute (not being an industrial dispute involving the employees of AVPA) or civil commotion (Force Majeure Event) despite having taken all reasonable steps to prevent such delay or failure. In such circumstances AVPA shall be entitled to a reasonable extension of the time for performing such obligations and, to the extent that the Force Majeure Event results in the Platform being unavailable, the Subscriber’s subscription shall automatically extend for a period equal to such period of unavailability. If the period of delay or non-performance continues for 30 days, AVPA may terminate these Terms with immediate effect.
12.6 Term and Termination.
12.6.1 These Terms, as a contract between AVPA and you, remain in place for the duration of your access and use of the Platform. If you are a Subscriber and your Subscription is terminated or you deregister, your access to the Platform will be terminated at such time as your Subscription is terminated or deregistered. Notwithstanding the aforegoing, AVPA reserves the right to immediately terminate these Terms or your access to and use of the Platform, or generally cease offering or deny access to the Platform, whether in whole or in part, without providing any reason. Where practically possible and permissible, AVPA shall give you notice of the aforegoing. This shall not limit AVPA’s right to take any other action against you that AVPA considers appropriate to defend AVPA’s rights or the rights of any other person.
12.6.2 You shall not, in any capacity, be entitled to any compensation, indemnity, right or any recourse of similar nature for any such termination, restriction, suspension or alike as listed above in clause 2 and clause 12.6.
12.7 Rights and remedies. Except as expressly provided in these Terms, the rights and remedies provided under these Terms are in addition to, and not exclusive of, any rights or remedies provided by law.
12.8 No partnership, agency or joint venture. Unless otherwise expressly provided, nothing in these Terms is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party. Each party confirms it is acting on its own behalf and not for the benefit of any other person.
12.9 Assignment. You may not assign, cede, delegate or otherwise transfer or deal with these Terms or any of your rights and obligations under it without the prior written consent of AVPA. AVPA may at any time assign, cede, delegate or otherwise transfer or deal any of its rights or obligations under these Terms.
12.10 Entire Agreement. These Terms contain the entire agreement and understanding between the parties and supersedes any prior written or oral agreement between them in relation to the matters dealt with in these Terms. Save as expressly provided for in these Terms, neither party shall have any claim or right arising from any undertaking, representation or warranty not included in these Terms.
12.11 Waiver. Any failure by any party to exercise or delay by any party in exercising its rights or remedies provided under these Terms by law does not constitute a waiver of that or any other right or remedy and does not prevent, limit or restrict the future exercise or enforceability of that or any other rights or remedies. No single or partial exercise of any right or remedy provided under these Terms or by law prevents or restricts the further exercise of that or any other right or remedy.
12.12 Severance. If any provision of these Terms which is not material to its efficacy as a whole, is rendered void, illegal or unenforceable in any respect under any law, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby and the parties shall endeavour in good faith to agree an alternative provision to the void, illegal or unenforceable provision.
12.13 Successors Bound. These Terms shall be binding and shall inure for the benefit of the successors and permitted personal representatives (as the case may be) of each of the parties.
12.14 Survival of rights, duties and obligations. Termination of these Terms for any cause shall not release a party from any liability which at the time of termination has already accrued to such party or which thereafter may accrue in respect of any act or omission prior to such termination. - WHO WE ARE AND HOW TO CONTACT US
13.1 AVPA is registered in accordance with the laws of Kenya under company number CLG-R9FMM6 and has its registered office at P.O BOX 764 – 00606 – SARIT CENTRE.
13.2 AVPA will accept legal service of documents at P.O BOX 764 – 00606 – SARIT CENTRE.
13.3 To contact AVPA, please email info@avpa.africa.
