Terms and Conditions

Mojagate’s How Low Terms & Conditions

Effective 1st October 2020

PREAMBLE

Mojagate Ltd, a company registered under the laws of Kenya (no. PVT-9XUP78D) whose registered address is: Slip Road, Waiyaki Way, Westlands, Nairobi; trading as How Low Enterprises (BN-KYCZB7AE) (hereinafter referred to as How Low). How Low, together with its affiliates hold an auctioneer’s licence (no. 006414) held by Mr George Gitonga Muchiri, Auctioneer, trading under the name Fantasy Auctioneers duly authorized and regulated by the Auctioneers Board of Kenya.

This agreement establishes the Terms and Conditions that govern the contractual relationship between the Company and the Bidder and shall apply when a Bidder bids in any How Low auction, whether live, or via any media or electronic platform, including inter alia, mobile devices, tablets, laptops and computers. Each type of auction may also have its own auction-specific Procedures and Rules that apply and bidders are reminded that they will be deemed to have agreed to and be bound by such Procedures and Rules. Bidders are required to accept these Terms and Conditions when interacting with the services offered by the Company and are bound by these Terms and Conditions throughout the existence of the relationship. The Terms and Conditions govern the way we do business, how we take bids, and how we identify what the Bidders can expect from How Low. By using our services, regardless of how a Bidder accesses them, the Bidder acknowledges and confirms acceptance of these terms and agrees to abide and be bound by them. If a Bidder does not agree to these terms of use, he or she should refrain from using our services. This How Low Auction shall hereinafter be referred to as ‘How Low’ and is an auction subject to the terms of the Auctioneer’s Act 1996.This agreement establishes the Terms and Conditions for the contractual relationship between How Low and the Bidders. The Terms shall apply to bidding via Mobile Money. You are required to accept these Terms and Conditions when interacting with the services offered. How Low and You are bound by these Terms and Conditions throughout the existence of the relationship. The Company reserves the right to change these Terms and Conditions at any time and without prior notice. Best efforts will be made to inform Bidders about major modifications to these Terms and Conditions. Notwithstanding the same, it is the responsibility of the Bidder to check for amendments and it shall be assumed that by bidding, all Bidders have read, understand, and agree to the Terms and Conditions at the time of entry.

1. DEFINITIONS

AUCTION

typically the lowest unique bid format of reverse auction used by How Low in order to determine the successful bid, but can be defined as any other auction format used by How Low at its discretion.

BID

An amount in Kenya Shillings that a Bidder has entered or intends to enter into the Auction for a specific Item. For the avoidance of doubt, bids are only accepted in Kenya Shillings as whole positive numbers starting at the lowest ksh1 and increasing in increments of 1ksh upwards.

BID ENTRY FEE

the amount in Kenya Shillings (Ksh) sent via Mpesa that it costs in order to enter the auction, i.e. to place a Bid, typically Ksh20 or Ksh40 but may be varied by How Low at its discretion.

BIDDER

the User of the How Low service that has placed or intends to place a Bid.

CURRENT LEADER

the Bidder who has placed the lowest Unique Bid at any given time.

ITEM

the product(s) or other worthy inventory that is the focus of a specific Auction listing.

NON-UNIQUE BID

a Bid that has been placed on a specific Auction by a Bidder where at least one other Bidder has also placed an identical Bid on the same Auction.

RRP (Recommended Retail Price)

means the manufacturer’s recommended retail price for a specific Item or items within our Auctions.

UNIQUE BID

a Bid that has been placed on a specific Auction by a Bidder where no other Bidder has placed an identical Bid on the same Auction.

US, WE, OUR, HOW LOW

or similar all mean Mojagate Limited T/A How Low Enterprises.

THE WEBSITE, OUR WEBSITE, THE SITE or THE WEBSITE

or similar all mean the website at HowLow.co.ke

SUCCESSFUL BID

The lowest unique bid in a specific Auction at the close of the auction.

SUCCESSFUL BIDDER

The bidder with the lowest unique bid in a specific Auction at the close of the auction

YOU, YOUR, USER

or similar all mean The Website visitors or Users via Mpesa, or similar, either registered or otherwise.

2. ELIGIBILITY TO PARTICIPATE WITH HOW LOW

2.1. By using Our Website or entering our Auctions directly via mobile money entry mechanism, or via SMS, You confirm that:

2.1.1. You have the capacity and are thereby legally capable of entering into binding contracts;

2.1.2. You are at least 18 years old - you may be required to provide proof of Your age at such time as You are the Successful Bidder in an Auction on Our Website or at any other time as We deem necessary;

2.1.3. You are able to make payments to Us using your Mpesa Account;

2.1.4. You are resident in the Republic of Kenya;

2.1.5. You are accessing Our Website from within the Republic of Kenya;

2.1.6. You are not an employee of How Low (save in the case of product testing).

2.1.7. You are participating as an individual only and not as part of a commercial or reseller organisation;

2.2. Only one User Account is permitted per person and per telephone number. At the time of a User being the Successful Bidder in an Auction, or at any other time that We deem necessary, We may contact the User by the registered telephone number affiliated to the mobile money account. We will only dispatch the Item(s) that have been purchased via Auction as and when We are satisfied that the registered telephone number belongs to the registered User. We may ask that the User confirms certain Account details over the telephone in order to confirm that the Account details are correct.

2.3. We reserve the right to terminate any User at Our sole discretion. In general, We will only take these actions if, in Our reasonable opinion, a User has:

2.3.1. violated any laws or the rights of third parties;

2.3.2. failed to honour payments due to Us;

2.3.3. used or attempted to use any unauthorised third party Bidding software;

2.3.4. used false or misleading information during registration or amendment of their details;

2.3.5. collaborated or attempted to collaborate with other Users in an attempt to increase the likelihood of being the Successful Bidder (in this instance collaboration also means a User creating more than one User Account);

2.3.6. created an Account despite being an employee of ours;

2.3.7. set up or attempted to set up multiple User Accounts.

2.4. Where a User Account is terminated due to a breach of these Terms and Conditions, We reserve the right to set off any amounts incurred as direct or indirect loss and/or expense by Us investigating the alleged breach prior to returning any Balance back to the User and where relevant use any funds stored in the wallet for this purpose.

3. WRITTEN COMMUNICATIONS / NOTICES

3.1. We are required by law in some cases that certain communications from Us to You need to be in written form. You agree and accept that in most cases communication from Us to You shall be electronic format, i.e. in the form of SMS text message, or in some cases via emails or notices on Our Website. You agree that these electronic means of communication comply fully with any legal requirement that such communications be in writing and that any contracts, notices and other communications that We provide to You electronically constitute legal written communication.

3.2. Any notices or communications that You require to be issued to Us must be sent via email to [email protected] and detail Your name, address and registered telephone number.

3.3. We may issue any notice to You via SMS on the number provided when registering, or email that You provide to Us when you contact us as per 3.2. above; and notice will be deemed received and properly served on the day an SMS is sent and one day after an email is sent. Further, You agree that in proving the service of any notice, it will be sufficient to prove that, in the case of SMS it was dispatched, and, in the case of an email, that such email was sent to the email address provided to Us by the User.

3.4. By signing up to How Low you agree to receive promotional and other messages via SMS and/or via our email mailing list so we can contact you from time to time regarding our latest offers, auction reminders and general information. This includes but is not limited to, information on auctions you have bid on and How Low offers.

3.5. How Low may share your information with our partners of any Auctions that you have bid on. This includes but is not limited to Your name & phone number, items You have bid on, etc.

4. ENTRY MECHANISM

4.1. Bidders may participate by entering their bids via mobile money with the following process:

4.1.1. Go to paybill 777892 or any of our other relevant paybill numbers as advertised from time to time on our website, or by our media partners, or other outlets

4.1.2. Use the account field to enter your bid amount together with the Keyword that identifies the relevant auction that You are bidding on

4.1.3. Insert the Entry Fee under the amount field (typically Ksh20, but can vary at Our discretion as advertised).

4.2. Bidders may participate by entering their bids via the Website with following process:

4.2.1. Go to howlow.co.ke

4.2.2. Select the auction that you wish to bid on and follow the instructions in the fields below

4.2.3. Select the option to bid online

4.2.4. Enter your phone number and bid amount (the relevant keyword is automatically assigned when bidding online)

4.2.5. Await the STK prompt on your phone and enter your Mpesa pin to complete the bidding process

4.3. Bidders may participate by entering their bids via SMS to 40452 using funds in their How Low Wallet. The text must include the keyword and the bid amount. Further Instructions for using the wallet can be found in clause 7.13 below.

4.4. Players will then receive one of a number bid status messages notifying them if their bid is:

• unique or

• not unique.

4.5. During the auction, bidders receive in-auction alerts and give notification of when the auction is closing.

4.6. These notifications include:

· a ‘last chance to bid’ alert, and

4.7. The final message that people will receive where applicable is the Successful Bidder message and how much they purchased the item for.

5. OFFERS

From time to time, How Low will offer its customers a free entry into an additional auction by bidding on a particular auction, or similar other offer. Such offers run for a limited time only and full details of the entry mechanisms shall be provided on the site and in our media and advertising. We reserve the right to remove any offer at any time without prior notice for any reason that We deem necessary, at Our sole discretion.

6. BIDDING

6.1. To place a Bid, You may choose between playing via the Website, Mpesa or SMS as outlined in the Entry Mechanism above.

6.2. We reserve the right to cancel or remove a User’s Bids at Our sole discretion if We believe that the User has acted fraudulently or is in breach of these Terms and Conditions.

6.3. All Bids are final and no refunds will be issued for Bid Entry Fees paid by You unless the Auction is terminated by Us. Your statutory rights are not affected by this term.

7. HOW AUCTIONS WITH HOW LOW WORK

7.1. Auctions on Our Website follow a very simple structure and in order to provide You with the knowledge required to apply skill and judgement in the Auctions, We provide You with the following data for each and every Auction on Our Website:

7.2. RRP: this information is provided to the best of Our knowledge where relevant and is usually provided by the manufacturer of each Item. We cannot guarantee that the RRP is correct but will always use Our best endeavours to ensure that the RRP listed is as accurate as possible.

7.3. The Bid Entry Fee: this is the amount it will cost You, via Mpesa Paybill, to place a Bid for the Item. The Bid Entry Fee may vary depending on the Auction, so check this amount prior to placing each Bid to ensure that You are comfortable with the Bid Entry Fee.

7.4. A Unique Bid is deemed to be a Bid that is the only Bid placed for a specific amount within a specific Auction. If a further Bid is placed by another User for the exact same amount, then both Bids are deemed to be no longer Unique (i.e. they both become Non-Unique Bids).

7.5. In the event that there is no unique bid, i.e. all bids ranging from the lowest Ksh1 up to the highest bid have two or more bids placed, the successful bid shall be the first in time to place the bid that is the lowest with the least number of bids placed on it.

7.6. Auction close: in the case of a fixed time Auction, the auction closes when the time allocated to the auction shall have expired. In these fixed time Auctions, the auction is initially created by Us with a defined amount of time, e.g. 24 hours, one week, etc. The time may vary from auction to auction. In addition how Low offer also offer auctions that can end at any time at the discretion of the auctioneer. The type of auction is clearly displayed on the website and in the media and advertising for any given auction.

7.7. Upon completion of an Auction, the Successful Bidder will receive confirmation of their success by SMS.

7.8. We reserve the right to:

· Suspend or terminate an Auction at any time in the event of technical problems or to investigate suspected irregular or fraudulent activity;

· Remove an auction if we feel it does not benefit our users and has not had sufficient interest. In this case all bids will be recredited to the user’s accounts who placed bids.

7.9. Further information about how the Auctions work in a simpler guide can be found in the How It Works sections of Our Website.

7.10. For the avoidance of doubt, any advice or help articles appearing on Our Website are intended solely as suggestions for techniques and should not be construed as providing a solution to becoming the successful bidder in any specific Auction. We accept no liability whatsoever for any actions taken by a User as a result of reading, or being informed about, any of the advice or written materials available on Our Website.

7.11. The Successful Bidder will pay How Low their bid amount. How Low, at its sole discretion may waive the requirement to pay by the bidder in lieu of testimonials and other marketing material supplied by the successful bidder.

7.12 Wallet Account:
You may additionally bid using funds in your wallet by sending your bid by SMS to 40452. A wallet account is automatically created with How Low once a bidder sends money to How Low via paybill. Any price paid above the official entry fee for any auction is held in your wallet. You may also deposit money into your wallet by sending money to our paybills with:

- the word DEPOSIT in the account field

- with an empty account field

- an invalid entry in the account field.

You can then use your wallet by sending your bid by SMS to 40452. If you want to check the balance on your wallet, text BAL to 40452. A wallet account handling fee of Ksh100 is charged per month from the date of registration for this service in any month that there is a balance held. You can cash out your wallet at any time by calling our customer service team. A one month grace period shall apply before the application of the wallet account handling fee.

7.13: Default auction and keywords:
Each How Low auction has a unique keyword that must be included by the bidder in the account name field of Mpesa together with the bid amount, or included in the body of the text message when bidding via SMS. At any given time, there is a default auction where bid entries lacking a keyword as outlined above will be entered. The default auction at any time is chosen by How Low and will be indicated as such on the website. Bidding using unrecognised keywords, i.e. keywords that do not exactly match those communicated on the website for the various auction listings will lead to those bids being entered into the current default auction. How Low accepts no liability for any mistakes made by bidders who do not follow the clear instructions provided herein and on the website and enter incorrect information into the account field or SMS when bidding.

7.14. Bid Increments: Bids are accepted in full shillings only. Cents, decimals or fractions thereof will be discarded and only the integer shilling amount will be accepted as a bid. How Low do not perform any rounding, up or down, on bids using cents, decimals or fractions, and bids including the same may at How Low’s discretion be accepted or denied.

8. CONFIRMATION OF THE SUCCESSFUL BIDDER DETAILS

8.1. It is a condition precedent to formation of a Contract between the Successful Bidder and Us that the telephone number held by Us at the time of being announced the successful bidder in the Auction is valid and that the User can be reached by calling or text it via SMS. In the event that the telephone number is not correct, the Contract cannot be formed and the successful bid will be forfeited.

8.2. Upon completion of an Auction, the Successful Bidder will be required to confirm their registered telephone number by receiving a text from Us. We will attempt to call or text the Successful Bidder’s registered telephone number within two (2) working days of the Auction ending and may request that the User confirms some details from their Account in order to verify the User. In the event that the telephone number on file has voicemail, We will leave a message requesting that the User returns Our call to verify their Account. Alternatively, the Successful Bidder may call or email Us to request a call back. In any event, the only acceptable methods of verification is for Us to call and/or text You on the telephone number that You have provided as part of Your User Account details.

8.3. The Successful Bidder will have 14 days to confirm to How Low their information, if he or she does not confirm within this time period How Low will presume the User does not want the product(s) and it will be forfeited by the User.

9. DELIVERY

9.1. At our sole discretion, We deliver the Auction Item(s) to the successful bidder free of charge within the Republic of Kenya unless otherwise stated. Specific details are available by contacting Us. Certain Items may not be delivered free of charge due to the practicalities, for example an Auction for a car may not be delivered to the Successful Bidder. In these cases We may, at Our sole discretion, pay for Your travel expenses to collect the Item either from Us or from Our supplier.

9.2. Items that have been purchased via our Auctions will normally be dispatched to the Successful Bidder within 3 working days of Contract formation and payment of the Auction ending price by the User. In exceptional circumstances We may be unable to honour this timescale and the dispatch may be slightly later, We will always contact the Successful Bidder to inform them of any delays to the delivery.

9.3. You will receive a dispatch confirmation on the registered telephone number when the Item has been dispatched. We may at Our sole discretion choose to use a courier or parcel delivery service that utilises a parcel tracking facility, where this is the case, You will also receive the courier’s details and the parcel tracking number in Your dispatch email. Tracking is provided purely in accordance with the courier’s own Terms and Conditions which may be found on the courier’s Website.

9.4. We may, at Our sole discretion, offer the Successful Bidder the opportunity to customise their Item before they receive it. For example if a User successfully bids on a car through Our Website, We would normally allow the User to choose the colour and other free options; We may also allow the User to add other optional extras to the car at the User’s own expense prior to ordering the car. Whilst this provides a better value product to the User, the above delivery timescales cannot be honoured for such Items. Further, the User agrees that any delivery period(s) quoted by Our suppliers in such cases would be acceptable to the User.

9.5. Any dispatch or delivery times quoted are estimates only and We cannot guarantee any exact dates or delivery timescales in any way. You agree that any delays to delivery imposed upon Us by Our couriers or the like are out of Our control, and that such delays would be acceptable to You.

9.6. Any Items that have been damaged during transport or packaging that is damaged upon delivery must be reported to Us within one working day of receiving the delivery. Failure to do so will waive any rights You may have to claim for replacement of a damaged Item against the delivery company only.

10. RETURNS AND CANCELLATIONS / CONSUMER RIGHTS

10.1. The Items that are the subject of Auctions on Our Website vary hugely; for this reason, We are unable to offer a standard period within which You may return a faulty Item. Our policy is therefore to assess each Item on an individual basis and apply a ‘reasonable time’ principle in accordance with Kenya Law. If We determine that Your Item has developed a fault within what We consider to be a reasonable time, We will arrange for the Item to be collected from You at Our expense and a repaired or replacement Item will be returned to You within a reasonable time, again at Our expense. Where We are unable to provide a repaired or replacement Item, We reserve the right to issue a full refund of the purchase price, which will constitute full consideration for the Item. Where the Item appears to have been the subject of abuse, accidental damage or misuse We reserve the right to refuse to provide a repaired or replacement Item and to charge You for the cost of Us collecting the Item from You and returning the Item to You. For Items which store data, it is Your responsibility to backup Your own data prior to the Item being returned; any repaired or replacement Item will be returned to You without any of Your personal data or files installed on same. We do not offer a data recovery service of any type.

10.2. Media Items are not covered by the return policy above where they have been opened or have had their seal broken. Media Items will only be eligible for return in exchange for a replacement product if they are found to be faulty. For the purposes of these Terms and Conditions, ‘Media Items’ include without limitation; audio products, video products; computer software or any similarly licensed Item. Box sets or sets of any sort may only be returned in their entirety; partial refunds for individual components from within a full set will not be issued.

10.3. Your statutory rights are not affected by this section of these Terms and Conditions.

11. SETTING OFF / WITHHOLDING PAYMENT / RETENTION OF TITLE

11.1. In the case of an outstanding payment of any kind and / or chargeback against the User, any Items delivered to the User will remain the property of How Low until such time as the amounts owed to Us are paid in full. During this time, You undertake to store the Item separately from Your other possessions and not take beneficial use of the Item until such time as the payment has been received and cleared in full.

12. DISCLAIMER OF WARRANTY AND LIMITATION OF LIABILITY REGARDING THE USE OF HOW LOW

12.1. The User expressly agrees that the use of How Low is at User's sole risk. Neither How Low, its affiliates nor any of their respective employees, agents, third party content providers or licensors warrant that How Low will be uninterrupted or error free; nor do they make any warranty as to the results that may be obtained from the use of How Low, or as to the accuracy, reliability or content of any information, service, or merchandise provided through How Low.

12.2. How Low is provided on an "as is" basis; to the maximum extent permitted by law, How Low disclaims all representations and warranties, expressed or implied, with respect to any information, services, products and materials, including, but not limited to, warranties of merchantability or fitness for a particular purpose, title, non-infringement, freedom from computer virus and implied warranties arising from course of dealing or course of performance. In addition, How Low does not represent or warrant that the information accessible via the site is accurate, complete or current. We are not responsible for typographical errors.

12.3. This disclaimer of liability applies to any damages or injury caused by any failure of performance, error, omission, interruption, deletion, defect, delay in operation or transmission, computer virus, communication line failure, theft or destruction or unauthorised access to, alteration of, or use of record, whether for breach of Contract, tortious behavior, negligence, or under any other cause of action. The User specifically acknowledges that How Low is not liable for the defamatory, offensive or illegal conduct of other Users or third-parties and that the risk of injury from the foregoing rests entirely with the User.

12.4. In no event will How Low, or any person or entity involved in the use of a How Low Auction, be liable for any damages, including, without limitation, direct, indirect, incidental, special, consequential or punitive damages arising out of the use of or inability to use How Low. The User hereby acknowledges that the provisions of this section shall apply to all content on The Website.

12.5. In addition to the Terms set forth above neither, How Low, nor its affiliates, information providers or content partners shall be liable regardless of the cause or duration, for any errors, inaccuracies, omissions, or other defects in, or untimeliness or unauthenticity of, the information contained on Our Website, or for any delay or interruption in the transmission thereof to the User, or for any claims or losses arising therefrom or occasioned thereby. None of the foregoing parties shall be liable for any third-party claims or losses of any nature, including, but not limited to, lost profits, punitive or consequential damages. Neither, How Low, nor its affiliates, information providers or content partners warrant or guarantee the timeliness, sequence, accuracy or completeness of this information. Additionally, there are no warranties as to the results obtained from the use of the information.

12.6. With regards to the Auction process and / or other elements of Our Website, We will not be liable for; any losses arising from Your negligence; any failure to follow Our instructions as to placing Bids; any use of websites linked to Our Website but not operated by Us; any loss or damage due to viruses or other malicious software that may infect Your computer equipment, software, data or other property caused by You accessing, using or downloading from Our Website, or from transmissions via emails or attachments received from Us; faulty operations of computers during Bid placement and / or for incorrect or overly slow transmission of Bidding data by the internet provider and / or any damage that occurs due to Bids submitted by You not being received by Us or not being received promptly or not being considered, as a consequence of technical faults with Our software or hardware (whether same are within Our control or otherwise).

12.7. We accept no liability for any indirect losses howsoever caused including without limitation; loss of income or revenue; loss of business; loss of profits or future contracts; loss of anticipated savings; loss of data; or waste of management or office time or space whether caused by tort, negligence, breach of Contract or otherwise, even if foreseeable.

12.8. For the avoidance of doubt, the above provisions do not in any way limit Our liability; for death or personal injury caused by Our negligence; under section 2(3) of the Consumer Protection Act 1987; for fraud or fraudulent misrepresentation; or for any matter for which it would be illegal for Us to exclude, or attempt to exclude, Our liability.

13. DISCLAIMER OF WARRANTY AND LIMITATION OF LIABILITY REGARDING ITEMS PURCHASED FROM HOW LOW

13.1. We warrant to You that all of the Items purchased from Us through Our Website are of satisfactory quality and reasonably fit for all of the purposes for which the Items of that kind are commonly supplied.

13.2. All Items are sold with the manufacturer’s limited warranty only, where applicable.

13.3. With the exception of the warranties set forth above, How Low makes no other warranties, either expressed or implied, with respect to the Items, or any related services performed by How Low or any of its agents or subcontractors in connection with any order, including, without limitation, any warranties of fitness for a particular purpose, which other warranties are expressly excluded and disclaimed.

13.4. How Low shall not be liable for personal injury and property damage resulting from the improper handling, modification, misuse of the Items by the User or any other person following delivery by How Low. In no event shall How Low be liable to any person for incidental or consequential damages including but not limited to loss of profits or goodwill, loss-of-use damages or additional expenses incurred, whether pursuant to a claim in Contract, tort or otherwise and whether in an action for breach of warranty or otherwise.

13.5. We accept no liability for any indirect losses howsoever caused including without limitation; loss of income or revenue; loss of business; loss of profits or future contracts; loss of anticipated savings; loss of data; or waste of management or office time or space whether caused by tort, negligence, breach of Contract or otherwise, even if foreseeable.

13.6. For the avoidance of doubt, the above provisions do not in any way limit Our liability; for death or personal injury caused by Our negligence; under section 2(3) of the Consumer Protection Act 1987; for fraud or fraudulent misrepresentation; or for any matter for which it would be illegal for Us to exclude, or attempt to exclude, Our liability.

14. SYSTEM OUTAGES / SERVICE AVAILABILITY / TEMPORARILY SUSPENDED AUCTIONS

14.1. We endeavour to provide an efficient and error-free platform in Our Website for You to participate in the Bidding process. However, it is not possible to develop and operate computer programs (software) and data processing systems (hardware) completely without errors, or to rule out any unpredictable events in connection with the internet (hereinafter referred to collectively as “technical faults”). We therefore provide no guarantee or warranty for the constant and uninterrupted availability of Our Website and other systems. In addition We accept no liability for any damage that occurs due to Bids submitted by Users not being received by Us or not being received promptly or not being considered, as a consequence of technical faults.

14.2. Auctions may be temporarily suspended in the event of technical faults until such time as the issue has been resolved, such events are called ‘System Outages’. In the event that this occurs We will use Our best endeavours to return to normal service as quickly as possible; during the period of the technical fault, all Auctions may be suspended and will resume upon rectification of the fault. Any Bid Prices paid for Bids placed by a User that are not considered as a result of a technical fault will not be refunded.

14.3. Our Website is intended solely for use by residents of the Republic of Kenya and We do not accept orders from persons outside of this jurisdiction. Deliveries will only be made to the address provided.

14.4. Access to Our Website is granted on a temporary basis and We reserve the right to restrict or suspend access to The Website or close it indefinitely at any time We deem necessary without prior notice. You are personally responsible for making all arrangements necessary for You to gain access to Our Website.

15. TRADEMARKS

15.1. In relation to the How Low logo text, the website howlow.co.ke, the How Low general character, and the auctions platform and format, are intellectual property of How Low, All Rights Reserved.

16. SERVICE AND SUPPORT FOR ITEMS PURCHASED

16.1. We are unable to provide any technical service and / or support. All requests for technical service and / or support should be made directly to the manufacturer of the Item in accordance with their respective Terms and Conditions.

17. APPLICABLE LAW / SEVERABILITY

17.1. Any dispute or claim arising out of or in connection with these Terms and Conditions or Items purchased (including non-contractual disputes or claims) will be governed solely by English law. Any dispute or claim arising out of or in connection with Contracts or their formation (including non-contractual disputes or claims) will be subject to the non-exclusive jurisdiction of the courts of the Republic of Kenya.

17.2. We aim to limited the use of Our Website and services for people outside of the Republic of Kenya. If You access Our Website from any other jurisdiction You do so of Your own volition.

17.3. If any of these Terms and Conditions or any provisions of a Contract are determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision will to that extent be severed from the remaining Terms, Conditions and provisions which will continue to be valid to the fullest extent permitted by law.

18. PROTECTION OF DATA: COLLECTION, PROCESSING AND USE OF YOUR PERSONAL INFORMATION

18.1. We treat the protection of Your personal data with extreme care and will never disclose Your data to third parties for marketing or any other purposes, except in the case of our affiliates.

18.2. By participating in sponsored auctions you agree to allow our sponsor to email you further details of the product in the auction, during, before and after its running.

18.3. How Low acknowledges adherence to the Data Protection Act and other relevant Kenyan legislation and regulation in relation to data privacy.

19. EXTERNAL LINKS

Our Website may contain links to other websites operated by third parties, and these sites may likewise contain links to other websites. Despite conducting careful checks, We assume no liability for the content of external links. The operators of the sites linked to and from this site are solely responsible for their contents. We hereby expressly distance ourselves from all content of any and all websites linked to Our Website. We cannot take any responsibility for the content of the data protection and privacy guidelines of third-party websites.

20. TRANSFER OF RIGHTS AND OBLIGATIONS

The Contract between You and Us is binding on You and Us and on Our respective successors and assigns. You may not transfer, assign, charge or otherwise dispose of a Contract, or any of Your rights or obligations arising under it, without Our prior written consent. We may transfer, assign, charge, sub-Contract or otherwise dispose of a Contract, or any of Our rights or obligations arising under it, at any time during the term of the Contract. We are entitled to involve third parties to satisfy Our contractual obligations without being required to notify You.

21. OUR RIGHT TO VARY THESE TERMS AND CONDITIONS

21.1. We may at any time and at Our sole discretion revise these Terms and Conditions to reflect inter alia, changes in market Conditions affecting Our business, changes in technology, changes in payment methods, changes in relevant laws and regulatory requirements and changes in Our system’s capabilities. You will be subject to the policies and Terms and Conditions in force at the latest time that You accept them, unless any change is required to be made by law or governmental authority (in which case it will apply to orders previously placed by You), or if We notify You of the change to those policies or these Terms and Conditions (in which case We have the right to assume that You have accepted the change to the Terms and Conditions unless You notify Us to the contrary within seven days of receipt by You of the notification of the changes).

21.2. You may be required to agree to additional Terms and Conditions from time to time. Unless otherwise expressly provided by the additional Terms and Conditions, those additional Terms are hereby incorporated into these Terms and Conditions.

22. VIRUSES, HACKING AND OTHER OFFENCES

22.1. You are expressly prohibited from misusing Our Website in any way. In these Conditions misuse is defined as; introducing viruses, Trojans, worms, logic bombs or other material which is malicious or technologically harmful; gaining or attempting to gain access to Our Website, the server on which Our Website is stored or any server, computer or database connected to Our Website; attacking or attempting to attack Our Website via any denial of service attack or distributed denial of service attack; or, attacking or attempting to attack Our Website by any other means that is recognised as an attack vector.

23. FORCE MAJEURE AND OTHER EVENTS OUTSIDE OF HOW LOW’S CONTROL

We are not liable or responsible for any failure to perform, or delay in performance of, any of Our obligations under a Contract that is caused by any act, event, non-happening, omission or accident beyond Our reasonable control. Such events are called ‘Force Majeure Events’ and include particularly, without limitation; strikes, lock-outs or other industrial action; civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war, fire, explosion, implosion, storm, flood, earthquake, subsidence, epidemic or other natural disaster; impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport; impossibility of the use of public or private telecommunications networks; and, the acts, decrees, legislation, regulations or restrictions of any government.

Our performance under any Contract is deemed to be suspended for the period that the force majeure event continues, and We will have an extension of time for performance for the duration of that period. We will use Our reasonable endeavours to bring the force majeure event to a close or to find a reasonable alternative solution by which We are able to perform Our obligation under the Contract despite the force majeure event.

24. TERM OF PROVISIONS

24.1. These Terms and Conditions remain in full force and effect from acceptance until terminated by either party on 30 days’ written notice or unless terminated in accordance with these Terms and Conditions.

24.2. These Terms and Conditions take precedence over any information displayed on Our Website or any other publication at all times.

25. BUSINESS REGISTRATION DETAILS

How Low Enterprises is wholly owned by Mojagate Limited, and the website howlow.co.ke and all of its sub-domains is a Website owned and operated by Us.

26. GENERAL PROVISIONS

26.1. We reserve the right to act upon Our sole discretion in implementing the Terms and Conditions. Further, We reserve the right to take action against anyone who, in Our opinion, is in breach of these Terms and Conditions. Such action includes, without limitation, terminating Your registration and terminating access to Our Site and Auctions on Our Site and via mobile money.

26.2. We are the owner or licensee of all intellectual property rights on Our Website and material published on it. All such material is protected by copyright laws and treaties around the world and all rights relating to the same are reserved. You may not modify or reproduce any digital or paper copies of any material either printed or downloaded from Our Website nor use any illustrations, photographs, video or audio sequences or any graphics separately from any accompanying text. Further You may not use any of the materials on Our Website for commercial purposes.

26.3. We always use Our best endeavours to ensure that all descriptions on Our Website are as accurate as possible. However, We may sometimes not succeed and the Items offered may differ from those described on Our Website due to, without limitation; later production changes in specification, components or place of manufacture; inaccuracies on Our Website; or typographical errors, generally.

26.4. These Terms and Conditions and any document expressly referred to in them represent the entire agreement between Us and You in relation to the subject matter of any Contract and supersede any prior agreement, understanding or arrangement between Us and You, whether oral or in writing.

26.5. We each acknowledge that, in entering into a Contract, neither of Us has relied on any representation, undertaking or promise given by the other or to be implied from anything said or written in negotiations between Us and You prior to such Contract except as expressly stated in these Terms and Conditions.

26.6 In the event that you are the successful bidder, You will automatically be deemed to grant to How Low an irrevocable right to publish, through all types of media broadcasting, including the internet, for the purposes of promoting the auction, Your full name (as well as Your nick name), hometown, photograph, and video materials without any claim for broadcasting, printing or other rights, for a period of up to thirty-six months from the date of the auction. You also give How Low the right to publish, for a period of up to thirty-six months from the date of the auction, any additional information that You voluntarily provide, and any testimonial or other commentary relating to the auction or the product, attributed by consent to you. You shall have no claim against How Low for invasion of privacy or on any other ground(s) by reason of the publication or broadcasting of Your Name, hometown, photograph, video materials, or information voluntarily provided by You.

26.7. Neither You nor Us will have any remedy in respect of any untrue statement made by the other, whether orally or in writing, prior to the date of any Contract (unless such untrue statement was made fraudulently) and the other party´s only remedy will be for breach of Contract as provided in these Terms and Conditions.

26.8. A waiver by Us of any breach or default hereunder shall not be deemed to be a waiver of any preceding or subsequent breach or default. Further, failure by Us to exercise any of the rights or remedies to which We are entitled under the Contract will not constitute a waiver of such rights or remedies and will not relieve You from compliance or performance of such obligations. No waiver by Us of any of these Conditions will be effective unless it is expressly stated to be a waiver and is communicated to You by Us in writing.

26.9. All section headings within these Conditions serve solely to assist in reading and for convenience, and shall not be given any legal import.

26.10. All bids entry fees re subject to VAT at the prevailing rate (currently 14%), together with any other applicable taxes that may arise from time to time.

© 2020-2021 How Low Enterprises Ltd. All rights reserved. Auctioneers licence no 006414 held by Mr George Gitonga Muchiri, Auctioneer, trading under the name Fantasy Auctioneers duly authorized and regulated by the Auctioneers Board of Kenya.