Elloe (the Software) is made available to you by Elloe Inc, whose registered office address is P.O Box 76-00603 Hatheru Court, Hatheru Road, Lavington, Nairobi, Kenya, as (referred to in these terms and conditions (Terms and Conditions) as ‘we’, ‘us’ and ‘our’).
When we refer to ‘you’ and ‘your’, we mean anyone who uses and accesses the Software.
These Terms and Conditions, and all other terms and conditions and documents referred to herein govern the conditions on which you are entitled to access and use the Software. Please take the time to read them carefully.
By accessing and continuing to use the Software, you will be deemed to agree to these Terms and Conditions and shall be bound by them. If you do not agree to these Terms & Conditions, then you must stop using or accessing the Software immediately.
We reserve the right to modify or amend these Terms and Conditions from time to time. You should check these Terms and Conditions each time you access the Software to ensure that you are aware of and are complying with the current version. Changes are binding on users of the Software and will take effect immediately from posting of the revised documentation on the Software.
02. PRIVACY AND DATA PROTECTION
03. THE SOFTWARE
The Software is a software as a service application that enables businesses to sell their items (Menu Items) directly to customers (Customers), including via integrations with various other sales channels.
We reserve the right to modify or discontinue the Software at any time and without notice to you.
We also reserve the right to change our fee / pricing structure from time to time, and all changes will be posted on the Software by giving reasonable notice.
Furthermore, you accept that Software unavailability may occur in order to allow for improvements, scheduled maintenance or may also be due to outside factors beyond our control and we accept no liability for the same.
04. ACCOUNT REGISTRATION AND USE
In order to access and use the Software, you must:
- Be a legal entity duly registered in your country of operation with a current trade license.
- Be the older of: (i) 18 years, or (ii) at least the age of majority in the jurisdiction where you reside and from which you open an Account.
- Register for a user account (Account); and
- Provide any other information reasonably requested by us from time to time.
You can set-up your Account by following the process set out on our Software. You acknowledge that you will not be able to fully use the Software until your Account has been activated and your complete details have been uploaded. We have the right to reject the creation or activation of an Account for any reason, including after the fact.
You confirm that you are using the Software for the purposes of carrying on a business activity and not for any personal, household or family purpose.
You acknowledge that we will use the email address you provide on opening an Account or as updated by you from time to time as the primary method for communication with you. You must monitor the primary Account email address you provide to us, and your primary Account email address must be capable of both sending and receiving messages. Your email communications with us can only be authenticated if they come from your primary Account email address.
You will be solely responsible for maintaining the confidentiality and security of your Account details. You may not share, assign, or permit the use of your Account or password with another person. You agree to notify us immediately if you become aware of any unauthorized use of your Account or password.
You are responsible for all use and all activities that occur under your Account(s) and will be considered authorized by you, and that you solely bear the responsibility for the consequences of the misuse of your Account.
We pay permit you to create one or more staff accounts (Staff Accounts) allowing other people to access the Account. With Staff Accounts, you can set permissions (including to restrict access to sensitive data) and let other people work in your Account. You are responsible and liable for the acts, omissions and defaults arising from use of Staff Accounts in the performance of obligations under these Terms and Conditions as if they were your own acts, omissions, or defaults.
We may limit, suspend, cancel, deactivate, or withdraw your Account at any time, without prior notice, for breach of these Terms, or for any reason in our sole discretion.
Any contract of sale for the Menu Items made on the Software is directly between you and the relevant Customer. You are responsible for ensuring that the name of your restaurant/kitchen (including the legal name of the company that owns the restaurant/kitchen, if applicable) is clearly visible to Customers on the Software. We are responsible for providing the Software only and all operational aspects of providing the Menu Items and all Customer service is always your responsibility, including but not limited to all communications with the Delivery Company and any Customer complaints and queries.
05. DELIVERY PARTNERS
Any delivery arranged via the Software, is made pursuant to a contract between you and the relevant delivery company (Delivery Company) and we act as a Software provider only and accept no liability for the same.
06. USER GENERATED CONTENT
By posting or displaying any Menu Items or descriptions, information, pricing or other content on the Software (Content), you grant an irrevocable, perpetual, worldwide, royalty-free, and sub-licensable license to us to use the Content in any form, media, or technology in any manner and for any purpose.
You shall not use or provide any false information to us, pretend to be someone other than yourself or otherwise mislead us or third parties in any Content.
Content on the Software is generated by the relevant user and may not reflect our opinions. We may, but shall not be obligated to, remove, or edit any Content provided by you.
It is your responsibility to review the Content of your listings for accuracy. You will not attempt to hold us liable for any inaccuracies or defects in any Content.
You represent, warrant, and agree that any Content that you submit, post or display on the Software:
- Does not otherwise violate any of the copyright, patent, trademark, trade name, trade secrets or any rights of any third party.
- Is true, accurate, complete and complies with all relevant laws.
- Does not contain:
- Information that is discriminatory or promotes discrimination.
- Information that is defamatory, threatening, harassing, obscene, explicit, offensive, or otherwise objectionable, or that may be considered culturally or religiously offensive in any way.
- Anything which may not be considered to be in compliance with general local law, Islamic law, rules, morals, values, ethics, and traditions.
- Information that may threaten national security.
- Content or items which may constitute or be considered to promote gambling.
- References to financial instruments of any description.
- Any weapons of any description.
- Any liquor, tobacco products, drugs, psychotropic substances, narcotics, intoxicants of any description and medicines; or
- Any items that are defective, fake, damaged, false, or misleading.
07. YOUR RESPONSIBILITIES
You represent, warrant, and agree that:
- You have full power and authority to enter into these Terms and Conditions and have full power to execute and perform your obligations under these Terms and Conditions.
- You shall fully comply and will at all times continue to fully comply with all applicable laws, statutes and regulations, including but not limited in relation to anti-money laundering.
- At all times, you will have in place appropriate insurances to insure against your liabilities set out in these Terms and Conditions and to any Customer;
- If you create or use an Account on behalf of a business entity, you represent that you are authorised to act on behalf of such business and bind the business to these Terms and Conditions. Such Account is deemed to be owned and controlled by the business entity;
- You own or have the authority to grant the rights and licenses granted to us by you under these Terms and Conditions;
- Any Content you submit as part of your use of the Software and any Menu Items that you list do not violate the rights of any third party anywhere in the world including, without limitation, any intellectual property rights (whether registered or not);
- The documents and information submitted during the Account registration process are true, accurate, current and complete, and you will maintain and update all information as applicable;
- You are solely responsible for obtaining all required licenses, permits and certifications for the Content that you submit, post or display on the Software;
- Neither you, your company, its directors, officers nor affiliates are the subject of any trade restrictions, sanctions or other legal restrictions of any country, international organization or other jurisdiction;
- The Menu Items:
- Have been properly cooked or prepared and are otherwise safe and fit for transportation and consumption;
- Are prepared taking into account any information relating to Customer allergies submitted along with the order.
- Are safely, securely and otherwise appropriately packaged at all times; and
- Are at an appropriate temperature for consumption by the Customer
Furthermore you represent, warrant and agree that you will not:
- Use the Software to defraud any person or entity;
- Impersonate any person or entity, misrepresent yourself or your affiliation with any person or entity;
- Manipulate feedback through multiple user accounts or third parties by leaving positive feedback for yourself or unjustified negative feedback for another user;
- Copy, reproduce, download, republish, sell or distribute any information, text, images, graphics, video clips, sound, directories, files, databases or listings, available on or through the Software for any purpose;
- Engage in spamming, phishing or spreading viruses;
- Engage in any activity that would create liability for us;
- Use the Software solely to collect information about other users;
- Use information provided to you on the Software to solicit additional sales offline.
We have the right to remove a posting or listing or suspend or terminate any Account, if there is a violation or suspected violation of these Terms and Conditions.
By requesting to integrate a payment gateway with your Account, you are agreeing to be bound by the relevant merchants terms and conditions, as they may be amended by from time to time. A summary of the key terms is available here, but you should review the actual terms and conditions from time to time. Your continued use of the payment gateway after any amendments constitutes your agreement to, and acceptance of, the amended merchant terms. If you do not agree to any changes to the merchant, de-activate your merchant account and do not continue to use the payment gateway.
You are responsible for the payment of any bank / payment processing charges and the same will be deducted from any amounts payable to you under these Terms and Conditions.
We may remove or add payment methods at any time without prior notice to you.
09. THIRD-PARTY SITES OR SERVICES
We may give you access to third-party sites or services through hyperlinks, API or other means on the Software (which include but are not limited to, whatsapp, facebook, Instagram and google). We have no control over and do not monitor such third-party sites and we will not be liable to you for the content of these sites or your use of them.
We may present you with other third-party services on the Software, such as Delivery Company services and payment gateways. These services will be subject to a separate agreement between you and the service provider. We will not be liable to you for the use of such services, or for any failures on the part of these service providers.
10. INTELLECTUAL PROPERTY
You agree that all intellectual property rights and database rights, whether registered or unregistered, in the Software and any associated software (Software) and the design and all software compilations, underlying source code and software shall remain at all times vested in us or our licensors. Use of such material will only be permitted as expressly authorized by us or our licensors.
Any unauthorized use of the Software or the Software is strictly prohibited, and you agree not to, or facilitate any third party to, copy, reproduce, transmit, publish, display, distribute, commercially exploit or create derivative works of such material and content.
We shall have the non-exclusive right and license to use the names, trademarks, service marks and logos associated with you to promote the Software and our services.
11. ELLOE’S LIABILITY
Nothing in these Terms and Conditions shall limit or exclude a party’s liability:
- For fraud, including fraudulent misrepresentation, perpetrated by that party;
- For death or personal injury caused by the negligence of that party; or
- For any other liability that cannot be limited or excluded under applicable law.
The services provided by us are provided “as is” without representations, warranties or conditions of any kind. We disclaim all warranties, conditions and representations of any kind, whether express, implied or collateral, including, but not limited to, all conditions, representations or warranties of merchantability, of fitness for a particular or general purpose, of non-infringement, of compatibility or that the Software and services are secure or error free or will operate without interruption or will be provided in a timely or proper manner or at all.
We shall not be liable to pay any consequential, indirect, punitive or incidental damages (including but not limited to damages for loss of profits or savings, business interruption or loss of information) arising out of or in connect with these Terms and Conditions, even if we had been advised of the possibility of such damages.
In addition, to the extent permitted by applicable law, we are not liable, and you agree not to hold us responsible, for any damages or losses resulting directly or indirectly from:
- The Content or other information you provide when using the Software;
- Your use of or your inability to use the Software;
- Delays or disruptions in our services or the Software;
- Viruses or other malicious software obtained by accessing or linking to our Software;
- Bugs, errors or inaccuracies of any kind in our Software;
- The content, actions or inactions of third parties using our Software, or providing services to you (including but not limited to a Delivery Company);
- A suspension or other action taken by us with respect to your use of the Software;
- Your need to modify practices, Content or behaviour or your loss of or inability to do business as a result of changes to these Terms and Conditions; and
- Unsatisfactory or delayed performance of one of our partners, or the relevant Delivery Company.
Subject to the above, our total liability to you, whether based on an action or claim in contract, negligence or breach of statutory duty or otherwise, arising out of or in relation to these Terms and Conditions shall be limited to the amount not to exceed the total fees that you paid to us in the twelve (12) months prior to the action giving rise to the liability.
If a dispute arises between users of the Software, you agree to release us (and our affiliated companies and each of their respective officers, directors, employees, agents, representatives and service providers) (Software Parties) from all claims, demands, damages (actual or consequential) of any kind whatsoever arising out of or in any way connected with such dispute.
You agree to defend, indemnify and hold harmless the Software Parties from any and all losses, claims and liabilities (including legal costs) which may result from your:
- Breach of these Terms and Conditions;
- Use of the Software;
- Services provided via the Software;
- Provision of the Menu Items;
- Violation of any applicable laws; or
- Infringement of any third-party intellectual property rights, or if the content of your listings is slanderous, defamatory, obscene or violates any other rights of any third party
13. CANCELLATION AND TERMINATION
You may cancel your Account and terminate these Terms and Conditions at any time by notifying us and then following the specific instructions indicated to you in our response.
Upon termination by either party for any reason we will cease providing you with our services and you will no longer be able to access your Account, or the Software.
Upon termination of these Terms and Conditions, no refunds are payable to you.
We reserve the right to modify or terminate these Terms and Conditions and/or your Account for any reason, without notice at any time. Termination of the Terms and Conditions shall be without prejudice to any rights or obligations which arose prior to the date of termination.
14. COOPERATION WITH AUTHORITIES
We have the right to cooperate fully with governmental or regulatory authorities or law enforcement in the investigation of any suspected criminal or civil wrongdoing. As permitted by applicable laws and policies, we may disclose a user’s identity and contact information regarding a user’s account, transactions or activities carried on the Software. We will not be liable for damages due to such disclosure, and you agree not to bring any claim against us for the disclosure.
15. GENERAL TERMS
- Governing Law – These Terms and Conditions and any non-contractual rights or obligations arising out of or in connection with it shall be governed by and construed in accordance with the laws of Republic of Kenya.
- Dispute Resolution – If you have an issue with the Software or our services, please contact us. We will endeavor to resolve your issue as soon as possible. Any disputes or claims arising out of or in connection with these Terms and Conditions, including any non-contractual rights or obligations shall be referred to and finally resolved by the Kenya Chambers of Commerce Courts. For disputes under KES 1,000,000 in value, you acknowledge that the Kenya Chambers of Commerce Small Claims Tribunal has exclusive jurisdiction to hear such disputes.
- Communication – You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
- Assignment – Assigning or sub-contracting any of your rights or obligations under these Terms and Conditions to any third party is prohibited unless agreed upon in writing. We reserve the right to transfer, assign or sub-contract the benefit of the whole or part of any rights or obligations under these Terms and Conditions to any third party.
- Entire Agreement – These Terms and Conditions represent the entire agreement between us overriding any prior written or verbal agreements that may have been made.
- Relationship between the Parties – These Terms and Conditions do not create an agency, partnership, joint venture, employment or franchise relationship between you and us.
- Severability – If any clause of these Terms and Conditions is considered to be invalid or unenforceable, such clause will be deleted and the remaining clauses will remain valid and enforceable.
- Waiver – If we do not enforce our rights or act against any breach by you under these Terms and Conditions, it does not mean that we are waiving our rights to enforce actions against you in the future.
- Force Majeure – Neither party will be liable for any loss or damage or for any delay or failure in performance due to acts beyond the control of such party whether or not such acts could reasonably be anticipated (including acts of God, legislative, judicial or regulatory acts of any provincial or the federal government, court or regulatory authority, acts of any of our subcontractors or any third party providers of goods or services to us, labor disruptions, blackouts, embargoes or a pandemic, epidemic or disease impacting the Party claiming to have been impacted by the relevant force majeure event).
- Survival – All provisions that either expressly or by their nature survive, will survive suspension or termination of your Account.
- Third Party Rights – A person who is not a party to these Terms and Conditions has no right to enforce any of its terms.
- Languages – These Terms and Conditions may be available in languages other than English. To the extent of any inconsistencies or conflicts between these English Terms and Conditions and any terms and conditions available in another language, the most current English version of the Terms and Conditions will prevail. Any disputes arising out of these Terms and Conditions will be resolved in English unless otherwise determined by us (acting in our sole discretion) or as required by applicable law.
If you have any questions regarding these Terms and Conditions, please Contact Us.