CONDITIONS FOR THE PROVISION BY M-GAS LIMITED OF ITS PAY-AS-YOU-GO LPG COOKING SERVICE AND THE SALE OF A COOKING STOVE
Version 5: March 2023
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 27780, GPO, Nairobi, Kenya (M-Gas) of pay-as-you-go LPG cooking services to a person who requests these services from M-Gas (the Customer), and to the sale by M-Gas and purchase by the Customer of a Stove (as defined below).
- Definitions
1.1. The following terms shall have the following meanings in these Conditions:
1.1.1. Address means the address of the premises of the Customer;
1.1.2. Agreement means the agreement most recently entered into between M-Gas and the Customer as set out in the document entitled ‘My Agreement with M-Gas’ and these Conditions;
1.1.3. Delivery is completed when M-Gas places the stove at the Customer’s disposal at the Customer’s home.
1.1.4. Equipment means an LPG cylinder, the LPG within the LPG cylinder, a smart meter, a key card, and ancillary items such as the connecting hose and jubilee clips that are provided by M-Gas to the Customer pursuant to the Agreement and these Conditions;
1.1.5. KSh. means the lawful currency of Kenya;
1.1.6. LPG means liquefied petroleum gas;
1.1.7. M-Gas Worker means any employee, worker, consultant, agent or officer of M-Gas or any of M-Gas’s affiliates;
1.1.8. Repair Service has the meaning given to it in clause 7;
1.1.9. Replacement Service has the meaning given to it in clause 3.2.1;
1.1.10. Services means the provision of the Equipment in accordance with clause 3 of these Conditions; and
1.1.11. Stove means a new or refurbished two-burner cooking stove that is compatible for the Customer to use with the Equipment provided to them by M-Gas. - Provision of the Equipment and the Service
2.1. In consideration of the Customer making the Initial LPG Payment in accordance with clause 5.5, 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 the earlier of:
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. - 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 of 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. For the avoidance of doubt, M-Gas shall have no obligation to repair or replace any asset or item that does not belong to M-Gas.
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.
3.6. M-Gas shall provide Repair Services to the Customer in accordance with and subject to clause 7. - Obligations of the Customer
4.1. The Customer undertakes to M-Gas that they 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 Stove when it is placed higher than the LPG cylinder;
4.1.2. Care for and maintain the Equipment, which includes cleaning the 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 the Stove 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, gift, donate 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 premises from the Address or home 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; or
4.2.9. disclose to any person any confidential information concerning the business, affairs, customers, customers or suppliers of M-Gas.
4.3. By using the Equipment, the Customer understands that moving or tampering with the Equipment may damage or destroy the Equipment, and this will result in financial loss and damage to M-Gas. If a Customer misplaces or tampers with the Equipment or any part of it, by such action they agree to pay M-Gas on demand as determined by M-Gas and identified to the Customer at the relevant time and without notice an amount which is equal to the replacement value of the Equipment or any relevant part of it as compensation for that Customer’s wrongful and illegal moving or tampering.
4.4. Where the Customer has signed an Agreement with M-Gas and M-Gas delivered a Stove to the Customer’s home but the Customer did not elect to purchase that Stove from M-Gas, through the continued use of the Equipment and making payments to M-Gas, that Customer confirms and agrees that:
4.4.1. they shall be bound by the terms and conditions set out in this Agreement;
4.4.2. the 2 burner stove delivered to them by M-Gas belongs to and is owned by M-Gas, and the Customer has no right to and shall not claim any entitlement to that stove; and
4.4.3. if the stove develops a fault, M-Gas shall have no responsibility to offer the Repair Service or otherwise fix that fault, and if the Customer wishes to continue to receive the Services from M-Gas, the Customer shall enter into a new Agreement with M-Gas and select one of the options in the Agreement.
If the Customer does not enter into a new Agreement with M-Gas and select one of the options in the Agreement, then M-Gas shall end the Agreement and recover the Equipment from the Customer. - Payment to M-Gas for LPG
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 only make payments to M-Gas via M-Pesa, and M-Gas will only accept payments from the Customer, via M-Pesa.
5.3. 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 0800 72 44 40 or 0800 721 148.
5.4. The Customer will buy from M-Gas and M-Gas will sell to the Customer LPG in the Equipment at the price of KSh. 80.4 per 300 grams of LPG exclusive of VAT. 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 https://mgas.ke/ and/or through the phone number provided by the Customer.
5.5. The Customer shall make an initial payment of KSh. 250 (inclusive of VAT) to M-Gas as their first payment towards the cost of LPG (the Initial LPG Payment). Each time M-Gas receives a payment via M-Pesa from the Customer towards the cost of LPG, M-Gas shall credit the account of the Customer with such amount, which the Customer shall spend on LPG at the rate set out in clause 5.4.
5.6. If the Customer loses the key card, the Customer shall immediately notify M-Gas. M-Gas may charge the Customer KSh. 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. M-Gas may, at any time upon notice to the Customer, cease providing the Services and (either itself or through an agent) take the necessary steps to recover the Equipment from the Address of the Customer. Cessation and recovery is most likely to occur where the Customer fails to use at least KSh. 500 worth of LPG from the Equipment within a 30 day period.
5.8. Where M-Gas recovers the Equipment from the Customer, it shall also be entitled to recover the Stove. At this time, the Customer shall be entitled to retain the Stove if the Customer makes payment to M-Gas of all outstanding Purchase Price Instalments and any Outstanding Amount, which shall mean that the Customer completes purchase of the Stove and this will not be repossessed by M-Gas. Where M-Gas repossesses the Stove from the Customer, the Customer shall have no entitlement to receive and will not receive any refund for amounts which they have already paid to M-Gas, and M-Gas shall have no obligation to make payment to the Customer of any such refund.
5.9. M-Gas may, without notice to the Customer:
5.9.1. where clause 6.6 applies, recover an amount equal to any Outstanding Amount 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 their account with M-Gas;
5.9.2. where clause 11.2 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 their account with M-Gas; and
5.9.3. 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. - Sale and Purchase of Stoves
6.1. M-Gas shall sell and the Customer shall purchase the Stove in accordance with this clause 6.
6.2. Where the Customer elects to purchase the Stove through selecting Option A or C (Outright purchase of a new or refurbished stove respectively) in the Agreement, then:
6.2.1. upon signing the Agreement, the Customer shall make payment to M-Gas of the one-off purchase price payment of KSh. 2,300 (inclusive of VAT: KSh. 1,982.76 plus KSh. 317.24 of VAT) for the new stove or KSh. 1,150 (inclusive of VAT: KSh. 991.38 plus KSh. 158.62 of VAT) for the refurbished stove ;
6.2.2. risk in the Stove shall pass to the Customer upon Delivery; and
6.2.3. M-Gas shall retain title to the Stove, and title to the Stove shall only pass to the Customer upon both (i) M-Gas having received from the Customer KSh. 2,300 where the Customer is purchasing a new stove or KSh. 1,150 where the Customer is purchasing a refurbished stove through the Customer making payment of the one-off purchase price, and (ii) Delivery of the Stove to the Customer having occurred.
6.3. Where the Customer elects to purchase the Stove through selecting Option B or D (Purchase of new or refurbished stove through instalment payments) in the Agreement, then:
a) 6.3.1. the total amount payable by the Customer for the new Stove will be KSh. 2,800 (inclusive of VAT: KSh. 2,413.79 plus KSh. 386.21 of VAT), and for the refurbished stove will be KShs. 1,400 (inclusive of VAT: KShs. KSh. 1,206.9 plus KShs. 193.1 of VAT) which shall consist of the following:an initial purchase price payment of KSh. 200 (inclusive of VAT: KSh. 172.41 plus KSh. 27.59 of VAT), for the new stove or KSh. 100 (inclusive of VAT: KSh. 86.21 plus KSh. 13.79 of VAT), for the refurbished stove to be paid by the Customer to M-Gas upon signing the Agreement; and
b) subject to clause 7, purchase price instalments of KSh. 25 (inclusive of VAT: KSh. 21.55 plus KSh. 3.45 of VAT) (each, a Purchase Price Instalment) to be paid by the Customer to M-Gas each week until such time as the Customer has paid KSh. 2,600 (inclusive of VAT: KSh. 2,241.38 plus KSh. 358.62 of VAT) in aggregate from all Purchase Price Instalments for the new stove or KSh. 1,400 (inclusive of VAT: KSh. 1,206.9 plus KShs. 193.1 of VAT) in aggregate from all purchase price instalments for the refurbished stove. The Customer shall make payment of the Purchase Price Instalment on Monday (or such other day of the week as notified by M-Gas to the Customer) of each week (the Payment Day);
6.3.2. risk in the Stove shall pass to the Customer upon Delivery; and
6.3.3. M-Gas shall retain title to the Stove, and title to the Stove shall only pass to the Customer once M-Gas has received from the Customer (i) KSh. 2,800 for a new stove or KSh. 1400 for a refurbished stove in aggregate from the Customer through payments of the initial purchase price and Purchase Price Instalments and (ii) all payments which may be due from the Customer pursuant to clause 7. The Customer understands that during such time as M-Gas retains title to the Stove, moving or tampering with the Stove may damage or destroy the Stove, and this will result in financial loss and damage to M-Gas. If the Customer misplaces or tampers with the Stove or any part of it, by such action they agree to pay M-Gas on demand as determined by M-Gas and identified to the Customer at the relevant time and without notice an amount which is equal to the replacement value of the Stove or any relevant part of it as compensation for that Customer’s wrongful and illegal moving or tampering.
6.4. The Customer shall make payment of the initial purchase price payment and each Purchase Price Instalment to M-Gas via M-Pesa to paybill 804040.
6.5. If the Customer fails to make payment in full of a Purchase Price Instalment by 23:59 hours on the Payment Day in any particular week, then M-Gas shall deduct an amount which is equal to the outstanding amount of the Purchase Price Instalment from the next amount which that Customer pays to M-Gas towards the cost of LPG or from the Customer’s credit which M-Gas holds in the account of that Customer at that time. M-Gas shall apply the amount deducted to discharge payment of the outstanding amount of the Purchase Price Instalment. If the amount that the Customer pays towards the cost of LPG or if the amount of the Customer’s credit which M-Gas holds in the account of that Customer at that time is less than the value of the outstanding amount of the Purchase Price Instalment, then M-Gas shall deduct all of the amount (if any) paid by the Customer towards the cost of the LPG and all of the Customer’s credit (if any) which M-Gas holds in the account of that Customer at that time, and M-Gas shall apply the amount deducted to discharge payment of the outstanding amount of the Purchase Price Instalment (up to the value of the amount deducted), and the Customer shall owe to M-Gas the further outstanding amount of the Purchase Price Instalment (an Outstanding Amount).
6.6. Where, at any time when a Purchase Price Instalment is due from a Customer, that Customer owes an Outstanding Amount to M-Gas, the Customer shall be required to make payment to M-Gas of an amount equal to both the Purchase Price Instalment due and the Outstanding Amount.
6.7. Where an Outstanding Amount remains unpaid and the Customer has not paid the Outstanding Amount to M-Gas, M-Gas shall be entitled to repossess the Stove from the Customer. Where M-Gas repossesses the Stove from the Customer, the Customer has no entitlement to receive and will not receive any refund for amounts which they have already paid to M-Gas. At the time of repossession of the Stove, the Customer shall be entitled to retain the Stove if the Customer makes payment to M-Gas of the Outstanding Amount and all outstanding Purchase Price Instalments, which shall mean that the Customer completes purchase of the Stove and this will not be repossessed by M-Gas.
6.8. Those terms implied by the Sale of Goods Act (Cap 31) are, to the fullest extent permitted by law, excluded from the Agreement.
6.9. M-Gas shall not have any liability to the Customer in respect of the Stove of otherwise where the Customer failed to follow oral or written instructions issued by M-Gas or any M-Gas Worker for the storage, installation, use, cleaning and maintenance of the Stove.
- Stove Repair Service
7.1. M-Gas shall only offer the Repair Service to those Customers who have selected to purchase the Stove through selecting Option A (Outright Purchase of a new stove) , Option B (Purchase of a new stove through instalment payments), Option C (Outright purchase of a refurbished stove), or Option D (Purchase of a refurbished stove through instalment payments) in each case in accordance with this clause 7.
7.2. If the new or refurbished Stove develops any fault and the Customer notifies M-Gas of the same within one month of the date on which the Customer agrees to purchase the Stove from M-Gas, then M-Gas shall collect the faulty Stove from the Customer and issue a replacement working Stove to the Customer, and no Repair Service Fee shall be payable .
7.3. If the Stove develops any fault after one month has elapsed from the date on which the Customer agrees to purchase the Stove from M-Gas, the Customer shall notify M-Gas of the same, in which case M-Gas shall provide the Repair Service in accordance with and subject to the following provisions of this clause 7.
7.4. Where the Customer notifies M-Gas that the Stove in their possession has a fault after one month has elapsed from the date on which the Customer agrees to purchase the Stove from M-Gas, then M-Gas shall collect the faulty Stove from the Customer and issue an alternative working Stove to the Customer, upon which the Customer shall become liable for a Repair Service fee of KSh. 200 (inclusive of VAT: KSh. 172.41 plus KSh. 27.59 of VAT) (the Repair Service Fee).
7.5. Where the Customer has selected to purchase the Stove through selecting Option A or C (Outright purchase of a new or refurbished stove) in the Agreement, then the Customer shall make payment to M-Gas of Repair Service Fee in a single instalment, which shall immediately become payable and which must be paid in full by the Customer before M-Gas will provide the Repair Service.
7.6. Where the Customer has elected to purchase the Stove through selecting Option B or D (Purchase of a new or refurbished stove through instalment payments) in the Agreement, then the Customer shall make payment to M-Gas of Repair Service Fee in eight instalments of KSh. 25 each. The parties agree that at any time when the Repair Service Fee or any part of it remains outstanding, then all amounts received by M-Gas from the Customer other than contributions for LPG shall be deemed to be payments of and shall be applied towards satisfaction of the Repair Service Fee in priority to payments of any Purchase Price Instalment.
7.7. In each case, the Customer shall make payment of the Repair Service Fee to M-Gas via M-Pesa to paybill 804040.
7.8. M-Gas shall offer Repair Services to the Customer a maximum of two times in the two year period commencing on the date that the Customer agrees to purchase the Stove from M-Gas. - Data of the Customer
8.1. To enable M-Gas to fulfil its contractual obligations under this Agreement or for any other legitimate purpose as prescribed by the Data Protection Act, 2019 and the Regulations thereunder and other applicable laws (the Data Protection Laws), M-Gas needs to process the Customer Personal Data (defined below) for purposes which include the following:
8.1.1. processing applications for products and services, effecting payments, transactions, effecting recovery of Equipment and Stoves from Customer’s premises by M-Gas or its authorised agents where required, and completing the Customer’s instructions or requests
8.1.2. providing products and services to the Customer, including without limitation the Repair Service, the Replacement Service and the Services
8.1.3. assessing suitability for other products and services
8.1.4. credit assessment, including conducting credit checks and setting credit limits and credit scoring
8.1.5. marketing new and existing products and services and making announcements
8.1.6. business analytics, research, survey and statistical purposes
8.1.7. complying with any legal, governmental or regulatory requirement or for use by M-Gas’s legal advisors in connection with any current or anticipated legal proceedings
8.1.8. CCTV surveillance of M-Gas business premises to keep them safe and secure
8.1.9. providing anonymized or pseudonymized data (which do not contain any information which may identify the Customer as an individual) to third parties including for research and scientific purposes
8.1.10. administration of any of M-Gas’s online platforms or websites
8.2. The Customer hereby gives their consent for M-Gas to (i) collect, process and store certain data about and relating to the Customer including their personal data (Customer Personal Data) and for M-Gas to (ii) appoint processors to process the Customer Personal Data in order to fulfil or better perform its contractual obligations with the Customer and also for any legitimate commercial purposes.
8.3. The Customer has available to it the rights under Data Protection Laws and M-Gas will ensure that the collection, processing, storing and transferring of personal data is done in accordance with the Data Protection Laws and M-Gas’ Data Protection Policy which may be accessed via M-Gas website https://mgas.ke/.
8.4. M-Gas may opt to appoint sub-processers and shall undertake this process in line with the Data Protection Laws. An initial list of approved sub-processors is made available on the M-Gas website at https://mgas.ke/which will be subject to updates. Upon notification by M-Gas of its appointment of a sub-processor, the Customer shall have a right to object to the processing by any additional or replacement sub-processor within fifteen (15) days of M-Gas having made such notification.
8.5. The Customer agrees and acknowledges that M-Gas may store and/or transfer Customer Data outside Kenya and therefore the Customer hereby consents to M-Gas storing and/or transferring the Customer Personal Data outside the Republic of Kenya in accordance with the Data Protection Laws. - Limitation of Liability
9.1. 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.
9.2. M-Gas’s 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 for LPG 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. - Force Majeure
10.1. For the purposes of these Conditions, Force Majeure Event means any circumstance not within M-Gas’s 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.
10.2. 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.
10.3. Upon the occurrence of a Force Majeure Event, M-Gas will use reasonable endeavours to notify the Customer of the Force Majeure Event, the likely 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.
10.4. If the Force Majeure Event prevents, hinders or delays M-Gas’s 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 11.3 shall apply. - Termination
11.1. 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.
11.2. 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).
11.3. If at any time:
11.3.1. the Customer breaches any of its obligations as set out in these Conditions;
11.3.2. 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
11.3.3. 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 and the Stove from the Address.
11.4. Upon termination of the relationship between M-Gas and the Customer in accordance with these Conditions, the Customer shall immediately return the Equipment and the Stove back to M-Gas, or enter into such arrangements as may be acceptable with M-Gas to arrange for the Equipment and the Stove to be collected by M-Gas or otherwise returned to M-Gas. - General
12.1. 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.
12.2. 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.
12.3. In the event there is a conflict or inconsistency between these Conditions and the document entitled ‘My Agreement with M-Gas’, these Conditions shall apply and take precedence.
12.4. 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.
12.5. 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.
12.6. 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.
12.7. 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.
12.8. 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.
12.9. 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. - Carbon Credit Ownership
Revenues from the sale of carbon credits are used to support the purchase and distribution of the Equipment. Through receiving and using the Equipment, the Customer hereby agrees to transfer all of their rights to the emission reductions, together with any other related environmental commodity, realized from the use of the Equipment to M-Gas. Through continuing to use the Equipment, the Customer hereby relinquishes carbon offset credits developed in connection to the usage of the Equipment to M-Gas.