Terms and Conditions

These terms of use (“Terms“) set out the terms and conditions for your use of the XOKO Services offered by On Demand Mobile Ltd. In using the XOKO Services, you acknowledge that you have read and understood these Terms, and are deemed to have agreed to these Terms on behalf of any person or entity for whom you are using the XOKO Services.

If you do not agree to any of these Terms, then you should not use the XOKO Services. All rights not expressly granted to Users in these Terms are reserved by On Demand Mobile Ltd.

We may change these Terms from time to time, and will endeavour to notify you of such changes via email or by displaying a message when you next use the XOKO Services. If you continue to use the XOKO Services, your use will be governed by the updated Terms.

Definitions

To help you read and understand these Terms, we’ve set out definitions of some key terms below:

Customer” means the person or entity who registers to use the XOKO Service by creating a XOKO account. If an individual creates an account on behalf of their employer, then the employer will be deemed to be the Customer, and will be bound by these Terms.

Authorised User” means any person or entity that a Customer authorises to use the XOKO Service on its behalf. This includes the Primary Admin (as nominated by the Customer) and other employees and personnel of the Customer who are authorised to use the XOKO Services on the Customer’s behalf, but also includes support partners and other third parties with whom a Customer shares its XOKO account details (and for whose conduct the Customer is responsible).

We” or “XOKO” means On Demand Mobile Limited (a company incorporated in Kenya, company number CPR/2011/61995) and any of our related companies.

XOKO Services “meansXOKO’s point of sale and inventory management products and services, and any features, technologies or functionality provided by those products or services, offered by us from time to time, including the XOKOandroid applications (“Apps“) and www.xoko.co.ke (“Website“). Your use of the XOKO Service will also be subject to any allowances and/or limits that apply to the XOKO plan which you’ve purchased.

You” means the Customer and (where the context permits) includes any Authorised Users.

Account information

You must be 18 years or older in order to access and use the XOKO Services. You agree to provide true, accurate, current and complete account information, and to maintain and promptly update your account information in order to ensure that it remains true, accurate, current and complete. We will use that information to contact you from time to time (including by sending you notices as required by these Terms relating to, for example, suspension of your account or changes to your plan), so it’s important that you keep all of your contact details, and those of your Primary Admin and other Authorised Users, up to date.

Use of your account

XOKO grants you a limited, non-exclusive, non-transferable, revocable licence to use the XOKO Services (subject to your account type) for the purposes of with the Customer’s business and in accordance with these Terms.

You are responsible for any conduct or activity undertaken in your account (whether online or by calling our contact centre), including any changes made, and the input or modification of or access to any data or information in your account, by any of your Authorised Users. In particular, our primary point of contact with you will be your nominated Primary Admin, who will be considered as authorised by you to make changes, give instructions and receive notices on your behalf.

If:

  • you are an Authorised User using or accessing the XOKO Services for the benefit of a Customer, then you are responsible for ensuring you have the right to do so from the relevant Customer (including all necessary authorisations to access, amend or remove data, or make changes to the Customer’s account); or
  • you are a Customer, then you are responsible for authorising use or access of the XOKO Services by any Authorised User and will indemnify XOKO against any claims or loss relating to any Authorised User’s use of or access to your account.

We will have no responsibility to anyone other than the Customer, and the XOKO Services and these Terms are intended solely for the benefit of the Customer and not for any Authorised User(s).

Cancellation of accounts

We can cancel or suspend your account at any time on written notice to you. Such termination will be effective at the end of your then-current paid-up subscription period. We may also cancel or suspend your account immediately if, in our sole discretion:

  • you have committed a material or persistent breach of these Terms or any other terms applying to your use of the XOKO Services;
  • we consider that provision of the XOKO Services, or use of them, in your territory or jurisdiction, will or is likely to breach any applicable law;
  • we decide to withdraw the XOKO Services from your territory or jurisdiction altogether; or
  • you fail to comply with any limits or restrictions applicable to your XOKO plan.

If your account is cancelled, your account will be deactivated and all of your rights granted under these Terms will immediately come to an end (except to the extent that it is necessary for them to continue in respect of our ongoing storage of your data up to the date of permanent deletion). We are not liable for any loss or damage following, or as a result of, cancellation of your account, and it is your responsibility to ensure that any content or data which you require is exported, backed-up or replicated before cancellation.

Fees and taxes

The fees charged for use of the XOKO Services(“Fees“) are as notified to you and are subject to change. Fees are charged in advance on a monthly or annual basis and are non-refundable, including if you only use part of a month or year’s subscription for the XOKO Services. Unless required by law, we will not provide refunds in connection with the XOKO Services.

All Fees are exclusive of all taxes, and you are responsible for any taxes that may arise. You indemnify and hold On Demand Mobile Ltd harmless against any claims by any tax authority for any underpayment of any sales, use, goods and services, value-added or other tax or levy, and any penalties and/or interest. If you are required to withhold or deduct tax from the Fees, you will pay On Demand Mobile Ltd such additional amounts as are necessary to ensure receipt of the full amount which would have been received but for the deduction.

XOKO Services are provided “as is”

The XOKO Services are provided on an “as is” and “as available” basis, and your use of them is at your sole risk. In particular, it is your sole responsibility to ensure that your use of the XOKO Services complies with any laws or regulations applicable to you and your business, and allows you to meet any legal obligations you might have. Such laws might include requirements regarding the retention or storage location of accounting, taxation and/or transaction records. We make no representation or warranty regarding your ability to comply with laws applicable to you when you use the XOKO Service.

We will try to promptly address (during normal business hours) all technical issues that arise in connection with the XOKO Services.

We do not warrant that: (a) the XOKO Services will meet your specific requirements; (b) the XOKO Services will be uninterrupted, timely, secure, or error-free; (c) the XOKO Services will be accurate or reliable; (d) the quality of any products, services, information, or other material purchased or obtained by you through the XOKO Services will meet your expectations; or (e) any errors in the XOKO Services will be corrected.

You acknowledge that XOKO may use third party suppliers to provide hardware, software, networking, connectivity, storage and other technology in order to provide the XOKO Services. The acts and omissions of those third-party suppliers may be outside of XOKO’s control, and XOKO does not accept any liability for any loss or damage suffered as a result of any act or omission of any third-party supplier, save as otherwise expressly set out in the Agreement or in writing between the parties.

On behalf of itself and such third-party suppliers, XOKO excludes any other warranties that may be implied or otherwise apply under statute or other applicable law, to the maximum extent permitted by law.

From time to time, we may add, make changes to or remove altogether features or functionality of the XOKO Services. If you’re using an Apps, you may need to install a new or updated version before you can receive the benefit of those changes. We may also decide to cease providing all or some of the XOKO Services at any time, and nothing in these Terms is to be taken as a guarantee that the Apps or any XOKO Services will always be available, either in its current form or at all, or that we will support, maintain or continue to offer the XOKO Services, or the Apps or any version of them.

Our liability is limited

To the maximum extent permitted by law, XOKO shall not be liable for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to, damages for loss of profits, business, goodwill, use, data or other intangible losses (even if XOKO has been advised of the possibility of such damages), resulting from: (a) the use or the inability to use the Service (in whole or in part) or any technical malfunctions; (b) the cost of procurement of substitute goods and services; (c) unauthorised access to, or alteration of, your communications or data; (d) statements or conduct of any third party regarding the XOKO Services; or (e) any other matter relating to the XOKO Services.

In any case, XOKO’s maximum aggregate liability under or in connection with these Terms or your use of the XOKO Services is limited to the amount of Fees paid by you in the past 12 months.

You are responsible for your use of the XOKO Service and you indemnify us

You are responsible for all activity that results from use of the XOKO Services through your account. You are responsible for maintaining the security of your account and password. XOKO will not be liable for any loss or damage that may result from any failure to keep User names and passwords secure.

You indemnify XOKO against all forms of liability, actions, proceedings, demands, costs, charges and expenses which XOKO may incur or suffer as a result of use of the XOKO Services through your account or as a result of your failure to comply with these Terms.

No malicious or illegal use

You must not: (a) use the XOKO Services in any unlawful manner (or if use of the XOKO Services would cause you to breach any law or regulation applicable to you), for any unlawful or fraudulent purpose, or in any manner inconsistent with these Terms; (b) infringe our intellectual property rights or those of any third party in relation to your use of the XOKO Services; (c) transmit any material that is defamatory, offensive or otherwise objectionable in relation to your use of the XOKO Services; (d) use the XOKO Services in a way that could damage, disable, overburden, impair or compromise our systems or security or interfere with other users; (e) collect or harvest any information or data from the XOKO Services or our systems or attempt to decipher any transmissions to or from the servers running any XOKO Services; (f) disclose or distribute information relating to another User of the XOKO Services to any third party, or use any other User’s information for any marketing purposes unless you have that User’s express permission to do so; or (g) access or register User logins via bots or other automated methods.

Reasonable use policy

You agree to use the XOKO Services in a reasonable way. If we determine that your use of the XOKO Services is not reasonable or that your use is causing degraded performance of the XOKO Services for you or for other Users, we may impose limits on your use of the XOKO Services. Where possible, we will endeavour to give you at least 24 hours prior notice and request that your usage is reduced before imposing any limits.

Limits on your use of the XOKO Services may include (but are not limited to) the quantities and volumes of the following parameters, per retailer: (a) storage required to host and backup retailer data; (b) sales transactions per calendar month; (c) API (application programming interface) calls per five (5) minute period; (d) page views per five (5) minute period; (e) bandwidth usage per twenty four (24) hour period; (f) support tickets opened per calendar month; or (g) outlets, registers, users, products and customers.

Intellectual property

You agree that XOKO owns all of the intellectual property rights existing in the XOKO Services. You agree not to challenge or do anything inconsistent with such ownership. You may not publish or use XOKO’s brand, branding or logos except with XOKO’s prior written consent.

You grant XOKO a royalty-free, irrevocable, perpetual licence to use for our business purposes (including for product improvement, research and development, data analytics and other legitimate commercial purposes) information and/or data collected by XOKO through your use of the XOKO Services (provided that we aggregate or anonymise any information or data which you have submitted or inputted into the Services that we process on your behalf). Other than this right, XOKO claims no intellectual property rights in relation to the information or content you input into the XOKO Services.

You may provide us with comments, feedback or suggestions on XOKO Services, and you agree that we will be free to use, modify and incorporate such suggestions without any obligation to you.

Data protection

We will maintain appropriate technical and organizational measures to protect the security of the data or content that you input into the XOKO Services.

You are responsible for complying with all applicable data protection laws in respect of your use of the XOKO Services and with regard to any instructions you issue to XOKO with regard to the processing of personal data you provide to XOKO through the Services. In particular, you must ensure you have properly informed and obtained all necessary rights, authorizations or consents from any end-users, consumers, personnel or other individuals to whom the data relates, to enable XOKO to lawfully access their personal data under these Terms and to process their personal data outside of their country of residence.

Third-Party Integration Partners

You acknowledge that in the provision of certain optional features and services, XOKO, on receipt of instructions from you, may be required to transfer certain data held in your XOKO account to, and otherwise interact with, third-party partners who provide services that you have elected to integrate with the XOKO Services (“Third-Party Integration Partners“).

You agree that if and to the extent such data transfer occurs, it is on your express election and instruction by virtue of you agreeing to use the Third-Party Integration Partner’s services. You are solely responsible for compliance with all applicable laws (including applicable data protection laws) in respect of the transfer of the data by XOKO to the Third-Party Integration Partner, and for entering into separate contractual agreements with the Third-Party Integration Partner. XOKO is in no way liable for the provision of the services or the handling and processing of any data by the Third-Party Integration Partner. For the avoidance of doubt, such third parties are not XOKO’s sub-processors for data protection purposes.

Data deletion

On expiry or termination of these Terms, or upon cancellation of your account, the data submitted by you to the XOKO Services will be deleted after 30 days, unless applicable laws or regulations require XOKO to retain the data for a longer period. To the extent that we continue to hold the data, it shall be securely isolated and protected from further processing except to the extent required by applicable law.

Applicable Law and Disputes

This AGREEMENT its validity, construction and performance shall be governed by and construed in accordance with the laws of Kenya. Any claims arising from this AGREEMENT shall be subject to Kenyan law.
The Parties shall use their good faith efforts to resolve any dispute, controversy or claim of any nature whatsoever arising out of or in relation to or in connection with this agreement. To this end, the Parties in dispute shall each promptly appoint representatives of appropriate standing who shall meet and attempt to resolve any dispute between them.


In the event that an amicable settlement has not been reached within twenty eight (28) days of the Parties representatives meeting as aforesaid, the dispute shall be referred to arbitration by a single arbitrator to be appointed by the Chairman of the Kenya Branch of the Chartered Institute of Arbitrators. The provisions of the Arbitration Act of Kenya (1995) and the rules of the Chartered Institute of Arbitrators (Kenya Branch) shall apply to such arbitration proceedings. The place of arbitration shall be Nairobi and the language of the arbitration shall be English. The award of the arbitrator shall be final and binding upon the parties and any party may apply to a court of competent jurisdiction for enforcement of such award. The award of the arbitrator may take the form of an order to pay an amount or to perform or to prohibit certain activities.


The Arbitrator’s decision shall be final and binding (in the absence of manifest error) and may only be referred to court for the purpose of enforcement.


Each Party shall bear its own costs of preparing and presenting its case. The costs of the arbitration (including fees and expenses of the arbitrators) shall be shared equally between the Parties unless the arbitration award provides otherwise.


The Parties may irrevocably elect that a dispute be heard by a court of law and not determined by arbitration. The Parties must make the election before they commence arbitration and such agreement must be recorded in writing in a deed signed by or on behalf of all Parties. If such an election is made, the Parties agree to submit to the non-exclusive jurisdiction of the Kenyan courts.


The terms of this AGREEMENT shall not prevent or delay the Parties from seeking orders for specific performance or interim or final injunctive relief on a without notice basis or otherwise.


Any order, award, or other decision or finding of a court of competent jurisdiction and/or the arbitrators or any agreement reached by way of settlement between the Parties in respect of any dispute, disagreement or question arising out of or in relation to or in consequence of this agreement or relating to its construction or performance shall be enforceable in any jurisdiction in which either of the Parties has assets.

General

We work with a number of partners, value-added resellers and other third parties to promote, market and integrate other products and services with the XOKO Services. In some cases, we may receive a commission from those partners and third parties for referring our customers to them, or we may pay a commission to third parties where customers are referred to us.

If we don’t insist that you perform any of your obligations under these Terms, or if we do not immediately enforce our rights against you, that will not mean that we have waived our rights against you and will not mean that you do not have to comply with those obligations.

Each clause in these Terms operates separately. If any court or competent authority decides that any of them are unlawful or unenforceable, the remaining conditions will remain in full force and effect.

You are not permitted to assign, sub-licence, novate or transfer these Terms or any of the rights licensed under them. These Terms shall be governed by Kenya law, and (subject to the ‘Disputes’ section above) you submit to the exclusive jurisdiction of the Kenyan courts for any matter or dispute arising in relation to these Terms.