Welcome to digitalassets.co.ke,
an online marketplace that allows third-party sellers to list digital assets
for sale; and to connect, communicate, and transact with buyers.
Digital Assets
Marketplace and its affiliates (Digital Assets Marketplace) provide
website features and other products and services to you when you visit digitalassets.co.ke
(the Website) and use Digital Assets Marketplace products or
services (collectively Digital Assets Marketplace
Services). Digital Assets Marketplace Services include the
information, content, materials, products, and software included on or
otherwise made available to you by Digital Assets Marketplace and references to
the Digital Assets Marketplace Services in these Terms include any or all of
these. Digital Assets Marketplace provides the Digital Assets Marketplace
Services to you subject to these Terms and accessing the Website and using the Digital
Assets Marketplace Services, you agree to be bound by them. Please read them
carefully before using Digital Assets Marketplace Services.
1.
PRIVACY
Please review
our Privacy Policy and Cookies
& Tracking Policy, which also govern your use of the Digital Assets Marketplace
Services, to understand our practices. Digital Assets Marketplace will collect
your personal information including your name, contact details, and payment
details (including, without limitation, credit card details). All personal
information will be handled, used, maintained, and disclosed by Digital Assets
Marketplace in accordance with all applicable privacy laws and data protection
laws as well as our Privacy Policy which applies from time to time. Unless
separately agreed between you and another buyer or seller, you must not use
their personal information for any other purpose. You warrant to Digital Assets
Marketplace that you will comply with all privacy laws and data protection laws
in relation to the storage, use, and transfer of personal information.
2.
ELECTRONIC COMMUNICATION
When you use the Digital
Assets Marketplace Services or send e-mails, text messages, or other
communication from your desktop or mobile device to us, you are communicating
with us electronically. We will communicate with you electronically in a
variety of ways, such as by e-mail, text, or communication via our discussion
forum. You consent to receive communications from us electronically and agree
that communications that we provide to you electronically satisfy any legal
requirement that such communication be in writing.
3.
COPYRIGHT AND OTHER RIGHTS
All content included
in or made available by Digital Assets Marketplace, such as text, graphics,
logos, button icons, images, video and audio clips, digital downloads and data
compilations is the property of Digital Assets Marketplace and is protected by
Kenyan and international copyright and authors’ rights laws and (where
applicable) database right laws.
Other than to the
extent necessary to use the Digital Assets Marketplace Services for their
permitted purposes and in accordance with these Terms, you may not copy,
extract and/or re-utilize any content of Digital Assets Marketplace without our
express written consent, including, without limitation, any listings,
descriptions, prices and account information. In particular, you may not
utilize any data mining, robots, or similar data gathering and extraction tools
to extract (whether once or many times) for re-utilization any substantial parts
of the Digital Assets Marketplace Services or their content, without our
express written consent. You may also not create and/or publish your own
database that features substantial parts of the Digital Assets Marketplace
Services or their content without our express written consent.
4.
TRADEMARKS
Graphics, logos, page
headers, button icons, scripts, and service names included in or made available
through the Digital Assets Marketplace Services are trademarks of Digital
Assets Marketplace. Digital Assets Marketplace’s trademarks may not be used in
connection with any product or service that is not Digital Assets Marketplace’s,
in any manner that is likely to cause confusion among customers or in any
manner that disparages or discredits Digital Assets Marketplace. All other
trademarks not owned by Digital Assets Marketplace that appear in the Digital
Assets Marketplace Services are the property of their respective owners, who
may or may not be affiliated with, connected to, or sponsored by Digital Assets
Marketplace. You may not frame or use framing techniques to enclose any
trademark or logo (including images and text) of Digital Assets Marketplace
without our express written consent. You may not use any meta tags or any other
“hidden text” utilizing Digital Assets Marketplace’s names or trademarks
without our express written consent.
5.
YOUR ACCOUNT
By registering and
creating an account with Digital Assets Marketplace, you represent and warrant
that you over 18 years of age and you can form legally binding agreements under
applicable law. If you are registering an account for a business, organization
or other legal entity, you represent and warrant that you have the authority to
legally bind that entity. Unless authorized by Digital Assets Marketplace in
writing, you may have only one account, unless authorized by Digital Assets
Marketplace in writing.
You are responsible
for maintaining the confidentiality of your account and password. Except to the
extent caused by our breach of these Terms, you are responsible for all
activities that occur under your account regardless of whether the activities
are authorized by you or undertaken by you. Digital Assets Marketplace is not
responsible for unauthorized access to or use of your password or account. You
should take all necessary steps to ensure that your password is kept confidential
and secure and should inform us immediately if you have any reason to believe
that your password has become known to anyone else, or if your password is
being, or is likely to be used in an unauthorized manner. You must ensure that
the details you provide to us are correct and complete and inform us of any
changes. You can access and update certain information you have provided to us
via your account dashboard.
If we have concerns
with your account, or activity relating to your account, or if you are in
breach of applicable laws or these Terms, we reserve the right to take action
on your account in accordance with these Terms, including without limitation by
(i) refusing service, (ii) suspending or restricting access to your account,
(iii) terminating your account, or (iv) removing or editing content you post
using your account. The action we elect to take and any notice you may receive
will vary depending on the Digital Assets Marketplace Services, the
circumstances, and our assessment of relevant factors.
6.
VERIFICATION
Any reference to a
buyer or seller being “verified” indicates only that the buyer or seller has
completed a relevant verification or identification process and nothing else.
Any such description is not an endorsement, certification or guarantee by Digital
Assets Marketplace about any buyer or seller, including their identity,
background or whether they are trustworthy, safe or suitable.
To access or use some
of the Digital Assets Marketplace Services, you may be asked to provide proof
of identity or other methods of identity verification. You agree to provide Digital
Assets Marketplace or any third party which provides goods or services to Digital
Assets Marketplace with all identification documents (including but not limited
to, copies of passports and/or government-issued driver’s license) which Digital
Assets Marketplace requests from you from time to time for the purposes of
verifying your identity.
7.
DIGITAL ASSETS MARKETPLACE’S ROLE
Digital Assets
Marketplace allows third-party sellers to list and sell their assets using the Digital
Assets Marketplace Services. Digital Assets Marketplace does not own, create,
sell, resell, provide, control, offer or deliver listings or the assets
contained therein. The relevant seller is indicated on the respective listing
page. While Digital Assets Marketplace helps facilitate transactions that are
carried out on the Website, Digital Assets Marketplace is neither the buyer nor
the seller on the seller’s assets.
Digital Assets
Marketplace provides an avenue for sellers and buyers to negotiate and complete
transactions. Accordingly, the contract formed at the completion of the sale
for these third-party assets is solely between the buyer and seller. Digital
Assets Marketplace is not a party to this contract nor assumes any
responsibility arising out of or in connection with it nor it is the seller’s
agent. The seller is responsible for the sale of their assets and for dealing
with any buyer claims or any other issue arising out of or in connection with
the contract between the buyer and seller.
Digital Assets
Marketplace is not responsible for:
(a) the existence,
quality, suitability of legality of a listed asset;
(b) the truth, accuracy or completeness of the information contained in a
listing;
(c) the future performance of a listed asset;
(d) the performance or conduct of a buyer or seller or third-party on the
Website; and/or
(e) the quality, suitability or ability of a third party which provides goods
or services to Digital Assets Marketplace or to a buyer or seller.
Your decision to
purchase a listed asset shall be based solely on your own investigation and
that of your legal, tax and other advisors. You accept sole responsibility for
examining and investigating an asset and all information in a listing. This
includes, but is not limited to, associated liabilities, financial statements,
tax returns and any other facts or information which may impact your decision
to purchase that listed asset and the price you are willing to pay. You
understand that Digital Assets Marketplace may display only a summary
description of a listed asset.
To help facilitate a
safe, secure transaction and to preserve the integrity of the Digital Assets
Marketplace Services, we make available a template letter of intent and sale
contract for use by buyers and sellers. You acknowledge that you use these
documents at your own risk. You agree that Digital Assets Marketplace has not
in any way provided legal or financial advice by providing these documents or
made representations or warranties that they are suitable for your requirements
or needs and may not be appropriate or suitable to the sale or purchase of a
particular asset. Digital Assets Marketplace recommends all parties seek their
own independent legal advice in relation to the documents.
8.
LISTING RULES
The following assets
may be listed for sale on Digital Assets Marketplace:
(a) all detail and
reference to files contained in a website or an application, including but not
limited to, the HTML, the code base, other source code, logos, images, and
other media, licenses and other works associated with the website or the
application;
(b) any rights and obligations under or in relation to an agreement with a
third party relating to assets which may include, but is not limited to hosting
agreements, payment provider agreements, affiliate agreements and seller
agreements;
(c) a brand name relating to a business, including any registered trademarks
specified in the listing;
(d) any records;
(e) all rights to a domain name;
(f) any other documented asset including inventory or other agreement critical
to the sale and
ongoing concern of a business, including legal agreements, employment
agreement, leasing agreements and other agreements; and
(g) any other particulars specified as being sold as part of a listing.
For the avoidance of
doubt, Digital Assets Marketplace does not promote, encourage or facilitate the
sale of securities using Digital Assets Marketplace Services.
When you create a
listing, you will be asked to provide complete and accurate information about
your asset, including, but not limited to a business description and current
and historical financial data. You are responsible for your listing and keeping
your listing information up to date at all times.
You warrant and
represent to Digital Assets Marketplace and to each buyer that:
(a) you own the asset
or are entitled to sell the asset;
(b) you are the owner of all intellectual property rights, including but not
limited to copyright, patent, trademark, designs whether registered or not and
throughout the world and all other rights, title and interest in the asset,
(c) the asset is transferable to a buyer; and
(d) any and all agreements with third parties are transferable to the Buyer.
You must not create a listing for
an asset which:
(a) is obscene, vulgar
and/or deemed by Digital Assets Marketplace to be offensive;
(b) contains material which infringes the rights of a third party or which
assists others to infringe the rights of a third party;
(c) is engaged in activities which contravenes law of any territory; or
(d) Digital Assets Marketplace deems inappropriate or in breach of these Terms.
9.
LISTING TYPES
Digital Assets
Marketplace enables two kinds of listings — auction-format listings and
fixed-price listings.
With a fixed
price-listing, any buyer can offer to purchase the asset contained in a
listing. An offer must be placed on the listing. A seller can accept, reject or
counter any offer. If you are a buyer and have placed an offer, you acknowledge
and agree that should the seller accept that offer, you are committing to
purchase the asset and may be required to pay for it. If you are a seller and
have accepted an offer, you acknowledge and agree that you are committing to
sell the listed asset to the buyer.
With an auction-format
listing, a seller will accept bids from buyers for a predetermined amount of
time — generally 30 days. For a bid to be valid, it must be higher than the
starting price or then-current bid. At the end of the auction, the asset
subject of the listing will be declared sold to the highest bidder, provided
their bid exceeds the reserve price set by the seller. Should you win the
auction, you agree that you are committing to purchase the listed asset and may
be required to pay for it.
For the avoidance of
doubt, Digital Assets Marketplace is not an auctioneer and a seller conducts an
auction on their own behalf.
A listing may also
show a ‘buy it now’ button with a price listed next to it. A buyer may purchase
a listed asset simply by clicking the ‘buy it now’ button, provided it is
accepted by the seller. By clicking ‘buy it now,’ a buyer commits to buying the
listed asset.
10.
EXCLUSIVITY
If a listed asset has
a set asking price, in the case of a fixed-priced listed, or a reserve price,
in the case of an auction-format listing, equal to or above USD$15,000, you
agree that you will promote and/or sell that asset exclusively using the Digital
Assets Marketplace Services. For the period in which your listing is live on
the Website and for 90 days from the date you remove your listing, you warrant
that you will not use any other platform, marketplace or service, including a
broker service, to promote or sell your asset, without the express written
permission of Digital Assets Marketplace.
If Digital Assets
Marketplace discovers that you have been in violation of this clause 10, you
acknowledge and agree that Digital Assets Marketplace has the right to
immediately suspend your listing and terminate your account
11.
COMMUNICATION TOOLS
Listings at Digital Assets
Marketplace are FREE and therefore you are not restricted in regards to the
mode of communication between the buyer and the seller. We have however
provided a messaging tool which we encourage both parties to use for future
reference.
12.
LISTING FEATURE FEE
Unlike many other
industry players, Digital Assets Marketplace does not charge for listing or
success fee. The full value of your assets remains with you. We however charge
a modest amount if you wish to have your listing featured for more prominence.
13.
REFUNDS
If Digital Assets
Marketplace issues you a refund, that refund will be paid to you using the same
payment method you used to pay Digital Assets Marketplace. Digital Assets
Marketplace may refund an amount paid by you if you are entitled to a refund in
accordance with these Terms or Digital Assets Marketplace is required by law or
considers that it is required by law to do so. Digital Assets Marketplace’s
determination as to whether a refund is required is final and conclusive and
may not be challenged by you.
14.
PAYMENT PROCESSING
Digital Assets
Marketplace is not an escrow service and does not hold property on behalf of
any person. Digital Assets Marketplace is not a payment provider. For the
purposes of facilitating a transaction, any and all payment processing services
through or in connection with your use of the Digital Assets Marketplace
Services are provided to you by one or more independent third-party service
provider, as appropriate. You hereby consent and authorize Digital Assets
Marketplace to share any information and payment instructions you provide with
any third-party service provider(s).
15.
VALUATION CALCULATOR
At Digital Assets
Marketplace we encourage you to use as many online valuation calculators as
possible in order to get a feel of the true worth of your digital assets. You
acknowledge and agree that you are solely responsible for determining the value
of your digital asset(s).
16.
DIGITAL ASSETS MARKETPLACE DUE DILIGENCE
Digital Assets Marketplace
provides due diligence services and you can pay to acquire a due diligence
report on a listed asset. While Digital Assets Marketplace strives to make the
information in this report as accurate as possible, we make no claims, promises
or guarantees about the accuracy, completeness or adequacy of the contents of
this report, and expressly disclaim liability for errors and omissions in its
contents. No warranty of any kind, implied, expressed or statutory including
but not limited to the warranties of non-infringement of third party rights,
title, merchantability of fitness for a particular purpose is given with
respect to the contents in this report.
Furthermore, any
information provided herein with regard to the listed asset is informational in
nature. We are not a legal advisory or business advisory service and do not
purport to tell or suggest which business decisions to make. You understand and
acknowledge that there is a risk involved in the purchase of a website or
online business. We assume no responsibility or liability for your investment
or business results. Factual statements within this report are made as of the
data stated and are subject to change without notice.
All information is provided solely for educational purposes and you are
encouraged to seek independent advice from a competent professional person if
legal, financial, tax, or other expert assistance is required.
17.
REVIEWS AND COMMENTS AND COMMUNICATION
You may post reviews,
comments, and other content; send communications; and submit questions or other
material, as long as the content is not:
(a) of a personal or
solicitous nature,
(b) unrelated to a listing,
(c) an attempt to transact outside the Website,
(d) illegal, obscene, abusive, threatening, defamatory or an invasive of
privacy,
(e) infringing of intellectual property rights, or
(f) injurious to third parties or objectionable.
You must not post or
send any content that contains software viruses, or that comprises political
campaigning, commercial solicitation, chain letters, mass mailings or any form
of “spam”. You may not use a false e-mail address, impersonate any person or
entity, or otherwise mislead as to the origin of any such content or
communication. We reserve the right (but not the obligation) to remove or edit
any content at any time and for any reason in its sole and absolute discretion.
While comments and
reviews are visible to other users, interactions and exchanges via the
discussion forum are private as between individuals and accessible to Digital
Assets Marketplace.
18.
INTELLECTUAL PROPERTY RIGHTS
You are responsible
for your content and you represent and warrant that you own or otherwise
control all of the rights to the content and material that you post and that,
as at the date that the content or material is posted it: (i) is accurate; (ii)
complies with these Terms and (iii) does not breach any applicable laws.
If you post content or
submit material, and unless we indicate otherwise, you grant Digital Assets
Marketplace a non-exclusive, royalty-free and fully sublicensable and
transferable rights to use, reproduce, modify, adapt, publish, translate,
create derivative works from, distribute, and display such content throughout
the world in any media;
You agree that the
rights you grant above are irrevocable during the entire period of protection
of your intellectual property rights associated with such content and material.
To the extent permitted by law, as applicable, you: (i) consent to any
infringement of; and (ii) agree to waive, any right you have to be identified
as the author of such content and any right you have to object to derogatory
treatment of such content. You agree to perform all further acts necessary to
perfect any of the above rights granted by you to Digital Assets Marketplace,
at our request.
You agree to indemnify
Digital Assets Marketplace for all claims brought by a third party against Digital
Assets Marketplace arising out of or in connection with the content and
material you supply except to the extent that any liability arises from our
failure to remove the content or material.
19.
THIRD-PARTY LINKS
The Website may
contain links to third-party websites or resources that we don’t own or control
(for example, links to Facebook, Twitter, and Pinterest or Google Analytics).
When you access these third-party services, you do so at your own risk. The
third parties may require you to accept their own terms of use and privacy
policies. Digital Assets Marketplace is not a party to those agreements — they
are solely between you and the third party.
20.
PROHIBITED ACTIVITIES
You may not use the Digital
Assets Marketplace Services:
(a) in any way that
causes, or is likely to cause, any Digital Assets Marketplace Service, or any
access to it to be interrupted, damaged or impaired in any way
(b) in any way that may interfere with or harm any other user of the Digital
Assets Marketplace Services;
(c) for fraudulent purposes, or in connection with a criminal or other unlawful
activity,
(d) in any manner that is not permitted under these Terms.
21.
DISCLAIMER AND LIABILITY
Unless otherwise
specified in writing, Digital Assets Marketplace disclaims, and does not make,
any representation or warranty of any kind in respect of the Digital Assets
Marketplace Services including without limitation any representation or
warranty,
(a) that they are free
of viruses or other harmful components;
(b) that your use of the Digital Assets Marketplace Services will be
uninterrupted or error-free; or
(c) as to the suitability or availability of the Digital Assets Marketplace
Services.
Digital Assets
Marketplace will not be responsible for:
(a) losses arising
from the unavailability of, or your inability to use the Digital Assets
Marketplace Services
(b) losses that are not directly caused by any breach on our part;
(c) any business loss, loss of sales, profits, revenue, contracts, anticipated
savings, data, goodwill or wasted expenditure;
(d) any indirect or consequential losses;
(e) any delay or failure to comply with our obligations under these conditions
if the delay or failure arises from any cause which is beyond our reasonable
control.
For any other loss
relating to the Digital Assets Marketplace Services, we limit our liability to
the amount you have paid to us for the relevant Digital Assets Marketplace
Services.
Nothing in these conditions is intended to:
(a) override any
express commitments Digital Assets Marketplace gives to you with respect to the
Digital Assets Marketplace Services (for example, the provision of a refund in
certain circumstances) or
(b) exclude, restrict or modify any right or remedy you have in statute
including under the Kenyan Consumer Law or otherwise to the extent that
that right or remedy cannot be excluded, restricted or modified under law. Any
disclaimer, exclusion, or limitation in these conditions applies as provided
for in these conditions to the full extent permitted by law and subject to any
such non-excludable right or remedy.
22.
INDEMNITY
You agree to indemnify
and hold Digital Assets Marketplace and its affiliates and their officers,
directors, employees, and agents harmless from any and all claims, demands,
losses, liabilities, and expenses (including legal fees) arising out of or in
connection with:
(a) your use of the
Website, Digital Assets Marketplace Services or assets obtained as a result;
(b) your breach or violation of any of these Terms;
(c) Digital Assets Marketplace’s use of your content;
(d) your violation of the rights of any third party, including another seller
or buyer.
You agree to hold Digital
Assets Marketplace, its principals, officers, directors, brokers, agents,
servants, employees and assigns harmless from any misrepresentations made by
you.
23.
APPLICABLE LAW
The laws of the Republic
of Kenya govern these Terms and any
dispute of any sort that might arise between the parties. Any dispute relating
in any way to these Terms will only be adjudicated in the courts of Kenya. Each
party consents to exclusive jurisdiction and venue in these courts.
24.
DISPUTE RESOLUTION
In the event of a
dispute between a buyer and seller, Digital Assets Marketplace recommends that
the parties engage in pre-dispute arbitration via the discussion forum. Digital
Assets Marketplace may help to facilitate the resolution of a dispute between a
buyer and seller and reserves the right to cancel the sale of a listed asset.
If a buyer and seller cannot come to an agreement on a dispute, Digital Assets
Marketplace recommends that legal advice is sought to resolve the matter.
25.
FORCE MAJEURE
You agree that Digital
Assets Marketplace will not be liable or responsible for any failure in, or
delay to, the provision of the Digital Assets Marketplace Services or in Digital
Assets Marketplace complying with these Terms, where such failure or delay has
arisen or is anticipated to arise as a direct or indirect result of:
(a) fire, earthquake,
storm, flood, hurricane, inclement weather or other act of God, war, terrorism,
explosion, sabotage, industrial accident or an industrial strike;
(b) denial of service attacks, telecommunications failure, hardware failure or
the failure of software provided by a third party to function in accordance
with its specifications;
(c) a significant demand is placed on Digital Assets Marketplace Services which
is above the usual level of demand and which results in a failure of Digital
Assets Marketplace’s software and hardware to function correctly;
(d) the failure of any third party (including without limitation, any bank or
other financial organization) to fulfill any obligations to Digital Assets
Marketplace; or
(e) any other circumstances or events that are beyond the reasonable control of
Digital Assets Marketplace (as the case may be).
26.
NOTICES
Digital Assets Marketplace may
give notice by means of a general notice on the Website, electronic mail to the
email address on your account, telephone or text message to any phone number
provided in connection with your account, or by written communication sent by
mail or pre-paid post to any address connected with your account. Such notice
shall be deemed to have been given upon the expiration of 48 hours after mailing
or posting (if sent by mail or pre-paid post) or 12 hours after sending (if sent
by email or telephone). You may give notice to Digital Assets Marketplace, with
such notice deemed given when received by Digital Assets Marketplace, at any
time by mail or pre-paid post to our registered agent for service of process,
c/o Digital Assets Marketplace Pty Ltd.
27.
ASSIGNMENT
Digital Assets Marketplace may
assign its rights and novate or transfer obligations that arise under these
Terms. You must not assign, novate or otherwise transfer your rights or
obligations under these Terms without the prior written consent of Digital
Assets Marketplace (which may be withheld).
28.
WAIVER
A provision of or a right created
under these Terms may not be waived except in writing signed by the party or
parties to be bound by the waiver. No single or partial exercise by any party of
any right, power or remedy will preclude any other or further exercise of that
or any other right, power or remedy. The rights, powers or remedies in these
Terms are cumulative with and not exclusive of any rights, powers or remedies
provided independently.
29.
ENTIRE AGREEMENT
These Terms supersedes all prior
representations, arrangements, understandings, and agreements between the
parties relating to the subject matter and sets forth the entire and exclusive
agreement and understanding between the parties.
30.
AMENDMENTS
We reserve the right
to make changes to our website, these Terms, our policies, and our listings at
any time by posting the changes on our website. Your continued access to or use
of the Website and Digital Assets Marketplace Services will constitute
acceptance of the revised Terms.
31.
SEVERABILITY
If any of these Terms are judged invalid or unenforceable for any reason whatsoever by a court of competent jurisdiction, such invalidity or unenforceability (unless deletion of such provision would materially adversely affect one of the parties) will not affect the operation or interpretation of any other term to the intent that the invalid or unenforceable term will be treated as severed from the Terms.
These terms of service were last updated in June 2020.