TERMS & CONDITIONS
1. Welcome to Mahambi Market
- Mahambi Market is a peer-to-peer marketplace which is used by individuals to sell their pre-loved or new one-off items on our website (the “Service”). You can search for items, log-in to your profile and view other profiles (each account has a unique and public URL) via the website.
- The Service is operated by Breathe Media Limited, incorporated and registered in Kenya under company number PVT- PJUGQKG and with registered office is at 1st floor, ABC Place, Waiyaki Way, Nairobi Kenya (“we”, “our, or “us”).
2. Your relationship with us
- This document and any documents referred to within it (collectively, the “Terms of Service”) set out the terms of your relationship with us. It is important that you read and understand the Terms of Service before using the Service. If there is anything within them that you do not understand, then please contact us at email@example.com to discuss what this means for you.
- By setting up an account with us and/or using and accessing the Service, you agree to and accept these Terms of Service in their entirety. If you do not agree to these Terms of Service, you may not use the Service.
3. Information about you and your privacy
4. Setting up an account
- To access our Service, you must register with us and set up an account with a username and password (your “Account”). We encourage you to use “strong” passwords (passwords that use a combination of upper and lower case letters, numbers and symbols) with your Account.
- You are responsible for maintaining the confidentiality of your login details and any activities that occur under your Account. If you have any concerns that your Account may have been misused, you should contact us at firstname.lastname@example.org straight away to let us know.
5. Mahambi Market Marketplace and Payments
- Our Service allows you to buy and sell items in an easy and fun way.
- You can sell your items through our Service by publishing pictures of the item you want to sell (“Sale Item”). When a user of the Service purchases such a Sale Item, this is a “Sale Transaction”.
- Sale Transactions may only take place via Mahambi Market’s third party payment providers – Flutterwave.
- Where you use Flutterwave to make or receive payment for a Sale Transaction, you will need a Mahambi Market account to use the Service.
- To safeguard the interests of our users, you are not permitted to sell or purchase a Sale Item by making direct arrangements with the buyer or the seller to use a payment method other than the payment methods offered via the Service. Please note that selling or purchasing a Sale Item in any other way is a breach of our Rules of Acceptable Use and can result in, among other things, suspension or termination of your access to the Service (See section 8).
- We want our Service to be a positive experience for our users and we ask that you honour the commitments you make to another user in respect of the sale or purchase of a Sale Item.
- Any agreement for and/or purchase of a Sale Item is made solely between you and the seller. The application may include functionality for suggesting more effective selling, such as discounting Sale Items, but Sellers have, at all times, total discretion to set prices. Complaints, questions and claims related to a Sale Item should be directed to the seller. Where users cannot resolve issues relating to a Sale Transaction between themselves, we will attempt to help mediate such disputes through our dispute resolution process. You can find out more about our dispute resolution procedure at section 15 of these Terms of Service.
- As we are not the seller of any Sale Items, we have no control and do not give any commitment relating to the existence, quality, safety, genuineness or legality of Sale Items, the truth or accuracy of any picture or description of the Sale Items or any other content made available by users, the ability of sellers to sell Sale Items, the ability of buyers to pay for them or that a buyer or seller will actually complete a transaction or return the Sale Item, and we have no liability in this respect. Sellers are responsible for ensuring that any age-restricted Sale Items are marked clearly with the applicable age restriction (as required by law) and Buyers agree that they shall not attempt to purchase Sale Items if they are younger than the advertised and legal age restriction.
6. Your right to use the Service
- The intellectual property rights in all materials and content comprising the Service, including but not limited to images, written content and designs on each page of the Mahambi Market application and website, either belong to us or we have permission from the owner to use them to provide the Service. All such intellectual property is protected by worldwide intellectual property laws, including copyright and design laws. We give you permission to use the materials and content comprising the Service for the sole purpose of using the Service in accordance with these Terms of Service.
- Your right to use the Service is personal to you and you are not allowed to give this right to another person or to sell, gift or transfer your Account to another person. Your right to use the Service does not stop us from giving other people the right to use the Service.
- Other than as allowed in these Terms of Service or by us in writing, you are not given the right to use the “Mahambi Market” name, or any of the “Mahambi Market” trademarks, logos, domain names and other distinctive brand features, all of which are intellectual property rights that belong to Mahambi Market.
- These Terms of Service do not grant you any rights to, or in, any such intellectual property rights or any other rights or licences in respect of Mahambi Market’s materials and content, the Service, Mahambi Market name and/or trademarks, other than as set out in these Terms of Service.
7. Your content
- You confirm that images, sounds, text or information that you submit or create (“User Content”) whilst using the Service will meet the Rules of Acceptable Use.
- You grant us a worldwide, non-exclusive, royalty-free, irrevocable and perpetual licence to use, copy, reproduce, distribute, adapt, re-format, modify, publish, translate, licence, sub-licence, assign, transfer and exploit the User Content (including any intellectual property rights therein) anywhere and in any form for the purposes of providing our Service or for any purpose in connection with the operation of our business.
- We do check or moderate any User Content before it is added to the Service by users. We may check, moderate, reject, refuse or delete any User Content if we think that it breaks any of the Rules of Acceptable Use, or we believe it is against the ethos of Mahambi Market.
- User Content removed from the Service may continue to be stored by us, including, without limitation, in order to comply with certain legal obligations. Therefore we encourage you to maintain your own backup of your User Content and you agree that you will not rely on the Service for the purposes of User Content backup or storage. To the extent permitted by applicable law, we shall have no liability for any loss of User Content.
8. Rules of Acceptable Use
- In addition to the other requirements within these Terms of Service, this section describes specific rules that apply to your use of the Service (the “Rules of Acceptable Use”).
- You must make sure the email address you provide in your Account details remains active and is checked by you on a regular basis.
- You are responsible for all taxes (including any associated penalties, fines, charges and late payment interest) relating to your sales of items through our Service. You must comply with all applicable laws in relation to such taxes and shall promptly provide us with any information we require to verify such compliance. To the extent possible under applicable law, you shall reimburse us on demand any costs we incur as a result of your failure to comply with this section 8(3).
- When using the Service you must not:
- Create more than one Account on the Service (however, you may connect all your social networks or other services accounts, that we support, to your Account on the Service) unless we agree otherwise.
- Give any false or misleading information in your Account details.
- Permit another person to use the Service under your name or on your behalf unless you are a business and such person is authorised by you.
- Use the Service if we have suspended or banned you from using it.
- Send junk, spam or repetitive messages.
- Engage in any illegal or unlawful conduct including selling or intentionally purchasing any fake or counterfeit items or any item that otherwise breaches another person’s rights, and must comply with applicable legal requirements relating to the sale or purchase of Sale Items (including but not limited to import and export rules and illegal products, the listing of any age restrictions, distance selling and cooling off rights which may apply to a Sale Item where the seller is a business).
- Modify, interfere, intercept, disrupt or hack the Service.
- Misuse the Service by knowingly introducing viruses, Trojans, worms, logic bombs or other material which would harm the Service or any user of the Service’s own equipment.
- Collect any data from the Service other than in accordance with these Terms of Service.
- Submit or contribute any User Content (including comments and descriptions relating to Sale Items) that contains unlawful content, nudity or violence, is abusive, bullying, threatening, harassing, obscene, misleading, untrue, offensive, defamatory, derogatory or uses bad or rude language, as Mahambi Market may decide in its absolute discretion.
- Unfairly or unlawfully interfere or manipulate any ratings system or user feedback system.
- Submit or contribute any User Content without the permission of the content owner, or otherwise infringe the copyright, trademark or other rights of third parties (which includes using hashtags for protected brands, in connection with your listing, that are irrelevant to such listing).
- Offer to sell or buy any of the items we list as prohibited items – items -Mahambi Market has a zero tolerance policy on using the Service to promote, advertise or sell drugs, drug paraphernalia, tobacco and/or tobacco paraphernalia or related products.
- Purchase or sell a Sale Item by making direct arrangements with the buyer or the seller to use a payment method other than Flutterwave available through the Service.
- Take any action which is deliberately designed to circumvent, reduce or manipulate the Commission due to us (as specified in section 11).
- Submit or contribute any information or commentary about another person without that person’s permission, or post private or confidential information via the Service, including, without limitation, your or any other person’s credit card information, social security or alternate national identity numbers, non-public phone numbers or non-public email addresses.
- Mine data, screen scrape or crawl any part of the Service.
- Disassemble, decompile or reverse engineer any part of the Service.
- Adapt, copy, vary, edit, distribute or commercialise any content in the Service without the prior written consent of Depop.
- Circumvent any technical measures implemented to protect or provide the Service.
- Use any third party’s Flutterwave account unless you have express permission from them to do so.
- Use the service to drop ship.
- Failure to comply with the Rules of Acceptable Use constitutes a serious breach of these Terms of Service, and may result in our taking all or any of the following actions (with or without notice, and entirely at our discretion):
- Immediate, temporary or permanent withdrawal of your right to use our Service;
- Immediate, temporary or permanent removal of any User Content (including the removal of Sale Items listed on the Service);
- Issuing of a warning to you;
- Legal action against you including proceedings for reimbursement of all costs (including, but not limited to, reasonable administrative and legal costs) resulting from the breach;
- Disclosure of such information to law enforcement authorities as we reasonably feel is necessary.
- We may investigate any suspected breach of the Rules of Acceptable Use. During such an investigation we may temporarily withdraw your right to use our Service or remove User Content (including the removal of Sale Items listed on the Service) without notice to you.
- The responses described in section 8.5 are not limited, and we may take any other action we reasonably deem appropriate.
9. Notice and takedown policy
- Any person may contact us by sending us an “Infringement Notice” if any content available through our Service infringes their rights or fails to comply with our Rules of Acceptable Use. The Infringement Notice should be sent by email to email@example.com. Please provide the information described below in the Infringement Notice:
- Your name and contact details;
- A statement explaining in sufficient detail why you consider that the content available through our Service infringes your rights or fails to comply with our Rules of Acceptable Use; and
- A link to or such other means of identifying the problematic content.
- We will take the action that we believe is appropriate depending on the nature of the Infringement Notice and will aim to respond to you within a reasonable period of time on the action we propose to take.
10. Advertisements on the Service
11. Seller commission
- The seller of any Sale Item will pay us a commission on the total transaction amount received by the seller (including VAT and any other applicable taxes, if any, and shipping costs) in respect of any Sale Transaction (the “Commission”). If the Commission payable is less than our minimum Commission, then the seller will be required to pay the minimum Commission. Details of this fee are available on our help site.
- Our Commission will be deducted from your Flutterwave account or the funds transferred to you via withdrawal (whichever is applicable).
- We will provide the seller of the Sale Item with an invoice detailing the Commission.
- The Commission is inclusive of VAT or other sales taxes (where applicable).
12. Ending our relationship
- If at any time you decide you can no longer agree to these Terms of Service or any changes made to the Terms of Service or the Service, you must immediately stop using the Service.
- If you wish to end your use of the Service, please contact us at firstname.lastname@example.org from the email address linked to your account and ask us to deactivate your Account. Where such a request comes from someone who is not the account holder, we may ask you to provide proof of who you are and your relationship to the User in question, and any other documents we may reasonably require.
- We may immediately end your use of the Service if you break the Rules of Acceptable Use, any other important rule(s), or terms and conditions we set for accessing and using the Service including these Terms of Service.
- We may also withdraw the Service for any reason, without notice, at any time and without any liability to you.
- If you or we end your use of the Service or we withdraw the Service as described in this clause, we may delete or modify your User Content, Account or any other information we hold about you. You will also lose any rights you have to use the Service or access our content or your User Content. We will not offer you compensation for any losses. You should note that even if your Account is deactivated, some of your data may persist and appear within the Service, for example where your User Content has been re-shared by others.
13. Our liability/responsibility to you
- You alone decide whether to proceed with a sale or purchase of a Sale Item. As such, we make no commitments regarding the Sale Items including the quality or delivery of the Sale Items, or for honouring (or causing any seller to honour) any erroneous information regarding the price, description and availability of, or any information relating to any Sale Items promoted or available through our Service, or the ability of the buyer to complete any purchase of the Sale Items.
- Although it is our intention that the Service is available as much as possible, there may be occasions when the Service may be interrupted, including for scheduled maintenance, upgrades and emergency repairs, or due to failure of telecommunication links and/or equipment. The Service and any content contained therein (including User Content) is provided on an “as available” and “as is” basis. This means that we are unable to promise that your use of the Service will be uninterrupted, without delays, error-free or meet your expectations and we do not give any commitment relating to the performance or availability of the Service in these Terms of Service and, to the extent we are able to do so, we exclude any commitments that may be implied by, or be expressed by, applicable law. You accept that the internet may be subject to breaches of security and that the submission of User Content or other information may not be secure.
- Mahambi Market is not responsible or liable for any loss or harm caused by viruses, worms or other programmes designed to impair the Service.
- You may be able to access third party links/websites/products via the Service. Mahambi Market is not responsible or liable for any third party links/websites/products which may be accessed by you at your sole option. Your access to and use of such third party links/websites/products and services shall be solely at your own risk and subject to your acceptance and compliance with the separate terms and conditions of such third party.
- To the maximum extent permitted by the law, our total responsibility for any claims relating to a Sale Transaction is limited to the Commission payable in connection with that Sale Transaction.
- For any other claims arising out of the provision of the Service (including without limitation any dispute between users where this does not fall within paragraph 5 above, in relation to any content you access via the Service, or any other user you interact with), we do not accept any responsibility whatsoever (whether arising in contract, tort otherwise), except where we cannot disclaim, exclude or limit responsibility by law (such as death and/or personal injury caused by our negligence).
- We will never be responsible for any loss or damage that is not reasonably foreseeable and we will never be responsible for indirect losses and/or financial and business loss, or loss of goodwill or reputation.
14. Your responsibility to us
- If Mahambi Market is sued due to an action or inaction by you (including a breach of these Terms of Service) then we have the right, at our discretion, to request that you indemnify us (i.e. cover all our costs including legal fees) and hold us harmless from any legal claim or demand for expenses or costs that arises as a result. Where we decide to conduct the defence of such claim, you agree to assist us as reasonably requested.
15. Resolving disputes
Disputes with us
- If you have a dispute with us relating to the Service, in the first instance please contact us at email@example.com and attempt to resolve the dispute with us informally.
Disputes with other users relating to a Sale Transaction
- If you use Flutterwave to pay for a Sale Item or receive any money for a Sale Transaction you may be eligible for Buyer or Seller Protection, details of which are available below.
- All purchases/sales made outside of Mahambi Market are against our Terms of Service and are not covered by Buyer or Seller Protection.
- If: a) as a buyer your Sales Item has not arrived, or if what you received is significantly not as described or faulty, you can either Contact us directly, Contact the vendor through the Vendors page or submit a Refund request through Orders in your Account or b) as a seller if you are sent an unauthorised payment, or a buyer claims they didn’t receive their Sale Item, you can report the issue to us within 30 days and we will reply to you with instructions on how to proceed. Please make sure you report the issue as set out in paragraph 8 below in order to guarantee a prompt reply. To open a dispute: Open the vendor dashboard and go to Contact Mahambi.
- Please know that in regards to any kind of buyer or seller protection, we can only accept Glovo, Sendy or any other third party delivery app receipts as valid proof of delivery, and that the cost of returning the Sales Item cannot be refunded.
Transactions via Flutterwave – Buyer and Seller Protection:
In order to be eligible for Flutterwave Buyer or Seller Protection, you must: a) purchase/sell the Sale Item through the website checkout using Flutterwave, and b) report the transaction issue to Flutterwave within 180 days from the date of purchase/sale. Buyer or Seller Protection applies only if these conditions are met. non-material goods, prohibited items and meet-in-person transactions are not covered by Flutterwave Buyer or Seller Protection.
- If Mahambi Market verifies that the Sales Item was not received or was significantly not as described, you may be entitled to a refund under Buyer Protection. If the Sales Item is significantly not as described, we will ask you to return it to the seller before refunding you. If the Sales Item is found to be counterfeit, we will ask you to destroy it.
- Flutterwave’s investigation of disputes is subject to the Flutterwave Terms of Service to which you will have agreed when setting up your Flutterwave account, so you should check these.
Mahambi Market Payments– Mahambi Market Buyer and Seller Protection:
1. In order to be eligible for Mahambi Market Buyer or Seller Protection, you must: a) purchase/sell the Sale Item through the website using Mahambi Market Payments via Flutterwave, and b) report the transaction issue to Mahambi Market within 30 days from the date of purchase/sale. Mahambi Market Buyer or Seller Protection applies only if these conditions are met.
Mahambi Market Buyer Protection
- To qualify for Mahambi Market Buyer Protection, you must be able to prove that a) you bought the Sale Item with Mahambi Market Payments via Flutterwave, and b) the Sale Item did not arrive OR was materially and significantly different to the description thereof OR the Sale Item was counterfeit. If we find that the above criteria is fulfilled, subject to you returning the Sale Item where requested (tracked delivery), you will receive a full refund of the Sale Item from the Seller.
Mahambi Market Seller Protection
- To qualify for Mahambi Market Seller Protection, you must be able to prove that a) you sold the Sale Item via Mahambi Market Payments via Flutterwave, b) you dispatched the order to the address provided on the Mahambi Market receipt within 7 days of the order (or any timeframe set out in the description for the Sale Item in question if different), c) you responded to any Mahambi Market emails relating to such Sale Item within the requested period and d) the Sale Item materially and significantly conformed to the description thereof in your shop. As a Seller, non-material goods, prohibited items and meet-in-person transactions are not covered by Mahambi Market Seller Protection.
- Where Buyer and Seller cannot agree resolution, Mahambi Market will try to mediate a resolution between you and the Buyer. If we find that the Buyer was correct in that the Sale Item was not as described or was not delivered, subject to the Buyer returning the item to you, you agree to refund the full sale price of the Sale Item and where you fail to do so, you hereby give Mahambi Market permission to do so on your behalf.
- If a chargeback is raised against you as Seller, Mahambi Market will ask you to provide evidence of shipping and that the Sale Item was as described in the original listing, within 3 calendar days. If you do not respond within the timeframe and/or we believe the Buyer to have validly initiated the chargeback, we will activate a refund for the Buyer of the value of the Sale Item in question and a 100/= KES chargeback fine will be deducted from your Mahambi Market Payment account. If Buyers are making regular chargebacks from you as a Seller, then we may investigate your account and your compliance with these terms of service. This may result in suspension of your account.
- Should you decide to appeal any decision Mahambi Market has made under this section of the terms, then please contact us. Be aware that we will only consider appeals where you can supply new evidence to support your case.
- The seller is responsible for the shipment of the Sales Item to the buyer.
- Sellers outside of Nairobi who have an active account with Mahambi Market are able to use G4S or Fargo options and easily calculate and charge for shipping, ensuring the shipping is tracked.
- If the seller chooses to use a nationwide shipping service when listing a product the Seller agrees to pay Mahambi Market the applicable “Shipping Fee”. Both the Commission and the Shipping Fee will be deducted from your Flutterwave account.
- A seller may request a refund for unused postage via email to Mahambi Market Support. Any refund is subject to the policies of the applicable Courier. If the Courier refuses to issue a refund, Mahambi Market is not liable for any postage amounts paid to such Courier. If a refund is issued, it will be provided no earlier than 7 days after the order date. Any postage or fee refund claims must be filed within 30 days after the label has been issued.
- Mahambi Market shall not be responsible for any local customs charges, import taxes or duties or any similar charge(s) incurred through the carriage and/or delivery of any shipments and the seller must satisfy themselves as to whether any of these charges will become due, and if so in what amounts. If any such charges become due as a result of carriage and/or delivery of a shipment and are charged to Mahambi Market by any competent authority the seller agrees to reimburse Mahambi Market fully in respect of the same within 7 days of our demand.
17. Changes to the Service
- We are constantly updating and improving the Service to try and find ways to provide you with new and innovative features and services. Improvements and updates are also made to reflect changing technologies, tastes, behaviours and the way people use the Internet and our Service.
- In order to do this, we may need to update, reset, stop offering and/or supporting a particular part of the Service, or feature relating to the Service “changes to the Service”. These changes to the Service may affect your past activities on the Service, features that you use and your User Content “Service Elements”. Any changes to the Service could involve Service Elements being deleted or reset.
- You agree that a key characteristic of our Service is that changes to the Service will take place over time and this is an important basis on which we grant you access to the Service. Once we have made changes to the Service, your continued use of the Service will show that you have accepted any changes to the Service. You are always free to stop using the Service or deactivate your Account by contacting us at firstname.lastname@example.org from the email address linked to your account.
18. Changes to these Terms of Service
- We may revise these Terms of Service from time to time and any changes will take effect after 3 days of any notification email sent to you notifying you of any changes, or at the time the revised Terms of Service are posted (whichever is the earlier) and your continued use of the Service shall constitute acceptance of such revised Terms of Service.
- Changes will usually occur because of new features being added to the Service, changes in the law or where we need to clarify our position on something.
- We will try, where possible and reasonable, to contact you to let you know about any significant changes to any of the documents referred to in these Terms of Service. We may contact you through the Service (for example by asking you to accept the changes before you continue to use the Service) or via a separate email.
- Normally, we will try to give you some warning before the new terms become effective. However, sometimes changes will need to be made immediately and if this happens we will not give you any notice.
19. Documents that apply to our relationship with you
- The current version of the Terms of Service contains the only terms and conditions that apply to our relationship with you. Older versions of the Terms of Service will no longer apply to our relationship and will be completely replaced by the current version.
- We intend to rely on these Terms of Service as setting out the written terms of our agreement with you for the provision of the Service. If part of the Terms of Service cannot be enforced then the remainder of the Terms of Service will still apply to our relationship.
- If you do not comply with these Terms of Service and we do not take action immediately, this does not mean we have given up any right we have and we may still take action in the future.
20. Law and general provisions
- As we are based in Kenya, Kenyan law will apply to all disputes and the interpretation of these Terms of Service. The Kenyan courts will have non-exclusive jurisdiction over any dispute arising from or related to your use of the Service. These Terms of Service do not exclude any mandatory legal rights you may have or obligations Mahambi Market may have in your country of residence, where Mahambi Market is not allowed to exclude such as a matter of law.
- We may assign any of our rights and obligations under these Terms of Service.
- These Terms of Service do not create an agency, partnership, employment or joint venture relationship between you and Mahambi Market.
- Mahambi Market will not be liable for any delay in performing or failure to perform its obligations caused by any force majeure event. In those circumstances Mahambi Market will be granted a reasonable extension of time for the performance of its obligations, the reasonableness of that extension to be assessed in the context of these Terms of Service and Mahambi Market’s other commitments.
21. Contact, feedback and complaints
- If you need to contact us in relation to these Terms of Service or any other document mentioned in them, please email us at email@example.com with the subject line ‘Terms of Service’.
- We value hearing from our users, and are always interested in learning about ways we can improve the Service. By providing your feedback you agree that you are giving up any rights you have in your feedback so that we may use and allow others to use it without any restriction and without any payment to you