Sign Up Terms of Use
1.
Introduction
1.1. ”AMBESA.com” is the trading name of SMADVO GmbH. AMBESA.com operates
as a B2B E-commerce platform consisting of a website and mobile application (“marketplace”),
together with supporting IT, logistics and payment infrastructure, for the sale
and purchase of products and services (“products”) in all African countries
(“country”).
1.2. These general terms and conditions shall apply to
buyers and sellers on the marketplace and shall govern your use of the
marketplace and related services.
1.3. By using our marketplace, you accept these general
terms and conditions in full. If you disagree with these general terms and
conditions or any part of these general terms and conditions, you must not use
our marketplace.
1.4. If you use our marketplace in the course of a business
or other organizational project, then by so doing you:
1.4.1. confirm that you have obtained the necessary authority
to agree to these general terms and conditions;
1.4.2. bind both yourself and the person, company or other
legal entity that operates that business or organizational project, to these
general terms and conditions; and
1.4.3. agree that "you" in these general terms and
conditions shall reference both the individual user and the relevant person,
company or legal entity unless the context requires otherwise.
2. Registration and account
2.1. You may not register with our marketplace if you are
under 18 years of age (by using our marketplace or agreeing to these general
terms and conditions, you warrant and represent to us that you are at least 18
years of age).
2.2. If you register for an account with our marketplace,
you will be asked to provide an email address/user ID and password and you
agree to:
2.2.1. keep your password confidential;
2.2.2. notify us in writing immediately (using our contact
details provided at section 26) if you become aware of any disclosure of your
password; and
2.2.3. be responsible for any activity on our marketplace
arising out of any failure to keep your password confidential, and you
acknowledge that you may be held liable for any losses arising out of such a
failure.
2.3. Your account shall be used exclusively by you and you
shall not transfer your account to any third party. If you authorize any third
party to manage your account on your behalf this shall be at your own risk.
2.4. We may suspend or cancel your account, and/or edit
your account details, at any time in our sole discretion and without notice or
explanation, providing that if we cancel any products or services you have paid
for but not received, and you have not breached these general terms and
conditions, we will refund you in respect of the same. See section 4.2 below
for further information about refunds.
2.5. You may cancel your account on our marketplace by
contacting us as provided at section 26.
3. Terms and conditions of sale
3.1. You acknowledge and agree that:
3.1.1. the marketplace provides an online location for
sellers to sell and buyers to purchase products;
3.1.2. we shall accept binding sales, on behalf of sellers,
but (unless AMBESA.com is indicated as the seller) AMBESA.com is not a party to
the transaction between the seller and the buyer; and
3.1.3. a contract for the sale and purchase of a product or
products will come into force between the buyer and seller, and accordingly you
commit to buying or selling the relevant product or products, upon the buyer’s
confirmation of purchase via the marketplace.
3.2. Subject to these general terms and conditions, the
seller’s terms of business shall govern the contract for sale and purchase
between the buyer and the seller. Notwithstanding this, the following
provisions will be incorporated into the contract of sale and purchase between
the buyer and the seller:
3.2.1. the price for a product will be as stated in the
relevant product listing;
3.2.2. the price for the product must include all taxes and
comply with applicable laws in force from time to time;
3.2.3. delivery charges, packaging charges, handling charges,
administrative charges, insurance costs, other ancillary costs and charges,
where applicable, will only be payable by the buyer if this is expressly and
clearly stated in the product listing; and delivery of digital products may be
made electronically;
3.2.4. products must be of satisfactory quality, fit and safe
for any purpose specified in, and conform in all material respects to, the
product listing and any other description of the products supplied or made
available by the seller to the buyer; and
3.2.5. in respect of physical products sold, the seller
warrants that the seller has good title to, and is the sole legal and
beneficial owner of, the products and/or has the right to supply the products
pursuant to this agreement, and that the products are not subject to any third
party rights or restrictions including in respect of third party intellectual
property rights and/or any criminal, insolvency or tax investigation or
proceedings; and in respect of digital products the seller warrants that the
seller has the right to supply the digital products to the buyer.
3.2.6. The Seller warrants that, where a product sold has
such terms, the Seller will provide detailed disclosure of the product terms
and conditions, any applicable warranty, and other terms necessary to inform
the buyer on the product and its usage in the specification section provided on
each product page.
4. Returns and refunds
4.1. Returns of products by buyers and acceptance of
returned products by sellers shall be managed by us in accordance with the
returns page on the marketplace, as may be amended from time to time.
Acceptance of returns shall be in our discretion, subject to compliance with
applicable laws of the country.
4.2. Refunds in respect of returned products shall be
managed in accordance with the refunds page on the marketplace, as may be
amended from time to time. Our rules on refunds shall be exercised in our
discretion, subject to applicable laws of the country. We may offer refunds, in
our discretion:
4.2.1. in respect of the product price;
4.2.2. in respect of local and/or international shipping fees
(as stated on the refunds page); and
4.2.3. by way of store credits, vouchers, mobile money
transfer, bank transfers or such other methods as we may determine from time to
time.
4.3. Returned products shall be accepted and refunds issued
by AMBESA.com, acting for and on behalf of the seller. Notwithstanding
paragraphs 4.1 and 4.2 above, in respect of digital products or services and
fresh food, AMBESA.com shall issue refunds in respect of failures in delivery
only. Refunds of payment for such products for any other reasons shall be
subject to the seller’s terms and conditions of sale.
4.4. Changes to our returns page or refunds page shall be
effective in respect of all purchases made from the date of publication of the
change on our website.
5.1. You must make payments due under these general terms
and conditions in accordance with the Payments Information and Guidelines on
the marketplace.
6. Store credit
6.1. Store credits may be earned and managed in accordance
with the AMBESA.com Store Credit Terms and Conditions, as may be amended from
time to time. AMBESA.com reserves the right to cancel or withdraw AMBESA.com
store credit rewards for any reason in its discretion, including if we suspect
fraud or foul play. You can view the AMBESA.com Store Credit terms and
conditions and information about your AMBESA.com store credit account on our
website and mobile application.
7. Promotions
7.1. Promotions and competitions run by AMBESA.com and/or
other promoters shall be managed in accordance with the Promotions Terms
and Conditions, where applicable. You can view Promotions Terms and
Conditions where they apply on our website or mobile application.
8. Rules about your content
8.1. In these general terms and conditions, "your
content" means:
8.1.1. all works and materials (including without limitation
text, graphics, images, audio material, video material, audio-visual material,
scripts, software and files) that you submit to us or our marketplace for
storage or publication, processing by, or onward transmission; and
8.1.2. all communications on the marketplace, including
product reviews, feedback and comments.
8.2. Your content, and the use of your content by us in
accordance with these general terms and conditions, must be accurate, complete
and truthful.
8.3. Your content must be appropriate, civil and tasteful,
and accord with generally accepted standards of etiquette and behaviour on the internet, and must not:
8.3.1. be offensive, obscene, indecent, pornographic, lewd,
suggestive or sexually explicit;
8.3.2. depict violence in an explicit, graphic or gratuitous
manner; or
8.3.3. be blasphemous, in breach of racial or religious
hatred or discrimination legislation;
8.3.4. be deceptive, fraudulent, threatening, abusive,
harassing, anti-social, menacing, hateful, discriminatory or inflammatory;
8.3.5. cause annoyance, inconvenience or needless anxiety to
any person; or
8.3.6. constitute spam
8.4. Your content must not be illegal or unlawful, infringe
any person's legal rights, or be capable of giving rise to legal action against
any person (in each case in any jurisdiction and under any applicable law).
Your content must not infringe or breach:
8.4.1. any copyright, moral right, database right, trademark
right, design right, right in passing off or other intellectual property right;
8.4.2. any right of confidence, right of privacy or right
under data protection legislation;
8.4.3. any contractual obligation owed to any person; or
8.4.4. any court order.
8.5. You must not use our marketplace to link to any
website or web page consisting of or containing material that would, were it
posted on our marketplace, breach the provisions of these general terms and
conditions.
8.6. You must not submit to our marketplace any material
that is or has ever been the subject of any threatened or actual legal
proceedings or other similar complaint.
8.7. The review function on the marketplace may be used to
facilitate buyer reviews on products. You shall not use the review function or
any other form of communication to provide inaccurate, inauthentic or fake
reviews.
8.8. You must not interfere with a transaction by: (i) contacting another user to buy or sell an item listed on
the marketplace outside of the marketplace; or (ii) communicating with a user
involved in an active or completed transaction to warn them away from a
particular buyer, seller or item; or (iii) contacting another user with the
intent to collect any payments
8.9. You acknowledge that all users of the marketplace are
solely responsible for interactions with other users and you shall exercise
caution and good judgment in your communication with users. You shall not send
them personal information including credit card details.
8.10.We may periodically review your content and we reserve
the right to remove any content in our discretion for any reason whatsoever.
8.11.If you learn of any unlawful material or activity on
our marketplace, or any material or activity that breaches these general terms
and conditions, you may inform us by contacting us as provided at section 26.
9. Rules about your content
9.1. You grant to us a worldwide, irrevocable,
non-exclusive, royalty-free license to use, reproduce, store, adapt, publish,
translate and distribute your content on our marketplace, and across our
marketing channels and any existing or future media.
9.2. You grant to us the right to sub-license the rights
licensed under section 9.1.
9.3. You grant to us the right to bring an action for
infringement of the rights licensed under section 9.1.
9.4. You hereby waive all your moral rights in your content
to the maximum extent permitted by applicable law; and you warrant and
represent that all other moral rights in your content have been waived to the
maximum extent permitted by applicable law.
9.5. Without prejudice to our other rights under these
general terms and conditions, if you breach our rules on content in any way, or
if we reasonably suspect that you have breached our rules on content, we may
delete, unpublish or edit any or all of your content.
10. Use of website and mobile
applications
10.1.In this section 10 words “marketplace” and
"website” shall be used interchangeably to refer to AMBESA.com’s
websites and mobile applications.
10.2.You may:
10.2.1. view pages from our website in a web browser;
10.2.2. download pages from our website for caching in a web
browser;
10.2.3. print pages from our website for your own personal and
non-commercial use, providing that such printing is not systematic or
excessive;
10.2.4. stream audio and video files from our website using
the media player on our website; and
10.2.5. use our marketplace services by means of a web
browser,
10.2.5.1.1.
subject to the other provisions of these general terms
and conditions.
10.3.Except as expressly permitted by section 10.2 or the
other provisions of these general terms and conditions, you must not download
any material from our website or save any such material to your computer.
10.4.You may only use our website for your own personal and
business purposes in respect of selling or purchasing products on the
marketplace.
10.5.Except as expressly permitted by these general terms
and conditions, you must not edit or otherwise modify any material on our
website.
10.6.Unless you own or control the relevant rights in the
material, you must not:
10.6.1. republish material from our website (including
republication on another website);
10.6.2. sell, rent or sub-license material from our website;
10.6.3. show any material from our website in public;
10.6.4. exploit material from our website for a commercial
purpose; or
10.6.5. redistribute material from our website.
10.7.Notwithstanding section 10.6, you may forward links to
products on our website and redistribute our newsletter and promotional
materials in print and electronic form to any person.
10.8.We reserve the right to suspend or restrict access to
our website, to areas of our website and/or to functionality upon our website.
We may, for example, suspend access to the website during server maintenance or
when we update the website. You must not circumvent or bypass, or attempt to
circumvent or bypass, any access restriction measures on the website.
10.9.You must
not:
10.9.1. use our website in any way or take any action that
causes, or may cause, damage to the website or impairment of the performance,
availability, accessibility, integrity or security of the website;
10.9.2. use our website in any way that is unethical,
unlawful, illegal, fraudulent or harmful, or in connection with any unlawful,
illegal, fraudulent or harmful purpose or activity;
10.9.3. hack or otherwise tamper with our website;
10.9.4. probe, scan or test the vulnerability of our website
without our permission;
10.9.5. circumvent any authentication or security systems or
processes on or relating to our website;
10.9.6. use our website to copy, store, host, transmit, send,
use, publish or distribute any material which consists of (or is linked to) any
spyware, computer virus, Trojan horse, worm, keystroke logger, rootkit or other
malicious computer software;
10.9.7. impose an unreasonably large load on our website
resources (including bandwidth, storage capacity and processing capacity);
10.9.8. decrypt or decipher any communications sent by or to
our website without our permission;
10.9.9. conduct any systematic or automated data collection
activities (including without limitation scraping, data mining, data extraction
and data harvesting) on or in relation to our website without our express
written consent;
10.9.10.
access or
otherwise interact with our website using any robot, spider or other automated
means, except for the purpose of search engine indexing;
10.9.11.
use our
website except by means of our public interfaces;
10.9.12.
violate the
directives set out in the robots.txt file for our website;
10.9.13.
use data
collected from our website for any direct marketing activity (including without
limitation email marketing, SMS marketing, telemarketing and direct mailing);
or
10.9.14.
do anything
that interferes with the normal use of our website.
11.
Copyright and trademarks
11.1.Subject to the express provisions of these general
terms and conditions:
11.1.1. we, together with our licensors, own and control all
the copyright and other intellectual property rights in our website and the
material on our website; and
11.1.2. all the copyright and other intellectual property
rights in our website and the material on our website are reserved.
11.2.AMBESA.com’s logos and our other registered and unregistered
trademarks are trademarks belonging to us; we give no permission for the use of
these trademarks, and such use may constitute an infringement of our rights.
11.3.The third party registered and unregistered trademarks
or service marks on our website are the property of their respective owners and
we do not endorse and are not affiliated with any of the holders of any such
rights and as such we cannot grant any license to exercise such rights.
12.
Data privacy
12.1.Buyers agree to processing of their personal data in
accordance with the terms of AMBESA.com’s Privacy
Notice and Cookie Notice.
12.2.AMBESA.com shall process all personal data obtained
through the marketplace and related services in accordance with the terms of
our Privacy Notice and Cookie Notice and Privacy Policy.
12.3.Sellers shall be directly responsible to buyers for
any misuse of their personal data and AMBESA.com shall bear no liability to
buyers in respect of any misuse by sellers of their personal data.
13.
Due diligence and audit rights
13.1.We operate an anti-fraud and anti-money laundering
compliance program and reserve the right to perform due diligence checks on all
users of the marketplace.
13.2.You agree to provide to us all such information,
documentation and access to your business premises as we may require:
13.2.1. in order to verify your adherence to, and performance
of, your obligations under these terms and conditions;
13.2.2. for the purpose of disclosures pursuant to a valid
order by a court or other governmental body; or
13.2.3. as otherwise required by law or applicable regulation.
14.
AMBESA.com’s role as a marketplace
14.1.You acknowledge
that:
14.1.1. AMBESA.com facilitates a marketplace for buyers and
third party sellers or AMBESA.com, where AMBESA.com is the seller of a product;
14.1.2. the relevant seller of the product (whether AMBESA.com
is the seller or whether it is a third party seller) shall at all times remain
exclusively liable for the products they sell on the marketplace; and
14.1.3. in the event that there is an issue arising from the
purchase of a product on the marketplace, the buyer should seek recourse from
the relevant seller of the product by following the process set out in AMBESA.com’s Dispute Resolution Policy .
14.2.We commit to ensure that AMBESA.com, or third party
sellers, as applicable, submit information relating to their products on the
marketplace that is complete, accurate and up to date and pursuant thereto:
14.2.1. the relevant seller warrants and represents the
completeness and accuracy of their information published on our marketplace
relating to their products;
14.2.2. the relevant seller warrants and represents that the
material on the marketplace is up to date; and
14.2.3. if a buyer has a complaint relating to the accuracy or
completeness of the product information received from a seller (including where
AMBESA.com is the seller), the buyer can seek recourse from the relevant seller
by following the process set out in the AMBESA.com’s Dispute Resolution Policy.
14.3.We do not warrant or represent that the marketplace
will operate without fault; or that the marketplace or any service on the
marketplace will remain available during the occurrence of events beyond AMBESA.com’s control (force majeure events) which include
but are not limited to; flood, drought, earthquake or other natural disasters;
hacking, viruses, malware or other malicious software attacks on the
marketplace; terrorist attacks, civil war, civil commotion or riots; war,
threat of or preparation for war; epidemics or pandemics; or
extra-constitutional events or circumstances which materially and adversely
affect the political or macro-economic stability of the country as a whole.
14.4.We reserve the right to discontinue or alter any or
all of our marketplace services, and to stop publishing our marketplace, at any
time in our sole discretion without notice or explanation; and you will not be
entitled to any compensation or other payment upon the discontinuance or
alteration of any marketplace services, or if we stop publishing the
marketplace. This is without prejudice to your rights in respect of any
unfulfilled orders or other existing liabilities of AMBESA.com.
14.5.If we discontinue or alter any or all of our
marketplace in circumstances not relating to force majeure, we will provide
prior notice to the buyers and sellers of not less than fifteen (15) days with
clear guidance on the way forward for the pending transactions or other
existing liabilities of AMBESA.com.
14.6.We do not guarantee any commercial results concerning
the use of the marketplace.
14.7.To the maximum extent permitted by applicable law and
subject to section 15.1 below, we exclude all representations and warranties
relating to the subject matter of these general terms and conditions, our
marketplace and the use of our marketplace.
15. Limitations and exclusions of
liability
15.1.Nothing in these general terms and conditions will:
15.1.1. limit any liabilities in any way that is not permitted
under applicable law; or
15.1.2. exclude any liabilities or statutory rights that may
not be excluded under applicable law
15.2.The limitations and exclusions of liability set out in
this section 15 and elsewhere in these general terms and conditions:
15.2.1. are subject to section 15.1; and
15.2.2. govern all liabilities arising under these general
terms and conditions or relating to the subject matter of these general terms
and conditions, including liabilities arising in contract, in tort (including
negligence) and for breach of statutory duty, except to the extent expressly
provided otherwise in these general terms and conditions.
15.3.In respect of the services offered to you free of
charge we will not be liable to you for any loss or damage of any nature
whatsoever.
15.4.Our aggregate liability to you in respect of any
contract to provide services to you under these general terms and conditions
shall not exceed the total amount paid and payable to us under the contract.
Each separate transaction on the marketplace shall constitute a separate
contract for the purpose of this section 15.4.
15.5.Notwithstanding section 15.4 above, we will not be
liable to you for any loss or damage of any nature, including in respect of:
15.5.1. any losses occasioned by any interruption or
dysfunction to the website;
15.5.2. any losses arising out of any event or events beyond
our reasonable control;
15.5.3. any business losses, including (without limitation)
loss of or damage to profits, income, revenue, use, production, anticipated
savings, business, contracts, commercial opportunities or goodwill;
15.5.4. any loss or corruption of any data, database or
software; or
15.5.5. any special, indirect or consequential loss or damage.
15.6.We accept that we have an interest in limiting the
personal liability of our officers and employees and, having regard to that
interest, you acknowledge that we are a limited liability entity; you agree
that you will not bring any claim personally against our officers or employees
in respect of any losses you suffer in connection with the marketplace or these
general terms and conditions (this will not limit or exclude the liability of
the limited liability entity itself for the acts and omissions of our officers
and employees).
15.7.Our marketplace includes hyperlinks to other websites
owned and operated by third parties; such hyperlinks are not recommendations.
We have no control over third party websites and their contents, and we accept
no responsibility for them or for any loss or damage that may arise from your
use of them.
16.1. You hereby indemnify us, and undertake to keep
us indemnified, against:
16.2.any and all losses, damages, costs, liabilities and
expenses (including without limitation legal expenses and any amounts paid by
us to any third party in settlement of a claim or dispute) incurred or suffered
by us and arising directly or indirectly out of your use of our marketplace or
any breach by you of any provision of these general terms and conditions or the
AMBESA.com codes, policies or guidelines; and
16.3.any VAT liability or other tax liability that we may
incur in relation to any sale, supply or purchase made through our marketplace,
where that liability arises out of your failure to pay, withhold, declare or
register to pay any VAT or other tax properly due in any jurisdiction
17.
Breaches of these general terms and conditions
17.1.If we permit the registration of an account on our
marketplace it will remain open indefinitely, subject to these general terms
and conditions.
17.2.If you breach these general terms and conditions, or
if we reasonably suspect that you have breached these general terms and
conditions or any AMBESA.com codes, policies or guidelines in any way we may:
17.2.1. temporarily suspend your access to our marketplace;
17.2.2. permanently prohibit you from accessing our
marketplace;
17.2.3. block computers using your IP address from accessing
our marketplace;
17.2.4. contact any or all of your internet service providers
and request that they block your access to our marketplace;
17.2.5. suspend or delete your account on our marketplace;
and/or
17.2.6. commence legal action against you, whether for breach
of contract or otherwise.
17.3.Where we suspend, prohibit or block your access to our
marketplace or a part of our marketplace you must not take any action to
circumvent such suspension or prohibition or blocking (including without
limitation creating and/or using a different account).
18.
Entire agreement
18.1.These general terms and conditions and the AMBESA.com
codes, policies and guidelines (and in respect of sellers the seller terms and
conditions) shall constitute the entire agreement between you and us in
relation to your use of our marketplace and shall supersede all previous
agreements between you and us in relation to your use of our marketplace.
19.
Hierarchy
19.1.Should these general terms and conditions, the seller
terms and conditions, and the AMBESA.com codes, policies and guidelines be in
conflict, these terms and conditions, the seller terms and conditions and the AMBESA.com
codes, policies and guidelines shall prevail in the order here stated.
20.1.We may revise these general terms and conditions, the
seller terms and conditions, and the AMBESA.com codes, policies and guidelines
from time to time.
20.2.The revised general terms and conditions shall apply
from the date of publication on the marketplace.
21.
No waiver
21.1.No waiver of any breach of any provision of these
general terms and conditions shall be construed as a further or continuing
waiver of any other breach of that provision or any breach of any other
provision of these general terms and conditions.
22.
Severability
22.1.If a provision of these general terms and conditions
is determined by any court or other competent authority to be unlawful and/or
unenforceable, the other provisions will continue in effect
22.2.If any unlawful and/or unenforceable provision of
these general terms and conditions would be lawful or enforceable if part of it
were deleted, that part will be deemed to be deleted, and the rest of the
provision will continue in effect.
23.
Assignment
23.1.You hereby agree that we may assign, transfer,
sub-contract or otherwise deal with our rights and/or obligations under these
general terms and conditions.
23.2.You may not without our prior written consent assign,
transfer, sub-contract or otherwise deal with any of your rights and/or
obligations under these general terms and conditions.
24.
Third party rights
24.1.A contract under these general terms and conditions is
for our benefit and your benefit, and is not intended to benefit or be
enforceable by any third party.
24.2.The exercise of the parties' rights under a contract
under these general terms and conditions is not subject to the consent of any
third party.
25.
Law and jurisdiction
25.1.These general terms and conditions shall be governed
by and construed in accordance with the laws of the country.
25.2.Any disputes relating to these general terms and
conditions shall be subject to the exclusive jurisdiction of the courts of the country.
26.
Our company details and notices
26.1.You can contact us by using the contact formular at Contact us - AMBESA.com.
26.2.You may contact our sellers for after-sales queries,
including any disputes, by requesting their contact details, including the full
legal name of the Seller and where applicable the shop name, from AMBESA.com in
accordance with the Dispute Resolution Policy, pursuant to which AMBESA.com shall be obliged to
ensure that the seller is identifiable and clearly linked to the transaction in
question.
26.3. You consent to receive notices electronically from
us. We may provide all communications and information related to your use of
the marketplace in electronic format, either by posting to our website or
application, or by email to the email address on your account. All such
communications will be deemed to be notices in writing and received by and
properly given to you.
27. Related Practices and
Information
