TERMS OF SERVICE
Date of Last Revision: April 26 2021
The following Terms of Service, which include the Privacy Policy, IP Policy, and any guideline, policy or content displayed on the Website, are a legally binding contractual agreement between you (“User, “you,” “your”) and Ndiwano. d/b/aNdiwano.com (“Ndiwano.com,” “we,” “us”). By visiting or using the services available from the domain and sub-domains of Ndiwano.com (the “Website“), you agree to be legally bound by these Terms of Service. We reserve the right to revise these Terms of Service and all linked information from time to time in our sole discretion by updating this posting or any linked information. Unless otherwise provided in such revision, the revised terms will take effect when they are posted.
1. OVERVIEW AND DEFINITIONS
Ndiwano is an online marketplace that enables buyers of professional services (“Employers”) to search for, enter into and manage transactions with providers of professional services (“Freelancers” and, collectively with Employers, “Registered Users”). The Website contains features that enable Freelancers and Employers to do, among other things, the following:
Employers: Create profiles, post projects, search for Freelancers, communicate with Freelancers,
negotiate with Freelancers, award projects to Freelancers, manage projects, leave feedback for Freelancers, and pay Freelancers.
Freelancers: Create profiles, advertise capabilities, submit quotes, negotiate with Employers, obtain
project awards, invoice, obtain feedback from Employers, and receive payment from Employers.
We also provide Registered Users with certain services described in, and subject to, these Terms of Service (as further defined below, the “Services”). We may add, delete or modify some or all of such Services at any time at our sole discretion with reasonable notice posted in advance on the Website. Capitalized terms used in these Terms of Service have the following meanings:
“Account” means the account created by the Website upon registration.
“Assumed Payment Liabilities” shall mean that portion of a Freelancer’s total service charges for a Project which Ndiwano agrees to assume in consideration of the Service Charges.
“Dispute Resolution Service” means the service described in Section 6.
“Employer’s Acceptance of Services” shall mean: (i) with respect to an Invoice, a transfer of funds by Employer to Ndiwano in respect of such Invoice or (ii) With respect to the Payment Service, the earlier to occur of the following: (a) Employer and the Freelancer agree as to the rightful recipient of the funds or (b) Employer and Freelancer have concluded the process comprising the Dispute Resolution Service.
“Ndiwano Billing and Payment Services” means, collectively, the Ndiwano Invoice and Payment Service.
“Ndiwano Invoice Service” means the service described in Section 5(A).
“Escrow Service” means the service described in Section 5(B).
“Service Charges” means, as applicable, the Project Fee, Employer Payment Processing Fee, Freelancer Transfer Method Fee and the Dispute Resolution Service Fee.
“Services” means, collectively, the Ndiwano Billing and Payment Service, the Dispute Resolution Service and other services offered through the site.
“Website” means the world wide web site operated by Ndiwano at Ndiwano.com or any replacement URL.
2. REGISTRATION
A. Eligibility. To access our Services through our Website, you must be a legal entity, or an individual of eighteen (18) years of age or older who can form legally binding contracts. To become a Registered User, you must accept all of the terms and conditions in, incorporated by reference in, and linked to, these Terms of Service. By becoming a Registered User, you agree to: (1) abide by the Terms of Service and the processes, procedures, and guidelines described throughout the Website; (2) be financially responsible for your use of the Website and the purchase or delivery of services; and (3) perform your obligations as specified by any Project Agreement that you accept, unless such obligations are prohibited by law or by the Terms of Service. Ndiwano reserves the right, in its sole discretion, to refuse, suspend, or terminate Services to anyone.
B. Registration.Tobecome a Registered User and to access Services you must register for an Account. You agree to provide true, accurate and complete information as prompted by the registration form and all forms you access on the Website, and to update this information to maintain its truthfulness, accuracy and completeness.
C. Accounts and Profiles.
(1) General. Once you have registered with the Website as a Registered User, the Website will create your Account with Ndiwano.com and associate it with an account number
(2) Username and Password. During registration, you will be asked to choose a username and password for the Account. As a Registered User, you agree and you are entirely responsible to safeguard and maintain the confidentiality of the username and password you use to access this Website. You authorize Ndiwano to assume that any person using the Website with your username and password is you or is authorized to act for you. You agree to notify us immediately if you suspect any unauthorized use of the Account.
(3) Freelancers. As described on the Website, a Freelancer uses bids to submit quotes for Projects. If a Freelancer requires additional bids in a given month, the Freelancer has the option to buy additional bids by purchasing a Bid Pack as described on the Website. We reserve the right to change membership fees, the monthly number of bids included in the membership options or the price Bid Packs or institute new fees at any time, at the sole discretion of Ndiwano and upon reasonable notice posted in advance on the Website. No refunds of membership fees already paid will be given. If we exercise our right to cancel a membership as provided under these Terms of Service, at any time, we will not refund the membership fee already paid.
3. RELATIONSHIPS
A. Employer and Freelancer.
(1) Project Agreement. The engagement, contracting and management of a project are between an Employer and a Freelancer. Upon acceptance of a quote, the Employer agrees to purchase, and the Freelancer agrees to deliver, the services and related deliverables in accordance with the following agreements: (a) the agreement between Employer and Freelancer including the Project Bid, Project Description, and other terms and conditions as communicated between Employer and Freelancer on the Website or otherwise, (b) these Terms of Service, and (c) any other content uploaded to the Website by either party (collectively, the “Project Agreement”). You agree not to enter into any contractual provisions in conflict with these Terms of Service. Any provision of a Project Agreement in conflict with these Terms of Service is void. Employer is responsible for managing, inspecting, accepting and paying for satisfactory services and deliverables in accordance with the Project Agreement in a timely manner. Freelancer is responsible for the performance and quality of the services in accordance with the Project Agreement in a timely manner. Employer and Freelancer each covenants and agrees to act with good faith and fair dealing in performance of the Project Agreement.
2) Independence. Employer and Freelancer each acknowledges and agrees that their relationship is that of independent contractors. The Freelancer shall perform services as an independent contractor and nothing in these Terms of Service shall be deemed to create a partnership, joint venture, agency, or employer-employee relationship between Freelancer and Employer or between Ndiwano and any Employer or Freelancer.
B. Registered Users and Ndiwano.
(1) General. Ndiwano is not a party to the dealing, contracting and fulfilment of any Project between an Employer and a Freelancer. Ndiwano has no control over and does not guarantee the quality, safety or legality of any services performed or deliverables created, advertised, the truth or accuracy of project listings, the qualifications, background, or abilities of Registered Users, the ability of Freelancers to perform services, the ability of Employers to pay for services, or that an Employer or Freelancer can or will actually complete a Project. Ndiwano is not responsible for and will not control the manner in which a Freelancer operates and is not involved in the hiring, firing, discipline or working conditions of the Freelancer. All rights and obligations for the purchase and sale of services or other deliverables are solely between an Employer and a Freelancer. Ndiwano will not provide any Freelancer with any materials or tools to complete any Project. Employers and Freelancers must look solely to the other for enforcement and performance of all the rights and obligations arising from Project Agreements and any other terms, conditions, representations, or warranties associated with such dealings.
(2) Third-Party Beneficiary of Project Agreement. Employer and Freelancer each acknowledges and agrees that the value, reputation, and goodwill of the Website depend on their performance of their covenants and agreements as set forth in their Project Agreement. Employer and Freelancer therefore appoint Ndiwano as a third-party beneficiary of their Project Agreement for purposes of enforcing the obligations owed to, and the benefits conferred on, Ndiwano by these Terms of Service. Employers and Freelancers further agree that Ndiwano has the right to take such actions with respect to the Project Agreement or their Accounts, including without limitation, suspension, termination, or any other legal actions, as Ndiwano in its sole discretion deems necessary to protect the value, reputation, and goodwill of the Website.
(3) Agency. These Terms of Service and any registration for or subsequent use of this Website by any user or Registered User will not be construed as creating or implying any relationship of agency, franchise, partnership or joint venture between you and Ndiwano, except and solely to the extent expressly stated.
(4) Taxes. Registered Users are responsible for payment and reporting of any taxes. Ndiwano is not obligated to determine the applicability of any taxes or to remit, collect or report any such applicable taxes. You agree that you will abide by any and all applicable state and government tax statutes, regulations and common law. In the event Ndiwano receives a notice of non-compliance with any such statute, regulation or common law, Ndiwano will deem such receipt a breach of this section and will suspend your Account.
4. Ndiwano FEES
A. Service Fees.Ndiwano deducts one or more of the following fees, as applicable, from payments made by Employers to Freelancers using the Ndiwano Billing and Payment Services:
(1) Project Fee. Ndiwano charges all Freelancers a Project Fee. The fee is based on a Freelancer’s profile membership type and is deducted from the total amount paid by an Employer for a Project. Freelancer’s are charged a 5%(promotional) Project Fee.
(2) Employer Payment Processing Fee. If an Employer pays a Freelancer, an Employer Payment Processing Fee depending on the mode of payment will be charged to the Freelancer.
(3) Freelancer Transfer Method Fee. If, upon a Freelancer’s request, funds are to be disbursed via check or an NEFT transfer or through Paypal a Freelancer Transfer Method Fee will be charged to the Freelancer as described on the Website.
(4) Dispute Resolution Service Fee. For use of Dispute Resolution Service, irrespective of the nature of resolution and any resulting disbursements, Ndiwano charges a Dispute Resolution Service Fee, equal to the greater of Rs 500 and five percent (5%) of the total amount paid by an Employer to Ndiwano for the applicable project to which such payment relates.
C. We reserve the right to change membership fees, service fees, processing fees or any other fee that may be charged by Ndiwano at any time, at the sole discretion of Ndiwano and upon reasonable notice posted in advance on the Website. No refunds of fees already paid will be given. If we exercise our right to cancel a membership as provided under these Terms of Service, at any time, we will not refund the membership fee already paid.
5. Ndiwano BILLING AND PAYMENT SERVICES
A. Ndiwano Invoice Service. The Ndiwano Invoice Service enables Freelancers to issue invoices and enables Employers to make payments for services.
(1) General. When a Freelancer completes a Project for an Employer, the Freelancer will complete the electronic invoice form (the “Invoice”) and submit it to Ndiwano via the Website. A Freelancer must complete and submit an Invoice to Ndiwano for each and every Project. The Freelancer will provide Ndiwano with a list of items, including, but not limited to, hours worked, payment required and description of Project(s), to be included on the Invoice (“Invoice Details“). Such Invoice Details will not be final until and unless such Freelancer has confirmed the accuracy of the Invoice Details or waived the right to review the Invoice Details. If a Professional waives his, her or its right to review the Invoice Details, all items in the Invoice Details will be included on the Invoice as received by Ndiwano. Ndiwano ENCOURAGES ALL FREELANCERS TO REVIEW INVOICE DETAILS. Ndiwano will submit the Invoice to the Employer and the Employer shall submit the payment specified in the Invoice (“Payment“) to Ndiwano. When an Employer makes a payment through the Ndiwano Invoice Service, Ndiwano deducts the appropriate Service Charges due Ndiwano as described on the Website and delivers the remainder of the Payment to the Freelancer.
(2) Invoice Disputes. If an Employer reasonably disputes any Invoice, the Employer will pay all undisputed amounts within the time frames specified above and the parties will cooperate to verify any disputed amounts. Any Invoice amounts reasonably disputed by an Employer will not be payable to a Freelancer until such dispute is resolved. Ndiwano’s obligation to pay any Payment (less applicable Service Charge) is expressly conditioned upon: (a) Ndiwano’s receipt of Payment from the applicable Employer and (b) resolution of all outstanding disputes with respect to such Invoice and/or Payment.
B. Escrow Service. The Escrow Service enables Employers to transfer certain payment responsibilities to Ndiwano.
(1) General. At an Employer’s request, upon payment to Ndiwano by Employer for services to be rendered by a Freelancer, Ndiwano will assume responsibility for the payment for such Freelancer’s services (less applicable Service Charge). Ndiwano agrees not to pay Freelancers for services until after the occurrence of an Employer’s Acceptance of Services. You acknowledge that such funds will belong to Ndiwano immediately upon such funds being transferred to Ndiwano by you. However, Ndiwano agrees to refund such funds to Employer in the event that (y) a Freelancer acknowledges that services have not been completed or (z) Employer and Freelancer have concluded the process comprising the Dispute Resolution Service with a result indicating that Employer is the rightful recipient of such funds. Ndiwano agrees to keep both Employer and Freelancer informed as to the status of the Assumed Payment Liability and if, for any reason, a party requests Dispute Resolution Service regarding such status, will notify both parties that the matter will be addressed through the Dispute Resolution Service. (2) Escrow Disputes. If an Employer or Freelancer reasonably disputes the quality or completion of services
provided by such Freelancer, then both Employer and Freelancer agree that Work nHire shall have no payment obligations to any party related to relevant fees until such dispute is resolved in accordance with Section 6 below. Ndiwano’s obligation to pay any Payment (less applicable Service Charge) is expressly conditioned upon resolution of all outstanding disputes with respect to such Payment.
C. Funds Transfer.
(1) General. To receive funds due to you, you must request such funds and indicate your selection of the funds transfer methods available on the Website. Any such requests shall be subject to the conditions and restrictions contained on the Website and in these Terms of Service. Notwithstanding any other provision of these Terms of Service, if Ndiwano determines in its sole discretion that a Registered User has violated the conditions and restrictions of the Website or Terms of Service, Ndiwano has the right to refuse to process such request.
(2) Hold on Transfers. Ndiwano reserves the right, at its sole discretion, to place a hold on requested transfers if Ndiwanosuspects monies may be subject to charge back, bank reversal, failure to clear or fraud. Ndiwano will release a hold as soon as practical.
D. Legal Relationship.
(1) Ndiwano is not your agent with respect to any funds that have been transferred to Ndiwano for any Assumed Payment Liabilities.
(2) Each Freelancer must properly discharge and credit Employers for all payments that Ndiwano makes to such Freelancer in respect of services provided to such Employers.
(3) Ndiwano acts as a payment provider by creating, hosting, maintaining, and providing the Ndiwano Billing and Payment Services to you via the Internet. Ndiwano does not have any control over the services invoiced or paid for with the Ndiwano Billing and Payment Services. Additionally, Ndiwano does not control whether an Employer or Freelancer will actually complete the underlying transaction. Ndiwano is not responsible in any way for the timeliness or accuracy of the invoices or the timeliness, accuracy, completion or workmanship of any work product produced by a Freelancer as a result of an awarded Project.(4)
By using the Ndiwano Billing and Payment Services, you expressly acknowledge that (a) Ndiwano is not acting as a trustee or a fiduciary of Employers or Freelancers and that the Ndiwano Billing and Payment Services are provided to Registered Users administratively; (b) Ndiwano is not a “financial institution” and the Ndiwano Billing and Payment Services are payment services rather than a banking services; (c) NDIWANO IS NOT A BANK AND ANY PAYMENTS TRANSFERRED THROUGH Ndiwano ARE NOT INSURED DEPOSITS AND ARE SUBJECT TO DEFAULT, LOSS OR FORFEITURE.
E. Miscellaneous Payment Terms.
(1) We as a merchant shall be under no liability whatsoever in respect of any loss or damage arising directly or indirectly out of the decline of authorization for any Transaction, on Account of the Cardholder having exceeded the preset limit mutually agreed by us with our acquiring bank from time to time.
(2) Authorized Payments are Final. Your use of the Ndiwano Billing and Payment Services constitutes your agreement to pay for any amounts which you authorize us to retain from transactions and, as appropriate, charge to your credit card, bank account, or PayPal account. Such payments, once authorized, are final. When an Employer’s Acceptance of Services has occurred, (i) Ndiwano shall have no further liability to any party with respect to Payment for such services, (ii) Employer acknowledges that Ndiwano has provided a complete service in respect of the payment made by Employer for the Assumed Payment Liability or Invoice, as applicable and (iii) Employer hereby releases Ndiwano from any and all liability with respect to such Payment. (3) Fraudulent Transactions; Erroneous or Duplicate Transactions; Charge Backs. Ndiwano reserves the right to seek reimbursement from you, and you will reimburse Ndiwano, if Ndiwano discovers a fraudulent
transaction, erroneous or duplicate transaction, or if Ndiwano receives a charge back or reversal from any Employer’s credit card company, bank, or PayPal for any reason. You agree to and acknowledge Ndiwano’s right to investigate any and all transactions for fraud. Further, you agree to cooperate with any reasonable requests made by Ndiwano in an effort to investigate fraud. You agree that Ndiwano has the right to obtain such reimbursement by charging your Account, deducting amounts from future transfers, charging your credit card or any bank account associated with your Account, or obtaining reimbursement from you by any other lawful means, including using a third party collection agency. Failure to pay for reimbursements of a charge back or a reversal of payment is cause for termination of your Account.
(4) Currency. The Ndiwano Billing and Payment Services operate in INR and therefore Ndiwano is not responsible for currency fluctuations that occur when billing or crediting a credit or debit card denominated in a currency other than INR, nor is Ndiwano responsible for currency fluctuations that occur when receiving or sending payment via check , NEFT Transfer , credit card account or PayPal account.
(5) Exclusivity and Non-Circumvention. Employers agree to use the Ndiwano Billing and Payment Services to make all payments to Freelancers, whether first-time, repeat, or follow-on. You also agree not to take any action directly or indirectly to circumvent the Ndiwano Billing and Payment Services or any associated fees. As a Freelancer, you agree to use Ndiwano Billing and Payment Services to receive all payments from Employers identified through the Website, whether first-time, repeat, or follow-on. Additionally, you agree not to circumvent the Ndiwano Billing and Payment Services or any associated fees.
(6) Notification. As an Employer, you agree to notify Ndiwano immediately if your Freelancer solicits payment from you outside the Website. As a Freelancer, you agree to notify Ndiwano immediately if your Employer seeks to pay you outside the Website. If you are aware of a breach of the foregoing prohibitions, or any potential circumvention of the Ndiwano Billing and Payment Services, please submit a confidential report to Ndiwano by sending an email to info@Ndiwano.com.
(7) Agreement to Pay. If, for any reason, Ndiwano does not receive payment for any amounts that you have authorized to be paid through your use of the Ndiwano Billing and Payment Services, you agree to pay such amount immediately upon demand by Ndiwano. You also agree to pay any interest charges, attorneys’ fees and other costs of collection incurred by Ndiwano in collecting from you the authorized but unpaid amount. In such case, Ndiwano may, at its option, stop processing any further payments made by you and apply any amounts then held by Ndiwano on your behalf toward any deficiencies, losses or costs that we have incurred as a result of your use of the Ndiwano Billing and Payment Services. We may also make appropriate reports to credit reporting agencies, financial institutions, tax agencies and law enforcement authorities, and cooperate with them in any resulting investigation or prosecution.
A. Eligibility. Ndiwano offers the Dispute Resolution Service to those Registered Users that have requested Ndiwano to assume all or a portion of the payment liability for services and who are engaged in a dispute over a Project that is (i) pursuant to a project posting by an Employer through the Website, (ii) pursuant to a bid for by a Freelancer through the Website for such job posting and (iii) pursuant to an acceptance through the Website by the Employer for such bid. Employer and Freelancer agree and acknowledge that, with respect to Assumed Payment Liabilities, any and all disputes relating to the underlying fees shall be governed by the terms of this Section 6.
B. Process.
(1) Mediation. In any dispute between Registered Users relating to a Project that is eligible for Dispute Resolution Service, you agree to mediate such dispute in good faith before Ndiwano for a period of ten (10) business days. Such ten business day period shall be deemed to have begun the day that either party requests Dispute Resolution Service through the Website. If the result of such mediation is acceptable to both parties in a dispute, you agree to indicate your approval of such mediation through the Website and Ndiwano will disburse funds in accordance with the results of such mediation. If you are dissatisfied with the progress, or if ten (10) business days have lapsed since you have notified Ndiwano of a dispute between you and a Freelancer, you agree to submit your dispute to binding arbitration as further set forth below.
(2) Arbitration. In any dispute between an Employer and a Freelancer which cannot be resolved through mediation, you expressly agree to and acknowledge that Ndiwano or a third party chosen by Ndiwano will arbitrate the dispute in accordance with these Terms of Service and the Website.
(a) You acknowledge and agree that Ndiwano will construe any Project Agreement based on the transaction’s course of dealing and common industry practices. Specifically, in rendering its decision, the arbitrator shall only be obligated to consider the following: (i) the Project Agreement, (ii) the parties’ course of dealings, as evidenced by activity on or communications through the Website, (iii) the Project itself and (iv) any information or communication that the Employer and the Freelancer agree should be considered.
(b) Ndiwano shall render its decision within five (5) business days of a failed mediation. During this time, you are encouraged to continue to negotiate an amicable settlement with the Freelancer with which you are engaged in a dispute.
(c) You agree that the decision of Ndiwano, acting as an arbitrator, shall be final, binding, and not subject to appeal. Accordingly, within a reasonable time after we have rendered a decision, we will transfer funds in accordance with the arbitrator’s decision.(d) In the event that you are the prevailing party in its arbitration decision, you agree that you shall have no right, title to, interest in or license to the Project that is the subject matter of the dispute. In such case, you agree to return any physical copies of such Project in your possession and destroy any electronic copies that you have.
C. Communication. You agree and acknowledge that (1) Ndiwano will use the e-mail address corresponding with your Account registered at the time a dispute arises to notify and communicate with you with regard to any dispute and (2) you are solely responsible for the receipt of any notification or communication sent by Ndiwano using the e-mail address corresponding with your Account registered at the time a dispute arises. D. Acknowledgements. You agree and acknowledge that (1) Ndiwano is not providing legal services to you, (2) Ndiwano will not advise you regarding any legal matters and (3) if you desire to have legal counsel, you will seek independent legal counsel licensed to practice law in your jurisdiction and not rely on Ndiwano for any such counsel. You agree to indemnify and hold harmless Ndiwano and any of our affiliates against any damages or liability you may suffer as a result of using the Dispute Resolution Service. If you do not agree to use this Dispute Resolution Service under these terms, you should not request Ndiwano to assume the
Assumed Payment Liabilities.
7. TERM – TERMINATION AND SUSPENSION
A. These Terms of Service shall become effective as your contractual agreement upon your use of the Website, and shall continue until your Account is terminated by you or Ndiwano as provided for under the terms of this section.
B. Unless otherwise agreed to in writing between the parties, either party may terminate the contractual agreement represented by these Terms of Service at any time upon notice to the other party. In such event, your Account is automatically terminated and (1) Ndiwano shall continue to perform those services necessary to complete any open transaction between you and another Registered User; and (2) you shall continue to be obligated to pay any amounts accrued but unpaid as of the date of termination to Ndiwano for any service and to any Freelancer for any services.
C. Without limiting our other remedies, we may issue a warning, or temporarily suspend, indefinitely suspend or terminate your Account or a Project, and refuse to provide any or all services to you if: (1) you breach the letter or spirit of any terms and conditions of these Terms of Service or the linked policies and information incorporated herein by reference, including our written policies and procedures posted on the Website; (2) we are unable to verify or authenticate any information you provide to us; or (3) we believe in our sole discretion that your actions may cause legal liability for you, our Registered Users or for Ndiwano or are contrary to the interests of the Website. Once indefinitely suspended or terminated, you must not continue to use the Website under the same Account, a different Account, or register under a new Account.
D. When your Account is terminated for any reason, you may no longer have access to data, messages, files and other material you keep on the Website. The material may be deleted along with all your previous posts and proposals.
8. PRIVACY AND CONFIDENTIALITY.
Your use of the Website and the services provided therein and thereby is governed by the terms of these Terms of Service and the Ndiwano Privacy Policy. It is your responsibility to review the Ndiwano Privacy Policy, which is incorporated by reference, and we suggest that you review the Privacy Policy and print a copy for yourself. The Privacy Policy is posted on the Website and may be updated from time to time. Unfortunately, we cannot ensure that disclosure of your personal information will not occur in ways not described in the Privacy Policy. We may be required by law to disclose information to government authorities, law enforcement agencies or third parties upon subpoena, and you authorize us to disclose information as we believe, in our sole discretion, is necessary or appropriate.
A. Registered User Content.
(1) You are solely responsible for the information posted on our Website, including but not limited to (a) any audio, video or photographic content (collectively, “Multimedia Content“), (b) any posting or listing made in any public message area, through any email feature or through Ndiwano feedback feature (collectively, “Non-Multimedia Content“) and (c) any other content of a personal nature including but not limited to your resume, biography, work history and work product produced for another Registered User including Companies (“Personal Content“). You retain ownership of all Multimedia Content and Personal Content, subject to the licenses granted herein.
(2) You hereby assign to Ndiwano your rights in any Non-Multimedia Content. You grant us a non-exclusive, worldwide, perpetual, royalty-free, irrevocable right to exercise all copyright and publicity rights with respect to the Multimedia Content and to use such Multimedia Content for the purpose of advertising and publicizing Ndiwano products and services and you grant us a non-exclusive, worldwide, perpetual, royalty-free, irrevocable right to use the Personal Content for the purpose of providing Services.
(3) Your information must not: (a) infringe any third party’s rights, including but not limited to intellectual property, publicity or privacy; (b) be defamatory, trade libellous, threatening or harassing; nor (c) be obscene, indecent or contain pornography.
(4) We do not endorse any information posted by Registered Users and we are not liable for any such information posted on the Website, including but not limited to any information posted about you. We reserve the right to take any action, in our sole discretion, with respect to information posted on the Website which we believe is inappropriate, including but not limited to termination of your Account. However, we cannot, nor do we, control the information provided by you or other Registered Users or other content providers which is made available through our system.
9. REPRESENTATIONS, DISCLAIMERS, LIMITATIONS AND EXCLUSIONS
A. Registered User Representations and Warranties. All Registered Users represent, warrant, and agree:
(1) not to grant access to an Account only to users authorized to act on behalf of the Registered User and only in accordance with these Terms of Service.
(2) to be fully responsible and liable for any action of any user who uses your Account.
(3) not to use your Account, username, or password of another Registered User that you are not expressly authorized to use.(4) not to allow any third party who is not authorized to do so to use your Account at any time.
(5) not to use any device, software or routine, including but not limited to any viruses, Trojan horses, worms, time bombs, robots or denial-of-service attacks, intended to damage or interfere with the operation of the Website or any transaction being conducted through the Website.
(6) not to intercept or expropriate any system, data or personal information from the Website. (7) not to take any action that imposes an unreasonable or disproportionately large load on the Website
infrastructure, including but not limited to “spam” or other such unsolicited mass emailing techniques.
(8) that it has the right and authority to enter into the Terms of Service and to transact business hereunder.
(9) that they are using the Website solely for the purpose of entering into a bona fide business transaction with other Registered Users.
(10) that they will not use the Website or its services to defraud or mislead any person or entity, including without limitation Ndiwano or any Register User.
B. Warranty Disclaimer. THE SERVICES PROVIDED BY Ndiwano OR OUR THIRD-PARTY SERVICE PROVIDERS ARE PROVIDED “AS IS,” AS AVAILABLE, AND WITHOUT ANY WARRANTIES OR CONDITIONS (EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OR TRADE). WE MAKE NO REPRESENTATIONS OR WARRANTIES, OF ANY KIND, EITHER EXPRESS OR IMPLIED, AS TO THE QUALITY, IDENTITY OR RELIABILITY OF ANY THIRD PARTY, OR AS TO THE ACCURACY OF THE POSTINGS MADE ON THE WEBSITE BY ANY THIRD PARTY. SOME STATES AND JURISDICTIONS DO NOT ALLOW FOR ALL THE FOREGOING LIMITATIONS ON IMPLIED WARRANTIES, SO TO THAT EXTENT, IF ANY, SOME OR ALL OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
C. Limitation of Liability. IN NO EVENT SHALL WE OR OUR THIRD-PARTY SERVICE PROVIDERS BE LIABLE TO YOU OR ANY OTHER REGISTERED USER FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES PURSUANT TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF BUSINESS OPPORTUNITIES OR LOSS OF GOODWILL, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
D. General Release. If you have a dispute with another Registered User, you release Ndiwano (and our officers, directors, agents, subsidiaries, joint ventures and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such dispute. E. Indemnity. You agree to defend, hold harmless and indemnify Ndiwano from and against any and all losses, costs, expenses, damages or other liabilities incurred by Ndiwano from and against any cost, liability, loss, damage, cause of action, claim, suit, proceeding, demand or action brought by a third party against Ndiwano: (1) in connection with your use of the Services including any payment obligations incurred through use of the Ndiwano Billing and Payment Services; or (2) resulting from: (a) your use of the Website (b) your decision to supply credit information via the Website, including personal financial information; (c) your decision to submit postings and accept offers from other Registered Users; (d) any breach of contract or other claims made by Registered Users with which you conducted business through the Website; (e) your breach of any provision of these Terms of Service; (f) any liability arising from the tax treatment of payments or any portion thereof; (g) any negligent or intentional wrongdoing by any Registered User; (h) any act or omission of yours with respect to the payment of fees to any Freelancer; (i) your dispute of or failure to pay any Invoice or any other Payment; or (j) your obligations to a Freelancer. Any such indemnification shall be conditioned on our:
(i) notifying you in writing of any such claim, demand, action, cost, liability, loss or threat of any thereof; (ii) cooperating with you in the defence or settlement thereof; and (iii) allowing you to control such defence or settlement. We shall be entitled to participate in such defence through our own counsel at our own cost and expense. We reserve the right to report any wrongdoing of which we become aware to the applicable government agencies or otherwise.
F. Links. The Website may contain links to third-party websites not under the control or operation of Ndiwano. When we provide links, we do so only as a convenience and do not endorse and are not responsible for the content of any linked site or any link contained in a linked site. G. Data. You are responsible for the creation, storage, and backup of your business records. These Terms of Service and any registration for or subsequent use of this Website will not be construed as creating any responsibility on Ndiwano’s part to store, backup, retain, or grant access to any information or data for any period.
10. MISCELLANEOUS TERMS AND CONDITIONS
A. Compliance with Law. You are responsible for compliance with applicable Indian laws, regulation and treaties, keeping in mind that access to the contents of this Website may not be legal for or by certain persons or in certain countries.
B. Modification and Waiver. Ndiwano will not be considered to have modified or waived any of our rights or remedies under these Terms of Service unless the modification or waiver is in writing and signed by an authorized representative of Ndiwano. No delay or omission by Ndiwano in exercising its rights or remedies will impair its rights or be construed as a waiver. Any single or partial exercise of a right or remedy will not preclude further exercise of any other right or remedy.
C. Severability. If any part of these Terms of Service is held to be unenforceable, the unenforceable part will be given effect to the greatest extent possible and the remainder will remain in full force and effect.
D. Assignment or Transfer. You will not transfer, assign or delegate your rights or obligations (including your Account) under these Terms of Service to anyone without the express written permission of Ndiwano, and any attempt to do so will be null and void. Ndiwano may assign these Terms of Service in its sole discretion.
E. Force Majeure. Except for the payment of fees to Ndiwano, neither of the parties to these Terms of Service shall be responsible for the failure to perform or any delay in performance of any obligation hereunder due to labor disturbances, accidents, fires, floods, telecommunications or Internet failures, strikes, wars, riots, rebellions, blockades, acts of government, governmental requirements and regulations or restrictions imposed by law or any other similar conditions beyond the reasonable control of such party. The time for performance of such party shall be extended by the period of such delay.
F. Notice. All notices required or permitted to be given under these Terms of Service, shall be in writing and shall be deemed to have been duly given if delivered personally or sent by pre-paid telex, telefax or telegram, or mailed first-class, postage prepaid, by registered or certified mail (notices sent by telex or telefax, or telegram, shall be deemed to have been given on the date sent; those mailed shall be deemed to have been given ten (10) business days after mailing) to the addresses set forth below or to such other address as any party shall designate by notice in writing.
If to Ndiwano:
851 Lyamutundwe, 282, Entebbe