These are the Terms of Use and Service (the “Terms”) for the website located at www.escrowkenya.com (the “Site”), including its sub-domains and mobile optimized version.  These Terms shall also include any ancillary terms, guidelines, our Privacy Policy (the “Policy”) and other documents made available by us from time to time and incorporated herein by reference.  The Site is provided to you by Escrow Solutions Kenya Limited , hereinafter referred to as “Escrow Kenya”, and also ‘us’, ‘its’, ‘ours’ and/or ‘we’, as used herein refer to Escrow Kenya and/or its affiliates, assignees, successors and/or brands.  These Terms constitute a legally binding agreement between you and us.  If you do not agree to these Terms, please, exit the Site and stop use of our Services.  You must read these Terms and the Policy to ensure that you are in agreement.

As used herein, the terms ‘user’, ‘you’, ‘your’, and/or ‘yourself’ refer to you, a user/visitor/browser of our Site, whether registered under an account or not.  To prevent any breach of the Terms hereof and to enforce any available remedy, we reserve the right to undertake any technical, legal or administrative measures that we deem necessary, at any time, without prior notice and in our sole discretion.

Acceptance

If you continue to browse and use this Site, you hereby acknowledge and agree to be bound by and under these Terms which, together with our Policy, will rule Escrow Kenya’s relationship with you in relation to the Site and any services offered thereby (the “Service(s)”).  You may not use the Services and may not accept the Terms if: (i) you are not of legal age to form a binding contract with Escrow Kenya; or (ii) you are not permitted to receive any Services under the laws of the country/region in which you are resident or from which you use the Services.

From time to time, you may be required to enter into a separate agreement with Escrow Kenya or our affiliates for any Service (herein referred to as an “Additional Agreement”).  If there is any conflict or inconsistency between the Terms and any Additional Agreement, the Additional Agreement shall take precedence over the Terms only in relation to that Service concerned.

Services

Escrow Kenya is a company that operates a platform with functionalities that include, but are not limited to, providing escrow services to individuals who buy and sell products and services informally.  Either the Buyer or the Seller can initiate an escrow transaction by inviting the other party to Escrow Kenya.

The order invitation is created through an order form which captures the basic details of the escrow order such as due price, date due, terms and conditions of the purchase/sale and then sent via email.  Buyers and Sellers may initially contact each other via online means such as third party social media pages.

With Escrow Kenya, Sellers and Buyer can view their profiles, past reviews, membership information, undertake direct trades, leave feedback & more; which adds advantages for the healthy business of our users.  It is a complete e-commerce offering that streamlines escrow transactions.  At Escrow Kenya, the latest technology, industry expertise and customer service are focused on the Buyer and Seller, allowing you to make the deal online safely, securely and efficiently.

Escrow Kenya additionally provides certain electronic web-based transaction platforms for registered members to place, accept, conclude, manage and fulfill escrow payments online within the Site.  All of the aforementioned functionalities will be subject to the respective terms and conditions of the Additional Agreements made known to users by Escrow Kenya from time to time.

Account

In order to use some or all of the functionalities and Services provided via the Site, you will need to register for an account.  At the time you register to become a registered user of the Site (either as Buyer or Seller), you will be asked to complete a registration form which requires you to provide information such as your name, address, phone number, email address and other personal information.

You represent and warrant that all activities that occur under your account (including without limitation, posting any company or product information, clicking to accept any guidelines, rules, terms and conditions, subscribing to or making any payment for any services, or sending emails using the Escrow Kenya messaging system) will be deemed to have been authorized by you as a user, and henceforth you also represent and warrant to have the full authority to undertake the posting and any associated disclosures.

You are solely responsible for the activity that occurs on your account and for keeping your password secure and confidential.  We reserve the right, at our sole and final discretion, to deactivate, freeze, suspend or terminate your account upon any factual or alleged breach of these Terms.  You must notify Escrow Kenya immediately of any change in your eligibility to use the Site, if you suspect a breach of security or unauthorized use of your account.

You represent, warrant and covenant that: (i) you have full power and authority to accept these Terms, to grant any license and authorization and to perform any of your obligations hereunder and (ii) you will undertake the use the Site and Services for business or personal purposes only.

Fees & Payments

Registering into the Site has no cost.  If you use a Service on this Site that requires payment of any fee, you hereby agree to pay any and all fees associated with such Service, as indicated by us from time to time.  We may provide certain free trials that allow you to use our Services free and with no obligation, other than following these Terms.

You agree to provide us with updated, accurate and complete billing information, including valid credit card information, name, address and contact info.  You are responsible for shipping/delivery charges for any products or services that you purchase or sell to other users.

We use third-party payment processors such as Mpesa in order to bill you for any purchases made through the Site via an external, third-party payment system. The processing of payments will be subject to the fees, terms, conditions and privacy policies of such payment processors.  Escrow Kenya is not responsible for any and all errors by you or the payment processors.  Any currency conversion fees and expenses are the responsibility of our third-party payment processors, not us. Additionally, users outside Kenya will bear the SWIFT fee when depositing and withdrawing funds from Escrow Kenya.  

The standard escrow fee for  transactions involving general merchandise and services is 3% of the purchase value indicated by the parties, with a minimum fee of KES 200 where the transaction currency is set to Kenya Shillings or $2.50 USD where the transaction currency is set to US Dollars. The standard escrow fee for transactions involving motor vehicles is 1.5% of the purchase value, with a minimum fee of KES 1,500 where the transaction currency is set to Kenya Shillings or $15.5 USD where the transaction currency is set to US Dollars. The maximum escrow fee is KES 15,000 where the transaction currency is set to Kenya Shillings or $155 USD where the transaction currency is set to US Dollars. 

Should the seller in a transaction voluntarily cancel an order, a discounted escrow fee will be charged to the buyer and will be calculated as 0.5% of the price, with a minimum fee of KES 200 where the transaction currency is set to Kenya Shillings or $2.50 USD where the transaction currency is set to US Dollars. However, should a full refund need to be issued where a dispute is closed in the buyer's favor, the buyer will incur the full escrow fees, irrespective of who initially bore the escrow fees. 

There will be a withdrawal processing fee of KES 25 where the transaction currency is set to Kenya Shillings or $0.50 USD where the transaction currency is set to US Dollars, per withdrawal from your escrow account, irrespective of the withdrawal amount. 

Prohibited Activities

You agree not to, and you will not undertake, motivate, or facilitate the use or access of the Site and/or Escrow Kenya by others to:

a. Infringe these Terms or allow, encourage or facilitate others to.

b. Plagiarize and/or infringe the intellectual property rights or privacy rights of any third party.

c. Enable any process to data-mine the Site (e.g. robots or similar data gathering and extraction tools).

d. Disturb the normal flow of Services provided within the Site.

e. Distribute, sell, commerce or otherwise make available any goods, materials, content and/or items that: (i) infringe or endanger the intellectual property rights of any person (e.g. trademark, moral rights, trade secret, copyright, ancillary rights or other); (ii) enable any act that could promote or cause discrimination, racism, harm, libel, hatred or violence against any individual or group; (iii) endanger children and underage persons; (iv) are or allow illegal or fraudulent activities to take place; (v) are or may constitute a criminal or capital offense or otherwise infringe any applicable law; and/or (vi) are or can be considered to be obscene, threatening/defamatory, plagiarized, firearms, tobacco, alcohol, marijuana, gambling, binary options, Forex, pharmaceuticals, drugs, currency, State and/or federal restricted items, human remains and body parts, lottery tickets, pesticides, prescription drugs, stolen property, sewage, garbage, pornography, art, catalytic converters and test pipes, cell phone (wireless) service contracts, charity and fundraising, cosmetics, counterfeit currency and stamps, coupons, credit cards, electronic surveillance equipment, embargoed goods to prohibited countries, event tickets, firearms, weapons, and knives, pepper spray, weapons replicas, stun guns, military items, food and healthcare items, gift cards, government documents, ids, government licenses, transit and shipping-related items, hazardous, restricted and/or regulated materials, batteries, fireworks, refrigerants, human remains, body parts, lock-picking devices, mailing lists, personal information, medical drugs, devices, and healthcare, prescription drugs, contact lenses, pacemakers, surgical instruments, multi-level marketing, ethnically or racially offensive material and memorabilia, pesticides, plants, seeds, political memorabilia, recalled items, slot machines, stamps, stocks and securities, stolen property, surveillance equipment; (vii) illegal, restricted or prohibited goods and materials, prohibited for commerce or transportation by customs, couriers, insurers or any authority, and analogous;

f. Use the Services or the Site account to engage in activities that are identical or similar to Escrow Kenya’s business;

g. Create a link from the Site to another website or document without Escrow Kenya’s prior written consent;

h. Obscure or edit any copyright, trademark or other proprietary rights notice or mark appearing on the Site;

i. Create copies or derivate works of the Site or any part thereof;

j. Otherwise reverse engineer, decompile or extract the Site’s source code;

k. Remit or otherwise make or cause to deliver unsolicited advertising, email spam or other chain letters;

l. Collect, receive, transfer or disseminate any personally identifiable information of any person without consent from title holder; and/or

m. Pretend to be or misrepresent any affiliation with any legal entity or third party.

You also acknowledge and accept that any violation of the aforementioned provisions may result in the immediate termination of your access to the Site and use of our Services, without refund, reimbursement, or any other credit on our part.  Access to the Site may be terminated or suspended without prior notice or liability of Escrow Kenya.  You represent and warrant to us that you have all rights, title, and interest to any and all content you may post, upload or otherwise disseminate through the Site.  You hereby agree to provide Escrow Kenya with all necessary information, materials and approval, and render all reasonable assistance and cooperation necessary for our Services.

Breach by user

Without limiting the generality of the provisions of these Terms, any user would be considered as being in breach of these Terms in any of the following circumstances, and at Escrow Kenya’s final and sole discretion, if Escrow Kenya has grounds to: (i) upon complaint or claim from any third party, believe that such user has willfully or materially failed to perform its contract with such third party, including without limitation, where the user has failed to deliver any items ordered by such third party after receipt of the escrow funds, or where the items user has delivered materially fail to meet the terms and descriptions outlined in your contract with such third party; (ii) suspect that such user has used a stolen credit card or other false or misleading information in any transaction with a counter party; (iii) suspect that any information provided by the user is not current or complete or is untrue, inaccurate, or misleading; or (iv) believe that such user’s actions may cause financial loss or legal liability to Escrow Kenya or our affiliates or any other user(s).

Upon any factual or alleged breach by any user, for any cause, Escrow Kenya shall have the right to impose a penalty, restrict, refuse and/or or ban any and all current or future use of any other Service that may be provided by Escrow Kenya.

No Spam

We reserve the right to screen our content to locate and delete any spam or deceiving coupon, code, offer or link to any product or service.  We will not tolerate, and we will not allow others to undertake though our Services or Site, any and all massive delivery of unsolicited bulk communications to our users or to any third party.  Any commercial electronic communication (“CEM”) that you receive from us our partners, licensors, suppliers and affiliates will require your prior consent to such communication.  Our CEMs will include measures in order for you to stop receiving them, usually through an unsubscribe link.  Please see our Policy for more information.

License

By posting or displaying any information, content or material on the Site or providing any user generated content to Escrow Kenya (herein referred to as “User Content”), you thereto grant an irrevocable, perpetual, worldwide, royalty-free., and sub-licensable license to Escrow Kenya, in order to display, transmit, distribute, reproduce, publish, duplicate, adapt, modify, translate, create derivative works, and otherwise use any or all of the User Content in any form, media, or technology now known or not currently known in any manner and for any purpose which may be beneficial to the operation of the Site, the provision of any Services and/or the business of the User.  You represent, confirm and warrant to Escrow Kenya that you have all the rights, power and authority necessary to grant the above license.

Subject to your compliance of these Terms and our Policy, and in order for you to use and access our Services and Site, Escrow Kenya hereby grants you a limited license, royalty free, non-sublicensable, non-exclusive, revocable, non-transferable and for the entire world.

You hereby grant to Escrow Kenya and its affiliates, an unlimited, non-exclusive, assignable, transferable, sub-licensable, irrevocable, royalty free, perpetual and for all the countries and territories in the world, right and license to use any feedback, suggestion, enhancement, request, recommendation, correction or comment provided by you to Escrow Kenya regarding the Site, and to exploit and otherwise incorporate it into the Site.

Ownership

The trademarks, copyright, service marks, trade names and other intellectual and proprietary notices displayed on the Site are the property of – or otherwise are licensed to – Escrow Kenya or its licensors or affiliates, whether acknowledged or not.  Respective title holders may or may not be affiliated with us or our affiliates, partners and advertisers.

No section hereof shall be construed as intent to grant to you any interest in the Site or our Services, in whole or in part.  All content and materials included as part of the Services, such as images, photographs, graphics, texts, forms, lists, charts, guidelines, data, logos, code, icons, videos, audio and other content are the property of, are licensed to or are otherwise duly available to Escrow Kenya, its affiliates, its licensors or to the appertaining third party copyrights holder.

No endorsement

The images, texts, posts, information, photographs and other content and media displayed on or through the Site are not necessarily available and any results therefrom – which we cannot ultimately control – are out of our ultimate and complete scope.  Some or all of the images shown in the Site are licensed and/or purchased stock photos and are only shown for illustration purposes.  Some or all of the content displayed in the Site is undertook by external third parties, and does not reflect Escrow Kenya’s opinions, nor do Escrow Kenya, its affiliates, subsidiaries, officers, employees and agents guarantee its actual veracity or make any endorsement thereof.

You acknowledge and agree that Escrow Kenya shall not be required to actively monitor nor exercise any editorial control whatsoever over the content of any message or material or information created, obtained or accessible through the Services or Site.  Each registered user is solely responsible for the contents of their communications and may be held legally liable or accountable for the content of their comments or other material or information.

User Privacy

By disclosing any information to us, you agree to the terms of our Privacy Policy, including the terms for the collection, process, storage and disclosure of such personally identifiable information, including to our affiliates, partners and clients.  We will ask for your express consent, including for inclusion into our newsletters, updates, and follow ups.  For more information, please read our Privacy Policy.

Term, Termination

The term hereof shall begin on the date that comes first among: (i) first access to the Site; (ii) your first access or execution of our Services; or (iii) Escrow Kenya begins providing its Services to you.

The term hereof will automatically end on the earlier date of either your: (i) account deactivation, suspension, freezing or deletion; (ii) access termination or access revocation for our Services or the Site; (iii) Escrow Kenya’s termination of these Terms or its Services, at its sole and final discretion; (iv) the termination date indicated by Escrow Kenya to you from time to time; or (v) Escrow Kenya’s decision to make the Site or Services no longer available for use, at its sole and final discretion.

Upon expiration of these Terms or termination of your subscription to our Services, you shall thereafter immediately cease any and all use of our Services, along with any and all information and data collected therefrom.

Except as warranted by risk to the security, privacy or integrity of the Site and the Services, Escrow Kenya will undertake a good faith attempt to provide you with prior notice of the suspension or termination of the Services.  You shall remain liable for any and all escrow transactions you initiate through the Services prior to such termination, and the performance of your escrow obligations, including but not limited to: the delivery of the items and the payment of all amounts you owe prior to termination or discontinuation of your use of the Services.

 

Amendments

Escrow Kenya hereby reserves the right to update, modify, change, amend, terminate or discontinue the Site, the Terms and/or the Policy, at any time and at its sole and final discretion.  Escrow Kenya may change the Site’s functionalities and (any) applicable fees at any time.  Any changes to these Terms will be displayed in the Site, and we may notify you through the Site or by email.  Please, refer to the date shown below for the date where effective changes were last undertaken by us.  Your use of our Services after the effective date of any update– either by an account registration or simple use – thereby indicates your acceptance thereof.

Risk Acknowledgment by Users

Each user acknowledges that it is fully assuming the risks of conducting any purchase and sale transactions in connection with using the Site or Services, and that it is fully assuming the risks of liability or harm of any kind in connection with subsequent activity of any kind relating to products or services that are the subject of escrow transactions using the Site.  Such risks include, but are not limited to, misrepresentation of products and services, fraudulent schemes, unsatisfactory quality, failure to meet specifications, defective or dangerous products, unlawful products, delay or default in delivery or payment, cost miscalculations, breach of warranty, breach of contract and transportation accidents.  Such risks also include the risks that the importation, export, distribution, offer, display, purchase, sale and/or use of products or services offered or displayed on the Site may violate or may be asserted to violate third party rights, and the risk that user may incur costs of defense or other costs in connection with third parties’ assertion of third party rights, or in connection with any claims by any party that they are entitled to defense or indemnification in relation to assertions of rights, demands or claims by third party rights claimants.

Such risks also include the risks that consumers, other purchasers, end-users of products or others claiming to have suffered injuries or harms relating to products originally obtained by users of the Site as a result of purchase and sale transactions in connection with using the Site may suffer harms and/or assert claims arising from their use of such products.  Each user agrees that Escrow Kenya shall not be liable or responsible for any damages, claims, liabilities, costs, harms, inconveniences, business disruptions or expenditures of any kind that may arise a result of or in connection with any order risks.

No Warranty

Your use of our Site is at your own risk, and therefore you hereby acknowledge and agree that we supply our Site and Services “as is”, “with all faults”, and “as available”, including all content, guides, checklists, reference guides, sample filing forms, software, materials, services, functions and/or information made available thereby.  It shall be your own responsibility to ensure that any products, Services or information available through this Site meet your specific requirements.

Neither Escrow Kenya, nor its affiliates, subsidiaries, officers, employees and agents warrant that the Site will be error-free, uninterrupted, secure, or produce any particular results; or that any listing, purchase, order, amount, information, guide, sheet, checklist and/or content will be current, measured useful and/or valid, or that it will produce any particular results or that the information obtained therefrom will be reliable or accurate.  No advice or information given by Escrow Kenya or its employees, affiliates, contractors and/or agents shall create a guarantee.  No warranty or representation is made with regard to such services or products of third parties contacted on or through the Site.  In no event shall Escrow Kenya or our affiliates be held liable for any such services or products.

Neither Escrow Kenya, nor its affiliates, licensors, owners, subsidiaries, brands or advertisers are a professional advisor in any industry.  The results described in the Site are not typical and will vary based on a variety of factors outside the control of Escrow Kenya.  Your use of any information and/or materials on this Site is entirely at your own risk, for which we shall not be held liable.

Disclaimer of Damages

In no event shall Escrow Kenya be liable to you or to any third party for any direct, indirect, incidental, consequential, special, exemplary or punitive damages, including but not limited to: (i) damages for business interruption, loss of profits, loss of data, computer or software failure or inaccessibility or any other type of personal damages or losses arising out of or related to your use of or inability to use the Site, including negligence; (ii) any defect or nonconformance in goods, samples, data, information or services purchased or obtained from a User or any other third party through the Site or the ability of the Sellers to complete a sale or the ability of Buyer to complete a purchase; (iii) infringement of third party intellectual property rights; (iv) claims or demands that any collection, importation, export, distribution, offer, display, purchase, sale and/or use of products or Services offered or displayed on the Site may violate or may be asserted to violate third party rights; and/or (v) claims by any party that they are entitled to defense or indemnification in relation to assertions of rights, demands or claims by third party rights claimants.

The aforementioned limitation of damage liability, shall be in force regardless of however caused or however awarded, regardless of the theory of liability applied (including contract, warranty or tort), whether active, passive or imputed, including negligence, strict liability, product liability or other legal theory, regardless of the product or service offered by action or inaction by merchant; and even if you have been advised of such possibility.

To the fullest extent allowable under applicable law, Escrow Kenya hereby expressly disclaims any and all representations and warranties of any kind with respect to the Site, including any and all liability arising out of or related to any purported facts or information and description of any information, products and/or Services displayed on our Site, including all warranties of any kind, whether express or implied; including, without limitation, warranties of title, merchantability, accuracy, completeness, condition, quality, durability, performance, accuracy, reliability, suitability, fitness for a particular purpose or non-infringement.

Limitation of Liability

In recognition of the relative risks and benefits of the Services provided via the Site, to both Escrow Kenya and the customer, the risks have been allocated such that you, our customer, hereby acknowledges and agrees, to the fullest extent permitted by law, to limit the maximum cumulative liability of Escrow Kenya to you for any and all claims, losses, costs, damages of any nature, arising out of or related to your use of the Site and any Services thereon or whatsoever claims expenses from any cause or causes (including reasonable attorneys’ fees and costs and expert witness fees and costs), to the amount that is or results greater among: (i) the amount paid, if any, by you to us in connection with the Site and any Services during the twelve (12) months prior to the action giving rise to such liability; or (ii) KES 5,000 (five thousand Kenya Shillings).

The preceding sentence shall not preclude the requirement by the user to prove actual damages.  All claims arising from the use of the Site or Services must be filed within one (1) year from the date the cause of action arose.

Certain jurisdictions do not allow the exclusion or limitation of implied warranties or damages.  Henceforth, if you fall under rule of such jurisdictions, part or all of the disclaimers or liability limitations mentioned herein may not apply to you, and you might have additional rights not limited by law.

 

Indemnification

You agree to indemnify, defend and hold Escrow Kenya and its independent contractors, affiliates, subsidiaries, officers, employees and agents, and their respective employees, agents and representatives, harmless from and against any and all actual or threatened proceedings (at law or in equity), suits, actions, damages, claims, deficiencies, payments, settlements, fines, judgments, costs, liabilities, losses and expenses (including, but not limited to, reasonable expert and attorney fees and disbursements) arising out of, caused or resulting from: (i) your conduct and any user content; (ii) your violation of these Terms or the Policy; (iii) your violation of the rights of any third-party; and/or (iv) the rules contained on the Site or the Escrow Kenya Escrow Addendum, including, without limitation, payment of any fees, service, Escrow Service Fees and any charge-backs from a financial organization or payment processing entity.  You agree to pay all costs and expenses (including reasonable attorneys' fees) that Escrow Kenya may incur in order to collect any amounts you owe under these Terms and/or the Escrow Kenya Escrow Addendum or the Additional Agreement.

Generals

Advertisements and Promotions.  From time to time, we may place ads and promotions from third party sources in the Site.  Accordingly, your participation or undertakings in promotions of third parties other than Escrow Kenya, and any terms, conditions, warranties or representations associated with such undertakings, are solely between you and such third party.  Escrow Kenya is not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of third party advertisers on the Site.

Assignment.  You may not assign or transfer these Terms by operation of law or otherwise without our prior written consent.  Notwithstanding the foregoing, we may assign any rights or obligations hereunder to any current or future affiliated company and to any successor in interest.  Any rights not expressly granted herein are thereby reserved.  These terms will inure to the benefit of any successors of the parties.  We reserve the right, at any time, to transfer some or all of Escrow Kenya’s assets in connection with a merger, acquisition, reorganization or sale of assets or in the event of bankruptcy.

Content Moderation.  Escrow Kenya hereby reserves the right, at its sole and final discretion, to review any and all content delivered into the Site and use moderators and/or any monitoring technology to flag and remove any user generated content or other content deemed inappropriate.

Force Majeure.  Escrow Kenya is not liable for any failure of performance on its obligations as set forth herein, where such failure arises from any cause beyond Escrow Kenya’s reasonable control, including but not limiting to, electronic, power, mechanic or Internet failure, from acts of nature, forces or causes beyond our control, including without limitation, Internet failures, computer, telecommunications or any other equipment failures, electrical power failures, strikes, labor disputes, riots, insurrections, civil disturbances, shortages of labor or materials, fires, flood, storms, explosions, acts of God, war, governmental actions, orders of domestic or foreign courts or tribunals or non-performance of third parties.

Headings.  The titles of paragraphs in these Terms are shown only for ease of reference and will not affect any interpretation therefrom.

No Waiver.  Failure by Escrow Kenya to enforce any rights hereunder shall not be construed as a waiver of any rights with respect to the subject matter hereof.

No Relationship.  You and Escrow Kenya are independent contractors, and no agency, partnership, joint venture, employee-employer, or franchiser-franchisee relationship is intended or created by these Terms.

Notices.  All legal notices or demands to or upon Escrow Kenya shall be made in writing and sent to Escrow Kenya personally, by courier, certified mail, or facsimile, and shall be delivered to any address the parties may provide.  For communications by e-mail, the date of receipt will be the one in which confirmation receipt notice is obtained.  You agree that all agreements, notices, demands, disclosures and other communications that Escrow Kenya sends to you electronically satisfy the legal requirement that such communication should be in writing.

No Embargo.  You hereby represent and warrant that: (i) you are not located in a country that is subject to a U.S.A. government’s embargo, or that has been designated by the U.S.A. government as a “terrorist supporting” country; and (ii) you are not listed on any U.S.A. government list of prohibited or restricted parties or activities.

Severability.  If any provision of these Terms is held unenforceable, then such provision will be modified to reflect the parties' intention. All remaining provisions of these Terms will remain in full force and effect. The failure of either party to exercise in any respect any right provided for herein will not be deemed a waiver of any further rights hereunder.

Equitable remedies:  You hereby acknowledge and agree that if these Terms are not specifically enforced, Escrow Kenya will be irreparably damaged, and therefore you agree that Escrow Kenya shall be entitled, without bond, other security or proof of damages, to appropriate equitable remedies with respect to your breach of any of these Terms, in addition to any other available remedies.

Applicable Law, Dispute Resolution

Applicable Law. Your use of this Site and any cause of action, claim and/or dispute that might arise between the parties hereon, shall be subject to the laws of the Republic of Kenya, without regard to conflict of law principles.

Arbitration Procedure.  In the event of any dispute or difference between the parties in relation to or arising from these Terms, including but not limited to any and all escrow services and the formation, performance, interpretation, nullification, termination or invalidation thereof, the matter shall be referred to arbitration procedure.

Any arbitration shall be managed by the Nairobi Centre for International Arbitration (NCIA) under the Nairobi Centre for International Arbitration Act No. 26 of 2013.  The arbitration shall be conducted in the English language in the City of Nairobi, Kenya, in accordance with the provisions set forth in the rules of the NCIA.  The arbitral tribunal shall comprise of one (1) arbitrator, appointed by the NCIA, who shall preside the arbitral tribunal.  The arbitrator’s decision will follow the terms of this Agreement and will be final and binding.

The arbitrator will have authority to award temporary, interim or permanent injunctive relief or relief providing for specific performance of this Agreement, but only to the extent necessary to provide relief warranted by the individual claim before the arbitrator.  The award rendered by the arbitrator may be confirmed and enforced in any court having jurisdiction thereof.

The arbitration must be concluded, and an award issued, no later than one hundred and twenty (120 days) following the filing of the demand for arbitration, unless all parties to the arbitration proceeding agree in writing to an extension.

If you bring a dispute in a manner other than in accordance with this section, you agree that we may move to have it dismissed, and that you will be responsible for our reasonable attorney’s fees, court costs, and disbursements in doing so.  You agree that the unsuccessful party in any dispute arising from or relating to these Terms will be responsible for the reimbursement of the successful party’s reasonable attorney’s fees, court costs, and disbursements.

Contact

For any inquires or complaints regarding the Service or Site, please contact us as by email to support@escrowkenya.com and by telephone to +254 703 300 000.

 

Date of last effective update is May 14, 2020.

 

Introduction

This Escrow Services Addendum (the “Agreement”) constitutes a legally binding agreement between you and Escrow Solutions Kenya Limited (hereinafter Escrow Solutions Kenya Limited shall be referred to as “Escrow Kenya”, and also ‘us’, ‘its’, ‘ours’ and/or ‘we’).  This Agreement shall be supplemented by Escrow Kenya’s Terms of Use and Service (the “Terms”), made for the website located at www.escrowkenya.com (the “Site”), including its sub-domains and mobile optimized version.  Escrow Kenya does not provide escrow services to the general public, only to its approved, registered users.

This Agreement will govern your use and participation in the transaction management services (the “Escrow Services”) provided by Escrow Kenya solely to its registered users and not for the general public.

The Escrow Services are intended to facilitate the completion of underlying transactions by and between our registered users.  Accordingly, the Escrow Services shall be limited to release, hold and/or receive payment for products and services engaged among our registered users (Seller/Buyer), and to pay any and all appertaining fees to Escrow Kenya including, but not limited to, service, escrow payment processing and administration fees.

As used herein, the terms ‘user’, ‘you’, ‘your’, and/or ‘yourself’ shall refer to you, a registered user/Seller/Buyer of our Escrow Services.  To prevent any breach of the Agreement hereof and to enforce any available remedy, we reserve the right to undertake any technical, legal or administrative measures that we deem necessary, at any time, without prior notice and in our sole discretion.

If you are using our services on behalf of an organization, you are agreeing to this Agreement for that organization and promising that you have the authority to bind that organization to these terms.  In that case, “you” and “your” will refer to that organization.

If you do not agree to this Agreement, you shall not be entitled to use our “Escrow Services”.  This Agreement shall be supplemented by our ancillary terms, guidelines and other documents made available by us from time to time, incorporated herein by reference.

To the extent of a conflict between the provisions of this version of the Agreement, the Terms and/or any other executed version, the order of precedence shall be: (i) the Terms; (ii) the terms and conditions of a specific mutually agreed and executed version of this Agreement; and (iii) this version of the Agreement.

Definitions

“Administrative Fees” shall mean the amounts charged by Escrow Kenya for unfulfilled or delayed obligations on behalf of either Party, to be indicated from time to time.

“Broker” shall mean a registered user who acts as an intermediary during the purchase of goods by another registered user (a Buyer) from another registered user (a Seller), having an account with Escrow Kenya, and for which payment for sales commissions for the underlying transactions will be credited via the Escrowed Funds.

“Buyer” shall mean a registered user who purchases goods  from another registered user (a Seller), having an account with Escrow Kenya, and from which payment for the underlying transactions and related fees will be obtained via the Escrowed Funds.

“Contract” shall mean the underlying transaction executed by between Buyer and Seller for the sale and purchase of Goods via Escrow Kenya.  Contracts shall not entail any Goods or activities that breach the Terms, this Agreement or that otherwise involve any illegal materials or purpose, as determined by Escrow Kenya from time to time.

“Escrow Services” shall mean the transaction management services provided by Escrow Kenya.

“Escrowed Funds” shall mean the amounts to be remitted by Buyer to Escrow Kenya and deposited in the Holding Account via a payment processing method.

“Goods” shall mean the products transacted among the parties and which are not prohibited under this Terms.

“Holding Account” shall mean the dedicated, non-interest-bearing account managed by Escrow Kenya at its designated financial institution.

“Other Payment” shall mean any further payment on behalf of Buyer, to be reviewed by Escrow Kenya prior to authorization for use with the Escrow Services.  Such review does NOT confirm or guarantee the availability of Escrowed Funds.

“Parties” shall mean Buyer and Seller.

“Processing Fee” shall mean the fees charged by Escrow Kenya in order to receive the Escrowed Funds from domestic/International bank accounts into the Holding Account, and also for wiring the Escrowed Funds amount to Seller’s bank account.  The Processing Fee may be paid through Escrow Kenya’s payment processing systems or debited pay-along from the Escrowed Funds.

“Seller” shall mean a registered user who sells goods to another registered user (a Buyer), having an account with Escrow Kenya and for which payment for the underlying transactions and related fees will be credited via the Escrowed Funds.

“Service Fee(s)” shall mean the fees charged by Escrow Kenya for the Escrow Services.  The Service Fee will be paid by Buyer to Escrow Kenya through its payment processing systems or debited pay-along from the Escrowed Funds where paid by the seller or by the broker.  As of the last effective date of update, the Service Fees include, but will not be limited to (subject to change):

Standard Escrow Fee

i) Fee for transactions in Kenya Shillings

General Merchandise & Services:- 3% of the purchase price, with a minimum fee of KES 200 and a maximum fee of KES 15,000.

Motor Vehicles:- 1.5% of the purchase price, with a minimum fee of KES 1,500 and a maximum fee of  KES 15,000.

ii) Fee for transactions in US Dollars

General Merchandise & Services:- 3% of the purchase price, with a minimum fee of $2.50 USD and a maximum fee of $155 USD.

Motor Vehicles:- 1.5% of the purchase price, with a minimum fee of $15.50 USD and a maximum fee of  $155 USD.

Discounted Escrow Fee:

Charged to the buyer where an order is voluntarily canceled by the seller. Calculated as 0.5% of the price, with a minimum fee of KES 200  for transactions in Kenya Shillings or $2.50 USD for transactions in US Dollars. 

Dispute Administration Fee:

Charged to the buyer where an order goes through dispute resolution and the dispute is closed in the buyer's favor. It is calculated as the standard escrow fee, charged to the buyer in full, regardless of the initial fee-sharing agreements between the buyer and the seller.

Escrow Withdrawal Fee:

KES 25 for transactions in Kenya Shillings or $0.50 USD for transactions in US Dollars.

Users outside Kenya will bear the SWIFT transfer fee which varies depending on the bank and amount.