Terms of Use

CONTENTS:

1.     INTRODUCTION

2.     DEFINITION OF TERMS AND INTERPRETATION

3.     SCOPE AND DISCLAIMERS

4.     PERMITTED USE

5.     PRICING AND PAYMENTS

6.     DATA PRIVACY

7.     ENGAGEMENT

8.     SERVICE AVAILABILITY

9.     INTELLECTUAL PROPERTY

10.     GENERAL

 

Instructions

  • Please read the Terms of Use and Privacy Policy carefully. If you disagree with any of the provisions, you must discontinue your use of this website and all other Activate online platforms.
  • We strongly recommend that you also review the catalogues before subscribing to Activate.

1.     INTRODUCTION

1.1. Activate® (hereinbelow defined) is a collection of information that is curated for entrepreneurs and business leaders in Kenya. The domain and associated communication platforms on which Activate content is hosted (alongside selected third-party content) is operated by the firm of Miriam Kanya and Associates® (the “Firm”, herebelow defined).

1.2. This Terms of Use is a contract between each User (hereinbelow defined) and the Firm governing the use of Activate. By accessing, registering for or using Activate in any manner, you agree to be bound by this Terms of Use, the Privacy Policy and any ancillary documents.

1.3. This Terms of Use shall apply with effect from 25th October 2021.

2.     DEFINITION OF TERMS AND INTERPRETATION

2.1. Definition of Terms

In this Terms of Use unless otherwise expressly indicated or the context otherwise requires:

2.1.1. “Activate” means the compilation of written, audio and audio-visual content that is published or made available by the Firm through the domain https://business-advocate.com and/or any associated communication platforms including but not limited to social media and other forums howsoever constituted.

2.1.2. “Firm” means Miriam Muthoni Kanya trading as Miriam Kanya and Associates (Business Registration Number BN-AAA0AZX7) a Business Name registered in the Republic of Kenya having its registered address at 7th Floor, Block 1, Eden Square, Chiromo Road, Westlands, P. O. Box 42526 – 00100 Nairobi, Kenya. The expression “Firm” shall where the context so admits include her personal representatives and permitted assigns.

2.1.3. “Intellectual Property Rights” or “IPR” means:

2.1.3.1. The legal rights in all original or derivative artistic literary audio or audio-visual works authored produced published or otherwise reduced to material form by the Firm and disseminated through Activate EXCLUDING Firm IPR and Third Party IPR (hereinafter referred to as “Activate IPR”); and

2.1.3.2. (a) The Firm’s trademark; and (b) Such other original or derivative artistic literary audio or audio-visual works as may be alienated by the Firm either expressly or by implication (hereinafter referred to as “Firm IPR”); and

2.1.3.3. The legal rights in all original or derivative works of third parties (hereinafter referred to as “Third Party IPR”).

2.1.4. “IT” means information technology.

2.1.5. “Personal Data” has the meaning ascribed in the Data Protection Act (No. 24 of 2019) (as modified from time to time).

2.1.6. “Sensitive Personal Data” has the meaning ascribed in the Data Protection Act (No. 24 of 2019) (as modified from time to time).

2.1.7. “Secret Data” means any data which, by its nature, should not be disclosed to a third party for example PIN numbers, passwords and trade secrets.

2.1.8. “Subscriber” means a User who, at a given point in time, has registered and remains registered to an Activate product.

2.1.9. “Terms of Use” means this present document together with any other contractual terms incorporated by reference including the Privacy Policy.

2.1.10. “Unauthorised Commercial Activities” means:

2.1.10.1. Using Activate to engage in any activity that contravenes any existing laws or lawful directives of concerned government authorities, or to engage in any activity that is expressly prohibited in this Terms of Use or ancillary documents;

2.1.10.2. Engaging in, facilitating or promoting any activity or disseminating any materials that could be harmful to minors;

2.1.10.3. Re-selling Activate subscriptions or content contrary to the Intellectual Property Rights (IPR) provisions contained in this Terms of Use;

2.1.10.4. Soliciting, retrieving or re-selling Personal Data of Users or any of the Firm’s staff, representatives or service providers for use in unlawful purposes or otherwise through unlawful means;

2.1.10.5. Sending spam or unsolicited bulk communication;

2.1.10.6. Accessing Activate through robots, spiders or off-line readers (save that search engines are authorised to review and index non-protected content whose access is not restricted to Subscribers);

2.1.10.7. Reverse engineering, decompiling, disassembling, deciphering, or otherwise attempting to derive the source code or any related technology used by Activate.

2.1.11. “User” means any person who accesses registers for or uses Activate in any manner whether as a guest or Subscriber and shall include representatives of a corporate entity or statutory body BUT EXCLUDES any person to whom Activate content is availed through media that is not under the Firm’s administration.

2.2. Interpretation

In this Terms of Use unless otherwise expressly indicated or the context otherwise requires:

2.2.1. Headings are inserted for convenience only and shall not affect the construction or interpretation of provisions of this Terms of Use.

2.2.2. References to persons include companies, corporations, partnerships, associations and other organizations whether or not constituted as a distinct legal entity.

2.2.3. The term “including” shall be construed without limitation.

2.2.4. The term “party” refers to the Firm and/or a User and/or a Subscriber as the context requires.

3.     SCOPE AND DISCLAIMERS

3.1. Nature of Services: Activate comprises of information on various topics (being primarily legal information) presented in various formats as determined by the Firm from time to time.

3.2. Excluded Services: Due to legal and resource constraints, the Firm does not render through Activate paid subscription plans any formal written opinions that are custom-made for any person.

3.3. Breadth of Information: Law, business and related disciplines are broad subjects with numerous facets. As such, no warranty is made nor implied as to the completeness or all-inclusiveness of the information in any given context. Activate content is applicable in a generic situation (unless the background provided suggests otherwise). Users are responsible for evaluating the relevance of Activate content, and reviewing information from other credible sources, for a complete understanding of the subject matter before determining the most appropriate course of action in their situation.

3.4. No Guarantee as to Outcomes: We do not guarantee any outcome for reliance upon Activate content in any matter. Decisions made by third parties are entirely up to them.

3.5. Complex Transactions: Activate content is no substitute for expert legal advice that is essential in complex transactions. Note also that except as permitted by law, it is an offence for a person who is not qualified to practise as an advocate in Kenya to prepare certain documents or conduct certain transactions. Violation of this statutory prohibition attracts criminal penalties. For more information in this regard, please refer to Sections 34 and 85(1) of the Advocates Act (Chapter 16 of the Laws of Kenya).

3.6. Modification of Content: We reserve the right to add edit re-write re-arrange or remove content at our discretion. Certain changes such as addition of new content may be communicated through our periodic newsletters.

3.7. Content-Related Suggestions: While the Firm invites queries and comments to help us improve Activate content, we are not in a position to guarantee that we will address every query or comment submitted by a User, nor do we guarantee a minimum response time for generating new content. We reserve the right to determine which suggestions we will adopt, whether with or without modifications, as well as the mode and timing of content delivery. The provisions of the Privacy Policy regarding suggestions also apply.

3.8. Validity and Availability of Dynamic Information and Resources: Certain information such as third-party policies, legislation, procedures, fees and timelines is current as at the date of posting on Activate, but is dynamic and prone to change without notice. While the Firm reviews existing Activate content periodically, it is not humanly possible to ensure that all existing Activate content is up-to-date at every given moment. Availability of third-party websites and web pages is also subject to change without notice. No warranties, undertakings or assurances are made nor implied as to the continued validity or availability of dynamic information and resources. You are welcome to notify us of any new developments that necessitate review of existing Activate content. We do not guarantee a minimum response time for updating existing Activate content.

3.9. Modification of Features: We may from time to time need to add, modify or remove features to enhance the scope of services, performance or User experience. We will endeavour to update you on important changes as soon as practicable while ensuring that your use of Activate and associated platforms continues seamlessly.

3.10. Future Content and Features: You agree that your subscription to Activate is not contingent upon any impression or indication by the Firm (or any third parties acting on our behalf) regarding future content or features.

3.11. Gratis Feedback: The Firm does not enter into any form of joint venture or revenue-sharing or profit-sharing arrangements with regard to feedback submitted by Users. By submitting feedback to the Firm, you agree and undertake that:

3.11.1. Submission of feedback is absolutely optional and at your discretion, and your submissions are made voluntarily;

3.11.2. Your submissions may be used by the Firm for product, feature and/or content development or for such other purpose as we may deem fit whether for your benefit or for the benefit of other Users;

3.11.3. Your submissions are made with no expectation of reward or compensation;

3.11.4. Your submissions do not infringe on any Third Party IPR.

3.12. Our Additions to Third-Party Works: Where additional notes are provided by us alongside or with reference to third-party websites and content such views expressed by us are our own and are not in any way endorsed by the third party author, publisher or proprietor of such works.

3.13. Exclusion of Liability for Use of Third-Party Resources: Whilst due care has been taken by the Firm and its staff and business associates in the compiling information from various sources (including forecasts, analyses and survey reports), neither the Firm nor its staff or business associates make any representations nor give any warranties as to the accuracy or completeness of third-party information, nor do the Firm or its staff or business associates assume liability for any losses arising from errors or omissions in third-party information whether such losses be direct indirect or consequential. Our reference to third-party websites and content does not imply endorsement of such resources in their entirety. Caution is advised when sharing Personal Data or Sensitive Personal Data or Secret Data with third parties.

4.     PERMITTED USE

4.1. Permissions: Activate is intended for use within the Republic of Kenya by persons aged 18 years and above. Users are permitted to use Activate for lawful means and strictly in accordance with this Terms of Use as read together with ancillary documents.

4.2. Prohibitions: Use of Activate to engage in, facilitate or promote any Unauthorised Commercial Activities is strictly prohibited. The Firm has a zero-tolerance policy towards spam, IT security breach and data privacy breach of any kind including but not limited to phishing spoofing malware injection or any other negligent fraudulent or malicious activity whether civil or criminal pertaining to the Firm’s IT systems. We reserve the right to suspend or terminate a User’s access without notice in the event of any actual or suspected violation of this provision without prejudice to our right to pursue such other legal remedies as may be available to us at law in connection with any violation of our rights or the rights of an aggrieved third party.

4.3. Policies: The Firm reserves the right to formulate, adopt, implement, modify and/or revoke any policies to facilitate access to and/or use of Activate and/or provision of ancillary services. Such policies shall be read as part and parcel of this Terms of Use.

5.     PRICING AND PAYMENTS

5.1. Pricing: Subscription fees are as indicated in our pricing page (as modified from time to time), and are quoted in Kenya Shillings (KES).

5.2. Mode of Payment: The subscription fee shall be payable in advance via the online payment methods that are stipulated on this website or otherwise as notified by the Firm in writing. Payment shall be deemed to have been received when the Firm’s account has been credited with the payment.

5.3. Subscription Period: The subscription period shall be reckoned from the date of receipt of payment and shall continue for the duration set out in the product description. Access to Activate protected content will lapse automatically on the expiry date unless the subscription is renewed.

5.4. Tax: Unless otherwise expressly indicated, the fees are quoted inclusive of value added tax (VAT) at the prevailing rate in Kenya.

5.5. Price Modification: We reserve the right to modify the price and payment terms at any time by issuance of written notice. Such changes shall not apply retrospectively.

5.6. Subscription Plans: The Firm reserves the right to create and modify subscription plans at any time by issuance of written notice. Such changes shall not apply retrospectively.

5.7. Subscription / Attendance Seats: The Firm reserves the right to limit the number of seats available in a specified product or forum. These limits may be modified at any time at the Firm’s discretion provided that such changes shall not lead to denial of service for the current Subscribers.

5.8. Refund Policy: Given that Activate protected content is made fully accessible to a Subscriber upon payment, we do not ordinarily issue refunds. However, in the event that a charge has been levied in error, we will evaluate a refund request submitted with proper justifications. Approved refund requests may be processed by way of a cash transfer to the account from which the payment originated, or by issuance of a time-limited coupon.

5.9. Payment-Related Queries: Any payment-related queries or complaints must be submitted to the Firm through the prescribed communication channel(s) within thirty (30) days from date of the transaction.

5.10. Inactive Accounts: We reserve the right to delete any User account that remains inactive for a continuous period of twelve (12) months. The User is free to re-register at a later date unless there has been an actual or suspected violation of the Terms of Use.

6.     DATA PRIVACY

6.1. The Privacy Policy shall apply in all matters concerning data privacy, and shall be read as part and parcel of this Terms of Use.

7.     ENGAGEMENT

7.1. Engagement Rules: While we uphold the right to freedom of expression, we also recognize such freedom is not absolute and is to be exercised with due regard to the rights and reputation of other people. Accordingly, the Firm and its representatives may from time to time promulgate and enforce such engagement rules as they may deem to be in the overall best interests of the Firm, its representatives and Users.

7.2. User Content Moderation:

7.2.1. Certain content submitted by Users via Activate (including live sessions and social media platforms) will be moderated for compliance with the Engagement Rules. Caution is advised when relying on posts and comments to make decisions, disseminate information, or initiate/accept private interactions between Users. Posts to social media platforms will be moderated during the hours communicated by the Firm, administrator or moderator(s). The availability of the administrator and moderators during weekends and holidays may be intermittent.

7.2.2. Caution is advised when sharing secret data (including PIN numbers and trade secrets) or information that is subject to a confidentiality obligation.

7.2.3. For ease of reference by current and future group members, selected information that is in the public domain and that is availed by Users in Activate engagement forums may be circulated through or archived on Activate. Such information may be publicly accessible for an indefinite period of time.

7.2.4. Use of communication channels (including social media platforms) owned or operated by third-party service providers is also subject to the respective service providers’ own terms and conditions, policies and practices.

7.3. Violation of Engagement Rules: We reserve the right to mute, suspend, block or blacklist any User who posts – whether via the Activate website or any other communication channel under our administration – any statement that: (a) is abusive, obscene, defamatory, offensive or unsuited to professional conduct; (b) is suspected to contain viruses, Trojan horses, worms or any other form of malware; (c) constitutes, promotes or otherwise pertains to any Unauthorised Commercial Activity. In addition, we reserve the right to delete without notice any such offending communication and any responses thereto. Such administrative actions shall be taken with or without notice to the User and the decision of the administrator / moderator shall be final. In addition, such administrative actions shall be taken without prejudice to our right to pursue such other legal remedies as may be available to the Firm at law in connection with violation of the legal rights of the Firm or aggrieved third parties.

7.4. Co-operation: Users are encouraged to disclose to the Firm, as soon as practicable, any known or suspected violation of this Terms of Use or the Privacy Policy to allow for timely action for prevention and detection of a security breach or data privacy breach or unethical behaviour.

8.     SERVICE AVAILABILITY

8.1. Maintenance: The Activate website may from time to time require patches, updates, upgrades or other modifications. We reserve the right to temporarily suspend access to all or part of Activate IT systems for brief periods of time for scheduled maintenance (with prior notice) or for emergency maintenance (without notice).

8.2. Service Disruptions: The Firm makes no warranty or guarantee that access to Activate will be uninterrupted. While we endeavour to set up and maintain high-performance and secure systems, the systems are not fault-free, and the software and hardware used by the Firm and its service providers may become vulnerable to attacks. We reserve the right to disable all or part of the Firm’s IT systems or specific User accounts with or without notice if we believe that such systems or accounts have been compromised or are under serious threat of being compromised. The Firm accepts no liability for system failures or downtime attributable to perpetrators of such attacks, or otherwise attributable to actions taken by the Firm or its service providers to prevent, mitigate or resolve an attempted or actual breach. Subscribers shall be entitled to cancel their subscription should service disruption persist for a period exceeding seven (7) consecutive days without resolve. In such event, the subscription fee paid for the prevailing subscription period shall be refundable in full without interest. Save as set out in this clause, no User shall be entitled to any additional compensation due to service disruptions whether in form of damages or otherwise.

9.     INTELLECTUAL PROPERTY

9.1. General

9.1.1. It is acknowledged by the parties that certain materials that are published or made available via Activate may already be in the public domain.

9.1.2. It is acknowledged by the parties that every citizen of the Republic of Kenya has a right of access to information held by the State pursuant to Article 35(1) of the Constitution of Kenya. Accordingly, the original text contained in the Laws of Kenya, judicial precedents, and notices, processes, procedures and guidelines published by State Agencies are common property.

9.1.3. All quotations of the original text of the Laws of Kenya are credited to the Government Printer and the National Council for Law Reporting (otherwise known as Kenya Law or eKLR) as publishers.

9.1.4. Other third-party copyrighted works quoted in or distributed through Activate are attributable to their respective authors or proprietors as stated within the works, or otherwise as indicated in the list of references under each publication.

9.1.5. Third-party works quoted in or distributed through Activate may only be copied, reproduced, distributed or otherwise used subject to and in accordance with such rights as may be expressly granted to you by the concerned third-party or implied under the applicable laws. We make no warranties concerning licensing of Third Party IPR.

9.1.6. All Activate IPR (including derivative works relating to interpretation or application of the Laws of Kenya judicial precedents processes procedures and guidelines of State Agencies) is eligible for copyright protection under the Copyright Act (No. 12 of 2001) and the Berne Convention (both as modified from time to time). Subject to clause 9.2.1 (Templates) and clause 9.2.3 (Licence Conditions) all rights are hereby reserved.

9.1.7. You undertake that you shall not to do, nor cause or permit to be done, anything that may prejudice or damage the ownership of or rights to Activate IPR or Firm IPR or Third Party IPR and/or the goodwill associated thereto.

9.2. Activate IPR

9.2.1. Templates: Document templates are free for commercial use and no attribution is required. We hereby unconditionally and irrevocably disclaim all Activate IPR in all document templates (including legal instruments) that are published or made available through Activate.

9.2.2. Trademark Protection: The mark Activate® and associated logos together with any variations of the same whether registered or unregistered including the words devices and other elements in the layout and colours presented shall remain the exclusive property of Miriam Muthoni Kanya. The said brand may not be used for any purpose without prior and express written consent which consent may be delayed restricted or entirely withheld at our discretion.

9.2.3. Licence Conditions: Except for:

9.2.3.1. Third-party works which are governed by the licenses granted by the respective third-party proprietors or otherwise implied by law;

9.2.3.2. Document templates, which are absolutely free from any restriction; and

9.2.3.3. The mark Activate® which remains under trademark protection;

Activate IPR is licensed to all persons subject to the following conditions but otherwise free from any other restriction:

9.2.3.4. This licence shall only apply if access to Activate IPR is obtained through legitimate means. The licence shall be and is hereby withheld concerning any works that are accessed through piracy or any unauthorized or illegal means.

9.2.3.5. Unless prior express consent is granted by us in writing, not more than five (5) works or extracts thereof may be quoted verbatim (word for word) in the same print or electronic medium at any given time.

9.2.3.6. Unless prior express consent is granted by us in writing, not more than five (5) minutes’ audio or audio-visual recording may be included in the same broadcast or recording (whether used as a single segment or multiple segments).

9.2.3.7. All works must be properly cited as follows:

Extract from Activate® business-advocate.com

© Miriam Kanya and Associates

9.2.3.8. You shall distribute our works under the same license as we hereby grant to you, and you shall not use the works in a manner likely to suggest that we endorsed your use.

9.2.3.9. The validity of this licence is dependent upon continued compliance with the aforementioned conditions. We reserve the right to suspend or revoke the licence granted to any User or group of Users with or without notice in the event of any actual or suspected violation of the licence conditions.

9.2.4. Request for Consent: If your proposed use of Activate IPR does not fall within the parameters described in the foregoing sub-clauses, prior and express written consent will be required, which consent may be delayed restricted or entirely withheld at our discretion. For guidance on how to seek consent, please refer to the Frequently Asked Questions (FAQs).

9.2.5. Deep Linking: Unless the prior consent of the Firm is obtained in writing, which consent may be delayed restricted or entirely withheld at our discretion, direct hyperlinking to articles files images or other content hosted on the domain https://business-advocate.com is strictly prohibited.

9.3. Firm IPR

9.3.1. Firm IPR (including the mark Miriam Kanya and Associates® and associated logos together with any variations of the same whether registered or unregistered including the words devices and other elements in the layout and colours presented) shall remain the exclusive property of Miriam Muthoni Kanya.

9.4. Other Third Party IPR

9.4.1. All Intellectual Property Rights in software and hardware used by the Firm is reserved by the respective licensors.

10.     GENERAL

10.1. Force Majeure: No party to this Terms of Use shall be liable for any failure to fulfil its obligations herein where such failure is caused by circumstances outside the reasonable control of such party including without limitation any act of God insurrection or civil disorder war or other military operation national or local emergency acts of government labour disputes of any kind fire lightning explosion or any other such cause. In the event of occurrence of a force majeure event or situation, the performance of obligations under this Terms of Use shall be extended by the period of the force majeure event or situation and in any event for not more than thirty (30) days. In the event that the force majeure event or situation persists for a continuous period exceeding thirty (30) days either party shall be entitled to terminate this Terms of Use forthwith by giving written notice to that effect to the other party and without incurring any penalty.

10.2. Suspension; Termination; Consequences of Termination

10.2.1. Voluntary Suspension or Termination by the Firm: The Firm reserves the right, with or without justification, and without incurring any penalty, to – either temporarily or permanently – suspend all or part of Activate PROVIDED THAT suspension or termination shall not affect ongoing paid subscriptions unless the fee paid for the outstanding subscription period is refunded in full to the respective Subscribers.

10.2.2. Voluntary Termination by Users: Users are entitled to cancel a subscription at any time. The refund policy under the Pricing and Payments clause shall apply.

10.2.3. Antecedent Rights and Obligations: Suspension, expiry or termination of this Terms of Use shall not relieve either Party of its rights and obligations which expressly or by implication survive termination. Suspension, expiry or termination of this Terms of Use shall be without prejudice to any antecedent rights and obligations accrued or incurred prior to such suspension, expiry or termination.

10.2.4. Survival: The provisions of this Terms of Use with regard to Disclaimers, Prohibitions, Violation of Engagement Rules, Limitation of Liability, and Governing Law shall survive expiry or termination of this Terms of Use without limitation as to point in time.

10.3. Limitation of Liability: The Firm’s liability for losses hereunder shall be limited to proven damages.

10.4. Governing Law: This Terms of Use and all ancillary documents shall be governed by and construed in accordance with the Laws of Kenya.

10.5. Notices: By using Activate, you consent to receiving electronic communication from us. We will communicate with you through such communication channel as we may deem appropriate in the prevailing circumstances including but not limited to posting notices on this website, e-mail, online portals to which Activate is linked and/or social media accounts associated with Activate. You agree that all agreements, notices, disclosures and other communication sent by us electronically satisfy any legal requirement as to issuance of notice in writing.

10.6. Relationship of the Parties: Nothing contained in this Terms of Use is intended to or shall be deemed to constitute a partnership, joint venture of any kind, or a secondary employment relationship between the parties. No party shall have authority to act as agent for or to bind the other in any way.

10.7. No Assignment: Users may not assign their rights or obligations under this Terms of Use without the prior written consent of the Firm.

10.8. Entire Agreement: This Terms of Use including the ancillary documents incorporated by reference constitute the entire agreement between the parties in relation to the subject matter and shall, as from the effective date, supersede any previous written or oral agreement between the parties.

10.9. Waiver: Save where timelines have been prescribed in this Terms of Use or ancillary documents, the failure or delay on part of a party to exercise any right or obligation under this Terms of Use shall not operate as a waiver of such event or any antecedent or subsequent event.

10.10. Cumulative Rights and Remedies: The rights and remedies provided in this Terms of Use are cumulative and not exclusive of any rights or remedies provided by law.

10.11. Severability: In the event that any provision of this Terms of Use or an ancillary document is declared by any judicial or other competent authority to be void, voidable, illegal or otherwise unenforceable the same shall be deemed as severable from the remainder of the Terms of Use and shall not cause the invalidity or the unenforceability of the rest of the Terms of Use. In such event the Firm will endeavour to modify the Terms of Use to the extent possible in order to achieve the desired objectives while satisfying legal requirements. If such result is unattainable, either the Firm or Users shall be entitled to terminate the Terms of Use in accordance with the Termination clauses hereinbefore set out.

10.12. Modification of Terms of Use: The Firm reserves the right to modify these Terms of Use at any time by issuance of written notice. Continued use of Activate following issuance of such notice shall be construed as consent to the modifications to the Terms of Use. If you do not agree to the revised Terms of Use, you must stop using Activate. Prior versions of the Terms of Use will continue to apply to your previous use of Activate as at the corresponding time.

Revisions:

1st October 2021: Version 1

25th October 2021: Version 2