These Terms of Service (“Terms of Service”) set out the terms under which Infiniti N Beyond Ltd., a private limited company registered in the Republic of Kenya (Registration No PVT/2016/022553) (“InB”, “OwnMali”, “we”, “us” or “our”) provides its services or offers through its platform including Website and Mobile App (“Services”) to you, the User (“you”, “User”), and in handling any and all matters relating to OwnMali Platform:
The platform provides an online marketplace to enable and facilitate you to trade in real estate investment products via InB’s proprietary digital trading platform known as OwnMali (the “Platform”).
In accessing our platforms, you hereby agree to comply with and be bound by the terms and conditions set out herein. USERS ARE ADVISED TO READ THESE TERMS OF SERVICE CAREFULLY. IF YOU DO NOT ACCEPT ANY PART OF THESE TERMS OF SERVICE, PLEASE IMMEDIATELY DISCONTINUE YOUR ACCESS TO AND USE OF OUR PLATFORM.
The mobile apps, website and Platform is owned and maintained by InB. InB has the right (but not the obligation) to assign its rights under these Terms of Service to an affiliated entity. In the event our obligations under these Terms of Service and the provision of the Services are transferred to an affiliated entity, you will be notified of such change through the email address you have provided to us, or by the placing of a prominent notice on our platform. If you continue to use the platform and the Services after we post any such notice on our platform, you will be taken to agree to abide and be bound by the Terms of Service as may be provided by us or an affiliated entity.
By accessing and using the platform and/or any Service you represent, warrant and undertake and are presumed by us to: (i) have notice of, accept, and agree to comply with and be bound by the Terms of Service; and (ii) comply with all other applicable laws, regulations and rules in relation to your access to the platform and use of the Services. This applies regardless of whether you access and use this platform for your own purposes or on behalf of another person or entity. If you disagree with any part of these Terms of Service, you may not access or use this platform and Our Services.
By accessing or using the platform or any part thereof, you consent to the collection, use, and disclosure of your personal data by us which you shall grant and shall remain valid and has not been withdrawn in accordance with Kenya’s Personal Data Protection laws. Any information or personal data that you submit to us in the course of your access to, and/or use of, this platform or Services may be used for marketing purposes by us, unless you inform us otherwise. In accessing and/or using this platform and/or Services, you agree to such use of your submitted information.
Viewing of opportunities to trade, or engaging in trades via OwnMali Platform and/or the Services is suitable and intended only for persons who are Users. To qualify as a user you must pass through our KYC (Know your customer) verification process. You must be an and you hereby represent and warrant that you qualify as a User and that all information you submit to us to establish such status is accurate, complete, and truthful. We reserve the right not to accept any person as a User for any reason whatsoever, or to request for any further information that we may require from you to determine if you qualify as a User. We are not liable for any costs, loss, or damage sustained by Users for any access to, use of, or activity on or through, OwnMali Platform and/or Services.
You may access and view OwnMali Platform, and may save an electronic copy or print out a copy of the information and materials located or hosted on, or linked to OwnMali Platform (the “Content”) solely for your own private use. You may not copy, store (either in hard copy or in an electronic retrieval system), adapt, alter, translate, transmit, disseminate, distribute, perform, broadcast, publish, reproduce, publicly display, hyperlink, sell, license, rent, lease or otherwise transfer any of the Content, or otherwise transfer any of the Content to any other person (whether for direct commercial purpose or monetary gain or otherwise) in whole or in part in any manner without our prior written permission.
By using and accessing the Content, you hereby agree to keep all information you learn through OwnMali Platform, by virtue of your use of this platform, or through and in relation to other Users, trade activities or opportunities that is not available to the general public private and confidential.
In order to get access to OwnMali Platform and/or use our Services, you will need to register for a user account (“User Account”) and provide us with certain information. With your permission, we may collect other third party data about you (collectively, the “Personal Information”). All registration information provided by you must be complete and accurate as at the time of registration, and you must update the said information from time to time should any change occur. You will also need to provide certain information as part of our User application approval process, which may include “Know Your Customer” checks and our internal anti-money laundering and countering the financing of terrorism processes.
You agree and warrant that you will not, wilfully, negligently, or otherwise: (i) disclose the credentials of Your User Account to any unauthorized third party, or (ii) allow any unauthorized third party to use your User Account. If you believe that an unauthorized third party has gained access to your User Account without your authority, you must immediately inform us in writing and we may suspend, deactivate or cancel your User Account at our sole discretion in such circumstances. You acknowledge that you are responsible for maintaining the confidentiality of the information related to your User Account. Such information includes your User Account password, information pertaining to payments, and information regarding all activity and transactions that are published on your User Account. Each registered User is allowed to have only one User Account. If the User is aware of the existence of multiple accounts in their name and Personal Information, the User shall inform us as soon as reasonably practicable. If multiple accounts are identified to one User, we reserve the right to suspend the User’s access to our Services pending further investigation. We reserve the right to reject, suspend, or revoke the registration of any User at our discretion and will not be obliged to provide any reason(s) for such rejection or revocation.
USE OF OwnMali PLATFORM
You may view and use the platform and/or any information contained therein only in accordance with these Terms of Service. You may not modify, distribute, publish, license, create derivative works from, transfer, or sell any information or Content contained on ownmali platform. The platform may be used only as contemplated by these Terms of Service.
You agree to use the platform only for lawful purposes and you acknowledge that your failure to do so may subject you to civil and criminal liability all as determined by applicable law. You agree and warrant that you will not and will not attempt to (and will not permit any third party to or attempt to), directly or indirectly, engage in any harmful conduct, or misuse our platform or Services.
You must not interfere with or attempt to interrupt the proper operation of the platform and/or Services in any manner whatsoever, or access or attempt to access any data, information, passwords, files, or those parts of the platform and the Services that you are not authorised to access by hacking, scraping, data mining, or any other means.
We reserve the right, in our sole discretion, to deny you access to our platform and/or Services, or any part thereof, without notice if we have any reason to suspect or believe that you have not abided by these conduct requirements.
As a registered User, you hereby undertake to fully cooperate with us (including by providing us all requested information) to: (i) facilitate our provision of the Services to Users; (ii) enable us to comply with all applicable laws, regulations, and other requirements; and (iii) enable us to comply with requests by any regulator and authority, or its obligations under these Terms of Service or any term and conditions applicable to our platform or the Services. You shall strictly comply with all applicable laws, treaties, ordinances, codes, and regulations in the course of your access and use of our platform or the Services.
OPERATION OF OwnMali PLATFORM
We will strive to, but do not guarantee or represent that we will, always provide optimal access to and the functioning of our platform. There may occasionally be downtime for scheduled maintenance. The availability of the platform or any Services may also be affected if we perceive there to be any risk of misconduct, fraud, or illegal activity.
You accept that we reserve the right to delay or deny any transaction, access to the Platform (or parts thereof), or provision of the Services at any time and in our sole discretion for reasons we consider fit, including the foregoing reasons. We reserve the right to control the look and feel of our platform.
We shall be entitled to publish any notices or disclaimers on our platform, in the manner and to the extent deemed necessary by us, at our discretion. We may also, at our discretion, deny you or limit your access to our platform or the Services (permanently or temporarily) at any time without prior notice to you for any reason, including if we believe that you have violated or acted inconsistently with these Terms of Service, any other agreements relating to our platform or the Services, or, if in our opinion or the opinion of any regulatory authority, we are not suitable to continue providing you access to our platform or the Services.
Your agreement to these Terms of Service shall come to an end at such time that you or we terminate your User Account. Provisions of the Conditions that are by their nature intended to survive the termination of your User Account, including, without limitation, your obligations to pay us any fees, any disclaimers, indemnities, and limitations of liability granted by you to us will continue to apply to you with full force and effect from the date of termination.
MODIFICATIONS, AMENDMENTS, OR TERMINATION OF THE PLATFORM OR SERVICES
Notwithstanding anything expressly to the contrary in these Terms of Service, you acknowledge and agree that we may, without notice and with immediate effect, suspend or terminate the operation of the platform or the provision of any part of the Services offered therein in the event that such operation or provision becomes illegal, is subject to demand by any competent authority, or is under any risk or exposure to any claims that are adverse or detrimental to the platform or Services.
You further acknowledge and agree that we reserve the right to modify, suspend, or terminate the provision of any Services in whole or in part at any time without notice. You acknowledge and agree that we may also amend or update these Terms of Service at any time at our sole discretion. Such modification, suspension, termination, amendment, or update will be published on the platform or communicated to you and will be deemed to be accepted by you upon the earlier of your next access to the platform or receipt of such communication.
You agree that we are not liable to you or any third party for any such modification, suspension, termination, amendment, or update, except to the extent otherwise expressly set forth herein. If you do not agree to any such modification, suspension, termination, amendment, or update, please immediately discontinue use and access to the platform and all Services.
DISCLAIMER OF WARRANTY
THIS PLATFORM, INCLUDING ANY CONTENT, MATERIAL, OR INFORMATION ON IT, AND IN CONNECTION WITH YOUR ACCESS TO AND/OR USE OF THIS PLATFORM AND SERVICES IS OF A GENERAL NATURE, AND IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITH NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, COMPLETENESS, TRUTH AND ADEQUACY, WARRANTY OF TITLE, ACCURACY OF DESCRIPTION, SUITABILITY FOR SALE, MERCHANTABILITY AND SATISFACTION OF QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT OF THIRD PARTY RIGHTS. NO MATERIAL AVAILABLE THROUGH THIS PLATFORM OR ANY OF THE SERVICES SHALL BE USED OR CONSIDERED AS AN OFFER BY US TO SELL, OR A SOLICITATION OF ANY OFFER BY US TO BUY, THE SECURITIES OF ANY ENTITY. OFFERS TO TRADE CAN ONLY BE MADE WHERE LAWFUL UNDER, AND IN COMPLIANCE WITH, APPLICABLE LAW. NEITHER THIS PLATFORM NOR ANY OF THE SERVICES PROVIDES TRADING, INVESTMENT OR OTHER FINANCIAL ADVICE, AND NO PART OF THE CONTENT OR THIS PLATFORM, OR ANY SERVICE OFFERED THEREON, IS TO BE RELIED UPON FOR PURPOSES OF MAKING OR COMMUNICATING TRADE OR OTHER DECISIONS OR ADVICE. WHERE PAST PERFORMANCE IS AVAILABLE THROUGH THE CONTENT OR THIS PLATFORM, OR ANY OF THE SERVICES, SUCH PAST PERFORMANCE IS NOT INDICATIVE OR CONCLUSIVE OF FUTURE RESULTS, AND WE DO NOT MAKE ANY WARRANTY OR REPRESENTATION THAT ANY CURRENT OR FUTURE INVESTMENT OR TRADE WILL OR IS LIKELY TO ACHIEVE PROFITS OR LOSSES SIMILAR TO THOSE ACHIEVED IN THE PAST, OR THAT SIGNIFICANT LOSSES WILL BE AVOIDED.
We do not warrant that the Content is free from typographical, technical, or pricing defects, faults, or errors. You agree that you are responsible for confirming the accuracy of any part of the Content you intend to rely on for any activity, and that we are not responsible for any adverse consequences that may arise as a result of your reliance on such errors. We do not represent or warrant that any identified defects, faults, or errors will be corrected.
There are situations when our platform or the Services will be inaccessible, unavailable, or disrupted, including: (i) necessary maintenance; (ii) circumstances outside our control (i.e., external causes such as net access failure, internet service provider equipment failure, host equipment failure, communications network failure, power failure, natural events, acts of war, or legal restrictions and censorship); and (iii) modification, upgrading, suspension, discontinuation of the provision of, or removal of our platform or the Services (whether in whole or in part), from time to time and without giving any reason or prior notice. We shall not be liable for any such inaccessibility, unavailability, or disruption. We do not guarantee that any identified defects, errors, or faults will be corrected. We do not warrant the security of any information transmitted by or to you through our platform or the Services. You accept the risk that any information transmitted or received through our platform or the Services may be accessed by unauthorised third parties or disclosed by us to third parties purporting to be you or purporting to act under your authority. Transmission over the Internet and email may be subject to interruption, transmission blackout, delayed transmission due to Internet traffic, or incorrect data transmission due to the public nature of the Internet.
You agree to fully indemnify us and hold us harmless from and against all claims, costs (including reasonable legal and other professional costs), damages, expenses, liabilities, and losses, that we may sustain or incur, directly or indirectly, by reason of our having: (i) made available our platform or the Services to you; (ii) entered into these Terms of Service or other agreements with you; (iii) enforced or attempted to enforce our rights under these Terms of Service or such other agreements with you; or (iv) acted upon any instructions which you may give in relation to our platform or the Services, or arising from any negligence, fraud, or misconduct on your part or your breach of these Terms of Service or any terms and conditions applicable to our platform or the Services unless directly caused by the gross negligence, wilful misconduct, or fraudulent conduct of us or any of our directors, officers, partners, employees, agents, or representatives. This indemnity shall apply with full force and effect to our parents, subsidiaries, and affiliates, and its and their respective directors, officers, partners, employees, agents, and representatives (collectively, the “Indemnified Parties”) as if it and they were us.
You agree that we may, if we desire, participate in, or assume exclusive control of the defence of any claim or action, or any negotiations for settlement, at its own expense. We will notify you in either such event. No settlement that may adversely affect our rights or obligations shall be made without our prior written consent, which may be withheld provided that such withholding is not unreasonable.
LIMITATION OF LIABILITY
You agree that you are responsible for the use of our platform and the Services, and to ensure that your use of our platform and the Services complies with all applicable legal requirements. You further agree to be liable for all consequences arising from your use of our platform and the Services, unless directly caused by the gross negligence, wilful misconduct, or fraudulent conduct by us or any of our directors, officers, partners, employees, agents, or representatives.
You shall be liable for any damage caused (whether directly or indirectly) to us or any third party due to your breach of these Terms of Service or other conditions applicable to our platform or the Services, or any legal requirements applicable to your access to or use of our platform or the Services.
We, and our affiliates, employees, directors, officers, partners, agents, and representatives shall under no circumstances whatsoever be liable to you, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with these Terms of Service. Our total liability to you in respect of all other loss arising under or in connection with these Terms of Service, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed KEs 10,000 (Ten Thousand Kenya Shilling).
You use our platform or the Services at your own risk. This is not intended to exclude or restrict our liability for death or personal injury arising from your use of our platform or the Services. Any dispute between you and any other user(s) of the platform will be exclusively resolved between you and such user. You hereby release us, our affiliates and service providers, and each of their respective officers, directors, agents, joint ventures, employees, and representatives from any and all claims, demands and damages (actual and consequential) of every kind and nature arising out of or in any way connected with such dispute.
The trademarks, service marks, trade names, and logos used and displayed on our platform (the “Trade Marks”) are registered and unregistered trademarks of us, our related corporations, or third parties. Nothing in or on our platform should be construed as granting, by implication, estoppel, or otherwise, any licence or right to use any TradeMarks displayed on our platform without our written permission or any other applicable trademark owner. The name ‘OwnMali’ may not be used in any way without our prior written permission.
All of the Content is the property of, or used pursuant to a licence issued by us, our related corporations or third parties with whom we do business, and is protected by the intellectual property laws of Kenya and other relevant laws. You may not reproduce, republish, copy, display, broadcast, hyperlink, mirror, frame, transfer, transmit, distribute, store or, in any other fashion, re-use the Content in any manner or by any means unless otherwise indicated on our platform, or unless we give express written permission to do so.
Aside from the Content, trademarks owned by third parties, and the other names of companies, products, programmes, applications, systems (including messaging systems), and solutions may be mentioned or referred to on our platform. These marks are, and remain entirely, the trademarks of their respective owners or holders. We do not represent ourselves as being connected, associated, or affiliated in any way with the owners or licencees of those marks solely by virtue of those marks being featured on our platform.
THIRD PARTY CONTENT, SYSTEMS, AND TRANSACTIONS
Our platform may contain, or the Services may provide, links to other websites, apps or content on the Internet that are owned or operated by third parties. Unless we expressly say otherwise, you should assume that these other apps or websites are not under the control of us or our related corporations. We assume no responsibility and shall not be liable for any errors or inaccuracies of the information on, or consequences arising from accessing, or delays in accessing such apps, websites, content, or any actions taken in reliance thereon, and we disclaim liability for any and all forms of loss or damage arising out of the use of those apps, websites, and their content.
Any link to another app, website, or content featured on our platform, or through the Services, does not constitute our endorsement, recommendation, or verification of those other apps, websites, or content. The provision of third party content is for general informational purposes only and does not constitute a recommendation or solicitation to purchase or sell any security or make any other type of investment or investment decision. Such content is not intended to provide tax, legal or investment advice.
Your access to and use of systems (including messaging systems), services, content, materials, products, applications or programmes of any third party (“Third Party Systems”) will not in any event mean that we are a party to any transaction between you and such third party or that we endorse, sponsor, certify, recommend, verify, or is involved in the provision of such Third Party Systems accessible through our platform or the Services.
We shall not be liable in any way for your access to and use of the Third Party Systems. You acknowledge and agree that you will be solely responsible for your access to or use of Third Party Systems through our platform or the Services. If you access or use any Third Party Systems through our platform or the Services, you must comply with the relevant terms and conditions for the access or use of such Third Party Systems imposed by the operators of such systems as updated from time to time.
You will be responsible for the registration and use of any user names or passwords required to connect to such Third Party Systems. Should access to and use of Third Party Systems through our platform or the Services be prohibited (whether in full or in part) by such third party terms and conditions, please discontinue any such access and use as soon as possible upon becoming aware of or receiving notice of such prohibition from the relevant third party.
You acknowledge and agree that we and our agents may, subject to your authorisation, receive data from Third Party Systems for the purposes of performing the Services. You hereby appoint us and our agents as your agent for the aforementioned purpose. In addition, each time you submit your user name or password to access or use your designated Third Party System for the specific purpose of providing us with access to your designated Third Party System, you shall be deemed to have authorised us and our agents to process your request and use information submitted by you and which is retrieved using your user name or password. We work with various third party service providers, to provide you with these Services.
In accepting these Terms of Service, you agree to comply with such third party service providers’ terms of service, each as updated from time to time. The said terms are incorporated into these Terms of Service by reference as an integral part of these Terms of Service and will have the same force and effect as though fully set forth herein. To the extent that the said terms are inconsistent with the terms of these Terms of Service, the latter shall prevail.
OWNERSHIP OF OWNMALI PLATFORM AND INFORMATION
The platform is expressly owned and operated by InB. Unless otherwise stated, the design and content features on the platform, including information and other materials, illustrations, product layout and design, icons, navigational buttons, images, artwork, graphics, photography, text, data, audio sound, software and the like, as well as the selection, assembly and arrangement thereof, are owned by InB, its affiliates or are licensed by InB from third parties.
The platform, each as a whole and in part, and its information is protected by copyright, trademark, service mark, logos, trade names, and other intellectual property and other proprietary rights, and all other applicable rights are reserved and the User shall abide by those laws. By furnishing such information, InB does not grant any licenses to or transfer any title rights for any copyrights, patents or any other intellectual property rights. Save and except with InB’s prior written consent, you may not insert a hyperlink to our platform or any part thereof on any other platform or “mirror” or frame our platform, any part thereof, or any information or materials contained in our platform on any other server, app, website or webpage.
THE SECURITY OF OWNMALI PLATFORM
We maintain physical, electronic, and procedural safeguards and personnel policies, consistent with applicable laws that are designed to guard the platform, our systems and Information provided by our Users. Unfortunately, no data transmission over the Internet can be guaranteed to be absolutely secure. In the event of a breach of the confidentiality or security of your personal information, we will reasonably attempt to notify you as necessary so you can take appropriate protective steps. Unless you indicate otherwise, we may notify you under such circumstances using your most current email address on record with us.
When you access our platform or send emails to us, you are communicating with us electronically. You consent to receive communications from us electronically. We will communicate with you by email or SMS, or by posting notices on the website or In-APP notifications. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically or posted on the website, mobile app satisfy any legal requirement that such communications be in writing if such requirements are applicable.
RELATIONSHIP BETWEEN THE USER AND InB
The User agrees that no joint venture, partnership, or employment or agency relationship exists between the User and InB as a result of these Terms of Service and/or the User’s use of ownmali platform.
In the event that any of these provisions are found to be or become unlawful, invalid, or otherwise unenforceable, that provision is to be deemed severed from these Terms of Service and shall not affect the legality, validity, and enforceability of the remaining provisions of these Terms of Service. The Terms of Service shall continue in force as if such unlawful, invalid, or unenforceable provision was severed from these Terms of Service. This shall apply only within jurisdictions where a particular term is illegal.
Any failure or delay by yourself or us in exercising or enforcing any right or remedy contained in these Terms of Service shall not constitute a waiver by the party responsible for such delay or failure. It shall also not constitute a bar to the exercise or enforcement of such or any other right or remedy at any subsequent time or times. Any single or partial exercise of such right or remedy shall not prevent or restrict the further exercise of that or any other right or remedy. Waiver of any right arising from a breach or non-performance of these Terms of Service or arising upon default under these Terms of Service shall be in writing and signed by the party granting the waiver.
All notices between you and us provided for or permitted under these Terms of Service or by law shall be in writing and shall be deemed duly served when: (i) delivered, if delivered by courier or other messenger (including registered mail) during normal business hours of the recipient; (ii) when sent, if transmitted by email; (iii) on the next business day following mailing, if mailed by national ordinary mail, postage prepaid; or (iv) on the fifth business day following mailing, if mailed by airmail, postage prepaid, in each case addressed to the most recent address, email address, or facsimile number notified to you or us.
All provisions of these Terms of Service by their nature extend beyond the expiration or termination of these Terms of Service including, without limitation, terms pertaining to suspension or termination, debts owed to us, general use of the platform and Services, disputes with us, and general provisions.
CHANGE OF CONTROL
These Terms of Service, and the relationship between you and us created by it, shall be governed by and construed in accordance with Kenya law. In the event InB is acquired by or merged with a third-party entity, we reserve the right, in any of these circumstances, to transfer or assign the information it has collected from you as part of such merger, acquisition, sale, or other change of control.
GOVERNING LAW AND DISPUTES
These Terms of Service, and the relationship between you and us created by it, shall be governed by and construed in accordance with Kenya law. You acknowledge and agree that where a dispute between us and you arise out of or in connection with these Terms of Service, both parties shall use their best efforts in good faith to mutually negotiate and resolve the dispute, failing which, the parties agree to submit themselves to the exclusive jurisdiction of the courts in Nairobi, Kenya.
We are not and will not be held liable for delays, interruptions, or failures in the performance of the Services that result directly or indirectly from any cause of condition beyond our reasonable control including, but not limited to, any act of God, act of civil or military authorities, war, pandemic, act of terrorists, civil disturbance, strike, or other labour dispute, fire, interruption in telecommunications or Internet services or network provider services, including cyber-attacks or breaches in cyber security, failure of equipment or software, other catastrophe, or any other occurrence which is beyond our reasonable control, as well as for any loss or damage sustained in connection with any such cause or condition.
No person may assign any of his rights, or delegate the performance of any of his duties, under these Terms of Service, without our prior written consent. The right to use your User Account is exclusively for your personal use. We reserve the right to assign our rights without restriction, including, without limitation, to any of our affiliates or subsidiaries, or to any successor in interest of any business associated with our platform and Services. Any attempted transfer or assignment in violation hereof shall be null and void. Subject to the foregoing, these Terms of Service will bind and inure to the benefit of the parties, their successors, and permitted assigns.
RIGHTS OF THIRD PARTIES
Save for the Indemnified Parties, a person or entity who is not a party to these Terms of Service shall have no right under the Contracts in Kenya or any similar legislation in any jurisdiction to enforce any term of these Terms of Service, regardless of whether such person or entity has been identified by name, as a member of a class, or as answering a particular description. For the avoidance of doubt, nothing in this provision shall affect the rights of any permitted assignee or transferee of these Terms of Service.
If you wish to communicate with us about anything related to these Terms of Service, our platform or the Services, you may do so by sending an email to firstname.lastname@example.org In the event we are required to contact you, you agree that we may do so via email, phone call, video call, or phone message.