Welcome to OnSoko! By
signing up for a OnSoko Account (as defined in Section 1) or by using any OnSoko
Services (as defined below), you are agreeing to be bound by the following
terms and conditions (the “Terms
of Service”).
As used in these Terms
of Service, “we”, “us”, “our” and “OnSoko” means the applicable OnSoko
Contracting Party (as defined in Section 13 below), and “you” means the OnSoko User
(if registering for or using a OnSoko Service as an individual), or the business
employing the OnSoko User (if registering for or using a OnSoko Service as a
business) and any of its affiliates.
OnSoko provides a
complete commerce platform that enables merchants to unify their commerce
activities. Among other features, this platform includes a range of tools for
merchants to build and customize online stores, sell in multiple places
(including web, mobile, social media, online marketplaces and other online
locations (“Online Services”) and in person (“POS Services”)),
manage products, inventory, payments, fulfillment, shipping, business
operations, marketing and advertising, and engage with existing and potential
customers. Any such service or services offered by OnSoko are referred to in
these Terms of Services as the “Service(s)”.
Any new features or tools which are added to the current Services will also be
subject to the Terms of Service. You can review the current version of the
Terms of Service at any time at https://OnSoko.com/legal/terms.
You must read, agree
with and accept all of the terms and conditions contained or expressly
referenced in these Terms of Service, including OnSoko’s Acceptable Use Policy (“AUP”) and Privacy Policy,
and, if applicable, the Supplementary Terms of Service for E.U. Merchants ("EU Terms"), the OnSoko API License and Terms of Use (“API Terms”)
and the OnSoko Data Processing Addendum (“DPA”) before you may sign
up for a OnSoko Account or use any OnSoko Service. Additionally, if you offer
goods or services in relation to COVID-19, you must read, acknowledge and agree
to the Rules of Engagement for Sale of COVID-19 Related Products.
Everyday language summaries are
provided for convenience only and appear in bold near each section, but these
summaries are not legally binding. Please read the Terms of Service, including
any document referred to in these Terms of Service, for the complete picture of
your legal requirements. By using OnSoko or any OnSoko services, you are
agreeing to these terms. Be sure to occasionally check back for updates.
1. Account Terms
Which
means
You are responsible for your
Account, the Materials you upload to the OnSoko Service and the operation of
your OnSoko Store. If you violate OnSoko’s terms of service we may cancel your
service access. If we need to reach you, we will communicate via the Primary
Email Address.
<!--[if !supportLists]-->1.
<!--[endif]-->To access and use the
Services, you must register for a OnSoko account (“Account”). To complete your
Account registration, you must provide us with your full legal name, business
address, phone number, a valid email address, and any other information
indicated as required. OnSoko may reject your application for an Account, or
cancel an existing Account, for any reason, at our sole discretion.
<!--[if !supportLists]-->2.
<!--[endif]-->You must be the older
of: (i) 18 years, or (ii) at least the age of majority in the jurisdiction
where you reside and from which you use the Services to open an Account.
<!--[if !supportLists]-->3.
<!--[endif]-->You confirm that you are
receiving any Services provided by OnSoko for the purposes of carrying on a
business activity and not for any personal, household or family purpose.
<!--[if !supportLists]-->4.
<!--[endif]-->You acknowledge that OnSoko
will use the email address you provide on opening an Account or as updated by
you from time to time as the primary method for communication with you (“Primary Email Address”). You must monitor the Primary Email Address you provide to OnSoko
and your Primary Email Address must be capable of both sending and receiving
messages. Your email communications with OnSoko can only be authenticated if
they come from your Primary Email Address.
<!--[if !supportLists]-->5.
<!--[endif]-->You are responsible for
keeping your password secure. OnSoko cannot and will not be liable for any loss
or damage from your failure to maintain the security of your Account and
password. We may request additional security measures at any time and reserve
the right to adjust these requirements at our discretion.
<!--[if !supportLists]-->6.
<!--[endif]-->Technical support in
respect of the Services is only provided to OnSoko Users. Questions about the
Terms of Service should be sent to OnSoko Support.
<!--[if !supportLists]-->7.
<!--[endif]-->You agree not to
reproduce, duplicate, copy, sell, resell or exploit any portion of the Service,
use of the Services, or access to the Services without the express written
permission by OnSoko.
<!--[if !supportLists]-->8.
<!--[endif]-->You agree not to work
around, bypass, or circumvent any of the technical limitations of the Services,
including to process orders outside OnSoko’s Checkout, use any tool to enable
features or functionalities that are otherwise disabled in the Services, or
decompile, disassemble or otherwise reverse engineer the Services.
<!--[if !supportLists]-->9.
<!--[endif]-->You agree not to access
the Services or monitor any material or information from the Services using any
robot, spider, scraper, or other automated means.
<!--[if !supportLists]-->10.
<!--[endif]-->You understand that your
Materials may be transferred unencrypted and involve (a) transmissions over
various networks; and (b) changes to conform and adapt to technical
requirements of connecting networks or devices. “Materials”
means Your Trademarks, copyright content, any products or services you sell
through the Services (including description and price), and any photos, images,
videos, graphics, written content, audio files, code, information, or other
data provided or made available by you or your affiliates to OnSoko or its
affiliates.
2. Account Activation
Which means
Only
one person can be the “Store Owner”, usually the person signing up for the OnSoko
Service. The Store Owner is responsible for the Account, is bound by these
Terms of Service and is responsible for the actions of others accessing the
Account. If you sign up on behalf of your employer, your employer is the Store
Owner responsible for your Account.
We
automatically create certain accounts for you to accept payments. You are
responsible for activating and deactivating these accounts and complying with
their terms, which may be with various third parties, including but not limited
to PayPal, Apple Pay, Google Payment and Shop Pay. Any domain you purchase
through us will automatically renew unless you opt out.
2.1
Store Owner
<!--[if !supportLists]-->1.
<!--[endif]-->Subject to Section
2.1.2, the person signing up for the Service by opening an Account will be the
contracting party (“Store Owner ”) for the purposes of our Terms of
Service and will be the person who is authorized to use any corresponding
Account we may provide to the Store Owner in connection with the Service. You
are responsible for ensuring that the name of the Store Owner (including the
legal name of the company that owns the Store, if applicable) is clearly
visible on the Store’s website.
<!--[if !supportLists]-->2.
<!--[endif]-->If you are signing up
for the Services on behalf of your employer, your employer will be the Store
Owner. If you are signing up for the Services on behalf of your employer, then
you must use your employer-issued email address and you represent and warrant
that you have the authority to bind your employer to our Terms of Service.
<!--[if !supportLists]-->3.
<!--[endif]-->Your OnSoko Store can
only be associated with one Store Owner. A Store Owner may have multiple OnSoko
Stores. You agree to use OnSoko Checkout for your store. “Store” means the online store
(whether hosted by OnSoko or on a third party website), or any storefront built
on top of the Storefront API) or physical retail location(s) associated with
the Account.
2.2 Staff
Accounts
<!--[if !supportLists]-->1.
<!--[endif]-->Based on your OnSoko
pricing plan, you can create one or more staff accounts (“Staff Accounts”)
allowing other people to access the Account. Each Staff Account must include a
full legal name and a valid email account. With Staff Accounts, the Store Owner
can set permissions and let other people work in their Account while
determining the level of access by Staff Accounts to specific business
information (for example, you can limit Staff Account access to sales
information on the Reports page or prevent Staff Accounts from changing general
store settings).
<!--[if !supportLists]-->2.
<!--[endif]-->The Store Owner is
responsible for: (a) ensuring its employees, agents and subcontractors,
including via Staff Accounts, comply with these Terms of Service; and (b) any
breach of these Terms of Service by the Store Owner’s employees, agents or
subcontractors. The Store Owner acknowledges and agrees that Store Owner will
be responsible for the performance of all of its obligations under the
Agreement, regardless of whether it sublicenses or subcontracts any such
obligations to any third party, including but not limited to any affiliates or
subsidiaries of Store Owner.
<!--[if !supportLists]-->3.
<!--[endif]-->The Store Owner and the
users under Staff Accounts are each referred to as a “OnSoko User”.
2.3
PayPal Express Checkout and OnSoko Payments Accounts
<!--[if !supportLists]-->1.
<!--[endif]-->Upon completion of sign
up for the Service, OnSoko will create a PayPal Express Checkout account on
your behalf, using your Primary Email Address. Depending on your location, OnSoko
may also create a OnSoko Payments account on your behalf.
<!--[if !supportLists]-->2.
<!--[endif]-->You acknowledge that
PayPal Express Checkout and/or OnSoko Payments will be your default payments
gateway(s) and that it is your sole responsibility as the Store Owner to
activate and maintain these accounts. If you do not wish to keep either of the
payment accounts active, it is your responsibility to deactivate them. For the
avoidance of doubt, PayPal Express Checkout is a Third Party Service, as
defined in Section 9.7.1 of these Terms of Service.
2.4
Shop Pay
<!--[if !supportLists]-->1.
<!--[endif]-->Upon completion of sign
up for the Service, if you have been enrolled in OnSoko Payments, Shop Pay will
automatically appear as an accelerated checkout option on your checkout page.
If you do not wish for Shop Pay to appear on your Store, it is your
responsibility to remove it by managing your accelerated checkouts in your OnSoko
administrative console.
<!--[if !supportLists]-->2.
<!--[endif]-->If your customers have
enabled Shop Pay, customers may purchase goods and services from your OnSoko
Store using Shop Pay.
<!--[if !supportLists]-->3.
<!--[endif]-->By using Shop Pay on
your OnSoko Store, you agree to be bound by the Shop Pay Merchant Terms of Service, as they may be
amended by OnSoko from time to time. If OnSoko amends the Shop Pay Merchant
Terms of Service, amendments are effective as of the date of posting. Your
continued use of Shop Pay on your Store after the amended Shop Pay Merchant
Terms of Service are posted constitutes your agreement to, and acceptance of,
the amended Shop Pay Merchant Terms of Service. If you do not agree to any
changes to the Shop Pay Merchant Terms of Service, it is your responsibility to
remove Shop Pay by managing your accelerated checkouts in your OnSoko
administrative console.
2.5
Apple Pay for Safari Account
<!--[if !supportLists]-->1.
<!--[endif]-->Upon completion of sign
up for the Service, OnSoko will create an Apple Pay for Safari (“Apple Pay”)
account on your behalf, using the URL(s) and business name associated with your
Account. Depending on your location, OnSoko may activate your Apple Pay account
on your behalf, otherwise you will be required to activate your Apple Pay
account within your Account admin. If you do not wish to keep your Apple Pay
account active, it is your responsibility to deactivate it. For the avoidance
of doubt, Apple Pay is a Third Party Service, as defined in Section 9.7.1 of these
Terms of Service.
<!--[if !supportLists]-->2.
<!--[endif]-->If you use an Apple Pay
supported payment gateway and your customers have enabled Apple Pay on their
device, customers may purchase goods and services from your Store using Apple
Pay.
<!--[if !supportLists]-->3.
<!--[endif]-->By using Apple Pay on
your Store, you are agreeing to be bound by the Apple Pay Platform Web Merchant
Terms and Conditions, as they may be amended by Apple from time
to time. If Apple amends the Apple Pay Platform Web Merchant Terms and
Conditions, the amended and restated version will be posted here: https://OnSoko.com/legal/apple-pay.
Such amendments to the Apple Pay Platform Web Merchant Terms are effective as
of the date of posting. Your continued use of Apple Pay on your Store after the
amended Apple Pay Platform Web Merchant Terms are posted constitutes your
agreement to, and acceptance of, the amended Apple Pay Platform Web Merchant
Terms. If you do not agree to any changes to the Apple Pay Platform Web
Merchant Terms, de-activate your Apple Pay account and do not continue to use
Apple Pay on your Store.
2.6
Google Pay
<!--[if !supportLists]-->1.
<!--[endif]-->Upon completion of sign
up for the Service, if you have been enrolled in OnSoko Payments, OnSoko will
also create a Google Pay account on your behalf. If you do not wish to keep
your Google Pay account active, it is your responsibility to deactivate it. For
the avoidance of doubt, Google Pay is a Third Party Service, as defined in
Section 9.7.1 of these Terms of Service.
<!--[if !supportLists]-->2.
<!--[endif]-->If you use a Google Pay
supported payment gateway and your customers have enabled Google Pay, customers
may purchase goods and services from your Store using Google Pay.
<!--[if !supportLists]-->3.
<!--[endif]-->By using Google Pay on
your Store, you are agreeing to be bound by the Google Pay API Terms of Service, as they may be
amended by Google from time to time. If Google amends the Google Pay API Terms
of Service, the amended and restated version will be posted here: https://payments.developers.google.com/terms/sellertos.
Such amendments to the Google Pay API Terms of Service are effective as of the
date of posting. Your continued use of Google Pay on your Store after the
amended Google Pay API Terms of Service are posted constitutes your agreement
to, and acceptance of, the amended Google Pay API Terms of Service. If you do
not agree to any changes to the Google Pay API Terms of Service, deactivate
your Google Pay account and do not continue to use Google Pay on your Store.
2.7
Meta Pay
<!--[if !supportLists]-->1.
<!--[endif]-->Upon completion of sign
up for the Service, if you have been enrolled in OnSoko Payments, OnSoko will
also create a Meta Pay account on your behalf. If you do not wish to keep your
Meta Pay account active, it is your responsibility to deactivate it. For the
avoidance of doubt, Meta Pay is a Third Party Service, as defined in Section
9.7.1 of these Terms of Service.
<!--[if !supportLists]-->2.
<!--[endif]-->If you use a Meta Pay
supported payment gateway and your customers have enabled Meta Pay, customers
may purchase goods and services from your Store using Meta Pay.
<!--[if !supportLists]-->3.
<!--[endif]-->By using Meta Pay on
your Store, you are agreeing to be bound by the Meta Pay Merchant Terms and Conditions, as they may
be amended by Meta from time to time. If Meta amends the Meta Pay Merchant Terms and Conditions, such
amendments will be effective as of the date of posting by Meta. Your continued
use of Meta Pay on your Store after the amended Meta Pay Merchant Terms and Conditions are
posted constitutes your agreement to, and acceptance of, the amended Meta Pay Merchant Terms and Conditions. If you do
not agree to any changes to the Meta Pay Merchant Terms and Conditions, de-activate
your Meta Pay account and do not continue to use Meta Pay on your Store.
2.8
Amazon Pay
<!--[if !supportLists]-->1.
<!--[endif]-->Upon completion of sign
up for the Service, if you have been enrolled in OnSoko Payments and you have
enabled Amazon Pay within your OnSoko Admin, OnSoko will also create an Amazon
Pay account on your behalf. If you do not wish to keep your Amazon Pay account
active, it is your responsibility to deactivate it. For the avoidance of doubt,
Amazon Pay is a Third Party Service, as defined in Section 9.7.1 of these Terms
of Service.
<!--[if !supportLists]-->2.
<!--[endif]-->If you use an Amazon Pay
supported payment gateway and your customers have enabled Amazon Pay, customers
may purchase goods and services from your Store using Amazon Pay.
<!--[if !supportLists]-->3.
<!--[endif]-->By using Amazon Pay on
your Store, you are agreeing to be bound by the Amazon Payments, Inc. Customer
Agreement, as it may be amended by Amazon from time to time. If
Amazon amends the Amazon Payments, Inc. Customer Agreement, the amended
and restated version will be posted here: Amazon Payments, Inc. Customer
Agreement. Such amendments to the Amazon Payments, Inc. Customer
Agreement are effective as of the date of posting. Your continued use of Amazon
Pay on your Store after the amended Amazon Payments, Inc. Customer Agreement is
posted constitutes your agreement to, and acceptance of, the amended Amazon
Payments, Inc. Customer Agreement. If you do not agree to any changes to the Amazon
Payments, Inc. Customer Agreement, deactivate your Amazon Pay account and do
not continue to use Amazon Pay on your Store.
2.9
Domain Names
<!--[if !supportLists]-->1.
<!--[endif]-->Upon purchasing a domain
name through OnSoko, domain registration will be preset to automatically renew
each year so long as your OnSoko Account remains active. You acknowledge that
it is your sole responsibility to deactivate the auto-renewal function should
you choose to do so.
3. OnSoko Rights
Which means
OnSoko
has the right to control who we make our Services available to and we can
modify them at any time. We also have the right to refuse or remove Materials
from any part of the Services, including your Store. We may offer our services
to your competitors, but we will never share your confidential information with
them in doing so. In the event of an ownership dispute over a OnSoko Account,
we can freeze a OnSoko Account or transfer it to the rightful owner, as
determined by us.
<!--[if !supportLists]-->1.
<!--[endif]-->The Services have a range
of features and functionalities. Not all Services or features will be available
to all Merchants at all times and we are under no obligation to make any
Services or features available in any jurisdiction. Except where prohibited in
these Terms of Service or by applicable law, we reserve the right to modify the
Services or any part thereof for any reason, without notice and at any time.
<!--[if !supportLists]-->2.
<!--[endif]-->OnSoko does not
pre-screen Materials and it is in our sole discretion to refuse or remove any
Materials from any part of the Services, including if we determine in our sole
discretion that the goods or services that you offer through the Services, or
the Materials uploaded or posted to the Services, violate our AUP or
these Terms of Service.
<!--[if !supportLists]-->3.
<!--[endif]-->Verbal or written abuse
of any kind (including threats of abuse or retribution) of any OnSoko employee,
member, or officer will result in immediate Account termination.
<!--[if !supportLists]-->4.
<!--[endif]-->We reserve the right to
provide our Services to your competitors and make no promise of exclusivity.
You further acknowledge and agree that OnSoko employees and contractors may
also be OnSoko customers or merchants and that they may compete with you,
although they may not use your Confidential Information (as defined in Section
6) in doing so.
<!--[if !supportLists]-->5.
<!--[endif]-->In the event of a
dispute regarding Account ownership, we reserve the right to request
documentation to determine or confirm Account ownership. Documentation may
include, but is not limited to, a scanned copy of your business license,
government issued photo ID, the last four digits of the credit card on file, or
confirmation of your status as an employee of an entity.
<!--[if !supportLists]-->6.
<!--[endif]-->OnSoko reserves the
right to determine, in our sole discretion, rightful Account ownership and
transfer an Account to the rightful Store Owner. If we are unable to reasonably
determine the rightful Store Owner, without prejudice to our other rights and
remedies, OnSoko reserves the right to temporarily suspend or disable an
Account until resolution has been determined between the disputing parties.
4. Your Responsibilities
Which means
You
are responsible for your OnSoko Store, the goods or services you sell, and your
relationship with your customers, not us. If you access the OnSoko API, your
use of the OnSoko API is subject to the API Terms.
<!--[if !supportLists]-->1.
<!--[endif]-->You acknowledge and
agree to provide public-facing contact information, a refund policy and order
fulfilment timelines on your OnSoko Store.
<!--[if !supportLists]-->2.
<!--[endif]-->You acknowledge and
agree that the Services are not a marketplace, and any contract of sale made
through the Services is directly between you and the customer. You are the
seller of record for all items you sell through the Services. You are
responsible for the creation and operation of your OnSoko Store, your
Materials, the goods and services that you may sell through the Services, and
all aspects of the transactions between you and your customer(s). This
includes, but is not limited to, authorizing the charge to the customer in
respect of the customer’s purchase, refunds, returns, fulfilling any sales or
customer service, fraudulent transactions, required legal disclosures,
regulatory compliance, alleged or actual violation of applicable laws
(including but not limited to consumer protection laws in any jurisdiction
where you offer products or services for sale), or your breach of these Terms
of Service. You represent and warrant that your Store, your Materials and the
goods and services you sell through the Services will be true, accurate, and
complete, and will not violate any applicable laws, regulations or rights of
third parties. For the avoidance of doubt, OnSoko will not be the seller or
merchant or record and will have no responsibility for your Store or items sold
to customers through the Services.
<!--[if !supportLists]-->3.
<!--[endif]-->You are solely
responsible for the goods or services that you may sell through the Services
(including description, price, fees, tax that you calculate, defects, required
legal disclosures, regulatory compliance, offers or promotional content),
including compliance with any applicable laws or regulations.
<!--[if !supportLists]-->4.
<!--[endif]-->You may not use the OnSoko
Services for any illegal or unauthorized purpose nor may you, in the use of the
Service, violate any laws in your jurisdiction (including but not limited to
copyright laws), the laws applicable to you in your customer’s jurisdiction, or
the laws of Kenya and the Province of Ontario. You will comply with all
applicable laws, rules and regulations (including but not limited to obtaining
and complying with the requirements of any license or permit that may be
necessary to operate your store or that may be held by you) in your use of the
Service and your performance of obligations under the Terms of Service.
<!--[if !supportLists]-->5.
<!--[endif]-->The API Terms govern
your access to and use of the OnSoko API (as defined therein). You are solely
responsible for the activity that occurs using your API Credentials (as defined
in the API Terms) and for keeping your API Credentials secure.
<!--[if !supportLists]-->6.
<!--[endif]-->You agree to use OnSoko
Checkout for any sales associated with your online store. “OnSoko Checkout” means OnSoko’s checkout experience that allows Customers to
enter their shipping information and payment details after adding item(s) to
their cart and before placing an order, including checkouts that occur through
the OnSoko Checkout API.
5. Payment of Fees and Taxes
Which means
A
valid payment method (such as a credit card) must remain on file to pay all
service fees, including the subscription, transaction and additional fees
required for all stores. You will be billed for your Subscription Fees every 30
days. Any Transaction Fees or Additional Fees will be charged to your payment
method. If we are unable to process payment of Fees using your payment method,
we may make subsequent attempts to process payment of Fees using your payment
method. If payment of Fees is unsuccessful within 28 days of our initial
attempt to process payment, OnSoko may freeze your store. You are responsible
for all taxes relating to your Store or use of the Services. You may be
required to remit Taxes to OnSoko or to self-remit to your local taxing authority.
No refunds.
<!--[if !supportLists]-->1.
<!--[endif]-->You will pay the Fees
applicable to your subscription to Online Service and/or POS Services (“Subscription Fees”) and any other applicable fees, including but not limited to
applicable fees relating to the value of sales made through your Store when
using all payment providers other than OnSoko Payments (“Transaction Fees”), and any fees relating to your purchase or use of any products
or services such as OnSoko Payments, POS Equipment, shipping, apps, Themes,
domain names, Experts Marketplace, or Third Party Services (“Additional Fees”). Together, the Subscription Fees, Transaction Fees and the
Additional Fees are referred to as the “Fees”.
<!--[if !supportLists]-->2.
<!--[endif]-->You must keep a valid
payment method on file with us to pay for all incurred and recurring Fees. OnSoko
will charge applicable Fees to any valid payment method that you authorize (“Authorized Payment Method”), and OnSoko will continue to charge the Authorized Payment
Method for applicable Fees until the Services are terminated, and any and all
outstanding Fees have been paid in full. Unless otherwise indicated, all Fees
and other charges are in U.S. dollars, and all payments will be in U.S.
currency.
<!--[if !supportLists]-->3.
<!--[endif]-->Subscription Fees are
paid in advance and will be billed in 30 day intervals (each such date, a “Billing Date”).
Transaction Fees and Additional Fees will be charged from time to time at OnSoko’s
discretion. You will be charged on each Billing Date for all outstanding Fees
that have not previously been charged. Fees will appear on an invoice, which
will be sent to the Store Owner via the Primary Email Address provided. As
well, an invoice will appear on the Account page of your Store’s administrative
console. Users have approximately two weeks to bring up and settle any issues
with the billing of Subscription Fees.
<!--[if !supportLists]-->4.
<!--[endif]-->If we are not able to
process payment of Fees using an Authorized Payment Method, we may make
subsequent attempts to process payment using any Authorized Payment Method. If
we are unable to successfully process payment of Fees using an Authorized
Payment Method within 28 days of our initial attempt, we may suspend and revoke
access to your Account and the Services. Your Account will be reactivated upon
your payment of any outstanding Fees, plus the Fees applicable to your next
billing cycle. You may not be able to access your Account or your storefront
during any period of suspension. If the outstanding Fees remain unpaid for 60
days following the date of suspension, OnSoko reserves the right to terminate
your Account in accordance with Section 14.
<!--[if !supportLists]-->5.
<!--[endif]-->All Fees are exclusive
of applicable federal, provincial, state, local or other governmental sales,
goods and services (including Goods and Sales Tax under the Goods and Services
Tax Act, Chapter 117A of Singapore), harmonized or other taxes, fees or charges
now in force or enacted in the future (“Taxes”).
<!--[if !supportLists]-->6.
<!--[endif]-->You are responsible for
all applicable Taxes that arise from or as a result of your subscription to or
purchase of OnSoko’s products and services. To the extent that OnSoko charges
these Taxes, they are calculated using the tax rates that apply based on the
billing address you provide to us. Such amounts are in addition to the Fees for
such products and services and will be billed to your Authorized Payment
Method. If you are exempt from payment of such Taxes, you must provide us with
evidence of your exemption, which in some jurisdictions includes an original
certificate that satisfies applicable legal requirements attesting to
tax-exempt status. Tax exemption will only apply from and after the date we
receive evidence satisfactory to OnSoko of your exemption. If you are not
charged Taxes by OnSoko, you are responsible for determining if Taxes are
payable, and if so, self-remitting Taxes to the appropriate tax authorities in
your jurisdiction.
<!--[if !supportLists]-->7.
<!--[endif]-->For the avoidance of
doubt, all sums payable by you to OnSoko under these Terms of Service will be
paid free and clear of any deductions or withholdings whatsoever. Other than
Taxes charged by OnSoko to you and remitted to the appropriate tax authorities
on your behalf, any deductions or withholdings that are required by law will be
borne by you and paid separately to the relevant taxation authority. OnSoko
will be entitled to charge the full amount of Fees stipulated under these Terms
of Service to your Authorized Payment Method ignoring any such deduction or
withholding that may be required.
<!--[if !supportLists]-->8.
<!--[endif]-->You are solely
responsible for determining, collecting, withholding, reporting, and remitting
applicable taxes, duties, fees, surcharges and additional charges that arise
from or as a result of any sale on your OnSoko Store or your use of the
Services. The Services are not a marketplace. Any contract of sale made through
the Services is directly between you and the customer.
<!--[if !supportLists]-->9.
<!--[endif]-->You must maintain an
accurate location in the administrative console of your OnSoko Store. If you
change jurisdictions you must promptly update your location in the
administrative console.
<!--[if !supportLists]-->10.
<!--[endif]-->OnSoko does not provide
refunds.
6. Confidentiality
Which means
Both
you and OnSoko agree to use the Confidential Information of the other only to
perform the obligations in these Terms of Service. Confidential Information
must be protected and respected.
<!--[if !supportLists]-->1.
<!--[endif]-->“Confidential Information” will include, but will not be limited to, any and all
information associated with a party’s business and not publicly known,
including specific business information, technical processes and formulas,
software, customer lists, prospective customer lists, names, addresses and
other information regarding customers and prospective customers, product
designs, sales, costs (including any relevant processing fees), price lists,
and other unpublished financial information, business plans and marketing data,
and any other confidential and proprietary information, whether or not marked
as confidential or proprietary. OnSoko’s Confidential Information includes all
information that you receive relating to us, or to the Services, that is not
known to the general public including information related to our security
program and practices.
<!--[if !supportLists]-->2.
<!--[endif]-->Each party agrees to use
the other party’s Confidential Information solely as necessary for performing
its obligations under these Terms of Service and in accordance with any other
obligations in these Terms of Service including this Section 6. Each party
agrees that it will take all reasonable steps, at least substantially
equivalent to the steps it takes to protect its own proprietary information, to
prevent the duplication, disclosure or use of any such Confidential Information,
other than (i) by or to its employees, agents and subcontractors who must have
access to such Confidential Information to perform such party’s obligations
hereunder, who each will treat such Confidential Information as provided
herein, and who are each subject to obligations of confidentiality to such
party that are at least as stringent as those contained herein; or (ii) as
required by any law, regulation, or order of any court of proper jurisdiction
over the parties and the subject matter contained in these Terms of Service,
provided that, if legally permitted, the receiving party will give the
disclosing party prompt written notice and use commercially reasonable efforts
to ensure that such disclosure is accorded confidential treatment. Confidential
Information will not include any information that the receiving party can
prove: (A) was already in the public domain, or was already known by or in the
possession of the receiving party, at the time of disclosure of such
information; (B) is independently developed by the receiving party without use
of or reference to the other party’s Confidential Information, and without
breaching any provisions of these Terms of Service; or (C) is thereafter
rightly obtained by the receiving party from a source other than the disclosing
party without breaching any provision of these Terms of Service.
7. Limitation of Liability and Indemnification
Which means
We
are not responsible for damages or lawsuits that arise if you break the law,
breach this agreement or go against the rights of a third party. The Service is
provided on an “as is” and “as available” basis. We provide no warranties and
our liability is limited in the event of errors or interruptions.
<!--[if !supportLists]-->1.
<!--[endif]-->You expressly understand
and agree that, to the extent permitted by applicable laws, OnSoko and its
suppliers will not be liable for any direct, indirect, incidental, special,
consequential or exemplary damages, including but not limited to, damages for
loss of profits, goodwill, use, data or other intangible losses arising out of
or relating to the use of or inability to use the Service or these Terms of
Service (however arising, including negligence).
<!--[if !supportLists]-->2.
<!--[endif]-->You agree to indemnify
and hold us and (as applicable) our parent, subsidiaries, affiliates, OnSoko
partners, officers, directors, agents, employees, and suppliers harmless from
any claim or demand, including reasonable attorneys’ fees, made by any third party
due to or arising out of (a) your breach of these Terms of Service or the
documents it incorporates by reference (including the AUP); (b) or your
violation of any law or the rights of a third party; or (c) any aspect of the
transaction between you and your Customer, including but not limited to
refunds, fraudulent transactions, alleged or actual violation of applicable
laws (including but not limited to Federal and State consumer protection laws),
or your breach of the Terms of Service.
<!--[if !supportLists]-->3.
<!--[endif]-->You will be responsible
for any breach of the Terms of Service by your affiliates, agents or
subcontractors and will be liable as if it were your own breach.
<!--[if !supportLists]-->4.
<!--[endif]-->Your use of the Services
is at your sole risk. The Services are provided on an “as is” and “as
available” basis without any warranty or condition, express, implied or
statutory.
<!--[if !supportLists]-->5.
<!--[endif]-->OnSoko does not warrant
that the Services will be uninterrupted, timely, secure, or error-free.
<!--[if !supportLists]-->6.
<!--[endif]-->OnSoko does not warrant
that the results that may be obtained from the use of the Services will be
accurate or reliable.
<!--[if !supportLists]-->7.
<!--[endif]-->OnSoko is not
responsible for any of your tax obligations or liabilities related to the use
of OnSoko’s Services.
<!--[if !supportLists]-->8.
<!--[endif]-->OnSoko does not warrant
that the quality of any products, services, information, or other materials
purchased or obtained by you through the Services will meet your expectations,
or that any errors in the Services will be corrected.
8. Intellectual Property and Your Materials
Which means
Anything
you upload remains yours (if it was yours) and is your responsibility, but OnSoko
can use and publish the things you upload. Anything uploaded to OnSoko remains
the property and responsibility of its initial owner. However, OnSoko will
receive a license of materials published through our platform that we may use
to operate and promote our Services.
8.1
Your Materials
<!--[if !supportLists]-->1.
<!--[endif]-->We do not claim
ownership of the Materials you provide to OnSoko; however, we do require a
license to those Materials. You grant OnSoko a non-exclusive, transferable,
sub-licensable, royalty-free, worldwide right and license to host, use,
distribute, expose, modify, run, copy, store, publicly perform, communicate to
the public (including by telecommunication), broadcast, reproduce, make
available, display, and translate, and create derivative works of any Materials
provided by you in connection with the Services. We may use our rights under
this license to operate, provide, and promote the Services and to perform our
obligations and exercise our rights under the Terms of Service. You represent,
warrant, and agree that you have all necessary rights in the Materials to grant
this license. You irrevocably waive any and all moral rights you may have in
the Materials in favour of OnSoko and agree that this waiver may be invoked by
anyone who obtains rights in the materials through OnSoko, including anyone to
whom OnSoko may transfer or grant (including by way of license or sublicense)
any rights in the Materials.
<!--[if !supportLists]-->2.
<!--[endif]-->If you owned the
Materials before providing them to OnSoko then, despite uploading them to your OnSoko
Store they remain yours, subject to any rights or licenses granted in the Terms
of Service or elsewhere. You can remove your OnSoko Store at any time by
deleting your Account. Removing your OnSoko Store does not terminate any rights
or licenses granted to the Materials that OnSoko requires to exercise any
rights or perform any obligations that arose during the Term.
<!--[if !supportLists]-->3.
<!--[endif]-->You agree that OnSoko
can, at any time, review and delete any or all of the Materials submitted to
the Services, although OnSoko is not obligated to do so.
<!--[if !supportLists]-->4.
<!--[endif]-->You grant OnSoko a
non-exclusive, transferable, sub-licensable, royalty-free, worldwide right and
license to use the names, trademarks, service marks and logos associated with
your Store (“Your Trademarks”) to operate, provide, and promote the Services
and to perform our obligations and exercise our rights under the Terms of
Service. This license will survive any termination of the Terms of Service
solely to the extent that OnSoko requires the license to exercise any rights or
perform any obligations that arose during the Term.
8.2 OnSoko
Intellectual Property
<!--[if !supportLists]-->1.
<!--[endif]-->You agree that you may
not use any trademarks, logos, or service marks of OnSoko, whether registered
or unregistered, including but not limited to the word mark ONSOKO, the word
mark SHOP, the word mark SHOP PAY, and the “S” and shopping bag
design mark (“OnSoko Trademarks”) unless you are authorized to do so by OnSoko
in writing. You agree not to use or adopt any marks that may be considered
confusing with the OnSoko Trademarks. You agree that any variations or misspellings
of the OnSoko Trademarks would be considered confusing with the OnSoko
Trademarks.
<!--[if !supportLists]-->2.
<!--[endif]-->You agree not to
purchase, register, or use search engine or other pay-per-click keywords (such
as Google Ads), trademarks, email addresses, social media names, or domain
names (including without limitation top-level domains, sub-domains, and page
URLs) that use or include OnSoko or OnSoko Trademarks or that use or include
any terms that may be confusing with the OnSoko Trademarks.
<!--[if !supportLists]-->3.
<!--[endif]-->You acknowledge and
agree that the Terms of Service do not give you any right to implement OnSoko
patents.
9. Additional Services
9.1
POS Services
Which means
If
you use our POS Services, you must use the same payment processor that you use
for the Online Services. You can cancel your POS Services at any time and still
keep your Online Services active. While we take data security very seriously,
we can’t guarantee that all transmissions using the POS Equipment are 100%
secure. All transactions transmitted using the POS Equipment are at your own
risk. Remember that the POS equipment is purchased, not leased. Our POS
Equipment return policy applies to all POS equipment, except Chip & Swipe
Reader, Swipe (Audio Jack) and physical gift cards
<!--[if !supportLists]-->1.
<!--[endif]-->In addition to the terms
applicable to Services generally, the following terms apply to your access and
use of the POS Services. The POS Services include the OnSoko POS software (“POS Software”),
the OnSoko POS website, located at https://OnSoko.com/pos, programs, documentation,
apps, tools, internet-based services and components, OnSoko’s POS hardware (“POS Equipment”)
and any updates thereto provided to you by OnSoko.
<!--[if !supportLists]-->2.
<!--[endif]-->Access to and use of the
POS Services requires that you have an active and valid Account.
<!--[if !supportLists]-->3.
<!--[endif]-->If your POS Services are
enabled with OnSoko Payments, you cannot concurrently use any other payment
processing service. The payment gateway used for your POS Services must be the
same as that used for your Online Services, if applicable.
<!--[if !supportLists]-->4.
<!--[endif]-->You can terminate your
POS Services without terminating your Account or any other Services you
subscribe to, and in such case, you will continue to be billed, and will pay
for, the Services (other than the terminated POS Services).
<!--[if !supportLists]-->5.
<!--[endif]-->You agree to use the POS
Services in accordance with all procedures that may be provided by OnSoko from
time to time.
<!--[if !supportLists]-->6.
<!--[endif]-->While the POS Services
use encryption technology, and the law generally prohibits third parties from
monitoring transmission, we cannot guarantee security with respect to the
connection to the POS Services, and we will not be liable for any unauthorized
access to or use of data transmitted via the POS Services.
<!--[if !supportLists]-->7.
<!--[endif]-->POS Equipment is
purchased, and not leased. Purchase of the POS Equipment is subject to the POS
Equipment Agreement, POS Equipment Agreement and Return Policy,
applicable to your country. Upon payment by you for the POS Equipment, and
confirmation to you of shipment of the POS equipment, you will acquire
ownership of and title to the hardware components of the POS Equipment, and you
will be licensed to access and use all POS Software installed in the POS
Equipment (and any updates thereto), on a limited, non-exclusive, revocable, non-sublicensable,
non-transferable basis, solely for the purposes of using the POS Services.
Returns and refunds are not available for the Chip & Swipe Reader, Swipe
(Audio Jack) and physical gift cards purchased from the OnSoko Hardware Store.
<!--[if !supportLists]-->8.
<!--[endif]-->The Fees for POS
Services will be determined based on the number of locations at which you are
using the POS Services. Locations are defined by business address and are used
for associating orders with a specific business address. Locations are added
through the OnSoko web administrative console associated with your Account. The
number of locations using POS Services will also be detected by us and billed
accordingly as part of your regular billing cycle. In the event of any
discrepancy between the number of locations added by you through the OnSoko web
administrative console and the number of locations detected by OnSoko, the
number of locations detected by OnSoko will be deemed to be correct.
9.2 OnSoko
Shipping
Which means
If
you use OnSoko Shipping, you must comply with the OnSoko Shipping Terms of
Service.
<!--[if !supportLists]-->1.
<!--[endif]-->You can purchase
shipping labels from within your OnSoko administrative console (“OnSoko Shipping”) for delivery of goods purchased from you from your OnSoko
Store. In addition to these Terms of Service, your access to and use of OnSoko
Shipping is subject to the OnSoko Shipping Terms of Service, located at
(a) https://www.OnSoko.com/legal/terms-shipping-us if
you are shipping from the United States; (b) https://www.OnSoko.com/legal/terms-shipping-ca, if
you are shipping from Kenya; and (c) https://www.OnSoko.com/legal/terms-shipping-global,
if you are shipping from a location outside of Kenya and the United States.
9.3
SMS Messaging
Which means
When
you use our SMS Services, you have to comply with our terms, the acceptable use
policies of the SMS providers, and the law.
<!--[if !supportLists]-->1.
<!--[endif]-->The Services allow you
to send certain communications to your customers by short message service (SMS)
messaging (for example, sending order confirmation notifications via SMS) (the
"SMS Services"). You will only use the SMS Services in compliance
with these Terms of Service, any other applicable terms (including Nexmo
Inc.'s Acceptable Use Policy and Twilio’s Acceptable Use Policy,
as may be amended from time to time), and the laws of the jurisdiction from
which you send messages, and in which your messages are received.
9.4
Theme Store
Which means
You
can purchase our Themes to use for one Store at a time. You are free to modify
our Themes, but do not infringe upon the intellectual property rights of
others, including the designer. For Theme-related problems, contact the designer.
Note that Themes may disappear over time and are subject to change.
<!--[if !supportLists]-->1.
<!--[endif]-->You may establish the
appearance of your OnSoko Store with a design template from OnSoko’s Theme
Store (a “Theme”). If you download a Theme, you are licensed to
use it for a single Store only. You are free to transfer a Theme to a second
one of your own Stores if you close your first Store. To initiate a transfer of
a Theme to a second one of your Stores, please contact OnSoko Support. You are
not permitted to transfer or sell a Theme to any other person’s Store on OnSoko
or elsewhere. Multiple Stores require multiple downloads and each download is
subject to the applicable fee. OnSoko gives no assurance that a particular
Theme will remain available for additional downloads.
<!--[if !supportLists]-->2.
<!--[endif]-->You may modify the Theme
to suit your Store. OnSoko may add or modify the footer in a Theme that refers
to OnSoko at its discretion. OnSoko may modify the Theme where it contains, in
our sole discretion, an element that violates the OnSoko AUP or other
provisions of the Terms of Service, even if you received the Theme in that
condition. OnSoko may modify the Theme to reflect technical changes and updates
as required.
<!--[if !supportLists]-->3.
<!--[endif]-->The intellectual
property rights of the Theme remain the property of the designer. If you exceed
the rights granted by your purchase of a Theme, the designer may take legal
action against you, and, without prejudice to our other rights or remedies, OnSoko
may take administrative action such as modifying your Store or closing your
Store.
<!--[if !supportLists]-->4.
<!--[endif]-->Technical support for a
Theme is the responsibility of the designer, and OnSoko accepts no
responsibility to provide such support. OnSoko may be able to help you contact
the designer.
<!--[if !supportLists]-->5.
<!--[endif]-->It is the responsibility
of the user, and not OnSoko, to ensure that the installation of a new theme
does not overwrite or damage the current or preexisting theme, or UI, of the
user.
9.5 OnSoko
Email
Which means
By
using the Email Services, you agree that OnSoko may use certain tools to ensure
the content of the emails sent through the service is safe and compliant with
our policies.
You
may generate or send email from your Account using the OnSoko email services
(the “Email Services”). In addition to the terms applicable to the
Services generally (including OnSoko’s Acceptable Use Policy, and Privacy
Policy), the following terms apply to your access and use of the Email
Services:
<!--[if !supportLists]-->1.
<!--[endif]-->OnSoko employs certain
controls to scan the content of emails you deliver using the Email Services
prior to delivery (“Content Scanning”). Such Content Scanning is intended to limit
spam, phishing, or other malicious content that contravenes these Terms of
Service, or OnSoko’s Acceptable Use Policy (collectively, “Threats”). By using the Email
Services, you explicitly grant OnSoko the right to employ such Content
Scanning. OnSoko does not warrant that the Email Services will be free from
Threats, and each OnSoko merchant is responsible for all content generated by
their respective Stores.
<!--[if !supportLists]-->2.
<!--[endif]-->BY GENERATING OR SENDING
EMAIL THROUGH THE EMAIL SERVICES, YOU AGREE TO COMPLY WITH THE FOLLOWING
REQUIREMENTS (THE “EMAIL SERVICES REQUIREMENTS”). ONSOKO, OR ITS THIRD PARTY PROVIDERS, MAY
SUSPEND OR TERMINATE YOUR ACCESS TO AND USE OF THE EMAIL SERVICES IF YOU DO NOT
COMPLY WITH THE EMAIL SERVICES REQUIREMENTS.
<!--[if !supportLists]-->3.
<!--[endif]-->Your use of the Email
Services must comply with all applicable laws. Examples of applicable laws
include laws relating to spam or unsolicited commercial email (“UCE”), privacy, security,
obscenity, defamation, intellectual property, pornography, terrorism, homeland
security, gambling, child protection, and other applicable laws. It is your
responsibility to know and understand the laws applicable to your use of the
Email Services and the emails you generate or send through the Email Services.
<!--[if !supportLists]-->4.
<!--[endif]-->Your use of the Email
Services must comply with OnSoko’s Privacy Policy. It is your responsibility to
read and understand the Privacy Policy applicable to your use of the Email
Services and the emails you generate or send through the Email Services.
<!--[if !supportLists]-->5.
<!--[endif]-->You will use
commercially reasonable efforts not to send sensitive personal data, including
information regarding an individual’s medical or health condition, race or
ethnic origin, political opinions, religious or philosophical beliefs, or other
sensitive data (collectively, “Sensitive Data”)
through the Email Services. It is your responsibility to read and understand
your obligations in relation to Sensitive Data.
<!--[if !supportLists]-->6.
<!--[endif]-->Your use of the Email
Services must follow all applicable guidelines established by OnSoko. The guidelines
below are examples of practices that may violate the Email Services
Requirements when generating, or sending emails through the Email Services:
<!--[if !supportLists]-->1.
<!--[endif]-->using non-permission
based email lists (i.e., lists in which each recipient has not explicitly
granted permission to receive emails from you by affirmatively opting-in to
receive those emails);
<!--[if !supportLists]-->2.
<!--[endif]-->using purchased or
rented email lists;
<!--[if !supportLists]-->3.
<!--[endif]-->using third party email
addresses, domain names, or mail servers without proper permission;
<!--[if !supportLists]-->4.
<!--[endif]-->sending emails to
non-specific addresses (e.g., webmaster@domain.com or info@domain.com);
<!--[if !supportLists]-->5.
<!--[endif]-->sending emails that
result in an unacceptable number of spam or UCE complaints (even if the emails
themselves are not actually spam or UCE);
<!--[if !supportLists]-->6.
<!--[endif]-->failing to include a
working “unsubscribe” link in each email that allows the recipient
to remove themselves from your mailing list;
<!--[if !supportLists]-->7.
<!--[endif]-->failing to comply with
any request from a recipient to be removed from your mailing list within 10
days of receipt of the request;
<!--[if !supportLists]-->8.
<!--[endif]-->failing to include in
each email a link to the then-current privacy policy applicable to that email;
<!--[if !supportLists]-->9.
<!--[endif]-->disguising the origin or
subject matter of any email or falsifying or manipulating the originating email
address, subject line, headers, or transmission path information for any email;
<!--[if !supportLists]-->10.
<!--[endif]-->failing to include in
each email your valid physical mailing address or a link to that information;
or
<!--[if !supportLists]-->11.
<!--[endif]-->including “junk mail,”
“chain letters,” “pyramid schemes,” incentives (e.g., coupons, discounts, awards, or other
incentives) or other material in any email that encourages a recipient to
forward the Email to another recipient.
<!--[if !supportLists]-->7.
<!--[endif]-->If you or a customer
knows of or suspects any violations of the Email Services Requirements, please
notify OnSoko at abuse@OnSoko.com. OnSoko will determine compliance
with the Email Services Requirements in its discretion.
<!--[if !supportLists]-->8.
<!--[endif]-->OnSoko’s Email Services
utilize Third Party Providers, including SendGrid (a Twilio Company). Your use
of the Email Services is subject to SendGrid’s Acceptable Use Policy as
it may be amended by SendGrid from time to time.
9.6
Shop App
Which means
The
Shop App is a sales channel that is only available to Eligible Merchants and
will display Materials from your OnSoko Store. If you do not wish for your
Materials to be available in the Shop App, it is your responsibility to manage
or deactivate this Service.
<!--[if !supportLists]-->1.
<!--[endif]-->The Shop app is a OnSoko
application that is available to Eligible Merchants (defined below) (the “Shop App”, more details here) to engage with customers that use the Shop
App (each, a “Shop App User”).
<!--[if !supportLists]-->2.
<!--[endif]-->The Shop App is deemed
to be a part of the Services, and all terms applicable to the Services apply.
Without limiting the generality of the preceding sentence, and subject to these
Terms of Service and all applicable guidelines and policies, OnSoko reserves
the right to refuse a Merchant access to or use of all or part of the Shop App
for any reason and at any time without prior notice. Only those Merchants who
meet all merchant requirements and do not sell any prohibited products, as
outlined in the Shop Merchant Guidelines (as may be amended
from time to time), are eligible to access and use the Shop App Services (“Eligible Merchants”).
<!--[if !supportLists]-->3.
<!--[endif]-->We may display your
Materials, including product or service listings, Your Trademarks and any other
content, data, or information from your OnSoko Store on the Shop App. While the
Shop App enables Shop App Users to shop natively in the Shop App, the
transaction is completed on your OnSoko Store. For clarity and avoidance of
doubt, Section 7 (Limitation of Liability) and Section 8 (Intellectual
Property) apply to the use of your Materials on the Shop App and your
responsibility for your Materials and purchases made through your OnSoko Store.
<!--[if !supportLists]-->4.
<!--[endif]-->Your Materials and your
use of the Shop App must comply at all times with our Shop App Merchant Guidelines, these Terms of
Service, the Additional Terms, all other applicable policies and guidelines,
and applicable law.
<!--[if !supportLists]-->5.
<!--[endif]-->As in other areas of the
Service, OnSoko is not obligated to intervene in any dispute arising between
you and your customers (including Shop App Users).
<!--[if !supportLists]-->6.
<!--[endif]-->On the Shop App, content
is ranked by factors including relevance to a search query or a user’s
interests, image quality, domain quality and how frequently other users have
engaged with the content. For more information about how we display content on
the Shop App, see our Shop App help documentation.
<!--[if !supportLists]-->7.
<!--[endif]-->If you do not wish for
your Materials to be available in the Shop App, it is your responsibility to
manage or deactivate this Service. If you have the Shop App merchant channel
installed, please see instructions here. If you do not yet have the Shop App merchant
channel installed on your OnSoko Store, install it here. If the
Shop App merchant channel is not currently supported in your country, please
contact support to
remove your Materials from the Shop App. Note that if you remove your Materials
from the Shop App, Shop App Users who purchase from your OnSoko Store will
continue to be able to view, manage and track orders from your OnSoko Store in
the Shop App. If you delete your OnSoko Account, your Materials will be removed
from the Shop App.
9.7
Third Party Services, Experts, and Experts Marketplace
Which means
We
are not responsible for third party services, so use them at your own risk. If
you choose to use Third Party Services on the OnSoko platform, you consent to
us sharing your data (and potentially the data of your Customers) to those
services. If you use Third Party Services you agree that we do not provide a
warranty, so get advice beforehand.
<!--[if !supportLists]-->1.
<!--[endif]-->OnSoko may from time to
time recommend, provide you with access to, or enable third party software,
applications (“Apps”), products, services or website links (collectively,
“Third Party Services”) for your consideration or use, including via
the OnSoko App Store, or Experts Marketplace. Such Third Party Services are
made available only as a convenience, and your purchase, access or use of any
such Third Party Services is solely between you and the applicable third party
services provider (“Third Party Provider”). In addition to these Terms of Service, you
also agree to be bound by the additional service-specific terms applicable to
services you purchase from, or that are provided by, Third Party Providers.
<!--[if !supportLists]-->2.
<!--[endif]-->OnSoko Experts is an
online directory of independent third parties (“Experts”) that can help you
build and operate your OnSoko Store.
<!--[if !supportLists]-->3.
<!--[endif]-->You can engage and work
with an Expert directly or through Experts Marketplace. Experts Marketplace
provides you with recommendations on Experts that can assist you with different
aspects of your Store. Using Experts Marketplace, you can find, hire, and
communicate with Experts directly from your Account admin.
<!--[if !supportLists]-->4.
<!--[endif]-->Any use by you of Third
Party Services offered through the Services, OnSoko Experts, Experts
Marketplace or OnSoko’s website is entirely at your own risk and discretion,
and it is your responsibility to read the terms and conditions and/or privacy
policies applicable to such Third Party Services before using them. In some
instances, OnSoko may receive a revenue share from Third Party Providers that OnSoko
recommends to you or that you otherwise engage through your use of the
Services, OnSoko Experts, Experts Marketplace or OnSoko’s website.
<!--[if !supportLists]-->5.
<!--[endif]-->We do not provide any
warranties or make representations to you with respect to Third Party Services.
You acknowledge that OnSoko has no control over Third Party Services and will
not be responsible or liable to you or anyone else for such Third Party
Services. The availability of Third Party Services on OnSoko’s websites,
including the OnSoko App Store or Experts Marketplace, or the integration or
enabling of such Third Party Services with the Services does not constitute or
imply an endorsement, authorization, sponsorship, or affiliation by or with OnSoko.
OnSoko does not guarantee the availability of Third Party Services and you
acknowledge that OnSoko may disable access to any Third Party Services at any
time in its sole discretion and without notice to you. OnSoko is not
responsible or liable to anyone for discontinuation or suspension of access to,
or disablement of, any Third Party Service. OnSoko strongly recommends that you
seek specialist advice before using or relying on Third Party Services, to
ensure they will meet your needs. In particular, tax calculators should be used
for reference only and not as a substitute for independent tax advice, when
assessing the correct tax rates you should charge to your customers.
<!--[if !supportLists]-->6.
<!--[endif]-->If you install or enable
a Third Party Service for use with the Services, you grant us permission to
allow the applicable Third Party Provider to access your data and other
Materials and to take any other actions as required for the interoperation of
the Third Party Service with the Services, and any exchange of data or other
Materials or other interaction between you and the Third Party Provider is
solely between you and such Third Party Provider. OnSoko is not responsible for
any disclosure, modification or deletion of your data or other Materials, or
for any corresponding losses or damages you may suffer, as a result of access
by a Third Party Service or a Third Party Provider to your data or other
Materials. Google Maps is a Third Party Service that is used within the
Services. Your use of the Services is subject to your acceptance of the Google
Maps and Earth Enterprise Universal Acceptable Use Policy, Google Maps and
Google Earth Additional Terms of Service and Google Privacy Policy as it may be
amended by Google from time to time.
<!--[if !supportLists]-->7.
<!--[endif]-->You acknowledge and
agree that: (i) by submitting a request for assistance or other information
through Experts Marketplace, you consent to being contacted by one or more
Experts at the Primary Email Address (or such other email address provided by
you) as well as the applicable user email address; and (ii) OnSoko will receive
all email communications exchanged via Experts Marketplace or in any reply
emails (each a “Reply”) that originate from Experts Marketplace
(directly or indirectly) between yourself and Experts. You further agree that OnSoko
may share your contact details and the background information that you submit
via the Experts Marketplace with Experts. Experts may require access to certain
admin pages on your OnSoko Store. You choose the pages that the Experts can
access.
<!--[if !supportLists]-->8.
<!--[endif]-->The relationship between
you and any Third Party Provider is strictly between you and such Third Party
Provider, and OnSoko is not obligated to intervene in any dispute arising
between you and a Third Party Provider.
<!--[if !supportLists]-->9.
<!--[endif]-->Under no circumstances
will OnSoko be liable for any direct, indirect, incidental, special,
consequential, punitive, extraordinary, exemplary or other damages whatsoever,
that result from any Third Party Services or your contractual relationship with
any Third Party Provider, including any Expert. These limitations will apply
even if OnSoko has been advised of the possibility of such damages. The
foregoing limitations will apply to the fullest extent permitted by applicable
law.
<!--[if !supportLists]-->10.
<!--[endif]-->You agree to indemnify
and hold us and (as applicable) our parent, subsidiaries, affiliates, OnSoko
partners, officers, directors, agents, employees, and suppliers harmless from
any claim or demand, including reasonable attorneys’ fees, arising out of your
use of a Third Party Service or your relationship with a Third Party Provider.
9.8
Beta Services
Which means
Beta
Services may be offered from time to time. They are not a part of the regular
Services, and they might have errors or change at any time. You use Beta
Services at your own risk, and we are not responsible for any losses or harm
that might come from using a Beta Service. You may be required to keep your
participation in the Beta Services confidential.
<!--[if !supportLists]-->1.
<!--[endif]-->From time to time, OnSoko
may, in its sole discretion, invite you to use, on a trial basis, pre-release
or beta features that are in development and not yet available to all merchants
(“Beta Services”). Beta Services are not part of the Services,
and Beta Services may be subject to additional terms and conditions, which OnSoko
will provide to you prior to your use of the Beta Services. Such Beta Services
and all associated conversations and materials relating thereto will be
considered OnSoko Confidential Information and subject to the confidentiality
provisions in this agreement. Without limiting the generality of the foregoing,
you agree that you will not make any public statements or otherwise disclose
your participation in the Beta Services without OnSoko’s prior written consent.
OnSoko makes no representations or warranties that the Beta Services will
function. OnSoko may discontinue the Beta Services at any time in its sole
discretion. OnSoko will have no liability for any harm or damage arising out of
or in connection with a Beta Service. The Beta Services may not work in the
same way as a final version. OnSoko may change or not release a final or
commercial version of a Beta Service in our sole discretion.
9.9 OnSoko
Pixel Manager
Which means
The
OnSoko Pixel Manager enables you or a third party to track customer events by
adding pixels to your OnSoko Store. If you use the OnSoko Pixel Manager, you
are responsible for obtaining all necessary consents from store visitors and
customers whose events you track.
OnSoko
allows you to add pixels to your OnSoko Store to enable you or a third party to
track customer events (the “OnSoko Pixel Manager”). You may manage your pixels
from within the user interface in the administrative console of your OnSoko
Store.
<!--[if !supportLists]-->1.
<!--[endif]-->In addition to the terms
applicable to your use of the Services generally (including these Terms of
Service, OnSoko’s Acceptable Use Policy, and Privacy Policy), the following
terms apply to your access to and use of the OnSoko Pixel Manager; a. You will
comply with all applicable laws and obtain all necessary consents from every
site visitor and customer whose events you track; b. If you provide OnSoko with
any data collected using pixels, including names, email addresses, phone
numbers, or other data that personally identifies an individual, you will
obtain all necessary rights and consents prior to providing OnSoko with the
foregoing information; c. You agree that OnSoko may disable any pixels that OnSoko
identifies as malicious, in OnSoko’s sole discretion; and d. You will not, and
will not allow any third parties to, use pixels; i. to engage in or promote any
unlawful, infringing, defamatory or otherwise harmful activity; or ii. to
disable, interfere with or circumvent any aspect of the Services.
<!--[if !supportLists]-->2.
<!--[endif]-->OnSoko may collect
information associated with the OnSoko Pixel Manager, such as how pixels are
used, and how and what scripts are added. OnSoko may use this data to improve,
maintain, protect and develop the OnSoko Pixel Manager.
10. Feedback and Reviews
Which means
We
welcome customer feedback but are under no obligation to ensure that ideas and
suggestions regarding our Services or the services of third parties remain
confidential and we can use the feedback in any way we want.
OnSoko
welcomes any ideas and/or suggestions regarding improvements or additions to
the Services. Under no circumstances will any disclosure of any idea,
suggestion or related material or any review of the Services, Third Party
Services or any Third Party Provider (collectively, “Feedback”) to OnSoko be subject
to any obligation of confidentiality or expectation of compensation. By
submitting Feedback to OnSoko (whether submitted directly to OnSoko or posted
on any OnSoko hosted forum or page), you waive any and all rights in the
Feedback and that OnSoko is free to implement and use the Feedback if desired,
as provided by you or as modified by OnSoko, without obtaining permission or
license from you or from any third party. Any reviews of a Third Party Service
or Third Party Provider that you submit to OnSoko must be accurate to the best
of your knowledge, and must not be illegal, obscene, threatening, defamatory,
invasive of privacy, infringing of intellectual property rights, or otherwise
injurious to third parties or objectionable. OnSoko reserves the right (but not
the obligation) to remove or edit Feedback of Third Party Services or Third
Party Providers, but does not regularly inspect posted Feedback.
11. DMCA Notice and Takedown Procedure
Which means
OnSoko
respects intellectual property rights and you should too. If we receive a DMCA
Notice, we may disable access or remove the allegedly infringing content from
your Store. If you don’t think the claim is valid, you can send a counter notification.
If you believe one of our merchants is infringing your intellectual property
rights, you can send OnSoko a DMCA Notice. We will expeditiously disable access
or remove the content and notify the merchant.
OnSoko
supports the protection of intellectual property and asks OnSoko merchants to
do the same. It’s our policy to respond to all notices of alleged copyright
infringement. If someone believes that one of our merchants is infringing their
intellectual property rights, they can send a DMCA Notice to OnSoko’s
designated agent using our form. Upon receiving a DMCA Notice, we may remove or
disable access to the Materials claimed to be a copyright infringement. Once
provided with a notice of takedown, the merchant can reply with a counter
notification using our form if they object to the complaint. The original
complainant has 14 business days after we receive a counter notification to
seek a court order restraining the merchant from engaging in the infringing
activity, otherwise we restore the material. Learn more at Reporting Intellectual Property
Infringement.
12. Privacy and Data Protection
Which means
OnSoko’s
use and collection of personal information is governed by our Privacy Policy. OnSoko’s
use and collection of customer personal information is further governed by our
Data Processing Addendum.
<!--[if !supportLists]-->1.
<!--[endif]-->OnSoko is firmly
committed to protecting the privacy of your personal information and the
personal information of your customers. By using the Service, you acknowledge
and agree that OnSoko’s collection, usage and disclosure of this personal
information is governed by our Privacy Policy.
<!--[if !supportLists]-->2.
<!--[endif]-->To the extent that OnSoko
processes personal information of your customers as a “data processor” or
“service provider” under certain data privacy or protection laws, including the
EU or UK General Data Protection Regulation and the California Consumer Privacy
Act, OnSoko’s collection and use of personal information is also subject to
our Data
Processing Addendum.
13. OnSoko Contracting Party
<!--[if !supportLists]-->1.
<!--[endif]-->If the billing address
of your Store is located in the United States or Kenya, this Section 13(1)
applies to you:
<!--[if !supportLists]-->1.
<!--[endif]-->“OnSoko Contracting Party” means OnSoko Inc., a Canadian corporation, with offices located
at 151 O’Connor Street, Ground floor, Ottawa, Ontario, K2P 2L8.
<!--[if !supportLists]-->2.
<!--[endif]-->The parties irrevocably
and unconditionally submit to the exclusive jurisdiction of the courts of the
Province of Ontario with respect to any dispute or claim arising out of or in
connection with the Terms of Service. The United Nations Convention on
Contracts for the International Sale of Goods will not apply to these Terms of
Service and is hereby expressly excluded.
<!--[if !supportLists]-->2.
<!--[endif]-->If the billing address
of your Store is located in the Asia Pacific region (including
Australia, New Zealand, China, Japan, Singapore), this Section 13(2) applies to
you:
<!--[if !supportLists]-->1.
<!--[endif]-->“OnSoko Contracting Party” means OnSoko Commerce Singapore Pte. Ltd, a corporation formed
under the laws of Singapore, with offices located at 77 Robinson Road, #13-00
Robinson 77, Singapore 068896.
<!--[if !supportLists]-->2.
<!--[endif]-->The parties irrevocably
agree that the courts of Singapore are to have exclusive jurisdiction to settle
any dispute which may arise out of or in connection with the Terms of Service
and that accordingly any proceedings arising out of or in connection with the
Terms of Service will be brought in such courts. The United Nations Convention
on Contracts for the International Sale of Goods will not apply to these Terms
of Service and is hereby expressly excluded.
<!--[if !supportLists]-->3.
<!--[endif]-->If the billing address
of your Store is located in EMEA region or
other jurisdictions not listed in Section 13(1) or 13(2), including Europe and
Russia, the Middle East, Africa, South America, Caribbean, or Mexico this
Section 13(3) applies to you:
<!--[if !supportLists]-->1.
<!--[endif]-->“OnSoko Contracting Party” means OnSoko International Limited, a private company limited by
shares, incorporated in Ireland under registration number 560279, with its
registered offices located at 2nd Floor Victoria Buildings, 1-2 Haddington
Road, Dublin 4, D04 XN32, Ireland, VAT number IE 3347697KH and its website is
at https://OnSoko.com/.
<!--[if !supportLists]-->2.
<!--[endif]-->You irrevocably and
unconditionally agree to submit to the jurisdiction of Irish courts, which have
jurisdiction to settle any disputes which may arise out of or in connection
with the validity, effect, interpretation or performance of these Terms of Service
and you similarly irrevocably and unconditionally waive any objection to any
claim that any suit, action or proceeding has been brought by OnSoko in any
other jurisdiction. The United Nations Convention on Contracts for the
International Sale of Goods will not apply to these Terms of Service and is
hereby expressly excluded.
14. Term and Termination
Which means
To
initiate a termination, you must contact Support. OnSoko
will respond with specific information regarding the termination process for
your account. Once termination is confirmed, domains purchased through OnSoko
will no longer be automatically renewed. If you cancel in the middle of your
billing cycle, you’ll have one last email invoice.
We
may terminate your account at any time.
<!--[if !supportLists]-->1.
<!--[endif]-->The term of these Terms
of Service will begin on the date of your completed registration for use of a
Service and continue until terminated by us or by you, as provided below (the “Term”).
<!--[if !supportLists]-->2.
<!--[endif]-->You may cancel your Account
and terminate the Terms of Service at any time by contacting OnSoko Support and
then following the specific instructions indicated to you in OnSoko’s response.
<!--[if !supportLists]-->3.
<!--[endif]-->Without limiting any
other remedies, we may suspend or terminate your Account or the Terms of
Service for any reason, without notice and at any time (unless otherwise
required by law), including if we suspect that you (by conviction, settlement,
insurance or escrow investigation, or otherwise) have engaged in fraudulent
activity in connection with the use of the Services. Termination of the Terms
of Service will be without prejudice to any rights or obligations which arose
prior to the date of termination.
<!--[if !supportLists]-->4.
<!--[endif]-->Upon termination of the
Services by either party for any reason:
<!--[if !supportLists]-->1.
<!--[endif]-->OnSoko will cease
providing you with the Services and you will no longer be able to access your
Account;
<!--[if !supportLists]-->2.
<!--[endif]-->unless otherwise
provided in the Terms of Service, you will not be entitled to any refunds of
any Fees, pro rata or otherwise;
<!--[if !supportLists]-->3.
<!--[endif]-->any outstanding balance
owed to OnSoko for your use of the Services through the effective date of such
termination will immediately become due and payable in full; and
<!--[if !supportLists]-->4.
<!--[endif]-->your OnSoko Store will
be taken offline.
<!--[if !supportLists]-->5.
<!--[endif]-->If you purchased a
domain name through OnSoko, upon cancellation your domain will no longer be
automatically renewed. Following termination, it will be your sole
responsibility to handle all matters related to your domain with the domain
provider.
<!--[if !supportLists]-->6.
<!--[endif]-->If there are any
outstanding Fees owed by you at the date of termination of the Service, you
will receive one final invoice via email. Once that invoice has been paid in
full, you will not be charged again.
15. Modifications
Which means
If
we make a material change to the Terms of Service that adversely affects your
rights under the Terms of Service or your use of our Services in a material
way, we will notify you in advance (unless the change relates to legal
requirements or to prevent abuse of our Services, among other things).
<!--[if !supportLists]-->1.
<!--[endif]-->We reserve the right, in
our sole and absolute discretion, to update or change any portion of the Terms
of Service at any time. We will provide you with reasonable advance notice of
changes to the Terms of Service that materially adversely affect your use of
the Services or your rights under the Terms of Service by sending an email to
the Primary Email Address, providing notice through the OnSoko administrative
console, or by similar means. However, OnSoko may make changes that materially
adversely affect your use of the Services or your rights under the Terms of
Service at any time and with immediate effect (i) for legal, regulatory, fraud
and abuse prevention, or security reasons; or (ii) to restrict products or
activities that we deem unsafe, inappropriate, or offensive. Unless we indicate
otherwise in our notice (if applicable), any changes to the Terms of Service
will be effective immediately upon posting of such updated terms at this
location. Your continued access to or use of the Services after we provide such
notice, if applicable, or after we post such updated terms, constitutes your
acceptance of the changes and consent to be bound by the Terms of Service as
amended. If you do not agree to the amended Terms of Service, you must stop
accessing and using the Services.
<!--[if !supportLists]-->2.
<!--[endif]-->OnSoko may change the
Fees for the Services from time-to-time. We will provide you with 30 days
advanced notice prior to any changes in Fees by sending an email to the Primary
Email Account, providing notice through the OnSoko administrative console, or
by similar means. OnSoko will not be liable to you or to any third party for
any modification, price change, suspension or discontinuance of the Services
(or any part thereof).
16. General Conditions
<!--[if !supportLists]-->1.
<!--[endif]-->The Terms of Service,
including the documents it incorporates by reference, constitute the entire
agreement between you and OnSoko and govern your use of the Services and your
Account, superseding any prior agreements between you and OnSoko (including,
but not limited to, any prior versions of the Terms of Service).
<!--[if !supportLists]-->2.
<!--[endif]-->The failure of OnSoko to
exercise or enforce any right or provision of the Terms of Service will not
constitute a waiver of such right or provision. If any provision of the Terms
of Service, including all terms and conditions and other documents it incorporates
by reference, is held by a court of competent jurisdiction to be contrary to
law, such provision will be changed and interpreted so as to best accomplish
the objectives of the original provision to the fullest extent allowed by law,
and the remaining provision of the Terms of Service will remain in full force
and effect.
<!--[if !supportLists]-->3.
<!--[endif]-->Save for OnSoko and its
affiliates, you or anyone accessing OnSoko Services pursuant to these Terms of
Service, unless otherwise provided in these Terms of Service, no person or entity
who is not a party to these Terms of Service will have any right 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, this will not affect the rights of any
permitted assignee or transferee of these Terms.
<!--[if !supportLists]-->4.
<!--[endif]-->The Terms of Service
will be governed by and interpreted in accordance with the laws of the Province
of Ontario and the laws of Kenya applicable therein, without regard to
principles of conflicts of laws.
<!--[if !supportLists]-->5.
<!--[endif]-->The Terms of Service may
be available in languages other than English. To the extent of any
inconsistencies or conflicts between these English Terms of Service and OnSoko’s
Terms of Service available in another language, the most current English
version of the Terms of Service at https://www.OnSoko.com/legal/aup will
prevail. Any disputes arising out of these Terms of Service will be resolved in
English unless otherwise determined by OnSoko (acting in its sole discretion)
or as required by applicable law.
<!--[if !supportLists]-->6.
<!--[endif]-->All the terms and
provisions of the Terms of Service will be binding upon and inure to the
benefit of the parties to the Terms of Service and to their respective heirs,
successors, permitted assigns and legal representatives. OnSoko will be
permitted to assign these Terms of Service without notice to you or consent
from you. You will have no right to assign or otherwise transfer the Terms of
Service, or any of your rights or obligations hereunder, to any third party
without OnSoko’s prior written consent, to be given or withheld in OnSoko’s
sole discretion.
<!--[if !supportLists]-->7.
<!--[endif]-->If any provision, or
portion of the provision, in these Terms of Service is, for any reason, held to
be invalid, illegal or unenforceable in any respect, then such invalidity,
illegality or unenforceability will not affect any other provision (or the
unaffected portion of the provision) of the Terms of Service, and the Terms of
Service will be construed as if such invalid, illegal or unenforceable
provision, or portion of the provision, had never been contained within the
Terms of Service.
<!--[if !supportLists]-->8.
<!--[endif]-->On termination, all
related rights and obligations under the Terms of Service immediately
terminate, except that (a) you will remain responsible for performing all of
your obligations in connection with transactions entered into before
termination and for any liabilities that accrued before or as a result of
termination; and Sections 1 (Account Terms), 5 (Payment of Fees), 6
(Confidentiality), 7 (Limitation of Liability and Indemnification), 8.1
(Intellectual Property and Your Materials), 9.7(8)-(10) (Third Party Services,
Experts, and Experts Marketplace), 10 (Feedback and Reviews), 12 (Privacy and
Data Protection), 13 (OnSoko Contracting Party), 14 (Cancellation and
Termination), 15(1) (Modifications), and 16 (General Conditions) will survive
the termination or expiration of these Terms of Service.
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