Please read these Terms and Conditions (“Terms and Conditions” or “Agreement”) carefully.
Always Online Limited (“Company” or “we”) makes available shopping programs (“Programs”) through www.pawadeals.com, www.alwaysonline.co.ke and related mobile and software applications (“Company Properties”) under these Terms and Conditions.
THIS AGREEMENT CONSTITUTES A LEGALLY BINDING AGREEMENT BETWEEN EACH INDIVIDUAL WHO ENROLLS IN ANY OF THE PROGRAMS (“MEMBER”) OR OTHERWISE USES ANY ONE OF THE COMPANY PROPERTIES. IF YOU ARE A MEMBER OR USE ANY OF THE COMPANY PROPERTIES, YOU AGREE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY All OF ITS TERMS AND CONDITIONS.
IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DISCONTINUE PARTICIPATION IN AND USE OF THE PROGRAM(S) AND TERMINATE YOUR PROGRAM MEMBERSHIP(S) IMMEDIATELY.
YOU AGREE TO THE MANDATORY INDIVIDUAL ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISIONS, DESCRIBED FULLY IN SECTION 4 BELOW, TO RESOLVE ANY DISPUTES WITH THE COMPANY.
1. CHANGES TO THE TERMS AND CONDITIONS
1.1 Company may at its discretion modify, update, add to, discontinue, remove or otherwise change these Terms and Conditions at any time. Each such modification will take immediate effect upon notification to you. Company may provide you with notices, including those regarding changes to these Terms and Conditions, by email, regular mail, text message, in-app messaging, or other reasonable means now known or hereinafter developed.
1.2 Your continued use of the Company Property following any such notifications constitutes your acceptance of such modifications and your agreement to be bound by these Terms and Conditions. If you do not agree to any modification of these Terms and Conditions, your sole remedy is to discontinue your use of the Company Properties. The most current version of these Terms and Conditions will be available on our website and supersedes previous versions.
2. PROGRAM ACCOUNT
3. INFORMAL DISPUTE RESOLUTION
3.1 We would like an opportunity to address your concerns without a formal legal case. Before filing a claim against Company, You agree to try to resolve the dispute informally by submitting your request through our Contact Us page. We will try to resolve the dispute informally by contacting you in writing via email. If a dispute is not resolved within 30 days of submission through this form, you or Company may bring a formal proceeding.
4. DISPUTE RESOLUTION BY BINDING ARBITRATION; CLASS ACTION WAIVER
4.1 You and Company agree to arbitrate any and all disputes, claims, or controversies arising out of, in connection with, or relating to this Agreement, Company’s business, any of the Programs or the Company Properties, and relationship with you, including any claims that may arise after the termination of this Agreement. This agreement to arbitrate includes any claims against Company’s employees, agents or any subsidiaries of Company. Arbitration is a method of claim resolution that is less formal than a traditional court proceeding in state or federal court. It uses a neutral arbitrator instead of a judge or jury and the arbitrator’s decision is subject to limited review by courts.
4.2 All disputes concerning the arbitrability of a claim (including disputes about the scope, interpretation, breach, applicability, enforceability, revocability or validity of this Agreement) shall be decided by the arbitrator. The arbitrator shall also decide whether any claim is subject to arbitration. You further agree that the kenyan arbitration law shall govern the interpretation and enforcement of this agreement to arbitrate.
4.3 CLASS ACTION WAIVER: YOU AND COMPANY ALSO AGREE THAT EACH IS GIVING UP THE RIGHT TO A JURY TRIAL AND THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITIES, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION LAWSUIT OR REPRESENTATIVE PROCEEDING, CONSOLIDATED ACTION, OR PRIVATE ATTORNEY GENERAL ACTION. This means that neither you nor Company can seek to assert class or representative claims against each other either in court or in arbitration and no relief can be awarded on a class or representative basis. The arbitrator also may not consolidate or join another person’s claim with your claim or issue an order that would achieve the same result. You and the Company further agree that if the provisions of this paragraph, known as the “Class Action Waiver,” are found to be unenforceable, it cannot be severed from this arbitration agreement and the entire provision compelling arbitration shall be null and void.
4.4 Notwithstanding any provision in this Agreement to the contrary, you agree that if we make any future, material change to this arbitration provision, you may reject any change by sending us written notice within thirty (30) calendar days of the change to Always Online Limited. P.o.Box 33607 -00600 Nairobi Kenya, Attn: Legal. Your decision to reject changes in a new arbitration provision, however, does not affect any prior arbitration provisions to which you have already agreed, which would still remain in effect.
4.6 This arbitration provision is optional. You may decline or opt out of this agreement to arbitrate by sending written and signed notice to Always Online Limited. P.o.Box 33607 -00600 Nairobi Kenya, Attn: Legal within thirty (30) calendar days of enrolling as a Member or using Company Properties.
4.7 Judgment upon the arbitration award may be entered in a court having jurisdiction, or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be.
5. PROGRAM LICENSE
5.1 Subject to this Agreement, we hereby grant you a non-exclusive, non-transferable license (without the right to sublicense) to access and use the Company Properties for your personal use to access the Program(s). You agree that you obtain no rights other than the rights and licenses expressly granted in this Agreement. Company reserves the right to change, upgrade or discontinue the Program and/or any Company Property and/or any feature of the Program or the Company Properties, at any time, with or without notice. All rights not expressly granted under this Agreement are reserved by Company or its licensors.
6. PROGRAM RESTRICTIONS
You agree that you will not, and will not permit others to: (i) damage, interfere with or unreasonably overload the Company Properties; (ii) introduce into the Company Properties any code intended to disrupt the Program; (iii) alter or delete any information, data, text, links, images, software, chat, communications and other content available through the Company Properties (collectively, “Content”); (iv) access the Program or the Company Properties by expert system, electronic agent, “bot” or other automated means; (v) use scripts or disguised redirects to derive financial benefit from Company; (vi) modify, reverse engineer, reverse assemble, decompile, copy or otherwise derive the source code of any Company Property for any reason; (vii) rent, sell or sublicense any of the Company Properties; (viii) provide any unauthorized third party with access to the Program; (ix) access or attempt to access confidential Content through the Company Properties; (x) interfere with the operation of the Program, including, but not limited to, distribution of unsolicited advertising or mail messages and propagation of computer worms and viruses; (xi) post any material in any form whatsoever on the Company Properties or within the Program that is defamatory, obscene or otherwise unlawful or violates any third party’s right of privacy or publicity; (xii) infringe any third party’s patent, copyright, service mark, trademark or other intellectual property right of any kind or misappropriate the trade secrets of any third party in connection with your use of the Program or the Company Properties; (xiii) engage in any activity that does not comply with applicable law and regulations or otherwise engage in any illegal, manipulative or misleading activity through the use of the Program; (xiv) use the manual or automated software, devices or other processes to “scrape,” “crawl,” “spider” or index any page of Content from the Company Properties.
7.1 Cash Back. We offer the ability for Members to earn cash back (“Cash Back”) on purchases completed through the Company Properties. Company receives compensation for referring buyers to the retailers, brands, merchants and other partners participating in this Program (“Affiliate Stores”). Company gives a portion of this fee to its Members as Cash Back. Compensation received by Company may play a part in whether retailers and products appear on our site, where they are placed, and how we promote them to you. Participation in this Program and the opportunity to earn Cash Back are offered at the sole discretion of Company and subject to your compliance with this Agreement.
(b) In-Store Cash Back. Company may also offer you the opportunity to earn Cash Back on purchases made in store (“In-Store Cash Back”) at certain physical Affiliate Store locations by linking your payment card to an “in-store” offer (“Card Linked Offer”) and subsequently using such payment card to complete the purchase transaction in accordance with the terms of the Card Linked Offer.
7.2 Hotels. Company offers a hotel reservation site through the Company Properties (“Hotels”) to assist you in searching for hotels and making hotel reservations. Your use of Hotels is subject to the Hotels Terms & Conditions and will govern to the extent they vary from this Agreement.
7.3 Browser Extension. Company may make available a browser extension to enhance your Cash Back shopping experience (“Browser Extension”).
8. CASH BACK EXCLUSIONS
8.1 Cash Back is earned on your net purchase amount, which excludes taxes, fees, shipping, gift-wrapping, discounts or credits, returns or cancellations, and extended warranties. Purchases of gift cards do not qualify for Cash Back. Cash Back amounts vary by store and product category and may contain exclusions in the terms of the offer and/or the applicable store page. Please review these terms carefully.
9. STORE POLICIES
9.1 A product purchased from any Affiliate Store or any Seller, whether online or in store, is governed by and subject to the applicable Affiliate Store or Seller policies, including applicable exchange and shipping policies. You agree that we are not agents of any Affiliate Store or Seller and that the Affiliate Stores and Sellers operate independently and are not under our control. Accordingly, your participation in offers or promotions of, or correspondence with, any Affiliate Store or Seller is solely between you and that Affiliate Store or Seller. We do not assume any liability, obligation or responsibility for any part of such correspondence, offer or promotion, including, without limitation, the withdrawal or modification of any such offer or promotion. Company is not responsible for changes to, or discontinuance of, any Affiliate Store or Seller, or for any Affiliate Store or Seller withdrawal from the Program, or for any effect on accrual of Cash Back caused by such changes, discontinuance or withdrawal.
10. BONUSES AND OTHER REWARDS
10.1 Company periodically offers bonuses or rewards for referring new Members to the Program or for other specific actions. If you elect to participate in our Refer-A-Friend Program, your participation is subject to our Referral Program Terms. The terms and conditions accompanying such offers will govern how they are earned and paid if the terms and conditions differ from this Agreement. All bonuses and rewards are subject to review. Company reserves the right to withhold, deny or cancel any bonuses and/or rewards and/or terminate your Account if Company, in its sole discretion, deems any bonuses and/or rewards as fraudulent, abusive, unethical, suspicious or otherwise inconsistent with our Referral Program Terms, this Agreement or any other applicable law or regulation. Company decisions are final.
11.3 Gift Cards. Periodically, Company may offer gift cards in connection with a promotion or as a redemption option for your Cash Back. Gift cards are subject to the terms and conditions of the gift card issuer and the applicable Affiliate Store policies. Company is not responsible for lost or stolen payments, including gift cards.
11.5 Taxes. You may be taxed on your receipt of bonuses and other consideration (merchandise, travel, etc.) for member referrals or other promotional activities (such as prizes from a sweepstakes) depending on the tax laws of state and local jurisdictions. You will be solely responsible for any and all tax liability arising out of the consideration received in connection with any member referrals or promotional activities.
12. ACCOUNT MAINTENANCE
12.1 Updating Your Account You agree to keep your Account information current, complete and accurate by periodically updating the information through the Company Properties. You must be logged into Company and enter your password to change your Account information and payment preferences. You may check your Account status and recent purchase and/or earning history at any time via the Company Properties. You will maintain the confidentiality of your Account information, including username and password by which you access the Program. Any use of your username and password will be deemed to be your use, and Company is entitled to act on instructions received under your password and is not responsible for any credits or debits made to your account by someone else who uses your password. If there is a breach of security through your Account, you will immediately change your password and notify us of such breach. You agree that, unless you have first notified us immediately of any such breach, we should assume that any instruction transmitted using your username and password is yours and has been authorized by you, and we will have no obligation to inquire into the propriety of such instruction.
12.2 Account Activity An Active Account means you must have engaged in one of the following activities within the past twelve (12) months: (i) updated your Account information, (ii) have shopped or started a shopping trip via the Company Properties, (iii) linked a payment card to an in-store offer, (iv) have accrued Cash Back or (v) have logged in to your Account. Except where prohibited by applicable law, if you have not engaged in one of the activities in subsections (i)-(v) for more than twelve (12) consecutive months, Company reserves the right to debit your Account balance two dollars ($2.00) per month (“Maintenance Fee”) to recover the cost of account maintenance in its normal course of business until you reactivate your Account by engaging in one of the activities set forth above in subsections (i)-(v) or until your account balance is zero. If your account remains inactive for more than twelve (12) consecutive months and the balance in your inactive account is or becomes zero, Company reserves the right to close the Account permanently and cease to maintain your Account records and Program access. Maintenance Fees are nonrefundable, but will not cause your account balance to become negative, and will not cause you to owe money to Company.
12.3 Fraudulent Activity We reserve the right to investigate any purchase transactions, referral activity, or interaction with any Company Property that we believe, in our sole discretion, is abusing or has abused the Program. We reserve the right to rescind any Cash Back, bar further Cash Back awards and/or bonuses, and/or terminate any Member Account that we believe, in our sole discretion, is abusing or has abused the Program, including, without limitation, by engaging in a pattern of returning products after the corresponding Cash Back has been credited or making fraudulent referrals by creating multiple Accounts. Multiple Accounts created under the Refer-A-Friend Program with the same name, address, email address or other identifying feature may be flagged as fraudulent referrals. Any failure to comply with this Agreement, any fraud or abuse relating to the accrual or receipt of Cash Back or other rewards and bonuses, or any misrepresentation of any information furnished to Company by you or anyone acting on your behalf may result in the termination of your Account and forfeiture of any accrued Cash Back rewards. If Company has any reason to suspect fraudulent activity is associated with your Account, Company reserves the right to delay or withhold payment of Cash Back. Any suspected or actual cases of fraud activity will be escalated and reviewed in accordance with our fraud process. Company decisions are final.
13. RECEIVING COMMUNICATIONS
14. COMPANY APPLICATIONS
14.1 Company may make available software applications (“Company Applications”) to allow you to access our Programs without visiting www.alwaysonline.co.ke or www.pawadeals.com, including mobile applications and browser extensions. For purposes of this Agreement, references to Company Properties shall include Company Applications. Company Applications and their underlying information and technology may not be exported or re-exported into any country to which the U.S. has embargoed goods or to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders. You represent and warrant that you are not located in, under the control of or a national or resident of any such country or on any such list, and that you will otherwise comply with all applicable export control laws. If you are a U.S. government end user, we are licensing the Company Application to you as a “Commercial Item” as that term is defined in the U.S. Code of Federal Regulations (see 48 C.F.R. § 2.101), and the rights we grant you to the Company Applications are the same as the rights we grant to all others under this Agreement.
15. THIRD-PARTY PLATFORMS
15.1 Social Sign On. When you access or use the Company Properties, we may make available services from one or more third parties (“Third-Party Platforms”). The Company Properties support Third-Party Platforms, including Facebook, Google to make it easier for you to sign in or create your Account. Any use of Third-Party Platforms to create and access your Account is subject to the terms and conditions and privacy policies of such third parties (“Third-Party Terms”).
15.2 Google Connect. Google Connect is a feature that allows you to create your Account or to sign in to your Account with your Google email account credentials. By using Google Connect, your Google email account will automatically be linked to your Account. You may disconnect your Google account at any time by updating the Settings in your Program Account or by removing the authorization through the settings of your Google account. A connection between your Google account and your Program Account is not required for you to be a Member. Connecting your Google email account will permit us to access your Google email account content (“Account Content”). Company will not delete or modify your Account Content. We use your Account Content to confirm your Cash Back faster and more reliably, personalize your experience with the Program and improve our services generally.
16. YOUR FEEDBACK
16.1 You may be invited to provide us feedback, comments, ideas, suggestions, reviews and other information about our Programs (“Feedback”) through the Company Properties, by our member services or through one of our service providers, like Trustpilot. You hereby grant to Company and its affiliates and agents a nonexclusive, royalty-free, perpetual, irrevocable and fully sublicensable right to use, reproduce, modify, adapt, publish, perform, translate, create derivative works from, distribute and display the Feedback in any media and for any legal purpose, including, without limitation, the right to use such Feedback in advertising and promotional materials and to enhance or improve our products and services and the products and services of its affiliates.
17. COMMUNITY STANDARDS
17.1 By participating in the Program, you are becoming a Member of a community that depends on the goodwill and responsible behavior of each of our Members. Members are required to refrain from transmission or communication of images or text constituting ethnic slurs, obscenities, sexually explicit material, inflammatory or derogatory comments, or anything else that may be construed as harassing or offensive, which is targeted at the Program, the Company Properties, our employees, contractors or agents, our Affiliate Stores or Sellers, or other Members. This includes communications by means of social media or other Internet posts that violate the above community standards or promote or encourage gaming or fraudulent behavior. Members who violate this provision, as determined by us in our sole discretion, may have their access to the Program suspended or terminated without prior notice.
18.1 All right, title and interest in the Program, the Company Properties and the Content belong to Company or its licensors. Additionally, Company shall maintain all right, title and interest in the “Always Online” mark, the “Pawa Deals” mark, the Always Online logo, the Pawa deals logo and any other marks, service marks, trademarks or logos of Company and its affiliates (“Company Marks”). The Company Marks may not be used in connection with any product or service that is not Company’s or in any manner that is likely to cause confusion among customers, or in any manner that disparages or discredits Company. You shall not by any means bid on any keywords with any search engine containing “Always Online,” “Pawa Deals” or anything substantially similar to “Always Online,” “Pawa deals,” or any other Company Mark including, without limitation, Alwaysonline.co.ke You shall not mention or use Company in any ad text, extensions or banner ads without the express written consent of Company. All other trademarks not owned by Company that are used in the Programs are the property of their respective owners, who may or may not be affiliated with, connected to or sponsored by Company.
19.1 You agree to indemnify Company, our Affiliate Stores, our Sellers, as well as their respective officers, directors, employees, successors, agents and affiliates, for any and all claims, damages, losses and causes of action (including attorneys’ fees and court costs) arising out of or relating to your breach of this Agreement or for any materials in any form whatsoever that are provided by you (or through your username and/or password). You agree to cooperate as fully as reasonably required in our defense and/or settlement of any claim. We reserve the right, in our reasonable discretion, to assume exclusive control over the defense and settlement of any matter subject to indemnification by you.
20. WARRANTY DISCLAIMER
20.1 THE PROGRAM, CONTENT AND THE COMPANY PROPERTIES ARE PROVIDED “AS-IS” AND WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. WE MAKE NO WARRANTY AS TO THE QUALITY, ACCURACY, CURRENTNESS, COMPLETENESS, RELIABILITY OR VALIDITY OF THE PROGRAMS, CONTENT OR THE COMPANY PROPERTIES, INCLUDING, WITHOUT LIMITATION, ANY PRODUCT SEARCH RESULTS, PRODUCT DESCRIPTIONS, PRODUCT AVAILABILITY, PRICING INFORMATION ADVICE, OPINION, STATEMENT, RECOMMENDATIONS, REVIEWS OR OTHER INFORMATION DISPLAYED, UPLOADED OR DISTRIBUTED IN CONNECTION WITH ANY PROGRAM. COMPANY DOES NOT WARRANT THAT THE FUNCTIONALITY OF THE COMPANY PROPERTIES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THEY WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. FURTHER, COMPANY DOES NOT WARRANT, GUARANTEE OR MAKE ANY REPRESENTATIONS REGARDING THE QUALITY OR ACCURACY OF ADVERTISEMENTS FOR ANY PRODUCTS OR SERVICES OFFERED OR PROVIDED BY ITS AFFILIATE STORES OR SELLERS IN CONJUNCTION WITH THE PROGRAMS.
21. LIMITATION OF LIABILITY
21.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, STATUTORY, EXEMPLARY, PUNITIVE OR OTHER INDIRECT DAMAGES OR FOR ANY LOSS PROFITS, LOSS DATA OR LOSS OF USE DAMAGES, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
22. TERMINATION OR SUSPENSION
22.1 This Agreement is effective when accepted by you and will remain in effect until you or we terminate your membership in the Program. We may terminate this Agreement and your use of or access to the Program at any time, for any reason or no reason. Any violation of this Agreement or the rules and conditions of the Program may result in the termination of your Account and forfeiture of pending or prior Cash Back and other rewards. We may, in our sole discretion, at any time and without prior notice, discontinue, cancel, suspend, change or limit access to all or any part of the Program or any functionality, feature or other component of any Company Property. You agree that Company will not be liable to you or to any third party for any modification, suspension, or termination of the Program or your access to any of the Company Properties. If you are dissatisfied with any aspect of the Program at any time, your sole and exclusive remedy is to cease participating in the Program. Upon any termination of the Program, your right to use and access the Program, and the Company Properties, and to receive Cash Back and other rewards, will terminate. Termination will not prejudice either you or our remedies at law or in equity.
23. GENERAL PROVISIONS
23.1 Entire Agreement. These Terms and Conditions constitute the entire agreement between you and Company and govern your use of the Products or Company Properties superseding any prior agreements between you and Company with respect to the Products or Company Properties (including, without limitation, earlier versions of this Agreement that may have been accepted by you). Any representations, statements or agreements made or entered into elsewhere, whether directly or indirectly, written or oral or in advertising are not binding toward Company unless expressly confirmed in writing by Company to you. You may also be subject to additional terms and conditions that may apply when you use or purchase certain other services, affiliate services, third party content or third party software.
23.2 Choice of Law. The validity, construction and interpretation of this Agreement and the relationship between You and Company, including the rights and duties of the parties, will be governed by the laws of Kenya without regard to its conflict of law provisions. This shall not limit the protection afforded to you by provisions that cannot be derogated from by agreement by virtue of applicable law.
23.3 Interpretation. Headings under this Agreement are intended only for convenience and shall not affect the interpretation of this Agreement.
23.4 Waiver and Severability of Terms. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. If any provision of this Agreement is held to be invalid, such invalidity shall not affect the remaining provisions, except as otherwise stated.
23.5 Assignment. You may not assign, transfer, or otherwise dispose of your rights and obligations under this Agreement, in whole or in part, without our prior written consent, and any such assignment without such consent will be null and void. Company has the right to transfer, assign or otherwise dispose of these Terms and Conditions without Your consent.