Growd - Provider Agreement
This PROVIDER AGREEMENT (this “Agreement”) effective as of ____________, is made and entered into by and between Growd Global Ltd, a company whose registered address is Rhapta Terraces, Rhapta Road, Westlands, P.O Box 756-00515, Nairobi, Kenya (henceforth shall be referred to as “Growd”) and ________________________________ a duly licensed individual/company whose registered address is_________________________ (hereinafter referred to as “Provider”).
WHEREAS, Growd and Provider expressly desire to enter into a relationship in which the Provider will offer after school child activities.
NOW THEREFORE, in consideration of the premises and of the mutual promises and undertakings herein contained, the parties, intending to be legally bound, do hereby agree as follows:
For purposes of this Agreement, the following terms shall have the following meanings:
a. “After school child activities” means the defined list set forth in Annex 1 below.
b. “Child development learning experiences” means a single or combined nature of areas specified in the Statement of Work (as defined below).
c. “Children” means an age set of between 0-14 years.
d. “Customer” means the user of the platform and includes parents, legal guardians and care givers.
2. Statement of Work
The Provider shall offer after school child activities that encompass the following areas:
Communication and language development.
Academic or schoolwork support
Personal, social and emotional development.
Understanding the world.
Expressive arts and design.
The Term of this Agreement shall commence on ________________ and shall continue thereafter until terminated in writing by one of the parties, or as provided in Section 11 below.
4. Growd’s Obligations
Growd operates the Growd Mobile App and Websites through which activity listings may be posted by Growd or the Provider. The Growd Platform permits customers to book after school children’s activities directly through the Growd App with the Provider listing activities offered through the website.
2. Growd is obligated to:
a. allocate a Provider Web Account where the Provider can view all bookings made for the list of activities.
b. set how many slots the Provider wishes to avail for each activity.
c. take bookings or free trial requests on behalf of the Provider. For each activity, the Provider will set whether or not they wish to receive free trial requests. Growd will thereafter email the Provider its’ customer details for each free trial request made. The Provider can then use these customer details for the sole and exclusive purpose of offering the services booked by the customer.
d. give details to the Provider for each booking request made via the Growd app.
e. receive payment for bookings.
f. pay Providers for all bookings on activities that happened in the preceding week (Friday to Thursday), on the Friday of the next week.
g. provide analytics of each Provider’s activities on the Growd platform.
h. resolve customer complaints.
i. carry out due diligence on the Provider to ascertain the capability and competence to offer the activities. This shall be done through inspection of the physical premises offering the activity as well as a search at the relevant county and national authorities. Additionally, Growd will also interview the Provider or representative of the Provider and any/all potential staff who will be offering the activity and interacting with the children.
j. conduct periodic trainings on child development care on the Providers.
5. Provider’s Obligations
The Provider is obligated to:
a. Provide exemplary services to the customer held to the highest industry standards.
b. Effectively and directly managing their activities by editing, deleting and posting new activities on the Growd App Platform.
c. Fulfill each relevant Provider activity booked through the Growd App Platform.
d. Ensure information about all Provider activities listed on the Growd App platform are up to date and a true reflection of their nature.
e. Provide correct and reliable documentation on the ability to dispense the listed activity/ activities. In the event that a company is a Provider, its representative (either a director or the secretary), shall furnish a Certificate of Incorporation, Company PIN and Business Permit issued by the relevant county authorities. If the Provider is an individual, s/he must provide evidence of proper accreditation e.g. certificates and diplomas from the relevant institutions showing their ability to handle and care for children, a passport photo not more than six (6) months old prior to offering the activities and a copy of their National ID.
For Providers who lack the necessary accreditation, they must provide a passport photo and a copy of their National ID.
f. Contact Growd within 48 hours to the activity start time if there are any changes to an activity on which bookings have already been made.
g. Ensure that the full price is set and accurate to all activities.
h. Ensure that the price set on the Growd App is not higher than the lowest price available elsewhere as Growd offers a price guarantee to its users, promising that the activity cannot be booked cheaper elsewhere.
i. Ensure they have the express permission of any person present in any images used to promote activities.
j. Ensure that if the Provider include the images of any person aged under 18 (a “child”), in the promotion of the activity (including in any Listing) Provider must gain the permission of that child’s parent, legal guardian or care givers to include those images in their promotional material.
k. Ensure that any content used to promote the activities will not breach any rights of any other people or parties (including for example any copyright or other intellectual property rights) or cause Growd to infringe the rights of any third party or to breach any applicable law or regulation.
l. Ensure that any complaints and reimbursements requested by customers are acted upon on a timely manner.
m. Set free trial status to ‘on’ if they wish to receive free trial requests for a class, and to ‘off’ if they do not wish to receive free trial requests for a class.
n. Offer a safe and nurturing environment for the children undertaking the activities.
o. Knowledge or access to first aid including possessing a well-equipped first aid kit in cases of emergencies or injuries.
p. Be accountable for the physical safety of the children while in their premises.
q. Have up to 2-3 adults present during the activities for assistance and as a precautionary measure. These additional adults’ personal information, will be provided to Growd by the Provider company or individual, as described in Section 5(e) above and they shall assume responsibility in equal measure as the Provider. This information shall in turn be availed to the parents, guardians and care givers of the participating children.
6. Payment Terms and Invoicing for Bookings
1. Growd will pay Providers for all bookings on activities concluded during the preceding week from Friday to Thursday on the Friday of the next week. If the booking entitles the customer to attend multiple sessions, then Growd will pay the Provider for that booking in the payment run following the date of the first session. For clarity, below are 2 examples:
Customer books and pays for an activity on Monday the 1st of April
The activity takes place on Wednesday the 17th of April
Growd will pay the Provider on Friday the 265th of April
Customer books and pays for a term’s worth of activities on Friday the 5th of April
The first activity takes place on Saturday the 6th of April and runs until Friday the 26th of July
Growd will pay the Provider on Friday the 12th of April for the first week of activities and each Friday after that for activities attended by the customer.
2. Upon payment, Growd will issue the Provider with an invoice detailing receipt of the same, via email.
7. Cancellation and Refunds
1. For bookings which entitle the customer to attend one session:
a. Acceptance of requests for refunds by customers will be at the discretion of Growd in consultation with the Provider and the customer.
b. If the Provider chooses to accept a request to issue a refund, Growd will process this refund.
c. If the Provider cancels an activity, or the activity does not take place for any reason, the customer will receive a full refund and the Provider will not be paid for the booking.
d. If the Provider makes significant changes to an activity (for example, changing the date), the customer will be offered a full refund. In cases where a customer wishes to get a refund, the Provider will not be paid for the booking.
e. If a customer complains about the standards of the activity and provides proof of the same, the Provider will issue a full refund.
f. If a customer gives a minimum of 48 hours about a cancellation of the booking, then they will receive 100% refund. Upon 36 hours’ notice, the customer will receive up to 50% refund or the Provider can offer a substitute class at his discretion. If no notice is given, then the customer does not receive a refund and it is within the Provider’s discretion to offer a substitute class.
2. For bookings which entitle the customer to attend multiple sessions:
Acceptance of any requests for refunds by customers will be at the sole discretion of Growd.
If a refund is requested before the first session, and the Provider chooses to accept this request, Growd will process this refund.
If the Provider cancels an activity before the first session takes place, or the activity does not take place for any reason, the customer will receive a full refund and the Provider will not be paid for the booking.
If the Provider makes significant changes to an activity before the first session (for example, changing the date), then customers will be offered a full refund. In cases where a customer wishes to get a refund then the Provider will not be paid for the booking.
If a refund is requested for any reason after the first session, then Growd will issue a refund for the remaining classes and inform the Provider within reasonable time. The Provider will re-list the free slots/spaces on the Growd platform.
8. Customer Data and Data Protection
For the purposes of this clause, “Data Protection Legislation” shall mean the Universal Declaration of Human Rights, International Convention on Civil and Political Rights, Constitution of Kenya 2010 and all applicable laws relating to the processing of personal data and privacy. “Personal data”, “data process”, and “data subject” shall have the meaning given to them in the Data Protection Bill 2019.
Growd will send the Provider customer details (name of child and parent and age of child ONLY) for each booking or free trial request made through the Growd Mobile App. The Provider can use these customer details for the sole purpose of providing the services booked by the customer.
The Parties agree that Growd shall own the personal data of all customers, which is submitted to Growd through the Growd Mobile App/Websites and subsequently made available to Provider by Growd.
4. If the Provider wishes to send marketing messages to the customer, separate consent must be obtained from the customer. In some cases, Growd may obtain this consent on behalf of the Provider.
5. To the extent that the Provider processes Growd User Data pursuant to these Provider Terms:
a. The Provider shall not modify, amend or alter the contents of the personal data or disclose or permit the disclosure of any Growd User Data to any third party unless required by an order of the court.
b. The Provider shall notify Growd (within five (5) business days) if it receives a request from a data subject to have access to its personal data; or a complaint or request relating to Growd’s obligations under Data Protection Legislation; or any other communication relating directly or indirectly to the processing of any personal data.
6. The Provider shall provide Growd with full co-operation and assistance in relation to any complaint or request made in respect of any User Data, including by:
a. Providing Growd with full details of the complaint or request.
b. Complying with a data subject access request within the relevant timescales set out in the relevant Data Protection Legislation but strictly in accordance with Growd’s instructions.
c. Providing Growd with any personal data it holds in relation to a data subject making a complaint or request, within the timescales required by Growd.
d. Providing Growd with any other information reasonably requested.
7. The Provider (and any person to whom it is authorized to disclose such personal data) shall take appropriate technical and organizational measures against unauthorized or unlawful processing of User Data or its accidental loss, destruction or damage.
8. The Provider shall comply with and ensure that its processing of User Data is compliant with all applicable laws, including Data Protection Legislation. Failure to comply shall be subject to the executable laws.
9. The Provider shall not transfer User Data anywhere unless such transfer is compliant with Data Protection Legislation.
9. Dispute Resolution
Any and all disputes, claims or controversies arising out of, relating to or in connection with this Agreement shall be resolved by arbitration and presided over by one arbitrator who is a member of the Chartered Institute of Arbitrators, Kenya. The governing law of the arbitration shall be the Arbitration Act, 1995 as well as the Arbitration Rules, 1997. The venue of the arbitration shall be at the physical offices of CIArb located at Nicholson Drive off Ngong Road, Nairobi, Kenya. The parties also consent to the use of IBA Guidelines.
Each party undertakes that it will not at any time hereafter use or disclose to any person, except to its professional representatives or as may be required by law or any legal or regulatory authority this Agreement or any confidential information concerning the business or affairs of the other party which may have or may in the future come to its knowledge. Except as expressly contemplated by this Agreement or as otherwise agreed by the parties, neither party shall use any such confidential information except for the performance of its obligations under this Agreement.
2. Nothing in this Agreement shall limit either party’s liability for death or personal injury resulting from its negligence (or, in the case of Provider, the negligence of its personnel or subcontractors).
11. Terms of Agreement and Termination
Either party can terminate this Agreement upon giving 7 days’ notice to the other party. Termination shall not affect either party’s obligations and the rights and obligations of all non-terminating parties to the Agreement shall remain in full force and effect.
2. Failure by either party to comply with any material respect with any of its obligations in this Agreement shall entitle the other party to give notice to the party in default requiring it to cure such default. If such default is not cured within 7 days after receipt of such notice, the notifying party shall be entitled to terminate this Agreement by giving notice of such termination to take effect immediately. The right of either party to terminate this Agreement, as herein provided, shall not be affected in any way by its waiver of, or failure to act with respect to, any previous default.
3. Upon termination, both parties will continue to adhere to this Agreement for any bookings which have been made until the Provider has been paid for all bookings made prior to the termination of this Agreement.
Each party warrants, represents and undertakes that it has full capacity and authority to enter into and to perform this Agreement and that this Agreement is executed by a duly authorized representative of that party.
13. Performance Indices and Penalties
The Provider agrees to offer services at the highest industry standards. Penalties of up to Kshs. 60,000 will be applied for no-shows without reasonable notice.
The Providers will be rated on a star-scale of 1-5 on the Growd App Platform. Their performance will be measured against:
Skill and knowledge of activity
Safety and facilities on site
3. In the event that the Provider scores poorly from three (3) separate but consecutive activities, they shall be suspended from the Growd App Platform for a period of 14 days, timing which will serve as the period within which to improve their activity quality. Should the Provider still not deliver high quality service, they shall be deleted from the Growd App platform and this Agreement shall be terminated.
1. No party limits its liability for:
a. Recklessness, fraud, fraudulent misrepresentation, dishonesty, willful default or any deliberate act or omission by a party, its employees, agents (or, in the case of Provider, by its personnel or subcontractors)
b. For death or personal injury resulting from either party’s negligence (or, in the case of Provider, the negligence of its personnel or subcontractors).
c. For breach of confidentiality.
2. Subject to this liability clause, neither party shall have any liability to the other in connection with this Agreement, whether arising from tort (including negligence), breach of contract or statutory duty, for any indirect or consequential loss.
3. Subject to this liability clause, the maximum aggregate liability of each party under this Agreement to the other party, whether in contract (including under any warranty), in tort (including negligence) under statute or otherwise, shall not exceed an amount equal to Ksh 100,000.
15. Force Majeure
Neither party shall be liable for failure to perform, nor be deemed to be in default, under this Agreement for any delay or failure in performance resulting from causes beyond its reasonable control, including but not limited to failure of performance by the other party, acts of state or governmental authorities, acts of terrorism, natural catastrophe, fire, storm, flood, earthquake, riot, insurrection, civil disturbance, sabotage, embargo, blockade, acts of war, or power failure. In the event of such delay, the date of delivery or time of completion will be extended by a period of time reasonably necessary to overcome the effect of any such delay.
1. Any notices given under this Agreement shall be in writing via email to:
a. In the case of notice given by the Provider to Growd – joinProvider@growd.org
b. In the case of notice given by Growd to the Provider, either the email address given by the Provider when completing the Boosted Listings form or the email address used to login to Growd for Organizers.
2. All notices under these Provider Terms shall be deemed to have been served at the time of delivery.
Neither party shall without prior written consent of the other party, assign or transfer any rights under this Agreement.
The terms of this Agreement may be updated from time to time by Growd providing a fourteen (14) day notice to the Provider in advance via email. The updated terms will take effect between the parties immediately upon the expiration of 14 days.
The Parties may also enter into amendment agreements separate to this Agreement, provided that such amendment agreements are in writing and executed by both parties (such agreements being “Amendment Agreement(s)”). If the parties enter into such Amendment Agreement(s), to the extent that the terms of that / those Amendment Agreement(s) conflict with this Agreement, the terms of the Amendment Agreement will prevail.
If any provision of this Agreement shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability shall not affect the other provisions of this Agreement which shall remain in full force and effect.
This Agreement constitutes the entire Agreement and understanding of the parties relating to the subject matter of this Agreement and supersedes any previous agreement or understanding between the parties in relation to such subject matter. In entering into the Agreement, the parties have not relied on any statement, representation, warranty, understanding, undertaking, promise or assurance (whether negligently or innocently made) of any person (whether party to the Agreement or not) other than as expressly set out in the Agreement.
Each party irrevocably and unconditionally waives all claims, rights and remedies which but for this clause it might otherwise have had in relation to any of the foregoing. Nothing in this clause shall limit or exclude any liability for fraud, fraudulent misrepresentation or fraudulent misstatement.
Pursuant to the Definition of Terms section, After school child activities include:
Special Educational Needs and Disabilities (SEND)