These Terms and Conditions together with the Insertion Order form the agreement between the Advertiser and Cheki Kenya Limited in respect of Advertising Services.
If these Terms and Conditions and the Insertion Order are inconsistent, then the terms of the Insertion Order will prevail to the extent of the inconsistency.
If Cheki Kenya Limited supplies Advertising Services which are not specified in an Insertion Order these Terms and Conditions still apply.
WORDS AND PHRASES
In this Agreement:
“AD” means an advertisement on one or more Cheki Websites;
“ADVERTISER” means the person who signs the Insertion Order;
“ADVERTISING MATERIAL” means all creative in respect of an Ad including text, graphics, icons, images, contact details, and URL information;
“ADVERTISING SERVICES" means the advertising services described in the Insertion Order;
“AGREEMENT” means these Terms and Conditions and an Insertion Order signed by the Advertiser and accepted by Cheki Kenya Limited;
“BUSINESS DAY” means any day excluding Saturday or Sunday or a bank or public holiday in Nairobi, Kenya;
“CHEKI” means Cheki Kenya Limited;
“CHEKI WEBSITE” means any website owned or operated by Cheki, which may include but are not limited to cheki.co.ke, cheki.co.tz, cheki.co.ug, cheki.com.ng and cheki.rw;
“DEFAULT EVENT” means the events listed in clause 14.2;
“FORCE MAJEURE” means an event or circumstance beyond the reasonable control of a Party (without fault or negligence of that Party);
“FEE” means the fees and charges for Advertising Services set out in the Insertion Order;
“IMPRESSION” means an appearance of an Ad on a Cheki Website resulting from a person accessing that website;
“INSERTION ORDER” means an order for Advertising Services in the form required by Cheki from time to time;
is unable to pay its debts as and when they fall due or becomes insolvent or makes an assignment, arrangement or composition for the benefit of its creditors or discontinues or ceases to carry on business in Kenya;
has a receiver or receiver manager appointed to the whole or any parts of its assets, or if a mortgage in possession is appointed in respect of any of its assets, or if a resolution is passed for its winding up; or
is presented with an application for its winding up.
“INTELLECTUAL PROPERTY” means all intellectual property including all present and future registered and unregistered copyright, trade marks, designs, patent, semi-conductor or circuit layout, trade secrets, know how, confidential information, inventions and discoveries;
“INTELLECTUAL PROPERTY RIGHTS” means any rights in Intellectual Property;
“PUBLICATION DATE” means the start date for the Ad described in the Insertion order;
a reference to any party or other person includes that person's successors and permitted assigns;
a reference to this or any other document includes a reference to that document as amended, supplemented, novated or replaced from time to time;
a reference to a person includes a natural person, corporation, partnership, trust, estate, joint venture, sole partnership, government or governmental subdivision or agency, association, co-operative and any other legal or commercial entity or undertaking;
where a party comprises two or more persons any agreement or obligation to be performed or observed by that party binds those persons jointly and each of them severally, and a reference to that party is deemed to include a reference to any one or more of those persons;
the words “include” and “including” mean “including but not limited to”; and
the headings in this agreement do not affect its interpretation.
PLACING AN ADVERTISEMENT
In order to place an Ad the Advertiser must:
submit an Insertion Order ; and
subject to the terms of the Insertion Order, provide all Advertising Material to Cheki.
If Cheki is to create the Ad, separate terms and conditions will apply to the creation of the Ad.
Cheki is not bound to publish an Ad until the Insertion Order is accepted by Cheki. An Insertion Order will be deemed not accepted if the Ad is not published.
WHAT THE ADVERTISER WILL DO
The Advertiser will:
provide all required Advertising Material to Cheki not less than 5 days prior to the Publication Date in the format prescribed by Cheki from time to time;
comply with Cheki advertising policy;
only place ads for vehicles which the Advertiser is legally entitled to sell; and
obtain permission from the owner of Intellectual Property Rights in any third party material included in the Advertising Material.
Comply with the Usage Policy and Terms and Conditions of the Cheki website (s)
WHAT THE ADVERTISER WILL NOT DO
The Advertiser represents and warrants that it will not:
submit Advertising Material which;
does not comply with all relevant laws
infringes the Intellectual Property Rights of any person;
is illegal, fraudulent, obscene, offensive, defamatory, or in any way unsuitable for people under the age of eighteen (18) years;
is misleading or deceptive or likely to mislead or deceive;
comprises anything which may adversely reflect on Cheki or any website on which the Advertising Material is published or suggests any endorsement by or affiliation with Cheki or any website on which the Ad is published;
disclose to any person Cheki rate card or this Agreement; or
resell, assign or transfer any rights under this Agreement to any person
insert any tag, code, cookie or other data tracking or collection device for the purpose of re-targeting Cheki Website users on a third party site;
link, pool, correlate, resell, transfer, disclose or make available any advertising statistics the result of displaying the creative on the Cheki Website for any purpose without Cheki’s express written permission;
insert links to an external website within the details of an Ad without Cheki's express written approval. Such approval is subject to specific terms and conditions;
insert a link from the Cheki Website to any external websites or externally hosted application forms without Cheki's express written approval. Such approval is subject to specific terms and conditions.
advertise more than one vehicle per Ad on the Cheki Website;
use the Cheki Website to post any pyramid scheme or fraudulent service or false or misleading Ad;
ask or require any Ad respondent to pay a processing or administrative fee, charge, cost or any money whatsoever to apply for any vehicle or other item or service advertised on the Cheki Website, whether such fee, charge, cost or money is asked or required of the respondent in the Ad itself or in any communication with the respondent that takes place as a result of the Ad; or
use any feature of the Cheki Website to send unsolicited commercial email, whether individually or as a group. Response management tools may only be used to communicate with Ad respondents about the specific vehicle Ad to which they have responded.
PUBLICATION OF ADS
If accepted, Cheki will use its best endeavors to publish the Advertiser’s Ad as set out in the Insertion Order on the terms and conditions of this Agreement.
The Advertiser acknowledges and agrees that
Cheki’s ability to provide the Advertising Services is dependent upon the Advertiser and third parties performing their obligations. If Cheki is unable to provide the Advertising Services as a direct or indirect result of any act or omission of the Advertiser or any third party or Force Majeure the Advertiser will have no remedy against Cheki in relation to any delay or any failure to provide the Advertising Services.
while every endeavor will be made to publish the Advertiser’s Ad as set out in the Insertion Order, Cheki will not ( other than as set out in clause 12) be liable for any error, omission or failure to publish the Ad in the form ordered, including acts or omissions of Cheki, its employees or agents.
Cheki may without notice or liability, refuse to publish, withdraw or terminate the publication of an Ad if:
the Advertiser is in breach this Agreement; or
Cheki determines, in its absolute discretion, to refuse to publish, withdraw, amend or terminate the publication of an Ad.
Subject to the terms of the Insertion Order, Cheki has absolute editorial control in relation to the publication of the Advertiser’s Ad, including, but not limited to the format, content, position and placement of the Ad.
If an Advertiser advertises more than one vehicle in the one Ad, then Cheki reserves the right to enforce Clause 5 (h) by posting a separate and distinct advertisement for each vehicle and charging the Advertiser an additional Fee for each extra vehicle advertised in the original Ad or Insertion Order.
The Advertiser may, after submitting an Insertion Order but prior to the Publication Date, request in writing changes or variations to the Insertion Order (“Change Request”).
Cheki will, as soon as practicable, advise the Advertiser:
if it accepts the Change Request;
any variation to the Fees;
any changes to the terms and conditions of this Agreement which may be required to implement the Change Request; and
any impact which implementation of the Change Request is expected to have on the ability of Cheki to perform its obligations in accordance with the Insertion Order.
Cheki will have no obligation to proceed with a Change Request until such time as both parties agree in writing and the Advertiser has paid any additional Fee.
Subject to the Insertion Order, the Advertiser acknowledges and agrees that Cheki makes no representation or warranty with respect to the continuous accessibility or availability of the Cheki Website or the number of Impressions, click throughs or like metrics.
Cheki provides no warranty to Advertisers that services generally available through the Cheki Website will be uninterrupted or error free. Cheki agrees to use its reasonable endeavours to ensure that any disruptions to or a denial of access to the Cheki Website will be remedied as quickly as possible.
Cheki cannot and does not guarantee or warrant to the Advertiser that files available for downloading through the Cheki Website or delivered via electronic mail through the Cheki Website will be free of infection or viruses, worms, Trojan horses or other code that manifest contaminating or destructive properties. The Advertiser is responsible for implementing sufficient procedures and checkpoints to satisfy their particular requirements for accuracy of data input and output, and for maintaining a means external to the Cheki Website for the reconstruction of any lost data.
CANCELLATION OF ADVERTISEMENTS
The Advertiser may cancel an Ad and terminate the Agreement without cause, on written notice to Cheki, not later than 30 days prior to the Publication Date. Cheki reserves the right to charge the Advertiser in accordance with the Agreement where the Agreement is terminated with less than 30 days written notice.
HOW AND WHEN CHEKI FEES ARE PAYABLE
Any applicable Fees will be set out in the Insertion Order and the Advertiser agrees to pay such Fees in accordance with this clause 10 as set out in the Insertion Order.
invoiced in respect of the month the Insertion Order is received; and
payable with 14 days of invoice..
The Advertiser acknowledges and agrees that no fee or other payment will be paid by Cheki to the Advertiser for placing an Ad.
If the Advertiser fails to pay any Fees by the required time, Cheki may require that the Advertiser pay:-
interest to Cheki, on the daily amount outstanding, at a rate of 12.5% per annum until all monies due are paid; and
any expense (including legal fees) incurred by Cheki in recovering the outstanding Fees from the Advertiser.
Cheki also reserves the right suspend, disable, cancel or terminate the Advertiser’s account with Cheki without notice and refuse to supply further services to the Advertiser or entities associated with the Advertiser..
LIMITATION OF LIABILITY
Other than as set out in this Agreement, and to the extent permitted by law, all implied and express warranties in respect of the Advertising Services are hereby excluded.
Subject to clause 11.3, Cheki’s liability to the Advertiser under this Agreement is limited, in aggregate in respect of all claims or causes of action, to the sum of Fees paid or payable in respect of the Advertising Services to which the claim or cause of action relates.
In no event will Cheki be liable to the Advertiser for loss of use, production, profit, revenue, business, data, contract or anticipated savings or for delay or for any financing costs or increase in operating costs or any economic loss for any indirect or consequential loss or damage.
The Advertiser acknowledges and agrees that:
the Cheki Website functions merely as a medium through which individuals seek to purchase or sell vehicles;
Cheki does not vet nor is it responsible for vetting Ad respondents; and
Cheki is not liable in anyway whatsoever for any loss, costs, damages or loss of profits sustained as a consequence of the Advertiser engaging in any transaction with any person sourced through the Cheki Website
Any amount claimed by the Advertiser pursuant to clause 11.2 will be reduced proportionally to the extent that any loss, damage, liability, claim or expense is directly or indirectly caused, or contributed to, by the Advertiser.
SUSPENSION OF ADVERTISING SERVICES
Cheki may suspend the Advertising Services in the event of a Default Event by the Advertiser.
TERMINATION OF AGREEMENT
Cheki may terminate this Agreement on 30 days written notice to the Advertiser.
A Party may terminate this Agreement by written notice to the other Party ( the “Defaulting Party”) if:-
the Defaulting Party breaches any provision of this Agreement that is not capable of remedy;
the Defaulting Party breaches any provision of this Agreement that is capable of remedy and fails to remedy such breach within 14 days written notice;
the Defaulting Party is Insolvent.
On the termination or expiry of this Agreement:
Cheki will immediately cease to provide the Advertising Services;
the Advertiser must pay all outstanding Fees to Cheki;
Cheki will return all Advertising Material to the Advertiser; and
clauses 11, 13 and 14 will survive.
Termination of this Agreement will not prejudice any accrued rights or liabilities of a Party.
The Advertiser agrees to fully indemnify and hold Cheki harmless against any expenses, costs, loss (including consequential loss) or damage that Cheki may suffer or incur as a result of or in connection with:
a breach of this Agreement by the Advertiser;
any willful, unlawful or negligent act or omission by the Advertiser;
the use of the Cheki Website by the Advertiser; and
the publication by Cheki or any other person of the Advertisers Ad.
OWNERSHIP AND LICENCE
Cheki acknowledges that the Advertising Materials are owned by or licensed to the Advertiser.
The Advertiser grants Cheki a non exclusive, royalty free , worldwide licence to use, copy, perform, reproduce, display, transmit and distribute the Advertising Material for the purposes of performing its obligations pursuant to this Agreement.
The Advertisers must not release to the public any news release, advertising material, promotional material or any other form of publicity relating to Cheki without Cheki's prior written approval.
Cheki may, in its absolute discretion, modify or amend these Terms and Conditions without notice to the Advertiser and such modification or amendment will be binding on the Advertiser at the expiration of the notice. The Advertiser must thereafter comply with the amended Terms and Conditions or terminate this Agreement as set out herein.
OTHER LEGAL MATTERS
Unless otherwise agreed in writing, Cheki statistics shall be conclusive for the purpose of calculating impressions, usage statistics and like metrics, in respect of the Advertising Services.
These Terms and Conditions and the Insertion Order set out the entire agreement between Cheki and the Advertiser in respect of the Advertising Services and supersedes all prior arrangements, undertakings, representation and warranties in respect of the Advertising Services including any terms and conditions submitted by the Advertiser and not set out in this Agreement.
Each Party agrees to do all things that may be necessary or desirable to give full effect to every part of this Agreement if asked in writing by the other Party to do so.
The Advertiser will not assign, transfer or otherwise dispose of, in whole or in part, his/her/its rights or obligations under this Agreement without the prior written consent of Cheki.
Cheki may subcontract the performance of this Agreement or any part thereof.
If any provision of this Agreement is invalid, illegal or unenforceable in any respect the validity, legality and enforceability of the remaining provisions will not be affected and such invalid, illegal or unenforceable provision is to be severed from the relevant agreement.
Failure by any Party to exercise or delay in exercising any right, power or remedy under this Agreement does not prevent its exercise.
This Agreement is governed by and construed in accordance with the laws of the Kenya and the Parties irrevocably submit to the exclusive jurisdiction of the Kenyan courts.