CONDITIONS FOR THE PROVISION BY M-GAS LIMITED OF ITS PAY-AS-YOU-GO LPG COOKING SERVICE
Version 2: January 2020
These terms and conditions as set out in this document (the Conditions) apply to the provision by M-Gas Limited, a limited liability company incorporated in the Republic of Kenya with its registered office at P.O. Box 764, Sarit Centre, Nairobi, Kenya (M-Gas) of pay-as-you-go LPG cooking services to a person who requests these services from M-Gas (the Customer).
1.1 The following terms shall have the following meanings in these Conditions: Address means the address of the residence of the Customer; Agreement means the agreement between M-Gas and the Customer as set out in the document entitled ‘Your Agreement with M-Gas’ and these Conditions; Equipment means an LPG cylinder, the LPG within the LPG cylinder, a smart meter, a two-burner cooking stove, a key card, and ancillary items such as the connecting hose, jubilee clips and fire blanket that are provided by M-Gas to the Customer pursuant to your Agreement with M-Gas and these Conditions; LPG means liquefied petroleum gas; M-Gas Worker means any employee, worker, consultant, agent or officer of M-Gas or any of M-Gas affiliates; Replacement Service has the meaning given to it in clause 3.2.1; and Services means the provision of the Equipment in accordance with clause 3 of these Conditions.
2. PROVISION OF THE EQUIPMENT AND THE SERVICE
2.1 M-Gas will provide the Services to the Customer subject to the Agreement, and these Conditions shall be deemed incorporated in the Agreement and binding upon the Customer.
2.2 The Customer is deemed to have accepted these Conditions, as amended from time to time, with effect from:
2.2.1 the Customer signing the document entitled ‘Your Agreement with M-Gas’; and
2.2.2 the use by the Customer of any of the Services.
2.3 The Customer will give to M-Gas details of the Customer’s Address and mobile phone number.
2.4 M-Gas will arrange for an M-Gas Worker to visit the Customer at their Address to identify the suitability of the space at the Address in which the Equipment will be located and operated.
2.5 Subject to M-Gas determining in its absolute discretion that the space at the Address in which the Equipment will be located and operated is suitable for such location and operation, M-Gas shall arrange for the Equipment to be delivered to the Customer at the Address.
2.6 M-Gas will at all times own and have legal title to the Equipment, notwithstanding that it is located at the Address of the Customer.
3. OBLIGATIONS OF M-GAS
3.1 The obligations set out in this clause 3 shall apply only after such time as M-Gas determines in its absolute discretion that the space at the Address in which the Equipment will be located and operated is suitable in accordance with clause 2.5 for the location and operation of the Equipment.
3.2 M-Gas will use reasonable endeavours to supply the Services to the Customer as follows:
3.2.1 subject to clause 3.3, M-Gas will deliver an LPG cylinder containing LPG to the Address of the Customer, and, if applicable, will remove from the Customer’s Address any LPG cylinder previously provided by M-Gas which is already at the Address of the Customer (the Replacement Service);
3.2.2 provide instructions and training to the Customer as to how to use the Equipment in a safe manner, and in a way which keeps the cooking costs of the Customer to a minimum;
3.2.3 provide and maintain a helpline for the Customer to call in the event the Customer cannot use the Equipment as intended or the Customer has any questions or concerns regarding the Equipment or the Services;
3.2.4 ensure that those M-Gas Workers who visit the Address for the Customer shall have an identification document which identifies the person as a M-Gas worker; and
3.2.5 inspect the Equipment if the Equipment or any part of it stops working, and, depending on the reason why the Equipment no longer works, repair or replace the Equipment.
3.3 It is the intention of M-Gas to ensure there is always, at the Address of the Customer, an LPG cylinder which contains LPG, and that the M-Gas Worker will check the Equipment each time that they visit the Customer to replace the LPG cylinder.
3.4 M-Gas shall use reasonable endeavours to observe all licensing, health and safety and security requirements that may apply to the M-Gas Workers when they visit the Address of the Customer, provided that M-Gas shall not be liable under these Conditions if, as a result of any such observation, M-Gas is in breach of any of its obligations under these Conditions.
3.5 If any changes to the Services are required as a result of changes to applicable laws, statutes or regulations from time to time in force, M-Gas may (in its sole discretion) change the Service as it considers necessary in order to comply with any such change to applicable laws, statutes or regulations, or by notice to the Customer discontinue providing Services to the Customer.
4. OBLIGATIONS OF THE CUSTOMER
4.1 The Customer undertakes to M-Gas during the term of its relationship with M-Gas, the Customer shall:
4.1.1 only use the Equipment in accordance with the instructions and training which M-Gas provides to the Customer from time to time, which includes the following conditions: (a) only use the Equipment for cooking food or drink; (b) only use the Equipment in a well ventilated area; (c) only use the Equipment when it is away from any flammable material; (d) only use the cooking stove when it is placed higher than the LPG cylinder;
4.1.2 care for and maintain the Equipment, which includes cleaning the cooking stove after every use and cleaning thoroughly at least once a week;
4.1.3 be at the Address on the day and at the time agreed between M-Gas and the Customer to facilitate a Replacement Service, grant access into the Customer’s home to M-Gas Workers for the purposes of replacing the LPG cylinder with a cylinder containing LPG, undertaking checks and tests on the cooking Equipment, assisting with any queries which the Customer may have and any other connected tasks. In the event the Customer will not be at the Address on the agreed day and time, the Customer should notify M-Gas straightaway;
4.1.4 report to M-Gas as soon as the Equipment or any part of it stops working or is moved from the Customer’s home;
4.1.5 report to M-Gas if at any time the Customer loses or breaks the key card;
4.1.6 continue to use the Equipment for cooking on a regular basis;
4.1.7 cooperate with M-Gas in call matters relating to the Services; and
4.1.8 provide to M-Gas all information and documents as may be reasonably required by M-Gas in connection with the Services, and ensure the information and documents provided are accurate and complete.
4.2 The Customer further undertakes to M-Gas during the term of its relationship with M-Gas, the Customer shall not, and shall not allow any other person to:
4.2.1 use the Equipment in any way other than in accordance with the instructions and training provided by M-Gas to the Customer;
4.2.2 change, modify, tamper with, move or dispose of the Equipment or any part of it, or attempt to disconnect any part of the Equipment, or allow any other person to do so;
4.2.3 sell, lend or transfer the Equipment or any part of it to any person;
4.2.4 grant any security, collateral, lien or any other encumbrance over the Equipment or any part of it;
4.2.5 move any part of the Equipment;
4.2.6 relocate their residence from the Address or house which the Customer notified to M-Gas at or around the time M-Gas delivered the Equipment to the Customer;
4.2.7 change their phone number from the number which the Customer has notified to M-Gas at or around the time M-Gas delivered the Equipment to the Customer;
4.2.8 attempt to replace the LPG cylinder;
4.2.9 disclose to any person any confidential information concerning the business, affairs, customers, customers or suppliers of M-Gas; or
4.2.10 use the Equipment for or in connection with the operation of a business or for commercial gain.
5. PAYMENT TO M-GAS
5.1 In consideration of the provision of the Services by M-Gas to the Customer, the Customer will pay amounts to M-Gas in accordance with these Conditions.
5.2 The Customer will buy from M-Gas and M-Gas will sell to the Customer LPG in the Equipment at the price of Kenya Shillings 70 per 300 grams of LPG. M-Gas may change the price for which the Customer will pay for LPG and shall notify this change in the price to the Customer via notice on the M-Gas website www.mgas.ke and/or through the phone numbers provided by the Customers, prior to the change taking effect.
5.3 Each time M-Gas receives a payment via M-Pesa from the Customer, M-Gas shall credit the account of the Customer with such amount of LPG at the rate set out in clause 5.2.
5.4 The Customer will only make payments to M-Gas, and M-Gas will only accept payments from the Customer, via M-Pesa.
5.5 The Customer will never need to make any payment (in cash or otherwise) directly to any M-Gas worker, and no M-Gas worker will ask the Customer to make a payment directly to them. If the Customer is ever requested to make a payment directly to an M-Gas worker, the Customer must straightaway call the M-Gas helpline on 0792 55 66 77.
5.6 If the Customer loses the key card, the Customer shall immediately notify M-Gas. M-Gas may charge the Customer Kenya Shillings 100 for a replacement key card, and shall issue a replacement to the Customer following receipt of payment from the Customer for this amount.
5.7 If the Customer fails to use at least Kenya Shillings 500 worth of LPG from the Equipment within a calendar month, M-Gas may cease the Replacement Service and (either itself or through an agent) take the necessary steps to recover the Equipment from the Address of the Customer.
5.8 All amounts which the Customer may pay to M-Gas during the term of the Customer’s relationship with M-Gas shall be exclusive of any tax, including VAT, or any other duties which may be chargeable on the LPG or for the Services from time to time.
5.9 M-Gas may, without notice to the Customer:
5.9.1 where clause 9.2 applies, recover the cost of the repair or replacement of Equipment due from the Customer by deducting from those amounts of Kenya Shillings which have been paid by the Customer for LPG from M-Gas which remain as credit loaded by the Customer on its account with M-Gas; and
5.9.2 set off any liability of M-Gas to the Customer against any liability of the Customer to M-Gas, whether either liability is present or future, liquidated or unliquidated, and whether or not either liability arises under these Conditions.
6. DATA OF THE CUSTOMER
6.1 The Customer hereby consents to (i) M-Gas storing and processing certain data about and relating to the Customer (Customer Data) (ii) M-Gas sharing the Customer Data or any part of it with its affiliates for business purposes subject to and in compliance with the provisions of the Data Protection Act, laws of Kenya, 2019 and the Constitution of Kenya, 2010.
6.2 The Customer hereby consents that the Customer Data may be stored and/or processed outside the Republic of Kenya subject to and in compliance with the provisions of the Data Protection Act, laws of Kenya, 2019 and the Constitution of Kenya, 2010.
7. LIMITATION OF LIABILITY
7.1 M-Gas shall not be liable to the Customer, whether in contract or tort, for breach of statutory duty or otherwise arising under these Conditions or otherwise in connection with its relationship with the Customer for loss of profits or anticipated savings, loss of sales or business, loss of agreements or contracts, loss of or damage to goodwill, or any indirect or consequential loss.
7.2 M-Gas’ total liability to the Customer, whether in contract, tort, for breach of statutory duty or otherwise arising under these Conditions or otherwise in connection with its relationship with the Customer, shall be limited to the aggregate value of payments made by the Customer to M-Gas over the six month period immediately preceding the date of notice of the claim submitted by the Customer to M-Gas.
8. FORCE MAJEURE
8.1 For the purposes of these Conditions, Force Majeure Event means any circumstance not within M-Gas’ reasonable control including, without limitation acts of God, flood, drought, earthquake or other natural disaster; epidemic or pandemic; terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations; nuclear, chemical or biological contamination or sonic boom; any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition, or failing to grant a necessary approval, authorisation, licence or consent; collapse of buildings, fire, explosion or accident; any labour or trade dispute, strikes, industrial action or lockouts; non-performance by suppliers or subcontractors; and interruption or failure of utility service.
8.2 If M-Gas is prevented, hindered or delayed in or from performing any of its obligations as set out in these Conditions by a Force Majeure Event, M-Gas shall not be in breach of these Conditions or otherwise be liable for any such failure or delay in the performance of such obligations.
8.3 Upon the occurrence of a Force Majeure Event, M-Gas will use reasonable endeavours to notify the Customer of the Force Majeure Event, the likelihood or potential duration of the Force Majeure Event, and the effect of the Force Majeure Event on the ability of M-Gas to perform any of its obligations under these Conditions. Further, M-Gas will use reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations under these Conditions.
8.4 If the Force Majeure Event prevents, hinders or delays M-Gas’ performance of its obligations for a continuous period of more than two weeks, M-Gas may terminate its relationship with the Customer by notice to the Customer, following which clause 9.3 shall apply.
9.1 The Customer may terminate its relationship with M-Gas at any time by returning the Equipment back to M-Gas at an address where M-Gas operates, or by agreeing with M-Gas to arrange for the return of the Equipment to M-Gas. Any Equipment returned to M-Gas must be clean, well-maintained and in good working order.
9.2 If any Equipment returned by the Customer to M-Gas upon the termination of the Customer’s relationship with M-Gas is no longer fit for use by another Customer (as determined by M-Gas in its absolute discretion), the Customer shall be liable to M-Gas for the cost of the repair or replacement of such Equipment, less a deduction for reasonable wear and tear (if any).
9.3 If at any time:
9.3.1 the Customer breaches any of its obligations as set out in these Conditions;
9.3.2 the performance by M-Gas of its Services in accordance with these Conditions is prevented or delayed by any act or omission of the Customer; or
9.3.3 the Customer is unable to pay their debts as these fall due or is declared to be bankrupt, or an application is made to court or an order is made or any other action is taken with an analogous effect in connection with the Customer, M-Gas may cease providing Services and may, by notice to the Customer, terminate its relationship with the Customer and take all steps and actions which may be necessary for M-Gas to recover the Equipment from the Address.
9.4 Upon termination of the relationship between M-Gas and the Customer in accordance with these Conditions, the Customer shall immediately return the Equipment back to M-Gas, or enter into such arrangements as may be acceptable with M-Gas to arrange for the Equipment to be collected by M-Gas or otherwise returned to M-Gas.
10.1 The relationship between M-Gas and the Customer is personal to the Customer, and the Customer may not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under these Conditions. M-Gas may at any time assign, mortgage, charge, declare a trust over or deal in any other manner with any or all of its rights in the relationship between M-Gas and the Customer or under these Conditions, and may subcontract any of its obligations as set out in these Conditions.
10.2 M-Gas may amend the terms of these Conditions at any time, and the Customer shall be and is deemed to have acknowledged and agreed to any such amended Conditions by continued use of the Services by the Customer after the amendment.
10.3 A waiver of any right or remedy under these Conditions or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by M-Gas to exercise any right or remedy provided under these Conditions or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under these Conditions or by law shall prevent or restrict the further exercise of that or any other right or remedy.
10.4 If any provision or part-provision of these Conditions is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but shall not affect the validity and enforceability of the rest of these Conditions. Further, if any provision or part-provision of this agreement is deemed deleted, any continued use by the Customer of the Services shall be and is deemed to be an agreement that the provision is deemed to have been replaced with a provision which, to the greatest extent possible, achieves the intended commercial result of the original provision.
10.5 These Conditions constitute the entire agreement between M-Gas and the Customer and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them whether written or oral, relating to its subject matter.
10.6 These Conditions set out the relationship between M-Gas and the Customer, and these do not create any rights to any other person to enforce any provision of these Conditions.
10.7 These Conditions and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with these Conditions or its subject matter or formation shall be governed by and construed in accordance with the laws of Kenya. 10.8 M-Gas and the Customer irrevocably agree that the courts of Kenya shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with these Conditions or their subject matter or formation.