Terms of Service

 

Last Updated: April 18, 2021

 

These Terms of Service (“Terms”) govern your use of the Powwater Corporation and Powwater Limited (collectively, “Powwater”, or “we”, “us”, or “our”) websites and mobile properties, including www.powwater.com, our app(s), our water purchasing services, and all other interactive features and communications we provide in connection with the websites or apps, however accessed or used, that we operate, make available, produce, or maintain (collectively, the “Service,” as more fully defined in Section 3). Use of this Service or clicking where indicated constitutes acceptance of these Terms. If you do not accept these Terms then you may not use the Service.

 

PLEASE READ THESE TERMS CAREFULLY. THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR RIGHTS, INCLUDING AN ARBITRATION AGREEMENT IN SECTION 23 (DISPUTE RESOLUTION). UNLESS YOU OPT OUT, THE ARBITRATION AGREEMENT REQUIRES MOST DISPUTES BETWEEN US TO BE SUBMITTED TO ARBITRATION, ELIMINATES YOUR ABILITY TO PURSUE DISPUTES AS PART OF A CLASS OR GROUP, AND WAIVES YOUR RIGHT TO A TRIAL IN COURT AND BY A JURY.

 

Powwater may change these Terms on a going-forward basis at any time and in our sole discretion. If Powwater makes changes to these Terms, we will notify you of the changes. Our notice to you may include sending a message to the email address or text message number you provided to us, or notice through the Service. We will also update the "Last Updated" date at the top of these Terms when we make changes.

 

Your continued use of the Services will confirm your acceptance of the revised Terms. If you do not agree to the revised Terms, you must stop using the Service and delete your account. We encourage you to review the Terms from time to time to ensure you understand the terms and conditions that apply to your access to, and use of, the Service.

 

You must be 13 years of age or older to register and use the Service. You must be 18 years of age or older to contribute Reviews to the Service. You certify that you are 18 years old or, if you are between the ages of 13 and 18, that you are using the Service with the supervision of your parent or legal guardian who agrees to be bound by these Terms. Review these Terms with your parent or guardian so that you both understand all of your rights and obligations. The Service is intended for, and should only be used, by individuals residing within Kenya.

 

  1. Privacy. Data collection and use, including data collection and use of personally identifiable information, is governed by Powwater’s Privacy Policy which is incorporated into and is a part of these Terms.

 

  1. Access License. Powwater grants you a limited, revocable, non-exclusive, non-transferable license to access and use the Service. The Service may only be used for the intended purpose for which we make it available. We and our licensor(s) reserve all rights to the Service not expressly granted, whether by implication, estoppel, or otherwise.

 

  1. Service. Powwater provides a water delivery platform, using mobile and/or web-based applications to connect consumers with independent, third party water vendors (“Vendors”) and delivery services (“Drivers”) (collectively, “Third Party Providers”). The Service facilitates your connection to Vendors for the purchase of water or others goods or services and to Drivers for the delivery of water or other goods or services. The Service also supports any related content or services, such as payment processing and customer support.

 

Your use of the Services to obtain water, delivery services, or other products or services does not establish Powwater as a provider of water, transportation, logistics, or delivery services. Powwater does not provide water, transportation, or delivery services. You acknowledge that all Third Party Providers are independent of Powwater and are not agents, employees, or otherwise affiliated with Powwater in any way. You acknowledge that Powwater is not responsible for the performance, quality, safety, or other features or defects of Third Party Providers or any products or services provided by Third Party Providers.

 

  1. Contracts between You and Vendors and Drivers. You acknowledge and agree that a contract (the “Service Agreement”) is formed when you agree on the terms of a service with each of a Vendor and Driver. The terms of each Service Agreement include the terms set forth in this Section, the engagement terms proposed and accepted on the platform, and any other contractual terms accepted by both the Vendor or Driver and you to the extent such terms do not conflict with the terms in this Agreement and do not expand Powwater’s obligations or restrict Powwater’s rights under this Agreement. You agree that Powwater is not a party to any Service Agreement and the formation of a Service Agreement will not, under any circumstance, create an employment or other service relationship between Powwater and the Vendor or Driver. Before any services are performed by the Vendor, Driver, or any assistants, helpers, subcontractors or other personnel engaged by the Vendor or Driver and permitted by these Terms (collectively “Assistants”), the person performing the services must become registered on the Powwater platform. You will pay the Vendor and Driver for completed services as defined in Section 16.8 below. You will pay the Vendor and Driver at the rates posted on the Powwater platform. Such rates are incorporated into the Service Agreement. Each party agrees to comply with this Agreement during the engagement, performance and completion of a service under the Service Agreement. Both parties agree to notify Powwater of any disputes prior to negotiation of or filing of any claims and to negotiate any dispute informally via Powwater representatives for at least thirty (30) days before initiating any proceeding between the parties.

 

  1. Restrictions. Except as expressly permitted herein, you may not reproduce, sell, resell, or otherwise exploit the Service or any part of it for any purpose without our express written consent. Additionally, you will not: (a) make derivative use of the Service or Content (defined in Section 6); (b) download or copy account information for the benefit of a third party; (c) collect and use any content, including product listings, descriptions, or prices; (d) use any robot, spider, scraper, or other automated means to access the Service for any purpose without our express written permission; (e) take any action that imposes, or may impose in our sole discretion an unreasonable or disproportionately large load on our infrastructure; (f) interfere or attempt to interfere with the proper working of the Service or any activities conducted on the Service; or (g) bypass any measures we may use to prevent or restrict access to the Service. Any unauthorized use automatically terminates the permissions and licenses granted to you by us.

 

  1. Ownership. Excluding Reviews (defined in Section 9.1), we and our licensor(s), vendor(s), agent(s), and content provider(s) own all of the content featured or displayed on the Service, including text, graphics, photographs, images, moving images, sound, and illustrations ("Content"). All elements of the Service, including without limitation the general design and the Content, are protected by trade dress, copyright, moral rights, trademark, and other laws relating to intellectual property rights. You may not modify any Content and you may not copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer, or sell any Content. You will not remove any copyright, trademark, or other proprietary notice from any material found on the Service. You are responsible for ensuring your use is permissible before reusing any Content. You shall comply with all applicable domestic and international laws, statutes, ordinances, and regulations regarding your use of the Service. The Service, Content, and all related rights remain the exclusive property of Powwater or its licensors, vendors, agents, and/or Content providers unless otherwise expressly agreed, and are protected by Kenyan and international copyright laws.

 

  1. Trademarks/No Endorsement. All trademarks, service marks, and trade names of Powwater used in the Service or the Content (including but not limited to: the Powwater name, the Powwater corporate logo, the Service name, the Service design, and any Service logos) (collectively “Marks”) are trademarks

 

or registered trademarks of Powwater or its affiliates, partners, vendors, or licensors in Kenya or other countries. You may not use, copy, reproduce, republish, upload, post, transmit, distribute, or modify Marks in any way without our prior written consent.

 

  1. Account Registration and Security. You understand that you will need to create an account to have access to all of the parts of the Service. You will: (a) provide true, accurate, current, and complete information about yourself or the entity you represent as prompted by the Service's registration or subscription page ("Registration Data"); and (b) maintain and promptly update the Registration Data to keep it true, accurate, current, and complete. If you create an account on behalf of an entity, such as your business or employer, you represent that you have the legal authority to bind that entity to these Terms. If you provide any information that is untrue, inaccurate, not current, or incomplete or we reasonably suspect that such information is untrue, inaccurate, not current, or incomplete, we may suspend or terminate your account and refuse any and all current or future use of the Service (or any portion thereof). You are solely responsible for the security and confidentiality of your password and account and for all use of your account. You will not share your account information or your user name and password with any third party or permit any third party to logon to the Service using your account information. You will immediately notify us of any unauthorized use of your account or any other breach of security of which you become aware. You are responsible for taking precautions and providing security measures best suited for your situation and intended use of the Service. We may provide user billing, account, Content or use records, and related information under certain circumstances (such as in response to legal responsibility, lawful process, orders, subpoenas, or warrants or to protect the rights of Powwater or users, vendors, or drivers of the Service). Please note that anyone able to provide your personally identifiable information may be able to access your account so you should take reasonable steps to protect your personally identifiable information.

 

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9.1. Review Policy. You may submit reviews and comments regarding the quality of Powwater vendors and their water (“Reviews”). You will only submit Reviews that are based on your personal experience with vendors and their water and that reflect your honest opinion of such vendors and water. You may not post or submit a photograph of another person without that person’s permission. You expressly grant us a non-exclusive, perpetual, irrevocable, royalty-free, fully paid-up, worldwide, fully sub-licensable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, transmit, perform, and display your Reviews and your name and likeness, in whole or in part, and in any form throughout the world in any media or technology for the purposes of operating and providing the Service to you and our other users of the Service. Reviews are non-confidential and we are under no obligation to maintain the confidentiality of any information, in whatever form, contained in any Reviews.

 

9.2. Inappropriate Reviews. You may not submit any Reviews that result from or reflect or portray any activity that may constitute a crime or tort. You have not and will not engage in any of the foregoing activities in connection with producing your Reviews. Without limiting the foregoing, in conjunction with your Reviews, you will not: inflict emotional distress on or humiliate others, assault or threaten others, infringe or misappropriate another person’s intellectual property, impersonate any other person or misrepresent your affiliation, title, or authority, send or post unsolicited advertisements or “spam” on or through the Service, or otherwise engage in any activity that may result in injury, death, property damage, and/or liability of any kind. We may, but are not obligated to, to monitor Reviews, and we may remove, refuse to post, edit, truncate, or excerpt any Review in our sole discretion. In addition to any remedies that we may have at law or in equity, if we determine, in our sole discretion, that you have violated or are likely to violate the foregoing prohibitions or any applicable rules or policies linked to in these Terms, we may take any action we deem necessary to cure or prevent the violation, including without limitation, banning you from using the Service and/or the immediate removal of the related materials from the Service at any time without notice. We take no responsibility and assume no liability for any Reviews you or any third party may post.

 

  1. Others’ Reviews. Reviews do not represent our views or those of any individual associated with us, and we do not control Reviews. You will not represent or suggest, directly or indirectly, our endorsement of Reviews. We do not vouch for the accuracy or credibility of any Review, and do not take any responsibility or assume any liability for any actions you may take as a result of reading any Review. Through your use of the Service, you may be exposed to Reviews that you may find offensive, objectionable, harmful, inaccurate, or deceptive. There may also be risks of dealing with underage persons, people acting under false pretense, international trade issues, and foreign nationals. By using the Service, you assume all associated risks.

 

  1. If you give to Powwater any idea, proposal, suggestion, or feedback, including without limitation ideas for new products, technologies, promotions, product names, product feedback, and product improvements ("Feedback"), you give to Powwater, without charge, royalties, or other obligation to you, the right to make, have made, create derivative works, use, share, and commercialize your Feedback in any way and for any purpose. Powwater will treat any Feedback you provide to Powwater as non-confidential and non-proprietary. You agree that you will not submit to Powwater any information or ideas that you consider to be confidential or proprietary.

 

  1. Health Related Information/Not Medical Advice. The information contained in the Service is provided for informational purposes only. You should not use the information available on or through the Service for diagnosing or treating a health problem or disease or for prescribing any medication. You should read carefully all product packaging prior to use. Consult your healthcare professional if you have a health condition, or are pregnant or nursing, prior to consuming water purchased through the Service.

INFORMATION PROVIDED IN THE SERVICE ABOUT TESTS, CONDITIONS, DIAGNOSES, TREATMENTS, OR ANY OTHER INFORMATION IS NOT MEDICAL ADVICE. THE SERVICE DOES NOT PROVIDE MEDICAL OR DIAGNOSTIC SERVICES OR PRESCRIBE MEDICATION. USE OF THE SERVICE OR ANY CONTENT AVAILABLE THROUGH THE SERVICE IS NOT A SUBSTITUTE FOR THE PROFESSIONAL JUDGMENT OF HEALTH CARE PROFESSIONALS IN DIAGNOSING AND TREATING PATIENTS. YOU ACKNOWLEDGE YOUR SOLE RESPONSIBILITY FOR OBTAINING MEDICAL ADVICE FROM A LICENSED HEALTH CARE PROFESSIONAL. YOU ASSUME ALL RISKS ASSOCIATED WITH YOUR USE OF THE SERVICE AND YOUR CONSUMPTION OF WATER PURCHASED THROUGH THE SERVICE.

 

  1. Third Party Links. The Service may contain links to websites that we and our affiliates do not own, operate, or control. All such links are provided solely as a convenience to you. If you use these links, you will leave the Service. Neither we nor any of our affiliates are responsible for any content, materials, or other information located on or accessible from any other website. Neither we nor any of our affiliates endorse, guarantee, or make any representations or warranties regarding any other websites, or any content, materials or other information located or accessible from any other websites, or the results that you may obtain from using any other websites. If you access any other websites linked to or from the Service, you do so entirely at your own risk.

 

  1. Transactional Partners. We may promote the services of third parties (“Partners”), other than Third Party Providers, within the Service. In cases where you use Partner services, you are transacting directly with the Partner. When using these Partner services, you are bound by the Partner’s terms of service in addition to remaining bound by these Terms. The Partner’s terms of service will prevail with respect to the Partner’s services. We do not license any intellectual property to you as part of any Partner’s services and are not responsible or liable to you or others for information or services provided by any Partner.

 

  1. If you gave us your email address or phone number in connection with your account, then we may send notifications to you via email or via SMS (text message), including to verify your identity before registering your mobile phone number. We may also send you notifications by other means (for example by in-product messages). Data or messaging rates may apply if you receive notifications via SMS.

 

  1. E-Commerce.

 

16.1. Address Eligibility. You may only purchase products for delivery to an address located in Kenya and for which delivery is available. It is your responsibility to understand and obey all applicable local and international laws (including minimum age requirements) with respect to the use of the Service and the possession, use, and sale of any item purchased through the Service.

 

16.2. No Resale Responsibility. In the event we have charged you and then we refuse fulfillment, we will communicate to you the reason for the refusal and issue an applicable refund. Powwater has no responsibility for any resold water, products, or services.

 

16.3. Content and Specifications. Details of the water, delivery service, and any other products or services available for purchase are set out on the Service. All features, content, specifications, products and prices of water, products and services described or depicted on this Service are subject to change at any time without notice. Certain weights, measures, delivery time, delivery method, and similar descriptions are approximate and are provided for convenience purposes only. Packaging may vary from that shown. We make all reasonable efforts to accurately display the attributes of the water, products, and services available for purchase, including the prices. However, prices are set by Third Party Providers, not by Powwater. Powwater does not have control over the prices of water, delivery service, or other products or services listed on the Services. The inclusion of any products or services on the Service at a particular time does not imply or warrant that they will be available at any time. Occasionally, the delivery of an order may be delayed for a number of reasons. In such event, we will make reasonable efforts to notify you of the delay and keep you informed of the revised delivery schedule. By placing an order, you represent that the water or services ordered will be used only in a lawful manner.

 

16.4. Shipping Limitations. Water you order will be delivered by Drivers to an address you designate, as long as that address is within the Powwater delivery zone and otherwise compliant with the shipping restrictions contained in this Service. Delivery charges may apply. Risk of loss and title for items purchased from this Service pass from the Vendor to you upon delivery of the items to the Driver. Signature may be required for deliveries. Powwater does not guarantee any particular delivery time and is not responsible for any delays.

 

16.5. Return and Exchange Policy. Water may not be returned or exchanged after receipt. Orders may not be cancelled after a Vendor has accepted the order. Certain jurisdictions may provide additional statutory rights. Nothing herein is meant to limit your return or cancellation rights under local law.

 

 

16.6. Accuracy of Information. We attempt to ensure that information on the Service is complete, accurate, and current. Despite our efforts, the information on the Service may occasionally be inaccurate, incomplete or out of date. We make no representation as to the completeness, accuracy, or

 

currency of any information on the Service. While it is our practice to confirm orders in the app, the receipt of an order confirmation does not constitute our acceptance of an order or confirmation of an offer to sell water, delivery services, or another product or service. We reserve the right, without prior notice, to limit the order quantity on any water, delivery services, product or service or to refuse service to any customer. We or our Third Party Providers also may require verification of information prior to the acceptance and/or delivery of any order.

 

16.7. Pricing; Taxes. Prices stated for water and services exclude all applicable taxes unless stated otherwise. Transaction totals with a tax line item may reflect an estimated tax amount. The actual tax amount is calculated based on your delivery location for a single purchase or your location at the time you registered for a recurring service and may vary from the estimated tax. You are solely responsible for paying all taxes.

 

16.8. Payments. For all charges or deposits for any events, products, and services ordered by you on or through the Service, Powwater or its vendors or agents will charge your card, M-Pesa account,

 

or alternative payment method offered by Powwater, and you agree to pay all such charges or deposits. Charges you owe to Third Party Providers will be collected by Powwater on the Third Party Provider’s behalf. Payment of such charges will be considered payment made directly by you to the Third Party Provider. This payment structure is intended to compensate Third Party Providers for the products and services obtained by you via the Service. You understand that we may hold and store your payment information to facilitate payment and deposit and damage reimbursement. When you provide card information, account numbers, or other information necessary to facilitate payment to us or our vendors, you represent to us that you are the authorized user of the card or payment account. We may suspend or cancel the Service if we do not receive an on time, full payment from you. Suspension or cancellation of the Service for non-payment could result in a loss of access to and use of your account and its content. In the event legal action is necessary to collect on balances due, you agree to reimburse Powwater and its vendors or agents for all expenses incurred to recover sums due, including attorneys’ fees and other legal expenses. You are responsible for purchase of, and payment of charges for, all Internet access services and telecommunications services needed for use of the Service.

 

16.9. Special Offers and Promotions. On occasion, Powwater may issue promotion codes for redemption at check out. These codes are non-transferable and may only be used by the intended recipient; these codes have no cash value and are not redeemable for cash. We may reduce the redemption value if the total value of the promotional code exceeds the price of the item. You may not combine multiple promotional codes in one transaction. Powwater is not responsible for any financial loss arising out of our refusal, cancelation, or withdrawal of a promotion or any failure or inability of a customer to use a promotional code for any reason. Discounts and sales prices may not be applied to previous orders. We may shorten the duration of any special order or sales promotion.

 

  1. Suspension and Termination. You or we may suspend or terminate your account or your use of this Service at any time, for any reason or for no reason, with or without prior notice. You are personally liable for any orders placed or charges incurred through your account prior to termination. We may also block your access to the Service in the event that: (a) you breach these Terms; (b) we are unable to verify or authenticate any information you provide to us; or (c) we believe that your actions may cause financial loss or legal liability for you, our users, or us. If your account is terminated, we may delete data or your Reviews or otherwise disassociate it from you and your account (unless we are required by law to keep it, return it, or transfer it to you or a third party identified by you). As a result you may no longer be able to access any of the Service or your data or Reviews.

 

  1. DISCLAIMERS. YOUR USE OF THE SERVICE IS AT YOUR RISK. THE CONTENT, INFORMATION, WATER, DELIVERY SERVICES, MATERIALS, PRODUCTS AND SERVICES PROVIDED ON OR THROUGH THE SERVICE ARE PROVIDED "AS IS" WITHOUT ANY WARRANTIES OF ANY KIND INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SECURITY OR NON-INFRINGEMENT OF INTELLECTUAL PROPERTY. NEITHER POWWATER NOR ANY OF ITS AFFILIATES WARRANT THE ACCURACY OR COMPLETENESS OF THE INFORMATION, MATERIALS, OR SERVICES PROVIDED ON OR THROUGH THE SERVICE. YOU ACKNOWLEDGE THAT COMPUTER AND TELECOMMUNICATIONS SYSTEMS ARE NOT FAULT-FREE AND OCCASIONAL PERIODS OF DOWNTIME OCCUR. WE DO NOT GUARANTEE THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE OR THAT CONTENT LOSS WON'T OCCUR, NOR DO WE GUARANTEE ANY CONNECTION TO OR TRANSMISSION FROM THE COMPUTER NETWORKS. THE INFORMATION, MATERIALS AND SERVICES PROVIDED ON OR THROUGH THE SERVICE MAY BE OUT OF DATE, AND NEITHER POWWATER, NOR ANY OF ITS AFFILIATES MAKES ANY COMMITMENT OR ASSUMES ANY DUTY TO UPDATE SUCH INFORMATION, MATERIALS, OR SERVICES. POWWATER DOES NOT GUARANTEE THE QUALITY, SUITABILITY, SAFETY, OR CLEANLINESS OF THIRD PARTY PROVIDERS, OR THEIR PRODUCTS OR SERVICES. POWWATER DOES NOT GUARANTEE THAT WATER PURCHASED THROUGH THE SERVICE IS SAFE FOR CONSUMPTION. THE FOREGOING EXCLUSIONS OF IMPLIED WARRANTIES DO NOT APPLY TO THE EXTENT PROHIBITED BY LAW. PLEASE REFER TO YOUR LOCAL LAWS FOR ANY SUCH PROHIBITIONS. NO ADVICE OR INFORMATION, WHETHER ORAL

 

OR WRITTEN, OBTAINED FROM POWWATER OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.

 

  1. LIMITATIONS OF LIABILITY. POWWATER DOES NOT ASSUME ANY RESPONSIBILITY, NOR WILL POWWATER BE LIABLE, FOR ANY DAMAGES TO YOUR PERSON, COMPUTER, TELECOMMUNICATION EQUIPMENT, OR OTHER PERSON OR PROPERTY CAUSED BY OR ARISING FROM YOUR ACCESS TO, USE OF, OR BROWSING THIS SERVICE, OR YOUR DOWNLOADING OF ANY CONTENT OR PURCHASE OF ANY WATER, DELIVERY SERVICE, PRODUCT, OR SERVICES FROM THIS SERVICE. FURTHER, POWWATER DOES NOT ASSUME ANY RESPONSIBILITY, NOR WILL POWWATER BE LIABLE, FOR ANY HEALTH OR SAFETY HARMS FROM THE USE OR CONSUMPTION OF WATER PURCHASED THROUGH THE SERVICE. IN NO EVENT WILL POWWATER, OR ANY OF ITS OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AFFILIATES, AGENTS, SUCCESSORS OR ASSIGNS, NOR ANY PARTY INVOLVED IN THE CREATION, PRODUCTION OR TRANSMISSION OF THE SERVICE, BE LIABLE TO YOU OR ANYONE ELSE FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOST PROFITS, LOST DATA OR BUSINESS INTERRUPTION), WHETHER BASED ON WARRANTY, CONTRACT, TORT OR ANY OTHER LEGAL THEORY AND WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATIONS OF LIABILITY DO NOT APPLY TO THE EXTENT PROHIBITED BY LAW. PLEASE REFER TO YOUR LOCAL LAWS FOR ANY SUCH PROHIBITIONS.

 

IN THE EVENT OF ANY PROBLEM WITH THE SERVICE OR ANY CONTENT, MATERIALS, INFORMATION, OR SERVICES CONTAINED ON ANY OR ALL OF THE SERVICE, YOU AGREE THAT YOUR SOLE REMEDY IS TO CEASE USING THE SERVICE. IN NO EVENT SHALL POWWATER’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), OR OTHERWISE EXCEED THE VALUE OF THE SERVICES PURCHASED OR TO WHICH YOU SUBSCRIBE THROUGH THE SERVICE.

 

THESE LIMITATIONS AND EXCLUSIONS APPLY EVEN IF THIS REMEDY DOES NOT FULLY COMPENSATE YOU FOR ANY LOSSES OR FAILS OF ITS ESSENTIAL PURPOSE OR IF WE KNEW OR SHOULD HAVE KNOWN ABOUT THE POSSIBILITY OF THE DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THESE LIMITATIONS AND EXCLUSIONS APPLY TO ANYTHING OR ANY CLAIMS RELATED TO THESE TERMS OR THE SERVICE.

 

  1. Indemnity. You will defend, indemnify, and hold Powwater and any affiliated entity or individual harmless from any and all liabilities, costs, and expenses, including reasonable attorneys’ fees, related to or in connection with: (a) the use of the Service or your Review(s) or other content, message, or information you provide or transmit on or through this Service; (b) your violation of any of these Terms; (c) your violation of any third party right, including without limitation any right of privacy, publicity rights, or intellectual property rights; (d) your violation of any law, rule, or regulation of Kenya or any other country; or (e) any other party’s access and use of the Service with your unique username, password, or other appropriate security code.

 

  1. Release. In the event that you have a dispute with one or more users of the Service, including Powwater Drivers or Vendors, you release Powwater (and our officers, directors, agents, subsidiaries, joint ventures, and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.

 

  1. Force Majeure. Neither Powwater nor you shall be responsible for damages or for delays or failures in performance resulting from acts or occurrences beyond our or your reasonable control, including, without limitation: fire, lightning, explosion, power surge or failure, flood, acts of God, war, revolution, civil commotion or acts of public enemies, labor unrest, including without limitation, strikes,

 

slowdowns, picketing, or boycotts, inability to secure raw materials, transportation facilities, fuel or energy shortages, or acts or omissions of other common carriers.

 

  1. Dispute Resolution. PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS AND HOW CLAIMS THAT YOU AND POWWATER HAVE AGAINST EACH OTHER ARE RESOLVED. This Section is deemed to be a “written agreement to arbitrate.”

 

We believe that arbitration is a faster, more convenient, and less expensive way to resolve any disputes or disagreements that we may have. Therefore, pursuant to these Terms, if you have any past, present, or future dispute or disagreement with us regarding: (i) your use of or interaction with the Service; (ii) any purchases or other transactions or relationships with Powwater; or (iii) any data or information you may provide to Powwater or that Powwater may gather in connection with such use, interaction, or transaction (collectively, “Powwater Transactions or Relationships”), you will not have the right to pursue a claim in court or have a jury decide the claim and you will not have the right to bring or participate in any class action or similar proceeding in court or in arbitration. By using or interacting with the Service, or engaging in any other Powwater Transactions or Relationships with us, you agree to binding arbitration as provided below.

 

We will make every reasonable effort to informally resolve any complaints, disputes, or disagreements that you may have with us. If those efforts fail, by using the Service, you agree that any complaint, dispute, or disagreement you may have against Powwater, and any claim that Powwater may have against you, arising out of, relating to, or connected in any way with these Terms, our Privacy Policy, or any Powwater Transactions or Relationships shall be resolved exclusively by final and binding arbitration (“Arbitration”) administered by JAMS or its successor (“JAMS”) and conducted in accordance with the JAMS Streamlined Arbitration Rules And Procedures in effect at the time the Arbitration is initiated or, if the amount in controversy exceeds $100,000, in accordance with the JAMS Comprehensive Arbitration Rules And Procedures then in effect (respectively, the “Applicable Rules”). The Applicable Rules can be found at www.jamsadr.com. If JAMS is no longer in existence, the Arbitration shall be administered by the American Arbitration Association or its successor (the “AAA”) instead and conducted in accordance with the AAA Commercial Arbitration Rules in effect at that time (which shall be the “Applicable Rules” in such circumstances). If JAMS (or, if applicable, AAA) at the time the arbitration is filed has Minimum Standards of Procedural Fairness for Consumer Arbitrations in effect which would be applicable to the matter in dispute, Powwater agrees to provide the benefit of such Minimum Standards to you to the extent they are more favorable than the comparable arbitration provisions set forth in this Section, provided, however, that in no event may such Minimum Standards contravene or restrict the application of subpart (e) or (h) below.

 

You further agree that:

 

  • Arbitrator Will Interpret These Terms. The Arbitrator, and not any governmental entity,has the exclusive authority to resolve any dispute arising under or relating to the validity, interpretation, applicability, enforceability, or formation of these Terms and the arbitration provisions in this Section, including but not limited to any claim that all or any part of these Terms is void or voidable;

 

  • Location of Arbitration. The Arbitration will be held either: (i) at a location determinedby JAMS (or, if applicable, AAA) pursuant to the Applicable Rules (provided that such location is reasonably convenient for you and does not require travel in excess of 100 miles from your home or place of business); or (ii) at such other location as may be mutually agreed upon by you and Powwater; or (iii) at your election, if the only claims in the arbitration are asserted by you and are for less than $10,000 in aggregate, by telephone or by written submission;

 

  • Governing Law. The Arbitrator: (i) will apply internal laws of the Republic of Kenyaconsistent with applicable statutes of limitations; (ii) will entertain any motion to dismiss, motion to strike, motion for judgment on the pleadings, motion for complete or partial summary judgment, motion for

 

summary adjudication, or any other dispositive motion consistent with Kenyan law; (iii) will honor claims of privilege recognized at law; and (iv) will have authority to award any form of legal or equitable relief;

 

  • No Class Relief. The Arbitration can resolve only your and Powwater’s individual claims,and the Arbitrator shall have no authority to entertain or arbitrate any claims on a class or representative basis, or to consolidate or join the claims of other persons or parties who may be similarly situated;

 

  • Written Award. The Arbitrator shall issue a written award supported by a statement ofdecision setting forth the Arbitrator’s complete determination of the dispute and the factual findings and legal conclusions relevant to it (an “Award”). Judgment upon the Award may be entered by any court having jurisdiction thereof or having jurisdiction over the relevant party or its assets;

 

  • Arbitration Costs. In the event that you are able to demonstrate that the costs ofArbitration will be prohibitive as compared to the costs of litigation, Powwater will pay as much of your filing and hearing fees in connection with the Arbitration as the Arbitrator deems necessary to prevent the arbitration from being cost-prohibitive, regardless of the outcome of the Arbitration, unless the Arbitrator determines that your claim(s) were frivolous or asserted in bad faith;

 

  • Reasonable Attorney’s Fees. If, through the process set forth in this Section 23, yourecover an Award greater than Powwater’s last written settlement offer, we will reimburse your reasonable and actual out-of-pocket attorneys’ fees associated with the Arbitration, and we will bear our own attorneys’ fees;

 

  • Interpretation and Enforcement of Arbitration Clause. With the exception of thesubsection entitled No Class Relief above, if any part of this arbitration provision is deemed to be invalid, unenforceable, or illegal or otherwise conflicts with the Applicable Rules, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal, or conflicting provision were not contained herein. If, however, “No Class Relief” is found to be invalid, unenforceable, or illegal, then the entirety of this arbitration provision shall be null and void, and neither you nor Powwater shall be entitled to arbitrate their dispute, and must instead bring any claims in a court of competent jurisdiction;

 

  • Small Claims Matters are Excluded. No Class Relief or Joinder of Claims. Notwithstanding the foregoing arbitration provisions, at your option, you may bring any claim you have against Powwater in your local small claims court within Kenya, if your claim is within such court’s jurisdictional limit; provided that such court does not have the authority to entertain any claims on a class or representative basis or to consolidate or join the claims of other persons or parties who may be similarly situated in such proceeding;

 

  • Right to Opt Out. You may opt out of this agreement to arbitrate. If you do so, neitheryou nor Powwater can require the other to participate in an arbitration proceeding. To opt out, you must notify us in writing within 30 days of the date that you first became subject to this arbitration provision, and must include your name and residence address, the email address you use for your Powwater account (if you have one), and a clear statement that you want to opt out of this arbitration agreement. Any requests to opt out must be sent to: contact@powwater.com; and

 

  • Intellectual Property Disputes. Notwithstanding the foregoing, Powwater or you maysubmit any dispute, cause of action, claim, or controversy relating to our or your intellectual property (such as trademarks, trade dress, domain names, trade secrets, copyrights, and other patents) to any court of competent jurisdiction.

 

  1. General. Any claim relating to, and the use of, this Service and the materials contained herein is governed by the laws of the Republic of Kenya. To the extent the provisions in the section titled Dispute Resolution do not apply, you consent to the exclusive jurisdiction of the courts located in the Republic of

 

Kenya. A printed version of these Terms will be admissible in judicial and administrative proceedings based upon or relating to these Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.

 

These Terms set forth the entire understanding and agreement between us with respect to the subject matter hereof. We do not guarantee continuous, uninterrupted or secure access to the Service, and operation of the Service may be interfered with by numerous factors outside of our control. Except as set forth in the section titled Dispute Resolution above, if any provision of these Terms is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions will be enforced. You agree that these Terms and all incorporated agreements may be automatically assigned by Powwater in our sole discretion. Headings are for reference purposes and have no interpretive value. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. All sections which by their context ought to survive these Terms will survive any termination or expiration of these Terms.

 

  1. Apple Disclaimer. The following applies to any part of the Service you acquire from an electronic store branded, owned, or controlled by Apple or Google or any of their affiliates (“App Store-Sourced Software”):

 

You acknowledge and agree that these Terms are solely between you and Powwater, not Apple or Google (both ‘App Store Providers’), and that these App Store Providers have no responsibility for the App Store-Sourced Software or content thereof. Your use of the App Store-Sourced Software must comply with the App Store Terms of Services issued by the relevant App Store Provider. You acknowledge that the App Store Providers have no obligation whatsoever to furnish any maintenance and support services with respect to the App Store-Sourced Software. In the event of any failure of the App Store-Sourced Software to conform to any applicable warranty, you may notify the relevant App Store Provider, and it will refund the purchase price for the App Store-Sourced Software to you; to the maximum extent permitted by applicable law, the App Store Provider will have no other warranty obligation whatsoever with respect to the App Store-Sourced Software, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by these Terms and any law applicable to Powwater as provider of the software. You acknowledge that the App Store Providers are not responsible for addressing any claims of you or any third party relating to the App Store-Sourced Software or your possession and/or use of the App Store-Sourced Software, including, but not limited to:

 

  • product liability claims; (b) any claim that the App Store-Sourced Software fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation; and all such claims are governed solely by these Terms and any law applicable to Powwater as provider of the software. You acknowledge that, in the event of any third-party claim that the App Store-Sourced Software or your possession and use of that App Store-Sourced Software infringes that third party’s intellectual property rights, the App Store Providers will not be responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim. You and Powwater acknowledge and agree that App Store Providers, and their subsidiaries, are third-party beneficiaries of these Terms as relates to your license of the App Store-Sourced Software, and that, upon your acceptance of the terms and conditions of these Terms, the App Store Provider(s) will have the right (and will be deemed to have accepted the right) to enforce these Terms as relates to your license of the App Store-Sourced Software against you as a third-party beneficiary thereof.

 

  1. Additional Assistance. If you do not understand any of these Terms of Service or if you have any questions or comments, you may contact us at contact@powwater.com.

 

  1. Copyright Notice. All design, graphics, text selections, arrangements, and all software are Copyright © 2021, Powwater and its affiliates and licensors. ALL RIGHTS RESERVED.