USER AGREEMENT FOR RIDESHARE SERVICES
This agreement (the “Agreement”) sets forth the legally binding terms and conditions for Your use of the Services provided by eWAKA Mobility Limited, a limited liability company incorporated in the Republic of Kenya and of Post Office Box Number 20201 – 00100 Nairobi (“eWAKA” or “We”). The purpose of this Agreement is to regulate the Services provided by eWAKA, which is to offer you (“You”) the use of eWAKA vehicles (such as, bicycles, e-scooters and e-bikes, amongst others) under a rideshare program after You have registered Yourself in the eWAKA App.
In this Agreement, the following terms have the following meaning:
- “Operational Zone” means the areas designated as such in the eWAKA App] in which the Vehicles may be activated, used, temporarily parked and deactivated.
- “Vehicles” means eWAKA vehicles, such as bicycles, e-scooters e-bikes or others.
- “Services” means the use of the Vehicles, Website, eWAKA App and its related services as described on the Website and in the eWAKA App, and made available through the Website or the eWAKA App, together with any other related equipment, services, and information made available by eWAKA.
- “eWAKA App” means eWAKA’s proprietary software application accessible via computer or mobile device and by which You may access the Vehicle.
- “Website” means https://ewaka.tech/
- Parties to the Agreement and Entire Agreement
You and eWAKA are the sole parties to this Agreement. You are the sole user of the Services and You must not allow any others to use the Vehicle.
This Agreement contains the exclusive integrated agreement between the parties with respect to its subject matter, and all other prior agreements, written or oral, between the parties.
- Changes to these Terms
eWAKA may amend these Terms from time to time, and the revised version will be effective when posted on the Website or otherwise made available to You via email or the eWAKA App. The revised Terms supersede any previous versions and earlier versions of this Agreement will not be archived by eWAKA. While We will provide You advance notice of any important revisions, We do recommend that You regularly review these Terms because Your continued use of our Services after We make any changes to them constitutes Your agreement to those changes.
- Term and Termination
This Agreement enters into force between You and eWAKA the first time You use the Services provided by eWAKA, and will remain in force for as long neither You nor eWAKA terminates the Agreement.
You may of course stop using our Services at any time but no refunds will be provided. We may terminate these Terms or Your use of any Services, or generally cease offering or deny access to any portion of the Services, at any time and for any reason in our sole discretion however, any rental still ongoing shall be carried through in accordance with this Agreement. Obligations arising from any breach of contract during the term of this Agreement shall not be affected by its termination.
- Register account
In order to use the Services, You must register an account in the eWAKA App. You have to follow the instructions given during the registration procedure and provide correct information. Without proper registration You must not use the Services. You may only register one account for You and shall only undertake one registration. You shall make sure that no one else but You makes use of Your registration, particularly with regard to using a Vehicle. If You become aware of the risk that someone else uses Your registration or could use Your registration, for example because Your computer or mobile device by which You may access the Vehicle has been stolen, You shall inform eWAKA as soon as possible in accordance with Section 7. If You allow a third party to use Your registration or a Vehicle, You will be responsible for any and all use and/or misuse of the Services.
- eWAKA’s Services
eWAKA shall provide You with the opportunity to use the eWAKA App in order to find, activate, use and deactivate a Vehicle if there is a Vehicle available. [Vehicle availability is displayed in the eWAKA App.] Given the limited number of Vehicles operating, eWAKA does not promise or guarantee that You will always find a Vehicle within a distance convenient to You or that You find a Vehicle at all.
- Your responsibilities and requirements for the use of the Services
You must be at least  years of age to use the Services. Use of any Vehicles by any minor is expressly prohibited. If You allow a minor to use a Vehicle by e.g. activating it through Your account, You shall be responsible for any and all use and/or misuse.
It is Your responsibility to ensure you meet all licensing requirements applicable to the Vehicles in Kenya.
You must be physically fit and reasonably competent to use the Vehicle, particularly with regard to taking part in street traffic and complying with all applicable traffic rules and regulations.
You are responsible for adapting Your driving to external circumstances and for determining Your general ability, medical condition, weather conditions and/or other factors that can generate any risk to You, to others or to Your use of the Vehicle.
You have to make Your decision on whether and how to use a Vehicle, taking into account weather, traffic or any other factors, circumstance, or uncertainty, and You must adjust, adapt and calculate Your speed, riding behaviour and braking distance accordingly.
- Basic Safety Checks
You shall conduct a basic safety check of the Vehicle prior to using the Vehicle with a visual check, a check of the functionality of the brakes and if the Vehicle is an electric Vehicle a check of the battery capacity. You must not use the Vehicle if there are any noticeable issues (such as, amongst other things, visible damage to the Vehicle’s wheels, brakes, lights or frame, or battery level). If You notice any such issues with the Vehicle, You must not use the Vehicle. We would appreciate if You let us know about such issue in accordance with the contact details in Section 7.
- Availability of the Services
Vehicles are not available at all times, even within the Operational Zones and We are not responsible if You are unable to locate an available Vehicle. Please note that eWAKA is entitled to limit or restrict access to Vehicles in its discretion.
For electric Vehicles, the battery level of the Vehicle may affect the availability in accordance with the following:
- It is Your responsibility to check the battery level in the Vehicle to ensure that it is adequate before using the Vehicle and sufficient for You to reach Your destination.
- The battery level remaining in the Vehicle will decrease with usage of the Vehicle, and operational capabilities and speed may decrease or cease in its entirety as the battery level decreases.
- The decrease rate of the battery level may vary and differ from time to time due to different factors such as the condition of the Vehicle and the battery, weather conditions, road conditions, Your use of the Vehicle and/or factors beyond Our control. If You are not sure whether the battery level is sufficient for You to reach Your destination You are advised to re-assess the contemplated use of the Vehicle.
- Your Use of the Services
Operational Zone. You shall only activate, use, park and deactivate a Vehicle within the Operational Zone. DO NOT TAKE THE VEHICLE OUTSIDE THE OPERATIONAL ZONE.
Activation and use of Vehicles. In order to use a Vehicle, You must activate a Vehicle through the eWAKA App. You will need internet connectivity to do so, and it is Your responsibility to ensure that Your mobile device by which You may access the Vehicle is working properly and that You have sufficient internet access for use. You are responsible for Your mobile network’s data and messaging rates and fees if you access or use the Services from your device. eWAKA shall not be responsible if You are unable to unlock, use or end the ride of the Vehicle as a result of lost or interrupted network connection, mobile device malfunction, or depleted battery. You shall remain responsible for and eWAKA may charge You all costs (including rental fees) incurred until the ride is ended.
After activating the Vehicle, the rental period commences and continues until the Vehicle is deactivated.
You will additionally at all times use the Vehicle with respect towards pedestrians, property and traffic, for example by way of riding in bicycle lanes and not on sidewalks, keeping walking speed while riding in pedestrian areas etc.
Safety measures when using a Vehicle. You have to use the Vehicle in a safe manner and take necessary measures to avoid, amongst other things, accidents and damage to persons and property. Such safety measures include, but are not limited to, the following:
- To not use the Vehicle while carrying any items that might impede Your ability to safely use the Vehicle, including but not limited to, backpacks, bags, briefcases or packages not appropriate in size or weight. If You choose to use backpacks, bags, briefcases or packages while riding, You must ensure the item fits snugly to Your body and does not impede Your ability to operate the Vehicle safely.
- To only use the Vehicle Yourself. For the avoidance of doubt, You are not permitted to carry a second person, child or animal on the Vehicle.
- To never exceed the maximum weight of 100 kg (kilograms) when using the Vehicle. The maximum weight includes all items carried by You in compliance with this Agreement.
- To not use any mobile device, including but not limited to, telephones, text messaging devices, media players or other device(s) while riding a Vehicle that may distract You or impede You from safely using the Vehicle. If you have to consult the eWAKA App while using the Vehicle, you must pull over first.
- To not use a Vehicle while under the influence of alcohol, drugs, medication, or any other substance that may impair Your ability to safely use a Vehicle.
- To wear a helmet, that has been properly sized, fitted and fastened and any and all other suitable protective equipment when using the Vehicle. You assume all risk of not wearing a helmet or other protective gear.
- To never use the Vehicle for competitions, races, trick riding or equivalent events.
- To never use the Vehicle to mount or dismount kerbs or any other elevated surface. The Vehicle is not intended for off-road or rough usage; it is intended for use on even surfaces.
You may need to take additional safety measures or precautions not specifically addressed in this Agreement.
Parking and deactivation of Vehicles. You are responsible for parking and deactivating the Vehicle when You have completed Your use.
The Vehicle must be parked and deactivated in lawful areas within the Operational Zone, i.e. the Vehicle cannot be parked or deactivated in any non-parking zone, in a locked area/non-public space or in conflict with traffic regulations. Where We consider a Vehicle lost or stolen, the terms of section 1.10 will apply.
You shall neither park, temporarily park nor deactivate a Vehicle where there is an increased risk that the Vehicle may suffer damage. When deactivated and parked, the Vehicle must be in a visible space.
You agree to park the Vehicle in compliance with applicable laws and regulations and You will additionally at all times park the Vehicle with respect towards pedestrians, property and traffic, by at least ensuring the following: (i) the Vehicle is parked on a sidewalk closely alongside a wall or in connection to a bike stand/parking rack, (ii) the Vehicle is standing up in a steady manner on its kickstand, and; (iii) the Vehicle is not blocking entrances, access ramps, bus stops, crosswalks or in any other way blocking or obstructing similar facilities.
If You have parked or deactivated the Vehicle in a non-parking zone or outside of the Operational Zone, You may not be able to reactivate it again.
Proper use of Services. You shall return the Vehicle to eWAKA in the same condition in which it was rented and the Vehicle must be fit for immediate usage by other users, given normal wear and tear and with the exclusion of low battery level in the case of electric Vehicles.
You may never tamper with the eWAKA App or Vehicles in any way and for any reason.
You are responsible and liable for any damages suffered by eWAKA relating to Your use of the Services, where you have not complied with the terms of this Agreement. This includes any indirect losses such as eWAKA’s loss of income due to riding without payment, due to tampering of the Vehicle, the eWAKA App, as well as a Vehicle being unfit for Use by other users.
- Lost or stolen Vehicle
You are responsible for deactivating and parking a Vehicle within the Operational Zone. You may not in any way lock or hide the Vehicle unless the Vehicle is activated. If You do not deactivate or park a Vehicle within the Operational Zone, You may be responsible for a lost or stolen Vehicle in accordance with the following.
eWAKA is entitled to charge You 1000KES in the event the Vehicle is considered abandoned, i.e. when you have left the Vehicle unattended and We cannot detect any attempts to lock the Vehicle or requests to end the ride by You. This amount represents our estimated costs, losses and expenses in retrieving the Vehicle, but eWAKA reserves the right to prove that the damages were actually higher. We may also deactivate or suspend Your account if You abandon a Vehicle
A Vehicle activated by You may be considered lost or stolen if (i) the Vehicle’s GPS unit is disabled on purpose, (ii) the Vehicle moves after deactivation and eWAKA has reason to believe such movement was not caused by another user or any authorized third party, or (iii) other facts and circumstances implying, in the reasonable opinion of eWAKA, that a Vehicle has been lost or stolen.
If We reasonably deem a Vehicle lost or stolen, We shall have the authority to take any and all actions appropriate in order to recover the Vehicle or, if that proves to be impossible, to receive compensation for the loss of the Vehicle. This includes, without limitation, involving the local police and/or eWAKA’s insurer, a request for information to You or, if You are culpably responsible for the loss, holding You liable for the damage incurred on account of the loss.
- Accidents and other incidents
You must report any accident, crash, damage, personal injury, stolen or lost Vehicle or other similar incidents to eWAKA as soon as possible in accordance with Section 7 below. In cases of accidents, We would appreciate if You could try to gather evidence, if possible, for example by taking pictures or by identifying possible witnesses, subject to applicable local legislation (including but not limited to data protection legislation).
If an incident involves third party personal injury, property damage, or any other third party damage, You shall report the incident to the local police department as soon as possible. This also applies if the Vehicle is stolen while activated by You. On request by eWAKA, and subject to applicable local legislation, You will provide eWAKA with any documents produced by the local police and cooperate with eWAKA and/ or eWAKA’s insurer.
- Compliance with local laws and regulations
In addition to what has been stated above, You agree to at all times use the Services in compliance with locally applicable laws, regulations and rules. You understand that You are solely responsible and liable for any violation of any laws, regulations and rules in relation to Your use of the Services.
- Indemnification, damages, deactivation/suspension of Your account and fees
We at all times reserve the right to charge You 10,000KES when You have breached this Clause 1. If the damage suffered by eWAKA exceeds 50,000 KES, eWAKA reserves the right to claim damages for the losses it incurs. We will use our reasonable efforts to remind You of any incorrect parking (in breach of this section 1) before charging this amount. In addition to what has been stated above, You understand that any fees, fines or other payment imposed on eWAKA or any damages suffered by eWAKA on account of a failure by You to comply with this Clause 1 shall be compensated by You to eWAKA.
We at all times reserve the right to deactivate or suspend Your account, if any, or limit Your usage of the Services where We have reason to believe that You have breached the terms of this Clause 1, or if Your use of the Service significantly differs from a normal pattern of use.
You acknowledge that You are responsible for Your driving and that You may not claim compensation from eWAKA for damages caused as a result of breach of your obligations under this Agreement.
- PAYMENT AND CREDITS
- Prices and Fees
Your rent of the Vehicle is in accordance with the current applicable pricing set forth in the eWAKA App. All Prices and all monetary values set forth in this Agreement are in KES. The prices, fees and other possible charges may be subject to applicable taxes and other local government charges, which may be charged and collected by eWAKA. You should at any rate check prices, fees and other possible charges in the eWAKA App every time before You activate a Vehicle.
If you choose to use a credit card to pay for Your rental, eWAKA reserves the right to reserve [●KES] directly from Your credit card in connection to Your use of the Vehicles, when You buy a subscription package. This reserved amount will be used to pay for Your ride in connection to which you were charged for or for the next ride after creating Your account or adding a new payment method. If the entire amount is not used for Your next ride, the reserved amount will be released immediately after the ride. You understand that the release of such reserved amount may take certain business days due to banks’ and/or other third parties’ processing.
- Payment methods and disputes
You will be charged (through mobile money, credit card, debit card, or another agreed payment method) the amount of the fees as described in this Agreement and in the eWAKA App. If you are a recurring user, moneys received from You will be applied first to satisfy any overdue amounts (if any) and then to satisfy any subscription fees.
You must provide eWAKA with information and details to a valid credit card or debit card or other payment method in order to register to use the Services in the eWAKA App. You confirm that You are authorized to use any credit card or debit card or payment information You provide. You authorize eWAKA to charge the provided credit card, debit card or other agreed payment method the fees described in this Agreement or in the eWAKA App that You have incurred in relation to Your use of the Services.
You agree to inform eWAKA without any undue delay of all changes related to the credit card or debit card which You have provided to eWAKA.
If payments to Us are done through third party payment processors, We are not responsible for the payment process or any charges requested by such third parties.
In order to dispute any fees or charges charged by eWAKA, You must contact eWAKA within reasonable time from the date of the disputed charge and provide eWAKA any information eWAKA finds necessary, such as the date of the trip/date of the purchase and the approximate starting and ending times. We ask that You contact eWAKA in accordance with Section 7 below.
Rental time will be calculated from the moment of unlocking the Vehicle through the eWAKA App until You receive the confirmation through the eWAKA App that the ride has been ended. If You end the ride incorrectly, this may result in the ride not being terminated. If the ride is not ended properly, the ride will continue and You will continue to be charged. If You have technical issues terminating a ride for any reason, You should report this through the eWAKA App immediately. Failure to report an issue in terminating a ride may result in continued charges.
- Outstanding Payments
Any outstanding payment of prices for the use of Vehicles by You or any fee charged on the grounds of this Agreement will be made by eWAKA by using the payment method described in Section 2.2. If, however, such payment cannot be made on account of a reason within Your control (wrong credit card number, change of credit card without notification or similar), eWAKA will inform You and set a period in order to rectify the situation. Until then eWAKA is entitled to suspend any rental of Vehicles. If eWAKA has not received information about a reliable payment method within two weeks, eWAKA may terminate this Agreement and restrict or block Your access to the Services.
- Actual Prices
All fees set forth in this Section 2 and/or indicated in the eWAKA App are subject to change subject to Your right to terminate the Agreement.
- ASSUMPTION OF RISK AND LIMITATION OF LIABILITY
- ASSUMPTION OF RISK
YOUR USE OF ANY OF THE SERVICES, INVOLVES OBVIOUS AND NOT-SO-OBVIOUS RISKS, DANGERS, AND HAZARDS THAT MAY RESULT IN INJURY OR DEATH TO YOU OR OTHERS AND DAMAGE TO PROPERTY, AND SUCH RISKS, DANGERS, AND HAZARDS CANNOT ALWAYS BE PREDICTED OR AVOIDED.
YOU AGREE THAT YOU ARE SOLELY AND FULLY RESPONSIBLE FOR THE SAFE OPERATION OF THE VEHICLE AT ALL TIMES. YOU AGREE THAT VEHICLES ARE MACHINES THAT MAY MALFUNCTION, EVEN IF THE VEHICLE IS PROPERLY MAINTAINED AND THAT SUCH MALFUNCTION MAY CAUSE INJURY. YOU ASSUME FULL AND COMPLETE RESPONSIBILITY FOR ALL RELATED RISKS, DANGERS, AND HAZARDS.
TO THE FULLEST EXTENT PERMITTED BY LAW, AND AS TO YOUR USE OF ANY OF THE SERVICES, RELEASED PERSONS (DEFINED IN SECTION 3.3) DISCLAIM ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. ALL OF THE SERVICES, ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND YOU RELY ON THEM AT YOUR OWN RISK.
TO THE FULLEST EXTENT PERMITTED BY LAW, YOU, AGREE TO DEFEND AND INDEMNIFY AND HOLD HARMLESS EWAKA AND ALL OF ITS OWNERS, MANAGERS, AFFILIATES, EMPLOYEES, CONTRACTORS, OFFICERS, DIRECTORS, SHAREHOLDERS, AND ASSIGNS (COLLECTIVELY, THE “RELEASED PERSONS”) FROM ANY AND ALL CLAIMS, ACTIONS, DAMAGES, PENALTIES, FINES, DEMANDS, LOSSES, LIABILITIES, COSTS AND EXPENSES, INJURIES OR PAYMENTS FOR INJURY TO ANY PERSON OR PROPERTY CAUSED OR CLAIMED TO BE CAUSED BY THE ACTIVE OR PASSIVE NEGLIGENCE OF ANY RELEASED PARTIES, ARISING OUT OF OR IN CONNECTION WITH (I) YOUR USE OF THE SERVICES AND/OR PRODUCTS, (II) YOUR BREACH OR VIOLATION OF ANY OF THESE TERMS OR ANY APPLICABLE LAW, (III) YOUR VIOLATION OF THE RIGHTS OF ANY THIRD PARTY. YOU AGREE THAT THE OBLIGATIONS IN THIS SECTION 3 WILL SURVIVE ANY TERMINATION OF THESE TERMS, YOUR USER ACCOUNT OR YOUR ACCESS TO OUR SERVICES GENERALLY.
- LIMITATION OF LIABILITY
WITHOUT LIMITING THE FOREGOING PROVISIONS OF THIS SECTION 3, AND TO THE FULLEST EXTENT PERMITTED BY LAW YOU AGREE THAT (i) EWAKA IS NOT LIABLE FOR ANY LOSS OF PROFIT; LOSS OF BUSINESS; LOSS OF BUSINESS INTERRUPTION; LOSS OF BUSINESS OPPORTUNITY; ANY DISTRESS, INCONVENIENCE, ANXIETY, LOSS OF ENJOYMENT ARISING FROM NON-AVAILABILITY OF THE VEHICLES OR ANY INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES; AND (ii) WHERE EWAKA IS HELD TO BE LIABLE TO YOU (TAKING INTO ACCOUNT THE ABOVE EXCLUSIONS), EWAKA’S LIABILITY SHALL BE LIMITED TO THE TOTAL FEES RECEIVED FROM YOU DURING THE SIX-MONTH PERIOD PRIOR TO THE INCIDENT.
- FORCE MAJEURE
eWAKA shall not be liable to You for any failure or delay to comply with its obligations under this Agreement due to any event, or circumstance outside of its reasonable control including (without limitation), fire, flood, extreme weather, pandemic or epidemic, strikes, lockouts or lack of operating resources or raw materials.
- PROPERTY AND INTELLECTUAL PROPERTY RIGHTS.
- Rights of eWAKA
All text, images, pictures, sound recordings, videos, copyrights, trademarks, trade names, logos and other intellectual or industrial property rights held or used by eWAKA as well as those present in the eWAKA App or on the Website (including titles, graphics, icons, scripts, source codes etc.) are eWAKA’s property or its third party licensors’ property and must not be reproduced, distributed, sold, used, modified, copied, limited or used (in whole or in part) without prior written permission.
- Respect for eWAKA’s property
You must not tamper with, attempt to gain unauthorized access to, modify, hack, repair or otherwise adjust any eWAKA material or hardware, source-codes, information, including the eWAKA App, Website and Vehicle, for any purposes. The eWAKA App, Website and Vehicles may only be used for the purposes pursuant to this Agreement.
- Respect for eWAKA’s intellectual property
You agree that the Services and other information, including all associated intellectual property rights, provided and made available by eWAKA, at all times, remain the exclusive property of eWAKA and You may not in any way use eWAKA’s exclusive property for commercial or any other purposes without eWAKA’s prior written consent.
- License to Image and Likeness
You hereby knowingly and irrevocably: (1) give Your consent to eWAKA and its affiliates, successors, and assigns to use at any time Your appearance and voice in photographs, videos, and other recordings related to Your use of the Services, for press, promotional, advertising, and other commercial purposes, throughout the world and in perpetuity; (2) grant to eWAKA and its affiliates, successors, and assigns (a) the right to photograph, videotape, and otherwise record Your appearance and voice related to Your use of the Services, from time to time, (b) all rights, copyrights, title, and interests in the results of such photographs, videos, and other recordings, as a work for hire for copyright purposes, and (c) the right to use, reproduce, distribute, alter, and exploit, as eWAKA may decide in its sole discretion, such photographs, videos, and other recordings, or any component thereof; and (3) waive, release, and discharge all Released Persons claims (defined in Section 3.3) from all that You have or may have for any libel, defamation, invasion of privacy, right of publicity, infringement of copyright, in connection with any right granted by You in this Clause.
- CONFIDENTIALITY OF INFORMATION; PRIVACY
eWAKA can be contacted by email at info@eWAKA.tech, by telephone at +254 115 041 704. All disputes relating to this Agreement shall be made in text form to the contact information given in this Section 7 below.
- GOVERNING LAW AND ARBITRATION
This Agreement shall be governed by and interpreted in accordance with the laws of Kenya.
Any dispute arising out of or in connection with this Agreement which cannot be settled amicably within sixty (60) calendar days from the notification of such dispute shall be finally settled by final and binding arbitration under the Rules of the Kenyan Arbitration Act of 1995 in effect at the time the request for arbitration is submitted. Arbitration will be conducted by one arbitrator appointed in accordance with the said Rules. Place of arbitration shall be Nairobi, Kenya. The language of the arbitration shall be English. The decision of the arbitrators will be final and binding upon both parties, and neither party may seek recourse to appeal for revisions of the decision.
- USER ACCEPTANCE OF AGREEMENT
I certify that I have read and expressly agree to the terms and conditions of Section 3; Assumption of Risk, and Limitation of Liability, and I acknowledge that this section limits my legal rights and remedies. I intend my assent to this Agreement to be a complete and unconditional release of all liability to the fullest extent permitted by law.
I represent and certify that I am familiar with the operation of the eWAKA Vehicles, and I am reasonably competent and physically fit to ride the Vehicle.
I certify that I am the rider, I am 18 years old or over, I will comply with the safety measures in Section 1.9, and I have read and expressly agree to the terms and conditions set forth in this Agreement.