Introduction

Acacia Knowledge Solutions Limited, a Kenya company (“Acacia Knowledge Solutions”) is the sponsor of the Shupavu Learning Games and Competitions.

These Terms and Conditions apply to users (“Users”), including students, teachers and schools, of any platform or application relating to the Shupavu Learning Games and Competitions (the related website and related applications are referred to herein as the “Website” and the related services, features, benefits and rewards are referred to herein as the “Services”).

These Terms and Conditions (“Terms”) are accompanied by our Privacy Policy, which is incorporated herein by reference.

Acceptance of Terms and Conditions

PLEASE READ THE FOLLOWING TERMS OF SERVICE CAREFULLY. BY REGISTERING FOR, ACCESSING, BROWSING, OR USING THE WEBSITE, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THE FOLLOWING TERMS AND CONDITIONS, AND ANY ADDITIONAL GUIDELINES (AS DEFINED BELOW) (COLLECTIVELY,  THE “TERMS”), AND THAT YOU HAVE READ THE PRIVACY POLICY.

IF YOU ARE A PARENT OR LEGAL GUARDIAN AND YOU PROVIDE CONSENT FOR YOUR CHILD TO REGISTER WITH THE WEBSITE, YOU AGREE TO BE BOUND BY THESE TERMS OF SERVICE IN RESPECT OF SUCH CHILD’S USE OF THE WEBSITE.  IF YOU ARE SCHOOL PERSONNEL (AS DEFINED BELOW) AND YOU REGISTER A SCHOOL USER (AS DEFINED BELOW), YOU AGREE, ON BEHALF OF YOUR INSTITUTION, THAT THE SCHOOL USER IS BOUND BY THE TERMS, UNLESS YOUR INSTITUTION HAS A SEPARATE WRITTEN SERVICE AGREEMENT WITH ACACIA KNOWLEDGE SOLUTIONS THAT ACCEPTS THESE TERMS ON BEHALF OF SCHOOL USERS.

Eligibility; Accounts

THE SERVICES ARE NOT AVAILABLE TO: (A) ANY USERS PREVIOUSLY SUSPENDED OR REMOVED FROM THE SERVICES BY ACACIA KNOWLEDGE SOLUTIONS, OR (B) ANY UNDER AGE PERSONS (OR UNDER THE LEGAL AGE OF CONSENT IN YOUR COUNTRY) WHOSE REGISTRATION HAS NOT BEEN APPROVED BY A PARENT OR LEGAL GUARDIAN (OR, FOR SCHOOL ACCOUNTS, BY SCHOOL PERSONNEL AS PERMITTED UNDER THE TERMS).

Acceptance

By clicking the “I Agree” button or by otherwise using or registering an account for the Services, you represent that (1) you are of legal age of consent to open an account under the laws of your country of residence, or (iii) your use of the Services has been approved by your parent or legal guardian, or by your school or teacher for school use. You also represent that you have not been previously suspended or removed from the Services by Acacia Knowledge Solutions, and that your registration and your use of the Services is in compliance with any and all applicable laws.

Account

In order to use certain features of the Services, you must register for an account. You may be asked to provide a password in connection with your account.  You are solely responsible for maintaining the confidentiality of your account and password, and you agree to accept responsibility for all activities that occur under your account or password.  You agree that the information you provide to Acacia Knowledge Solutions, whether at registration or at any other time, will be true, accurate, current, and complete.  You also agree that you will ensure that this information is kept accurate and up-to-date at all times.  If you have reason to believe that your account is no longer secure (e.g., in the event of a loss, theft, or unauthorized disclosure or use of your account ID or password), then you agree to immediately notify us. You may be liable for the losses incurred by Acacia Knowledge Solutions or others due to any unauthorized use of your Services account.

Integrated Service

Acacia Knowledge Solutions may permit you to register for the Services through, or otherwise associate your Acacia Knowledge Solutions account with, certain third party integrated services, such as Safaricom or Google (“Integrated Service”).  By registering for the Services using (or otherwise granting access to) an Integrated Service, you agree that Acacia Knowledge Solutions may access your Integrated Service’s account information, and may store and use certain information already associated with the Integrated Service consistent with our Privacy Policy, you agree to any and all terms and conditions of the Integrated Service regarding your use of the Services via the Integrated Service.

You may revoke Acacia Knowledge Solutions’s access to your account on any Integrated Service at any time by updating the appropriate account settings of the respective Integrated Service. You should check your account settings on each Integration Service to understand the information sent to us through each Integration Service, and any changes you can make in those account settings. You agree that any Integrated Service is a Reference Site (as defined below) and you are solely responsible for your interactions with the Integrated Service as a result of accessing the Services through the Integrated Service.  Acacia Knowledge Solutions does not control the practices of Integrated Services, and you are advised to read the privacy policy and terms and conditions of any Integrated Service that you use to understand their practices.

School Use

Acacia Knowledge Solutions may make available certain features and tools that permit Users registered as teachers, school leaders, aides, principals, school administrators, school district administrators, or other similar school personnel (“School Personnel“) to work with students and other Users through the Services in order to provide such students with tutorial, educational and other education-related services as part of the school’s curriculum, and to review and evaluate educational achievement and progress of such students.  If you are School Personnel accessing the Services on behalf of a school, school district, or other similar educational institution (an “Institution“), the following terms apply to you:

1. The Services and Website are provided to you for educational purposes as part of the school curriculum.  You must use the Services and the Website in compliance with all applicable laws, rules, and regulations.  You are responsible for determining (and confirming) that your use of the Services and the Website is permitted by your Institution and any applicable policies, including any school district and school policies.  You agree not to reproduce, duplicate, copy, sell, resell or otherwise exploit for any commercial purpose, any portion of the Services, the Website, or access to the Services or Website.
2. You and/or the Institution assume responsibility for obtaining any consents required from parents or legal guardians, and for providing appropriate disclosures to School Users and their parents regarding the School Users’ use of the Services, our Terms, and our Privacy Policy.  You agree to be bound by these Terms on behalf of the School User, for so long as the School User account is not transferred to or assumed by a valid Parent User account or personal account for a Student of eligible age. 
3. You are responsible for full compliance with all applicable laws and regulations of the Republic of Kenya including without limitation the Data Protection Act (DPA) of 2019 of the Republic of Kenya and rules and regulations promulgated thereunder.

Other Guidelines

When using the Services, you will be subject to any additional posted guidelines or rules applicable to specific services and features which may be posted from time to time (the “Guidelines”).  All such Guidelines are hereby incorporated by reference into the Terms.  You and your use of the Services (including use by your Authorized Users) must comply at all times with these Terms, and the Acceptable Use Policy.

Rewards

Acacia Knowledge Solutions may provide rewards to participants who perform well, which will be administered by conversion of learning coins into rewards. The scope, terms and conditions of these rewards and of conversion of learning coins into rewards will be determined, modified or terminated by Acacia Knowledge Solutions in its sole discretion. A user may not transfer or monetize learning coins, and all learning coinds will expire at the end of a school year.

Modification of the Terms

Upon opening an account, you accept the Terms in the form posted on our website.  Acacia Knowledge Solutions reserves the right, at our discretion, to change, modify, add, or remove portions of the Terms at any time.  Please check the Terms and any Guidelines periodically for changes that are made after you open your account.  Your continued use of the Services after the posting of changes constitutes your binding acceptance of such changes.  For any material changes to the Terms, Acacia Knowledge Solutions will make reasonable effort to provide notice to you of such amended Terms, such as by an email notification to the address associated with your account or by posting a notice on the Services, and such amended terms will be effective against you on the earlier of (i) your actual notice of such changes and (ii) thirty days after Acacia Knowledge Solutions makes reasonable attempt to provide you such notice.  However, changes addressing new functions for a service or changes made for legal reasons will be effective immediately.  If you do not agree to the modified Terms, you must discontinue your use of the Services. Disputes arising under these Terms will be resolved in accordance with the version of the Terms in place at the time the dispute arose.

License Grant to Acacia Knowledge Solutions

By posting, submitting or distributing user content on or through the Services, you hereby grant to Acacia Knowledge Solutions a worldwide, non-exclusive, transferable, assignable, fully paid-up, royalty-free right and license to (a) host, transfer, display, perform, reproduce, distribute, prepare derivative works of, use, make, have made, import, and otherwise exploit your User Content, in whole or in part, in any media formats and through any media channels (now known or hereafter developed, to the extent consistent with applicable law and Acacia Knowledge Solutions’ Privacy Policy).  Such license is perpetual and irrevocable, except to the extent required to comply with Applicable Privacy Law relating to ownership and control of your personal information, including education records. With respect to School Accounts, consistent with Applicable Privacy Law, as between Acacia Knowledge Solutions and you, you (or your school, as applicable) retain all ownership rights you have in any User Content to the extent such content is an education record.

Proprietary Materials

The Services are owned and operated by Acacia Knowledge Solutions.  The visual interfaces, graphics, design, compilation, information, computer code (including source code or object code), software, services, content, educational videos and exercises, and all other elements of the Services (the “Services Materials”) are protected by Kenya and international copyright, patent, and trademark laws, international conventions, and other applicable laws governing intellectual property and proprietary rights. Except for any User Content provided and owned by Users and except as otherwise set forth in herein, all Services Materials, and all trademarks, service marks, and trade names, contained on or available through the Services are owned by or licensed to Acacia Knowledge Solutions, and Acacia Knowledge Solutions reserves all rights therein and thereto not expressly granted by these Terms.

Term and Termination

These Terms shall remain in full force and effect while you use the Services unless your account is terminated as provided in these Terms, in which case you no longer have the right to use the Services.

Acacia Knowledge Solutions, in its sole discretion, for any or no reason, and without penalty, may: (a) restrict, suspend or terminate: (i) any account (or any part thereof) you may have with Acacia Knowledge Solutions or (ii) your use of the Services, and (b) remove and discard all or any part of your account, User profile, and User Content, at any time.  Acacia Knowledge Solutions may also in its sole discretion and at any time discontinue providing access to the Services, or any part thereof, with or without notice.  You agree that any termination of your access to the Services or any account you may have, or portion thereof, may be affected without prior notice, and you agree that Acacia Knowledge Solutions will not be liable to you or any third party for any such termination. Any suspected fraudulent, abusive or illegal activity may be referred to appropriate law enforcement authorities. These remedies are in addition to any other remedies Acacia Knowledge Solutions may have at law or in equity. As discussed herein, Acacia Knowledge Solutions does not permit copyright, trademarks, or other intellectual property infringing activities on the Services, and will terminate access to the Services, and remove all User Content or other content submitted, by any Users who are found to be repeat infringers.

Your only remedy with respect to any dissatisfaction with (i) the Services, (ii) any term of these Terms, (iii) Guidelines, (iv) any policy or practice of Acacia Knowledge Solutions in operating the Services, or (v) any content or information transmitted through the Services, is to terminate the Terms and your account.  You may terminate these Terms at any time (prospectively only) by deleting your login account with the Services and discontinuing use of any and all parts of the Services.

Indemnification

You agree, to the extent permissible under Applicable Laws, to indemnify, defend, and hold harmless Acacia Knowledge Solutions, and its parent, successors, affiliated companies, contractors, officers, directors, employees, agents and its third-party suppliers, licensors, and partners (“Acacia Knowledge Solutions Parties”) from and against all losses, damages, liabilities, demands, judgments, settlements, costs and expenses of any kind (including legal fees and expenses), from any claim or demand made by any third-party relating to or arising out of (i) your access to, use or misuse of the Services; (ii) your breach or alleged breach of these Terms, (iv) your failure to comply with Applicable Laws. Acacia Knowledge Solutions reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Acacia Knowledge Solutions, and you agree to cooperate with Acacia Knowledge Solutions’ defense of these claims.  You agree not to settle any such matter without the prior written consent of Acacia Knowledge Solutions. Acacia Knowledge Solutions will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it.

Disclaimers; No Warranties

THE WEBSITE, AND ALL DATA, INFORMATION, SOFTWARE, WEBSITE MATERIALS, CONTENT (WHETHER OWNED OR LICENSED), USER CONTENT, REFERENCE SITES, SERVICES, OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE WEBSITE (THE “ACACIA KNOWLEDGE SOLUTIONS OFFERINGS“), ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE,” AND “WITH ALL FAULTS” BASIS. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, THE ACACIA KNOWLEDGE SOLUTIONS PARTIES DISCLAIM ANY AND ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, AVAILABILITY, QUIET ENJOYMENT, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.  NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM ACACIA KNOWLEDGE SOLUTIONS OR THROUGH THE WEBSITE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN.

ACACIA KNOWLEDGE SOLUTIONS, AND THE ACACIA KNOWLEDGE SOLUTIONS PARTIES, DO NOT WARRANT THAT THE WEBSITE OR ANY DATA, USER CONTENT, FUNCTIONS, OR ANY OTHER INFORMATION OFFERED ON OR THROUGH THE WEBSITE WILL BE UNINTERRUPTED, OR FREE OF ERRORS, VIRUSES OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED.

Limitation of Liability

UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, WILL ACACIA KNOWLEDGE SOLUTIONS OR THE ACACIA KNOWLEDGE SOLUTIONS PARTIES BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, OR EXEMPLARY DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES ARISING FROM ANY UNSUCCESSFUL COURT ACTION OR LEGAL DISPUTE, LOST BUSINESS, LOST REVENUES OR PROFITS, LOSS OF DATA, OR ANY OTHER PECUNIARY OR NON-PECUNIARY LOSS OR DAMAGE OF ANY NATURE WHATSOEVER) EVEN IF ACACIA KNOWLEDGE SOLUTIONS OR A ACACIA KNOWLEDGE SOLUTIONS PARTIES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES ARISING OUT OF OR RELATING (i) TO THE TERMS; (ii) YOUR USE OF (OR INABILITY TO USE) THE WEBSITE OR THE ACACIA KNOWLEDGE SOLUTIONS OFFERINGS, OR (iii) ANY OTHER INTERACTIONS WITH ACACIA KNOWLEDGE SOLUTIONS OR ANY THIRD-PARTY THROUGH OR IN CONNECTION WITH THE ACACIA KNOWLEDGE SOLUTIONS OFFERINGS, INCLUDING OTHER USERS,.  APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, ACACIA KNOWLEDGE SOLUTIONS’S LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.

Governing Law

The Terms will be governed by and construed in accordance with the laws of the Republic of Kenya (“Applicable Laws”), without giving effect to any principles of conflicts of law that would cause the application of the laws of any other jurisdiction.

Dispute Resolution and Arbitration

Any dispute, controversy or claim arising out of or in connection to this contract, or breach, termination or invalidity thereof shall be settled by arbitration in accordance with the NCIA Arbitration Rules promulgated by the Nairobi Centre for International Arbitration.