when working with Diani Properties
This Agreement governs the provision of Services by Diani Properties to you. The terms “you” and “your” refer to the person that obtains, uses or otherwise accesses the Services.
1.1. This Agreement comprises the following parts:
(a) the written agreement that shall be signed by you (the application form/signed contract);
(b) these terms and conditions (as amended by Diani Properties from time to time);
(c) the general Terms and Conditions of Use for the Website located at https://dianiproperties.co.ke/terms-and-conditions/ (as amended by Diani Properties from time to time); and
(d) any other document provided to you by Diani Properties expressed to form part of this Agreement.
1.2. If there is an inconsistency in a provision in the parts of this Agreement, then the provision in the part that is listed higher in clause 1.1 prevails to the extent of the inconsistency, unless otherwise indicated in this Agreement.
2.1. The Services provide you with the functionality and platform to enable you to list your properties for sale or lease on the website located at www.dianiproperties.co.ke. Please note that the features and functionality that may be available as part of the Services or that are available on the Website may be different depending on the device or application used to access the Services or the Website (eg desktop vs mobile).
2.2. You may apply for a Service through the Application Form. Diani Properties may, at its sole discretion, accept or reject any Application Form submitted for a Service. A separate Agreement is created between Diani Properties and you for each Application Form that is accepted by Diani Properties.
2.4. If Diani Properties decides, or is required, to modify or exit a Service (or part thereof), then Diani Properties may, on reasonable notice to you: (a) transfer you to the modified service or an alternative service; or (b) cancel the Service. If the service to which Diani Properties proposes to transfer you to is materially detrimental to you, then you may cancel the service, but you will not be entitled to any refunds or reimbursements of any Fees and charges paid for or in connection with that service.
2.5. A Service does not include: (a) back up services; (b) customisation; (c) training; (d) attendance at your premises; or (e) correction of errors or defects, including those caused by: (i) faulty equipment or hardware provided by you; or (ii) your negligent acts or omissions and any events beyond Diani Properties’ reasonable control.
By signing an agreement with Diani Properties as a potential Home Buyer or Home Seller, you agree that:
3.1 You are of legal age and are otherwise capable of forming a legally binding contract;
3.2 You are interested in purchasing/selling property or both;
3.3 You are interested in purchasing/selling property located in the entire Kwale County or Coast Region of the country-Kenya;
3.4 You do not have an exclusive contractual or other arrangement with any other Real Estate Professional;
3.5 You agree to be contacted via E mail or other means by Diani Properties, and by third parties for services you have requested;
3.6 Diani Properties may request, receive, copy and review your real property transaction and/or settlement documents;
3.7 You represent that you are not licensed as a real estate agent or broker;
3.8 You acknowledge that Diani Properties recommends your independent use of all appropriate government, public, consumer and other agencies or sources to verify property information, Diani Properties makes no representations and/or warranties about any property listed on dianiproperties.co.ke.
In consideration of our efforts to market your property, you will be liable to pay our commission and any other agreed charges or costs if contracts for the sale of the property are exchanged in the period of our agency agreement to a purchaser introduced by us; where contracts for the sale of the property are exchanged after the period of our agency agreement but to a purchaser introduced by us during the period of our agency agreement.
For the avoidance of any doubt, the phrase “introduced by us” where used in these Terms shall refer to:
i)any person or entity who has become aware of the relevant property as a result of any action taken by us, whether directly or indirectly. Such actions may include, without limitation:
– the erection of any sign board;
– the preparation or distribution of particulars;
– the publication of information about the property in any newspaper, on the internet (whether on our website or through any other website or portal and whether such site or portal is associated with our site or company or not) or in or through any other medium; and/or
– any communications or correspondence (oral, written or electronic between any person representing us or instructed by us and any other person or entity; or
ii) any person or entity with whom we have had negotiations or discussions about the property;
even if such awareness or negotiations or discussions did not cause the exchange of contracts or purchase.
While a written and signed contract for the purposes of this section may prevail subject to the terms agreed upon therein, Our commission is payable either on completion of the sale or, where a purchaser exchanges contracts but fails to complete the purchase, we shall be paid our commission and any other agreed costs or charges (if possible, from the deposit monies and as agreed in a signed agency agreement) within a reasonable period but not later than 14 days of the contracted completion date. If payment is not made within the specified period (as indicated in the contract) of the due date we reserve the right to charge interest at 4% above the then prevailing bank base rates. If we find it necessary to use solicitors or other parties or institute legal proceedings to recover or release monies due, you agree to pay all costs so incurred.
We accept no liability or responsibility for the maintenance or repair of, or for any damage to, the property at any time. If the property is vacant when adverse weather conditions are likely, frost damage may occur to water and heating systems and sanitary appliances. We recommend you take all necessary action to protect your property from such risks and to ensure that the property has adequate insurance cover.
We may offer the following services to prospective purchasers and, similarly, our services may be offered to them by another organisation in circumstances where we may financially benefit;
a) Valuation/Survey & Estate Agency Services
b) Provision of Financial Services including mortgages and insurances.
By signing the copy of these Terms, you and we agree that:
a) these Terms and the Application Form (if any) contain all the agreements and understandings between us relating to your property and replace any previous such agreement between us;
b) in accepting these Terms you are not relying on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person relating to your property; and
c) these Terms can only be varied with your and our express agreement which we will put in writing.
If a court decides or the law declares that any part of these Terms may not apply or are invalid the Terms shall continue to apply but as if the invalid or inapplicable part had been deleted from this copy of them.
You may cancel our instructions at the end of the minimum period or after the minimum period by serving on us 14 days’ written notice but we shall remain entitled to our commission and to any other agreed charges or costs as described in these Terms.
If you entered into this agreement otherwise than whilst attending our business premises, you have the right to cancel this agreement within 14 calendar days (‘the cancellation period’) from the day of this agreement the by giving us a notice in writing. If you have requested us to commence providing services set out in the Application Form and this agreement within the cancellation period by ticking the appropriate box in the Application Form then:
(a) if you have made any payment in advance for services that have not been provided, we will refund these amounts to you; and
(b) if you cancel this agreement and we have already started providing services until communication of the notice of cancellation of this agreement to us, you will pay us any costs reasonably incurred in providing the services, and this charge will be deducted from any refund that is due to you or, if no refund is due to you, invoiced to you.
In the event of any conflict between the provisions of these Terms and Conditions and the Application Form, the Application Form (Signed Agreement) shall prevail.