MARABA AGENT TERMS AND CONDITIONS
These terms and conditions set out the terms on which Maraba Place of P.O Box 56808-00100 Nairobi Kenya (“Maraba”) appoints “the Service Provider” to provide, and the Service Provider agrees to provide services as a member of Maraba’s Agent.
If the Service Provider is a body corporate all references in these terms and conditions to “him/her” shall refer to the individual acting for and on behalf of the Service Provider pursuant to these terms and conditions.
The agreement between Maraba and the Service Provider consists of these terms and conditions, any service schedules and the Maraba codes and policies (collectively referred to as the “Agreement”). All transactions and dealings between Maraba and the Service Provider are subject to the Agreement.
1. Appointment of the Service Provider
1.1 Maraba hereby appoints the Service Provider to promote and otherwise facilitate sales of the products (“the Products”) listed on Maraba’s online marketplace to customers located in Kenya (“the Territory”), as may be directed by Maraba from time to time (“the Services”).
1.2 The Service Provider hereby accepts the appointment and undertakes to use his or her best endeavors to expand sales of the Products in the Territory.
1.3 The Agreement shall commence on the date of execution by the Service Provider and shall continue indefinitely unless terminated in accordance with clause 9.
1.4 During the term of the Agreement, and in the performance of the Services, the Service Provider shall be entitled to describe him/herself as part of Maraba’s “Maraba Agent”.
2. The Services
2.1 The Services shall include any or all of the following:
2.1.1 Soliciting orders for the Products by contacting customers personally, by telephone or through social media;
2.1.2 Taking and placing orders for the Products from customers;
2.1.3 Procuring payment for the Products from customers;
2.1.4 facilitating delivery of the Products to the customer either by requesting direct delivery to the customer or delivery to the Service Provider for onward delivery to the customer, as may be agreed between the Service Provider and the customer;
2.1.5 Attending events/locations to solicit orders from customers;
2.1.6 Conducting market surveys for Maraba;
2.1.7 Facilitating training and recruitment of other members of Maraba’s Maraba Agent; and
2.1.8 Providing support to the brand to store program and brand activations.
2.2 The Services and related services levels may be further particularized by Maraba by communication in writing from time to time, including by notification of detailed service schedules.
2.3 The Service Provider shall provide every customer with information on Maraba’s ways of working including relevant terms and conditions, returns policy and customer services.
2.4 Maraba shall not under any circumstances offer credit to customers and the Service Provider acknowledges and agrees that the Service Provider shall not pledge the credit of Maraba and any credit offered by the Service Provider to customers shall be at the Service Provider’s own risk.
2.5 The Service Provider shall facilitate Maraba’s compliance with all applicable anti-money laundering and anti-bribery and corruption laws and regulations by supporting Maraba’s due diligence on customers and reporting on suspicious transactions.
3. The Rewards
3.1 The Service Provider shall be rewarded for the Services through commissions, bonuses and/or fixed fees (“Rewards”), as communicated in writing by Maraba from time to time.
3.2 The Rewards shall be inclusive of any and all taxes and statutory deductions payable by the Service Provider in accordance with all applicable laws in force from time to time. In the event that Maraba is required to make any withholding tax or other statutory deductions from the Rewards then Maraba shall at the cost and expense of the Service Provider comply with such legislation and remit the Rewards to the Service Provider, net of such deductions.
3.3 Notwithstanding clause 3.2 above, if the Service Provider is a VAT registered body corporate or individual, the Rewards shall be exclusive of any applicable VAT.
3.4 The Service Provider shall at all times advertise and promote the sale of the Products at the price published on the Maraba website from time to time, and the Service Provider shall not be entitled to:
3.4.1 Charge any fees for the Services to the customers; or
3.4.2 Receive any further compensation (beyond the Rewards) for the Services performed and expenses incurred in connection with the Agreement.
3.5 The Rewards shall be remitted via such payment method (including bank transfer, mobile money transfer and/or shopping vouchers) and in accordance with such payment terms as Maraba may specify in writing from time to time. Maraba may require the Service Provider to open an account with its appointed payment service provider for the purpose of accepting payment.
3.6 Maraba shall not be liable for any interest or penalty on late payments.
3.7 The Service Provider shall only receive Rewards in respect of sales that are banked by Maraba and, for the avoidance of any doubt, the Service Provider shall not receive Rewards in respect of cancelled orders or returned Products.
3.8 In the event of any breach of the Agreement by the Service Provider, Maraba may in its absolute discretion suspend or cancel payment of the Rewards.
3.9 Maraba may at any time set off against the value of the Rewards any liability of the Service Provider to Maraba, whether such liability is present or future, liquidated or unliquidated, and however arising.
4. Performance of the Services
4.1 In consideration of payment of the Rewards by Maraba, the Service Provider shall perform the Services in accordance with:
4.1.1 All applicable laws and regulations from time to time in force, including all applicable anti-money laundering, anti-bribery, anti-corruption, sanctions and export control laws and regulations.
4.1.2 The highest standards of honesty, integrity and ethical business conduct;
4.1.3 the provisions of the Agreement, any service schedules, and applicable Maraba codes and policies (including the Partner Code of Conduct and Maraba Agent Manual) as notified to the Service Provider, as may be amended by Maraba from time to time; and
4.1.4 All reasonable instructions from Maraba.
4.2 The Service Provider shall use his/her best endeavors to promote and protect the interests of Maraba.
4.3 The Service Provider represents and warrants to Maraba that there are no commitments, conflicts of interest and other circumstances that may prevent or inhibit the provision of the Services by the Service Provider. The Service Provider shall not be an employee of Maraba or a seller on the Maraba online marketplace.
4.4 Risk and title: Risk and title in the Products shall pass directly to the purchaser of the Products and at no stage shall Maraba acquire any risk or ownership of the Products. The Service Provider acknowledges that it shall bear all risk in respect of Products in its possession and shall duly insure itself against such risks as provided at clause 7.5.
4.5 Confidentiality: The Service Provider shall keep confidential any and all commercial, operational and other documents and information relating to Maraba’s business, and shall not disclose or reproduce such information without the prior express written consent of Maraba.
4.7 Records: The Service Provider shall maintain records of all sales of the Products and shall provide all such records to Maraba as Maraba may request from time, for any purpose including for the purpose of auditing the Service Provider’s business.
4.8 Training: The Service Provider shall attend training sessions and meetings at Maraba’s business premises or any other location in the Territory as Maraba may reasonably require from time to time. The Service Provider’s eligibility to participate in specific schemes and campaigns, and to deliver the services, may be subject to attending relevant training provided.
5. Independent Contractor
5.1 The Service Provider is not an employee of Maraba, and nothing in the Agreement is intended to, or shall be deemed to, create a contract for employment or create an employer-employee relationship between the Service Provider and Maraba.
5.2 The Service Provider is a free agent and independent contractor and shall hold himself/herself out to the public as such, and maintain a principal place of business at his/her own address.
5.3 Nothing in the Agreement is intended to, or shall be deemed to establish any partnership, joint venture, or agency agreement between Maraba and the Service Provider, and the Service Provider shall not:
5.3.1 Hold out himself or herself out as an agent of Maraba;
5.3.2 Hold out himself or herself out as Maraba’s proxy;
5.3.3 Incur any debt, obligation or liability on behalf of Maraba;
5.3.4 Give any condition or warranty or representation on behalf of Maraba; or
5.3.5 Negotiate or sign in the name of Maraba or on behalf of Maraba any purchase order, or other document that could bind Maraba in any way.
5.4 The Service Provider understands that, as an independent contractor:
5.4.1 The Service Provider may dedicate as much or as little time to the performance of the Services as it determines in its own discretion;
5.4.2 the Service Provider is not entitled to receive from Maraba health, disability, redundancy, retirement, or any other benefits provided to employees under the laws of the Territory; and
5.4.3 The Service Provider shall be responsible for his or her own tax compliance, expect in respect of any legal obligation on Maraba for withholding tax or other statutory deductions as provided at clause 3.2.
5.5 Maraba makes no warranty or representation with regard to potential revenues that may be earned by the Service Provider from the provision of the Services, and no employee or other representative of Maraba is authorized to make such representations. In the event of any such unauthorized representations, the Service Provider shall immediately inform the Maraba Head of Maraba Agent and shall not rely on the same.
6.1 The Service Provider’s services are not exclusive to Maraba and Maraba shall not in any way discourage or inhibit the Service Provider's rights to enter into any other contracts as the Service Provider sees fit.
7. Liability, Indemnity and Insurance
7.1 Subject to clause 7.2 below, Maraba will not be liable for any loss, damage or injury to the Service Provider howsoever arising and will not be liable in respect of any claim made against the Service Provider by any third party.
7.2 Nothing in the Agreement shall exclude liability to the extent not permitted by the laws of the Territory.
7.3 The Service Provider will indemnify Maraba in full against all claims, costs, expenses (including legal expenses), loss, damage or liability awarded against or incurred by Maraba as a result of any act, omission or breach of the Agreement by the Service Provider.
7.4 Maraba’s rights under the Agreement are without prejudice to any other rights or remedies available to it under the laws of the Territory.
7.5 The Service Provider shall be independently responsible for maintaining in force an insurance policy in respect of its risks and potential liabilities under the Agreement.
8. Intellectual Property
8.1 All tradenames, trademarks and other intellectual property rights and goodwill accruing to Maraba (the “Maraba IP”) shall remain the property of Maraba, and the Service Provider will not acquire any rights in respect thereof by virtue of its performance of the Services pursuant to the Agreement.
8.2 The Service Provider shall notify Maraba of any actual, threatened or suspected infringement, improper or wrongful use of the Maraba IP.
8.3 The Service Provider shall not:
8.3.1 Reproduce Maraba’s advertising materials or any other Maraba IP without first obtaining the written permission of Maraba;
8.3.2 Commit any act that damages the Maraba IP, name or reputation;
8.3.3 commit any act that damages the intellectual property, name or reputation in respect of the Products, and in particular the Service Provider shall not make any modifications to the Products or their packaging; or alter, remove or tamper with any trademarks, intellectual property, numbers, or other means of identification used on or in relation to the Products.
8.3.4 register or seek to register any trademark, tradename or other intellectual property identical to or likely to be confused with any intellectual property owned by Maraba or in respect of the Products.
9.1 Either party may terminate the Agreement at any time without cause by giving 7 days’ written notice to the other party.
9.2 Maraba may terminate the Agreement immediately by notice in writing to the Service Provider if:
9.2.1 The Service Provider commits one or more breaches of the Agreement;
9.2.2 The Service Provider purports to assign its rights or obligations under the Agreement; or
9.2.3 The Service Provider dies or by reason of illness or incapacity is incapable of providing the Services.
9.3 Upon termination of the Agreement:
9.3.1 The Service Provider shall immediately cease to perform the Services; to describe themselves as a member of Maraba’s Maraba Agent; and to use the Maraba IP.
9.3.2 the Service Provider shall at its own expense, and within thirty (30) days of termination send to Maraba or otherwise dispose of in accordance with the directions of Maraba, all advertising, promotional or sales material relating to the Products and all confidential information relating to the business of Maraba then in the possession of the Service Provider;
9.3.3 Maraba shall, subject to the rights of set off provided for a clause 3.9, remit to the Service Provider any Rewards earned as at the date of termination;
9.3.4 the Service Provider shall not be entitled to claim, and Maraba shall not be liable for any Rewards in respect of any period after the date of termination; or any costs, expenses, loss of sales, loss of goodwill, compensation, or any other claim whatsoever arising directly and indirectly from the termination;
9.3.5 the Service Provider shall cooperate with Maraba and provide all assistance to enable an orderly and efficient transfer of the performance of the Services to Maraba or any third party nominated by Maraba, without interruption or adverse effect;
9.3.6 any provision of the Agreement that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect; and
9.3.7 Except as otherwise provided at clause 9.3.6 above, and to any rights or obligations accruing prior to termination, neither party will have any further obligation to the other under this Agreement.
10. Miscellaneous terms
10.1 Assignment and sub-contracting: The Agreement is personal to the Service Provider and the Service Provider may not assign any of its rights or obligations, sub-contract or otherwise delegate performance of its obligations. Maraba may without the prior consent of the Service Provider assign the Agreement and its rights and obligations to a Maraba affiliate.
10.2 Variation: No variation of the Agreement shall be valid unless it is in writing and refers specifically to the Agreement.
10.3 No waiver: No breach of any provision of the Agreement will be waived except with the express written consent of the party not in breach. No waiver of any breach of any provision of the Agreement shall be construed as a further or continuing waiver of any other breach of that provision or any breach of any other provision of the Agreement.
10.4 Entire agreement: The Agreement constitutes the entire agreement between the parties and supersedes any and all previous agreements between the parties.
10.5 Hierarchy: Should these terms and conditions, any service schedules, and the Maraba codes and policies, be in conflict, these terms and conditions, any service schedules, and the Maraba codes and policies shall prevail in the order here stated.
10.6 Severability: In the event that one of the clauses of the Agreement is found to be void, voidable or illegal, then the clause shall be severed and the rest of the Agreement shall be read as if that clause did not exist.
10.7 Notices: All notices or other communications to be given under the Agreement to either party shall be made in writing and sent to Maraba by letter to the fore stated address or by email to the Maraba Agent account manager; or to the Service Provider by email to the email address provided by the Service Provider during registration, as updated from time to time.
10.8 Governing law and jurisdiction: The Agreement shall be governed by and construed in accordance with the Laws of the Territory and the parties agree to submit to the exclusive jurisdiction of the courts of the Territory.
10.9 Electronic or digital signature: The parties acknowledge and agree that the Agreement may be executed by electronic or digital signature (by clicking “I agree” as provided in the registration form) which shall be considered as an original signature for all purposes and shall have the same force and effect as an original signature