Seller Agreement – Muthokinju Paints and Cement

FARGOSHOPPING.CO.KE SELLERS’ AGREEMENT
IF YOU WISH TO ACCESS FARGOSHOPPING.CO.KE (“Fargoshopping”, “this site”, “this website”, “the site”) TO SELL GOODS OR SERVICES (“ITEMS”) OR TO USE THE FEATURES PROVIDED (“THE SERVICE”) YOU MUST ACCEPT THE TERMS AND CONDITIONS OF THIS SELLERS’ AGREEMENT WITHOUT CHANGE. BY PRESSING THE “ACCEPT” BUTTON DURING REGISTRATION, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTOOD THE SAME AND THAT YOU AGREE TO BE LEGALLY BOUND BY THE SAME. YOU MAY SEEK INDEPENDENT LEGAL ADVICE BEFOREHAND.

Registration
1. You may be given an opportunity to register via an online registration form to create a user account (your “account”) that may allow you to offer goods or services for sale and/or to participate in certain features on the site. We will use the information you provide in accordance with the Privacy Policy. By registering, you represent and warrant that all information that you provide on the registration form is current, complete and accurate to the best of your knowledge. You agree to maintain and promptly notify us of any changes registration information so that our records remain current, complete and accurate. You must not impersonate any person or use a name that you are not legally authorized to use. During the registration process, you may be required to choose a password. You acknowledge and agree that we may rely on this password to identify you. You are responsible for your account, irrespective of whether you authorized such access or use, and for ensuring that all use of your Account complies fully with the provisions of these Terms and Conditions.
2. We reserve the right to reject or decline any registration and to refuse service to anyone for any reason, in our absolute and sole discretion.
3. If you provide false or incorrect registration information or if you fail to notify us of changes in your registration information immediately, we reserve the right to terminate your account without any notice to you.
4. You agree to indemnify us for all claims brought by a third party against us arising out of or in connection with the registration information that you provide herein.
Contractual Capacity
1. By registering to sell items on this site you represent and warrant that you have the legal capacity and/or authority to enter into contracts.
2. Contracts for the benefit of children under the age of Eighteen (18) years shall be concluded by their parents or guardians or legally authorized representatives on their behalf.
3. We shall not be liable in the event that any person lacks the requisite legal capacity and/or authority to participate in buying or selling on this site using the Service.
4. We shall not be liable for contracts concluded with parties who cannot lawfully enter into and form contracts.
Our Role
1. Fargoshopping serves as a platform for third party sellers to advertise and sell their items and also for third party buyers to find and buy items listed by the sellers. We therefore provide a venue for third party sellers and buyers to negotiate and conclude their transactions. The contract formed at completion of the transaction is solely between the buyer and the seller.
2. Whilst we facilitate the transactions that are carried out on the website, we are neither the buyer nor the seller of the seller’s items. We are not an agent of the seller neither are we auctiooners.
3. Subject to the geographical limits set out in Clause 18 below, we will deliver the items that buyers may order from the items listed by sellers on this site.
4. The enforcement of any contractual obligations arising out of the completion of a transactions using the site is the responsibility of the buyer and seller that are party to that transaction. We are not obliged to mediate or arbitrate between the buyers and sellers or enforce or executed the fulfillment of any contract.
5. We reserve the right to change or discontinue any aspect, service or feature on the website at any time.
6. As we are neither the buyer nor the seller, if a dispute arises between one or more users of this site, you release us (and our employees, representatives and agents) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.
Account Usage
1. You agree to use your account in a responsible manner and not to operate it in a way that contravenes applicable laws. Accordingly, we reserve the right to decline delete amend or edit any information that may be contrary to any law or the terms of usage of this service without any notice to you.
2. You agree to use your account in a confidential manner and keep your password and any other personal and secret information secure. You must take all the necessary steps to ensure that your password and personal information are not disclosed to unauthorized persons.
3. We retain the right to, if we consider appropriate to immediately prevent or restrict access to the site; or take any other action to restrict access to or availability of or remove any objectionable material, feedback, ratings, inaccurate listings, inappropriately categorised items, unlawful items or items prohibited for listing on the site under this Agreement.
4. We reserve the right and absolute discretion (but shall not be obliged) to remove, screen or edit any content that breaches the provisions of this Agreement or is otherwise objectionable.
5. We shall not be liable for any unlawful use of your account whether as a result of negligence on your part or otherwise.
Listing and Prohibited Items
1. Listing of items shall be subject to approval by ourselves and shall disclose all necessary information that we shall require such as product description, specifications, quantity, colour or nature of items. We may at our sole and absolute discretion decline delete or edit any listing that do not comply with our requirements.
2. It is your responsibility to ensure that the listing of your items is not in breach of applicable laws (including laws of the country of destination in case of international sales (as and when we approve listing for international sales)), including but not limited to laws regarding standards or requirements on: safety, packaging and labeling and measurement.
3. If you list your items for sale in the international market you may be required to comply with the laws of the countries where the buyers reside and as such we shall not be liable for such non-compliance.
4. You shall not list on this site items that are prohibited by law from advertisement, display in the public (including internet sites) or sale. It is your sole duty to verify which items are prohibited as aforesaid.
5. You will list availability information for the items sold by you on the website including on each item information page. You will endeavor to maintain adequate stocks of the items listed on this site and will manage your inventory efficiently. We reserve the right to suspend or remove a seller from this site if the seller is unable to maintain adequate stocks of the items listed on this site.
6. For avoidance of doubt you shall not list the following items: banned drugs including tobacco products (eg cigarettes); pornographic materials; weapons; items that infringe on others intellectual property such as trademarks, copyrights, patents, industrial designs and utility models; prescription and poisonous drugs; perishable, fragile and liquid products; firearms and ammunition; materials that discriminate or promote discrimination either directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth; items that are prohibited from advertisement; and any other item that we may exclude from listing on this site from time to time.
7. We reserve the right to decline listing any items or to immediately remove any items that you have listed in the event that we object to how you identify yourself on this site (including, but not by way of limitation, your name, branding or marks) and/or if you are otherwise making inappropriate use of your domain name.
8. In case you fail to comply with the provisions on this clause, you agree that you shall be liable and as such undertake to indemnify and hold us harmless for third party claims in respect thereof.
Price, Taxes and Currency
1. Save as provided herein, the prices that you display on this site shall be inclusive of all applicable taxes and transaction costs. Buyers shall not be charged for any amount above the price displayed on the website. Unless otherwise specified by law, it shall be your duty to remit such taxes to the relevant authorities.
2. You authorize us to conclude on your behalf sales contracts directly between you and the buyers via this website and to receive payments on your behalf. However, the authority granted herein will not constitute us your agent.
3. The amount due and payable to you shall be the total of the amounts paid by the buyers for items ordered through this site less:
  1. The transaction fee payable to us as provided in Clause 15 below;
  2. Any amounts payable or retainable by us; and
  3. And refunds payable to any buyer;
4. You agree that a payment made by a buyer in respect of a particular item will not be due or payable to you (or if paid, shall be reimbursed to us), and we will not be liable to you if:
  1. in our sole and absolute discretion, we:
    1. determine that you cannot promptly avail the item for delivery as per this Agreement; or
    2. initiate refunds to the buyer for your breach of the provisions of this Agreement; or
    3. decline to facilitate a transaction whose value exceeds any limit set by us; or
    4. allow a buyer to withdraw from a transaction for unavailability of our services;
  2. we reasonably believe that the transaction or payment is fraudulent, erroneous or relates to a duplicate transaction,
  3. the payment is the subject of a chargeback from the buyer’s credit card issuer.
5. Unless agreed otherwise, payment shall be effected to you in the same currency in which we received payment for the item as listed on this site.
6. The buyers will effect payment for the items to us through the various options set out in the site from time to time including without limitation, by way of credit card or through mobile money services. We will not bear the risk for any fraudulent purchase arising from unauthorized use of a person’s credit card information or mobile money transfer details.
7. You shall not invoice buyers off this site.
8. You will provide us with your bank account details for purposes of the payments to be made to you pursuant to the terms of this Agreement. The said monies will be remitted to your bank account within twenty-four (24) hours of receipt by us of the purchase price of the item in cleared and freely available funds from the buyer.
Contractual Formalities and Compliance
1. You may print out a copy of this Agreement upon which any requirement for delivery of a copy of this Agreement in writing shall be deemed to have been fulfilled or waived.
2. You agree that any legal requirement as to form, for example, the requirement that the agreements or contracts be in writing, is deemed to be satisfied by the conclusion of this and other agreements electronically through the internet, unless the specified otherwise by the relevant law.
3. If the law requires that certain formalities must be complied with before legal transfer of an item is effected, you shall comply with such formalities.
4. The contract between a buyer and yourself shall be governed by the laws of Kenya and jurisdiction shall be that of Kenyan courts.
5. The provisions of consumer protection laws as enacted or amended from time to time shall be applicable to this Agreement unless varied herein (to the extent that the variation is permitted by the law).
Compliance with Procedures and Guidelines
1. You agree that you will comply with procedures and/or guidelines regarding transactions on this site that we may formulate and post from time to time.
Your Warranties and Indemnity
1. By listing your items on this site, you represent and warrant to prospective buyers that :
  1. You are the legal owner of the items and that you can pass good title in the item free from any third party claims, liens or encumbrances;
  2. if you are a business, you are duly registered and validly existing and in good standing under the laws of the country in which your business is registered.
  3. The items you have listed are not prohibited for advertisement or sale by applicable laws;
  4. The listing or sale of your items is not in breach of applicable laws(including laws of the country of destination in case of international sales), including but not limited to laws regarding standards or requirements on: safety, packaging and labeling and measurement;
  5. The information you have disclosed in your listing is accurate, complete and not misleading or otherwise deceptive;
  6. You are legal person or entity duly formed incorporated or registered in your respective country of establishment;
  7. You are not prohibited by applicable laws from trading including listing your items for sale on this site.
2. You agree that you shall fully indemnify us in respect of claims brought against us for misrepresentation or breach the above warranties.
Collection and Delivery
1. As soon as the buyer places an order to purchase listed items, we shall notify you immediately.
2. Provided that the buyer has made the payment, you must promptly avail the items to our authorized personnel for delivery to the buyer, and in any case within Seventy Two (72) hours of receipt of our notification of order.
3. The items to be collected must be in good condition and of the same description as displayed on this site.
4. The items must be properly packed to ensure safe transit by us. You shall comply with packaging guidelines that we may (but not bound to) issue from time to time. You shall be liable if damage is caused on the items because of failure to safely package the items as per any guidelines that we may issue from time to time or otherwise.
Amendment or Cancellation of Orders
1. The buyer is at liberty to amend or cancel an order within [Twelve (12)] hours of completing the online transaction provided that we have not collected the item for delivery. We shall immediately notify you of such amendment or cancellation and in the event that we had already remitted your share of the purchase price to you, you will promptly refund the said monies to us (without any deduction or set off) for our onward transmission to the buyer.
2. If for whatever reason you are unable to avail the item ordered, you shall notify us within [Twelve (12) hours] of receipt of our order notification and will forthwith refund to us any monies paid to you for such item. We shall immediately notify the buyer of such inability and refund the purchase price.
Returns and Refunds/Replacement
1. Should the item delivered to the buyer be non-merchantable, in bad condition, fail to meet the specifications displayed on listing the item, damaged or fail to meet packaging guidelines issued, the buyer is entitled to return the same to us within [Twelve (12)] hours of receipt.
2. Where wrong or damaged goods are returned by the buyer as contemplated under Clause 12.1 above, you will pay our [courier charges at the prevailing market rate] for both journeys in respect of the delivery and collection of the item.
3. You shall promptly replace the returned item or refund any payments (without any deductions or set off) made upon receipt of the returned item, and in any case not later than Twenty-four (24) hours of receipt of the returned item. You agree that in the event that we pay the refund to the buyer on your behalf, you shall immediately reimburse us.
4. You will include the terms of your refund policy as part of your product information.
5. You agree that we may at our sole discretion recover any refunds payable to the buyer or amounts payable to us by way of reimbursements for refunds we pay to the buyer on your behalf, by:
  1. debiting your Account;
  2. deducting the amount from any reserve you maintain with us;
  3. offsetting from any future payments that would otherwise have been owed to you;
  4. reversing any transfer to your bank account;
  5. charging your credit card or mobile money account; or
  6. seeking such reimbursement from you by any other lawful means.
6. without any reference to you.
Reserve
1. As a security for potential refunds or reimbursements, you agree to maintain with us a minimum balance (hereinafter called “the Reserve”) [which shall be an equivalent of the sum of the immediately preceding 14 days of sales activity].
2. We may require a higher Reserve, or allow a lower Reserve, as we may determine in our sole and absolute discretion having regard to the rate of chargebacks, refunds, reimbursements, adjustments or other indicators of performance problems related to your use of our service, or as may be imposed by any payments processor or facilitator.
Transaction Limits
1. For security reasons, we may at our sole discretion set limits as to the value of transactions which can be transacted on this site.
Transaction Fee
1. By listing your items on this site, you agree to pay the transaction fee which will be the equivalent of Ten per cent (10%) of the purchase price of the item as displayed by yourself on this site, or such other percentage as may be agreed from time to time.
2. Unless otherwise stated, the transaction fee is inclusive of delivery charges and applicable taxes.
3. By listing an item on this site, you authorise us to charge or debit your Account, with the transaction fee.
Licence
1. By accepting these terms and conditions, you grant us a non-exclusive, worldwide, royalty-free, perpetual, irrevocable, right to exercise all copyright, database rights and rights of publicity over the material displayed in your listings or in any other catalogue or product information that you provide to us, in any existing or future media, known or unknown, now or at any later date.
2. Provided that you abide by the provisions of this Agreement including payment of any applicable fees we grant you a limited, non-exclusive, non-transferable, non-sublicensable licence to access and make personal and non-commercial use of the services herein. This licence does not include any resale or commercial use of any of our services or its contents; any collection and use of any product listings, descriptions, or prices; any derivative use of any our services or its contents; any downloading or copying of account information for the benefit of another merchant; or any use of data mining, robots, or similar data gathering and extraction tools.
Communication and Notices
1. You agree that the mode of communication may be made through the internet and as such any communication either from you or us shall be electronic through the internet, and shall be sufficient for all purposes.
2. You agree that notices may be sent to you through the e-mail address provided to us. You may send your notices to us, to the attention of the Managing Director, using our e-mail address ……………………..
3. Communication may also be made using your postal or physical address provided to us or our address as follows: Fargo Courier Limited, (…insert physical address…), P.O Box …………..,Nairobi, Kenya.
4. Any electronic internet correspondence or notification made by you or us shall be deemed to have been received within Twenty Four (24) hours. It shall be your responsibility to check out your account within such times.
5. Any communication through the post or by physical delivery shall be deemed to have been received within Four (4) days of posting or on delivery respectively.
6. Time or days shall stop running on a Sunday or public holiday.
Geographical Limitations
1. Items may only be listed for sale and delivery in the Republic of Kenya within 5 KM radius of our delivery network locations. Details of our current pick up an delivery locations can be accessed from http://www.fargoshopping.co.ke/pick-up-locations.
Personal Data
1. By accepting these terms and conditions, you consent to the collection and use of your personal data by us for as long as the same is necessary to conclude transactions herein.
2. You agree not to use any information regarding other parties that is accessible from this site, without their written consent, except to enter into and complete transactions conducted via this site. You agree not to use any such information for purposes of solicitation, advertising, unsolicited e-mail or spamming, harassment, invasion of privacy or otherwise objectionable conduct.
Fargoshopping as a Link
1. Fargoshopping other than being a platform for third party sellers and buyers to negotiate and conclude transactions, also provide links to the sites of other businesses. We are not responsible for examining or evaluating, and we do not warrant the offerings of, any of these businesses or individuals or the content of their websites. We do not assume any responsibility or liability for the actions, product, and content of all of these or any third parties.
2. You must ensure that each link to a site posted or maintained on any location by you or on your behalf, conveys users directly to the site, without displaying or performing any other advertisement, promotion or content.
3. You must ensure that transactions are concluded on Fargoshopping regardless, and not on the linked site.
Limitations of Liability and Force Majeure
1. In as much as we shall endeavour to ensure that our services are available and error-free, due to the nature of the internet, this cannot be guaranteed. In addition, your access to this site may be occasionally suspended or restricted to allow for repairs, maintenance, or the introduction of new facilities or services. We will attempt to limit the frequency and duration of any such suspension or restriction.
2. We shall not be liable in contract, tort, negligence, breach of statutory duty or otherwise for any damages of any kind including without limitation direct, indirect, incidental, punitive, special and consequential damages (including without limitation loss of profits, loss of revenue or loss of data) arising out of or in connection with this Agreement, this site or the service, the inability to use the service or those resulting from any goods or services purchased or obtained or messages received or feedback or ratings posted to this site or transactions entered into through the service, whether we have been advised or not of the possibility of such damage.
3. We shall not be liable in respect of any delay in performing or failure to perform any of our obligations hereunder if such delay or failure results from (i) acts or intervention of Government or Government agencies, (ii) fire, flood or explosion, (iii) Act of God, (iv) declared or undeclared war, or riots or civil commotion, (v) strikes or other industrial disputes, (vi) any act neglect or default of the other Party, or (vii) any cause outside our reasonable control.
No Waiver
1. If you breach any provision, no failure or delay by us in exercising any claim, remedy, right, power or privilege shall operate as a waiver nor shall any single or partial exercise of any claim, remedy, right, power or privilege preclude any further exercise thereof or the exercise of any other claim, right or power.
Severability
1. Any provision of this Agreement which is or may become illegal, invalid or unenforceable, shall be severed from the balance of this Agreement without invalidating the remaining provisions or affecting the validity or unenforceability of such remaining provisions.
Amendments or Variations
1. We reserve the right to amend or vary any provision of this Agreement at any time. Your continued use of this site and the service following our posting of any changes will constitute your acceptance of such changes or modifications. If you do not agree to this Agreement, then your only remedy is to cease use of the service or site.
Termination & Survival
1. We may terminate this Agreement at any time by giving Seven (7) days written notice to you.
2. We may, in our sole and absolute discretion, terminate this Agreement or access to this site, immediately without notice for any breach of any of the terms of this Agreement.
3. You may terminate this Agreement at any time by giving Seven (7) days written notice to us.
4. Upon termination, all rights and obligations under this Agreement will be extinguished, except that such rights and obligations will remain in effect after such termination to the extent necessary to process any orders placed prior to such termination.
Governing Law and Jurisdiction of Courts
1. The interpretation, construction and performance of this Agreement shall be governed exclusively by Kenyan law and you expressly submit to the exclusive jurisdiction of the Kenyan Courts.

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