Provision of the Services.

You acknowledge that portions of the Services may be made available under MyResque’s various services or request options associated with road-side assistance, including the request modes currently referred to as “MyResque Recovery, MyResque Towing, MyResque non-accident services”. You also acknowledge that the Services may be made available under such modes or request options by or in connection with:

• certain of MyResque’s subsidiaries and affiliates; or
• independent Third Party Providers, including road-side assistance company drivers, road-side assistance permit holders or holders of similar road-side assistance permits, authorizations or licenses.

Ownership.

The Services and all rights therein are and shall remain MyResque’s property or the property of MyResque’s licensors. Neither these Terms nor your use of the Services convey or grant to you any rights:

• in or related to the Services except for the limited license granted above; or
• to use or reference in any manner MyResque’s company names, logos, product and service names, trademarks or services marks or those of MyResque’s licensors.

3. Your Use of the Services

User Accounts.

In order to use most aspects of the Services, you must register for and maintain an active personal user Services account (“Account”). You must be at least 18 years of age to obtain an Account. Account registration requires you to submit to MyResque certain personal information, such as your name, address, mobile phone number and age, Car registration details, Insurance information as well as at least one valid payment method (either a credit card or m-pesa). You agree to maintain accurate, complete, and up-to-date information in your Account. Your failure to maintain accurate, complete, and up-to-date Account information, including having an invalid or expired payment method on file, may result in your inability to access and use the Services or MyResque’s termination of these Terms with you. You are responsible for all activity that occurs under your Account, and you agree to maintain the security and secrecy of your Account username and password at all times. Unless otherwise permitted by MyResque in writing, you may only possess one Account.

User Requirements and Conduct.

The Service is not available for use by persons under the age of 18. You may not authorize third parties to use your Account, and you may not allow persons under the age of 18 to receive road-side assistance services from Third Party Providers unless accompanied by you. You may not assign or otherwise transfer your Account to any other person or entity. You agree to comply with all applicable laws when using the Services, and you may only use the Services for lawful purposes (e.g., no road-side assistance for a stolen vehicle). You will not, in your use of the Services, cause nuisance, annoyance, inconvenience, or property damage, whether to the Third Party Provider or any other party. In certain instances you may be asked to provide proof of identity to access or use the Services, and you agree that you may be denied access to or use of the Services if you refuse to provide proof of identity.

Text Messaging.

By creating an Account, you agree that the Services may send you text (SMS) messages as part of the normal business operation of your use of the Services. You may opt-out of receiving text (SMS) messages from MyResque at any time by following the directions found at htttp://ww.myresque.com/SMS-unsubscribe. You acknowledge that opting out of receiving text (SMS) messages may impact your use of the Services.

Promotional Codes.

MyResque may, in MyResque’s sole discretion, create promotional codes that may be redeemed for Account credit, or other features or benefits related to the Services and/or a Third Party Provider’s services, subject to any additional terms that MyResque establishes on a per promotional code basis (“Promo Codes”). You agree that Promo Codes:

• must be used for the intended audience and purpose, and in a lawful manner;
• may not be duplicated, sold or transferred in any manner, or made available to the general public (whether posted to a public form or otherwise), unless expressly permitted by MyResque;
• may be disabled by MyResque at any time for any reason without liability to MyResque;
• may only be used pursuant to the specific terms that MyResque establishes for such Promo Code; (v) are not valid for cash; and
• may expire prior to your use. MyResque reserves the right to withhold or deduct credits or other features or benefits obtained through the use of Promo Codes by you or any other user in the event that MyResque determines or believes that the use or redemption of the Promo Code was in error, fraudulent, illegal, or in violation of the applicable Promo Code terms or these Terms.

User Provided Content.

MyResque may, in MyResque’s sole discretion, permit you from time to time to submit, upload, publish or otherwise make available to MyResque through the Services textual, audio, and/or visual content and information, including commentary and feedback related to the Services, initiation of support requests, and submission of entries for competitions and promotions (“User Content”). Any User Content provided by you remains your property. However, by providing User Content to MyResque, you grant MyResque a worldwide, perpetual, irrevocable, transferrable, royalty-free license, with the right to sublicense, to use, copy, modify, create derivative works of, distribute, publicly display, publicly perform, and otherwise exploit in any manner such User Content in all formats and distribution channels now known or hereafter devised (including in connection with the Services and MyResque’s business and on third-party sites and services), without further notice to or consent from you, and without the requirement of payment to you or any other person or entity. You represent and warrant that: (i) you either are the sole and exclusive owner of all User Content or you have all rights, licenses, consents and releases necessary to grant MyResque the license to the User Content as set forth above; and (ii) neither the User Content nor your submission, uploading, publishing or otherwise making available of such User Content nor MyResque’s use of the User Content as permitted herein will infringe, misappropriate or violate a third party’s intellectual property or proprietary rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation. You agree to not provide User Content that is defamatory, libelous, hateful, violent, obscene, pornographic, unlawful, or otherwise offensive, as determined by MyResque in its sole discretion, whether or not such material may be protected by law. MyResque may, but shall not be obligated to, review, monitor, or remove User Content, at MyResque’s sole discretion and at any time and for any reason, without notice to you.

Network Access and Devices.

You are responsible for obtaining the data network access necessary to use the Services. Your mobile network’s data and messaging rates and fees may apply if you access or use the Services from a wireless-enabled device and you shall be responsible for such rates and fees. You are responsible for acquiring and updating compatible hardware or devices necessary to access and use the Services and Applications and any updates thereto. MyResque does not guarantee that the Services, or any portion thereof, will function on any particular hardware or devices. In addition, the Services may be subject to malfunctions and delays inherent in the use of the Internet and electronic communications.

4. Payment

You understand that use of the Services may result in charges to you for the services or goods you receive from a Third Party Provider (“Charges”). After you have received services through your use of the Service, MyResque will facilitate your payment of the applicable Charges on behalf of the Third Party Provider as such Third Party Provider’s limited payment collection agent. Payment of the Charges in such manner shall be considered the same as payment made directly by you to the Third Party Provider. Charges may include other applicable fees, tolls, and/or surcharges including a booking fee, national, provincial and municipal tolls, airport surcharges and processing fees for split payments, and will be inclusive of applicable taxes where required by law. Charges paid by you are final and non-refundable, unless otherwise determined by MyResque. You retain the right to request lower Charges from a Third Party Provider for services or goods received by you from such Third Party Provider at the time you receive such services or goods. MyResque will respond accordingly to any request from a Third Party Provider to modify the Charges for a particular service or good.

All Charges are due immediately and payment will be facilitated by MyResque using the preferred payment method designated in your Account, after which MyResque will send you a receipt by email. If your primary Account payment method is determined to be expired, invalid or otherwise not able to be charged, you agree that MyResque may, as the Third Party Provider’s limited payment collection agent, use a secondary payment method in your Account, if available.

As between you and MyResque, MyResque reserves the right to establish, remove and/or revise Charges for any or all services obtained through the use of the Services at any time in MyResque’s sole discretion. Further, you acknowledge and agree that Charges applicable in certain geographical areas may increase substantially during times of high demand. MyResque will use reasonable efforts to inform you of Charges that may apply, provided that you will be responsible for Charges incurred under your Account regardless of your awareness of such Charges or the amounts thereof. MyResque may from time to time provide certain users with promotional offers and discounts that may result in different amounts charged for the same or similar services obtained through the use of the Services, and you agree that such promotional offers and discounts, unless also made available to you, shall have no bearing on your use of the Services or the Charges applied to you. You may elect to cancel your request for services from a Third Party Provider at any time prior to such Third Party Provider’s arrival, in which case you may be charged a cancellation fee.

This payment structure is intended to fully compensate the Third Party Provider for the services provided. Except with respect to road-side assistance services requested through the Application, MyResque does not designate any portion of your payment as a tip or gratuity to the Third Party Provider. Any representation by MyResque (on MyResque’s website, in the Application, or in MyResque’s marketing materials) to the effect that tipping is “voluntary,” “not required,” and/or “included” in the payments you make for services provided is not intended to suggest that MyResque provides any additional amounts, beyond those described above, to the Third Party Provider. You understand and agree that, while you are free to provide additional payment as a gratuity to any Third Party Provider who provides you with services or goods obtained through the Service, you are under no obligation to do so. Gratuities are voluntary. After you have received services obtained through the Service, you will have the opportunity to rate your experience and leave additional feedback about your Third Party Provider.

Repair or Cleaning Fees.

You shall be responsible for the cost of repair for damage to, or necessary cleaning of, Third Party Provider vehicles and property resulting from use of the Services under your Account in excess of normal “wear and tear” damages and necessary cleaning (“Repair or Cleaning”). In the event that a Third Party Provider reports the need for Repair or Cleaning, and such Repair or Cleaning request is verified by MyResque in MyResque’s reasonable discretion, MyResque reserves the right to facilitate payment for the reasonable cost of such Repair or Cleaning on behalf of the Third Party Provider using your payment method designated in your Account. Such amounts will be transferred by MyResque to the applicable Third Party Provider and are non-refundable.

5. Disclaimers; Limitation of Liability; Indemnity.

DISCLAIMER.

THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” MYRESQUE DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, NOT EXPRESSLY SET OUT IN THESE TERMS, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN ADDITION, MYRESQUE MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE REGARDING THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY OR AVAILABILITY OF THE SERVICES OR ANY SERVICES OR GOODS REQUESTED THROUGH THE USE OF THE SERVICES, OR THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. MYRESQUE DOES NOT GUARANTEE THE QUALITY, SUITABILITY, SAFETY OR ABILITY OF THIRD PARTY PROVIDERS. YOU AGREE THAT THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE SERVICES, AND ANY SERVICE OR GOOD REQUESTED IN CONNECTION THEREWITH, REMAINS SOLELY WITH YOU, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.

LIMITATION OF LIABILITY.

MYRESQUE SHALL NOT BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOST DATA, PERSONAL INJURY OR PROPERTY DAMAGE RELATED TO, IN CONNECTION WITH, OR OTHERWISE RESULTING FROM ANY USE OF THE SERVICES, EVEN IF MYRESQUE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. MYRESQUE SHALL NOT BE LIABLE FOR ANY DAMAGES, LIABILITY OR LOSSES ARISING OUT OF: (i) YOUR USE OF OR RELIANCE ON THE SERVICES OR YOUR INABILITY TO ACCESS OR USE THE SERVICES; OR (ii) ANY TRANSACTION OR RELATIONSHIP BETWEEN YOU AND ANY THIRD PARTY PROVIDER, EVEN IF MYRESQUE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. MYRESQUE SHALL NOT BE LIABLE FOR DELAY OR FAILURE IN PERFORMANCE RESULTING FROM CAUSES BEYOND MYRESQUE’S REASONABLE CONTROL. YOU ACKNOWLEDGE THAT THIRD PARTY TRANSPORTATION PROVIDERS PROVIDING TRANSPORTATION SERVICES REQUESTED THROUGH SOME REQUEST BRANDS MAY OFFER RIDESHARING OR PEER-TO-PEER TRANSPORTATION SERVICES AND MAY NOT BE PROFESSIONALLY LICENSED OR PERMITTED. IN NO EVENT SHALL MYRESQUE’S TOTAL LIABILITY TO YOU IN CONNECTION WITH THE SERVICES FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION EXCEED 10,000 KES (10,000/-).

MYRESQUE’S SERVICES MAY BE USED BY YOU TO REQUEST AND SCHEDULE ROAD-SIDE ASSISTANCE SERVICES WITH THIRD PARTY PROVIDERS, BUT YOU AGREE THAT MYRESQUE HAS NO RESPONSIBILITY OR LIABILITY TO YOU RELATED TO ANY ROAD-SIDE ASSISTANCE SERVICES PROVIDED TO YOU BY THIRD PARTY PROVIDERS OTHER THAN AS EXPRESSLY SET FORTH IN THESE TERMS.

THE LIMITATIONS AND DISCLAIMER IN THIS SECTION 5 DO NOT PURPORT TO LIMIT LIABILITY OR ALTER YOUR RIGHTS AS A CONSUMER THAT CANNOT BE EXCLUDED UNDER APPLICABLE LAW.

Indemnity.

You agree to indemnify and hold MyResque and its officers, directors, employees and agents harmless from any and all claims, demands, losses, liabilities, and expenses (including attorneys’ fees) arising out of or in connection with:

• your use of the Services or services or goods obtained through your use of the Services;
• your breach or violation of any of these Terms;
  • MyResque’s use of your User Content; or
  • your violation of the rights of any third party, including Third Party Providers.

6. Lost Property

You understand and agree that it is your responsibility to ensure that you remove your property from your vehicle when towing. Should you leave your property in the vehicle, the Third Party Provider may hand over your property to you, MyResque or to the MyResque local service entity.

Whilst you may expect Third Party Providers to hand over your property to you, the offices of MyResque or the MyResque local service entity, MyResque or the MyResque local service entity shall not be held liable in the event of the Third Party Provider not handing over your property as expected. Moreover, MyResque or the MyResque local service entity shall not be liable for the loss or damage to your property whilst it is in transit.

Whilst MyResque or the MyResque local service entity will take reasonable steps to establish the owner of property found inside the vehicle if returned to the offices of MyResque or the MyResque local service entity, when your property is in MyResque’s or the MyResque local service entity’s possession, you understand and agree that:

• MyResque or the MyResque local service entity will only keep your property in its possession for a maximum period of three months from the date on which the Third Party Provider handed your property to MyResque or the MyResque local service entity; and
• should you fail to collect your property from MyResque or the MyResque local service entity before the expiry of the three month period stipulated, MyResque or the MyResque local service entity will be entitled to deal with your property as it deems fit and you shall have no claim whatsoever against MyResque or the MyResque local service entity in respect of your unclaimed property.

7. Governing Law; Arbitration.

Except as otherwise set forth in these Terms, these Terms shall be exclusively governed by and construed in accordance with the laws of Kenya, excluding its rules on conflicts of laws. Any dispute, conflict, claim or controversy arising out of or broadly in connection with or relating to the Services or these Terms, including those relating to its validity, its construction or its enforceability (any “Dispute”) shall be first mandatorily submitted to mediation proceedings under a court of law. If such Dispute has not been settled within sixty (60) days after a request for mediation has been submitted under such court rules, such Dispute can be referred to and shall be exclusively and finally resolved by arbitration under the Rules of Arbitration of the Nairobi Centre for International Arbitration (NCIA). The Nairobi Centre for International Arbitration Rules' Emergency Arbitrator provisions are excluded. The Dispute shall be resolved by one (1) arbitrator to be appointed in accordance with the Nairobi Centre for International Arbitration Rules. The existence and content of the mediation and arbitration proceedings, including documents and briefs submitted by the parties, correspondence from and to the Nairobi Centre for International Arbitration, correspondence from the mediator, and correspondence, orders and awards issued by the sole arbitrator, shall remain strictly confidential and shall not be disclosed to any third party without the express written consent from the other party unless:

• the disclosure to the third party is reasonably required in the context of conducting the mediation or arbitration proceedings; and
• the third party agrees unconditionally in writing to be bound by the confidentiality obligation stipulated herein.

8. Other Provisions

Claims of Copyright Infringement.

Claims of copyright infringement should be sent to MyResque’s designated agent. Please visit MyResque’s web page at https://myresque.com/legal for the designated address and additional information.

Notice.

MyResque may give notice by means of a general notice on the Services, electronic mail to your email address in your Account, or by written communication sent to your address as set forth in your Account. You may give notice to MyResque by written communication or via the help button on the app.

General.

You may not assign or transfer these Terms in whole or in part without MyResque’s prior written approval. You give your approval to MyResque for it to assign or transfer these Terms in whole or in part, including to:

• a subsidiary or affiliate;
• an acquirer of MyResque’s equity, business or assets; or
• a successor by merger. No joint venture, partnership, employment or agency relationship exists between you, MyResque or any Third Party Provider as a result of the contract between you and MyResque or use of the Services.

If any provision of these Terms is held to be illegal, invalid or unenforceable, in whole or in part, under any law, such provision or part thereof shall to that extent be deemed not to form part of these Terms but the legality, validity and enforceability of the other provisions in these Terms shall not be affected. In that event, the parties shall replace the illegal, invalid or unenforceable provision or part thereof with a provision or part thereof that is legal, valid and enforceable and that has, to the greatest extent possible, a similar effect as the illegal, invalid or unenforceable provision or part thereof, given the contents and purpose of these Terms. These Terms constitute the entire agreement and understanding of the parties with respect to its subject matter and replaces and supersedes all prior or contemporaneous agreements or undertakings regarding such subject matter. In these Terms, the words “including” and “include” mean “including, but not limited to.”