Terms of ServiceLast updated: November 7, 2016
I. Agreement to be bound by Contract Terms
Please read these Terms of Service (“Terms”) thoroughly. By downloading, accessing or using Mobar; mobile application (“the App”), website or other products or services (collectively, the “Services”), and any information, text, graphics, photos or other materials uploaded, downloaded or appearing on the Services (collectively referred to as “Content”) you agree to be bound by these Terms. The term “you” or “User” shall refer to any person or entity who views, uses, accesses, browses or submits any content or material to the App. Your access to and use of the Services are conditioned on you accepting and complying with the Terms. If you do not agree to be bound by these Terms, then you may not use the App, website, other products or Services.
Mobar. (“Mobar”, “We” or “Us”) may change or modify these Terms at any time and in our sole discretion. If we make changes to these Terms, we will provide notice of such changes, such as sending a notification, posting a notice on the Services or updating the “Last Updated” date above. By continuing to use the Services you confirm your acceptance of the revised Terms. We encourage you to frequently review the Terms to ensure you understand the terms and conditions that apply to your use of the Services. If you do not agree to the amended or updated Terms, you must stop using the Services and delete your mobar account.
You acknowledge and agree that (i) this Agreement is concluded between you and Mobar only, and not Google Play Store, and (ii) Mobar, not Google Play Store, is solely responsible for the App, which is sourced through Google play Store. Your use of the App must comply with the Google play Store Terms of Service. You further agree that Google Play Store has no obligation whatsoever to furnish any maintenance and support services with respect to the App.
By downloading this application, you are voluntarily agreeing to be bound by Mobar’s Terms of Service. If you do not understand any portion of the Terms, you should not use Mobar’s Services. You further confirm that you are 18 years of age or older and you will provide government issued identification card (if requested) upon delivery, to verify your age and identity.
II. ACCESS TO MOBAR’S SERVICES.
Mobar grants you a non-transferable, non-exclusive limited license to access and make personal use of the Services and the App, subject to the Terms (“License”). The License allows you to use the Services for your personal, non-commercial use. The License also allows you to download, install any Mobar applications related to the Services on a mobile device that you own or control for your personal non-commercial use. Mobar’s grant of the License does not permit you to duplicate, transfer, give access to, copy or distribute any part of the Services in any way, or use the Services in any manner not consistent with the Terms. Any unauthorized use terminates the License granted by Mobar. All rights not expressly granted herein are reserved by Mobar.
III. PROCESSING AND DELIVERY OF PRODUCTS
Mobar provides a delivery service only, for local liquor stores (the “Retailers”), through which all orders and purchases are processed. Mobar does not hold a license to sell alcohol, nor is it a licensed retailer. At the time you purchase alcoholic beverages or other items (“Products”), you are purchasing those items from a licensed retailer, and your Mpesa and/or credit card will be charged by a third party Mpesa(safaricom) or credit card processing provider who will transfer and deliver the funds to the Retailers.
Neither Mobar , nor any officer, director, employee, shareholder or agent of Mobar shall be liable to the User or any third-party for any claims relating to the purchase, sale, delivery and/or consumption of the alcoholic beverage or any consequences which may result thereof.
By completing an order through the App, you agree that you are 18 years of age or older and that you will be present to accept the delivery of alcoholic beverages. You agree that you will not be intoxicated when receiving delivery of such products. If you are sending a gift, you agree that the recipient is an individual 18 years of age or older.
All deliveries including alcoholic beverages must be accepted by the account holder, who is capable of proving that he or she is 18 years of age or older and can provide a valid form of government issued identification at the time of delivery.
If there is no individual who is 18 years of age or older or cannot provide valid identification showing that he or she is 18 years of age or older, the delivery agent (the “Courier”) will not complete delivery of the Products. Additionally, if the Courier is unable to contact you or the account holder at the specified delivery address for 10 or more minutes, all Products will be removed from the order and returned to the Retailers. The original order balance will be returned to User less restocking and handling fees.
The Courier reserves the right to refuse to deliver Products for any reason. This reservation includes, but is not limited to, refusing service to individuals who are visibly intoxicated or to specific locations for safety reasons. Products cannot and will not be left unattended for any reason. Any Retailer reserves the right to not accept any order for any reason.
IV. APP USAGE
Your use of the App and Services is subject to all applicable local and state laws and regulations. It is your responsibility to provide the mobile device, wireless service/data plan and software needed, in order to install and use the App and Services. You are solely responsible for any fee, cost or expense that you may incur, to download, install and/or use the App or Services on your mobile device or smartphone.
You understand and acknowledge that the App is an electronic platform for the purpose of connecting consumers to chosen Retailers to engage in the sale, service, delivery and/or transportation delivery of Products. All sales of Products are transacted between you and our Partner(s). Mobar does not provide or sell alcoholic beverages. No joint venture, partnership, employment, or agency relationship exists between Mobar and any business or third party as a result of this License or use of the App or Services.
V. MOBAR REFUND POLICY.
We send refunds within 24 hours of receiving a payment. Refunds are available only for transactions involving the purchase of drinks through mobar app and or Web app.
We can send a full or partial refund depending on whether you want to use the balance to make further purchases and that you have to communicate with us so we do it via our systems.
By default we issue a full refund, your original transaction fee is credited back to you minus processing/ transaction fee. When issuing partial refunds, a portion of the fee is returned to you.
VI. ABILITY TO ACCEPT TERMS OF SERVICE AND USER CONDUCT
You affirm that you are 18 years of age or older and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in these Terms, and to abide by and comply with these Terms.
You also agree that:
- You are fully able and legally competent to agree to the Terms;
- You will not impair or harm the App or Services or attempt to gain unauthorized access to the App in any way;
- Your use of the App and/or Services is subject to all applicable local and state laws and regulations and you will not use the App for any illegal purposes;
- You will not to use the App to purchase alcohol unless you and the alcohol recipient are 18 years old or older and can provide a valid form of government issued identification (if requested), which verifies your age, at the time of delivery;
- Mobar reserves the right to prosecute, to the fullest extent of the law: any attempt by you to misconstrue your age, either directly or indirectly; or any attempt to use Mobar’s Services to provide alcohol to an individual who is under the age of 18;
- You will not access the App or Services, using the account information of someone other than you; without the express consent of the account holder;
- You will not impersonate or misrepresent your affiliation with any person or entity;
- You will not abuse the Service by creating multiple or duplicate accounts;
- You will not use the App to engage in commercial activities, aside from those sanctioned by Mobar;
- You will not copy or distribute any content from the App;
- You will not attempt to decipher, decompile, disassemble, or reverse engineer any of the software used to provide the Site, App, Services, or any of their Content;
- You will not 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 Site, App, or Services;
- You will not resell the use of the App or Services to a third party;
- You will not Encourage or enable any other individual to do any of the foregoing;
- It is your responsibility to keep your account password and any identifying information, confidential; any Partner may decline your delivery request for any reason
Mobar shall not be liable for any loss or damage arising from the User’s failure to comply with the Terms or applicable laws. The Terms will continue to apply until you or Mobar terminates them as follows: (a) You discontinue using the Services; or (b) Mobar may suspend or terminate your accounts or cease providing you with all or part of the Services at any time for any reason.
VII. INTELLECTUAL PROPERTY
All Mobar logos, titles, characters and graphics are service marks, trademarks and/or trade dress of Mobar and may not be used by you for any reason other than as expressly permitted by Mobar. All other trademarks, not owned by Mobar, that appear on the App are the property of their respective owners and you shall not obtain any ownership rights in such marks, logos or names by your use of the App.
B. Proprietary Rights
You acknowledge and agree that the App contains proprietary information and content that is intellectual property, which is protected by the law and may not be used except as provided for by Mobar.
You acknowledge that monetary compensation for the consequences of unauthorized commercial use or republication of content or information from the App may not be sufficient or appropriate and in that event, Mobar will be entitled to temporary and permanent injunctive relief to prohibit such use.
C. Copyright Infringement Policy
Mobar abides by and respects copyright law and expects the same from its Users. We reserve the right to terminate Users who are infringing or are alleged to be infringing on the rights of copyright holders, at our sole discretion, and without liability to you. In appropriate circumstances, Mobar will also terminate a User’s account if the user is determined to be a repeat infringer.
If you believe that your Content has been used in such a way that violates or infringes on your copyrighted Content, you may notify us directly or by contacting our designated agents.
Any fees that Mobar may charge you for the App or Services, are due immediately and are non-refundable. Mobar, at its sole discretion, may make promotional offers with different features and different rates to any users. These promotional offers, unless made to you, shall have no bearing whatsoever on your offer or contract. Mobar may change the fees for the Services or the App without notice.
IX. TERMINATION AND MODIFICATIONS
Mobar reserves the right to modify, suspend, or discontinue at any time, without notice, the App and/or Services offered on or through the App (or any part thereof), including but not limited to the App’s features, look and feel, and functional elements and related services.
Furthermore, Mobar reserves the right to modify the Terms at any time. Modifications are effective upon your first access of the App or use of Services after the “Last Updated” date at the beginning of these Terms. Your use of the App and/or Services will be deemed as your acceptance of the modified Terms. If you choose not to accept the modified Terms, then you should uninstall the App and discontinue any use of the Services.
The Terms and/or the License are effective until either the date you uninstall the App or you fail to comply with any term of these Terms or the License or Mobar terminates this License, whichever is earliest. Upon termination, you will discontinue all use of the App and Services. Termination does not limit or waive any of Mobar’s rights or remedies at law or in equity.
X. Disclaimers and Limitations of Liability
This section intends to limit the liability of Mobar, its subsidiaries, affiliates, related companies, officers, directors, employees, agents, representatives, partners, and licensors (collectively, the “Mobar Entities”). The provision below only applies up to the maximum extent permitted under applicable law. Some jurisdictions do not allow the disclaimer of implied warranties or the limitation of liability in contracts, and as a result the contents of this section may not apply to you. Nothing in this section is intended to limit any rights you may have which may not be lawfully limited.
YOU AGREE THAT YOUR USE OF THE SERVICES OFFERED BY MOBAR SHALL BE AT YOUR SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE MOBAR ENTITIES SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY LOSS OF PROFITS OR REVENUES, WHETHER INCURRED DIRECTLY OR INDIRECTLY, OR ANY LOSS OF DATA, USE, GOOD-WILL, OR OTHER INTANGIBLE LOSSES, RESULTING FROM (i) YOUR ACCESS TO OR USE OF OR INABILITY TO ACCESS OR USE THE SERVICES; (ii) ANY CONDUCT OR CONTENT OF ANY THIRD PARTY ON THE SERVICES, INCLUDING WITHOUT LIMITATION, ANY DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD PARTIES; (iii) ANY CONTENT OBTAINED FROM THE SERVICES; OR (iv) UNAUTHORIZED ACCESS, USE OR ALTERATION OF YOUR TRANSMISSIONS OR CONTENT.
IN NO EVENT SHALL THE AGGREGATE LIABILITY OF THE MOBAR ENTITIES EXCEED THE GREATER OF THE AMOUNT YOU PAID MOBAR, IF ANY, IN THE PAST SIX MONTHS FOR THE SERVICES GIVING RISE TO THE CLAIM.
THE LIMITATIONS OF THIS SUBSECTION SHALL APPLY TO ANY THEORY OF LIABILITY, WHETHER BASED ON WARRANTY, CONTRACT, STATUTE, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, AND WHETHER OR NOT THE MOBAR ENTITIES HAVE BEEN INFORMED OF THE POSSIBILITY OF ANY SUCH DAMAGE, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.TO THE FULLEST EXTENT PERMITTED BY LAW.
You agree to defend, indemnify and hold harmless the Mobar Entities from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to advocates fees) arising from: (i) your use of and access to the Services; (ii) your violation of any term of these Terms; (iii) your violation of any third party right, including without limitation any copyright, property, or privacy right; or (iv) any claim that your use of the Services caused damage to a third party. This defense and indemnification obligation will survive these Terms and your use of the Services.
Mobar’s failure to enforce any right or provision of these Terms shall not be deemed a waiver of such right or provision.
In the event that any provision of these Terms is held to be void, invalid, unlawful or unenforceable, then that provision will be limited or eliminated to the minimum extent necessary, and the remaining provisions of these Terms will remain in full force and effect.
XIV. HEADINGS AND CONSTRUCTION
The section titles in the Terms are for your convenience only and carry no contractual or legal effect whatsoever. The language in these Terms shall be interpreted in accordance with its fair meaning and shall not be strictly interpreted for or against either party.
XV. Controlling Law and Jurisdiction
The Terms and any action, claims, dispute related to the Terms will be governed by the laws of The Republic of Kenya, including consumer, civil and criminal laws of the said republic , without regard or application of any conflicts of law provisions of your state or country of residence.
You are agreeing to consent in advance to personal jurisdiction in the Republic of Kenya . Mobar Limited is an incorporated company with its main headquarters in Nairobi, Kenya. Any dispute that may arise in the future between yourself and Mobar, will be subject to the laws of Kenya , including consumer, civil, and criminal law. If you do not agree with this forum selection, do not use or download Mobar, mobile application, website, or any other services.