2. Definitions and Interpretation
Affiliate means, in relation to a party, any entity that controls, is under the control of, or is under common control with, that party, where control means the direct or indirect ownership of more than 50 percents of the voting capital or imilar right of ownership of that party or the legal power to direct or cause the direction of the general management and policies of that party, whether through the ownership of voting capital, by contract or otherwise, and controls and controlled shall be interpreted accordingly;
Account means Your individual account while accessing the System and using the Service;
App/Application means the electronic application supplied by Us and/or Our Group Companies for You to access to the Service;
Business Day means a day other than a Saturday, Sunday or national or public holiday in the Federal Republic of Kenya;
Credentials means Your personal credentials used to access the App/the Service and operate Your Account;
Credit Reference Bureau means a credit reference bureau duly licensed by the Central Bank of Kenya to inter alia, collect and facilitate the sharing of customer credit information;
Group Companies means a person and its Affiliates (and Group Company will be construed accordingly);
Local Terms means the supplementary or alternative terms for specific countries, cities, municipalities, metropolitan areas or regions which apply to You, as made available and as updated by Us from time to time;
Mobile Device includes and means Your mobile phone handset, SIM Card and/or other equipment .including laptop,desktop compute,tabs and other mobile and immobile devices/equipment, which when used together enables You to access the network and use the App;
Mobile Money Account means Your mobile money store of value, being the record maintained by Mobile Money Providers in Kenya of the amount of E-Money from time to time held by You in the Mobile Money Provider’s System;
Mobile Money means the money transfer and payments service operated by the Mobile Money Providers in Kenya ;
Mobile Network Operator means a mobile network operator in Kenya registered with the Kenya Communications Commission(NCC);
Mobile Money Provider means a Mobile Network Operator that has been duly authorized by the Central Bank of Kenya under applicable law to offer Mobile Money Service in Kenya ;
Mobile Money Service means the money transfer and payments service provided by the Mobile Money Providers through the Mobile Money System;
Mobile Money System means the system operated by the Mobile Money Providers in Kenya for the provision of the Mobile Money Service;
Policies means any policies, guidelines or directions applicable to You as user, as notified to You by Us from time to time, and as may be updated by Us from time to time;
Personal Information means data, whether true or not, about an individual who can be identified from that data, or from that data and other information to which We have or are likely to have access. This may include an individual’s name, BVN, date of birth, gender, education background, religion, photo, physical address, e-mail address, working information, marital status, emergence contact, phone number, SIM card details, financial and credit information (including Mobile Money Account details, bank account details, and bank verification number, where applicable), Account ID and/or password that will be used to access the App after registration and other information which, when taken together with other information, would enable an individual to be identified.
Request means a request or instruction received by Us from You or purportedly from You through the System and upon which We are authorised to act;
SIM Card means the subscriber identity module which when used with the appropriate mobile phone handset enables You to access the network and to use the Mobile Money Account;
SMS means a short message service consisting of a text message transmitted from Your Mobile Device to another;
Specific Terms means the supplementary or alternative terms which may apply to certain specific parts of the System and/or the Service, as may be notified to You from time to time;
System means the Kashway system provided by Us to provide users with the Service, including the App and related softwares, Websites, platforms and other support systems and services.
Territory means the territory in which You use the Service and the System;
Transaction Fees includes any fees and charges payable for the use of the Service as published by Us on in the App or by such other means as We shall in Our sole discretion determine.Transaction Fees are subject to change at any time at Our sole discretion;
Website means any website operated by Us or any of Our Group Companies from time to time.
3. Your Warranties/ Responsibilities
You hereby confirm and commit to Us that:
3.3 You shall only use the System and the Service for lawful purposes and only for the purposes for which it is intended to be used;
3.4 You shall ensure that any documents, Personal Information and Credentials provided by You (or on Your behalf) to Us or otherwise via the System are at all times accurate, current, complete and not misleading;
3.5 You shall only use an internet access point and Account which You are authorised to use;
3.6 You shall not engage in any fraudulent, deceptive or misleading conduct; and
3.7 You shall not impair or circumvent the proper operation of the network which the System operates on.
4.4 These terms may be amended or varied by Us from time to time and the continued use of the Service constitutes Your agreement to be bound by the terms of any such amendment or variation. We will take all reasonable measures to notify You of any changes.
4.6 By using the App or any of the Service, You consent to us collecting and using technical information about the Mobile Device and related software, hardware and peripherals for Service that are internet-based or wireless to improve our products and to provide any Service to You. If You use these Service, You consent to us and our affiliates’ and licensees’ transmission, collection, retention, maintenance, processing and use of Your data to determine our credit scoring services or to improve our Service and/or Your experience while using the App.
4.7 By using the App and Service ,You allow Us to share Your credit information,both positive and negative,with Credit Reference Bureau,and also to check Your credit report for credit scoring/appraisal purposes.
4.8 You also expressly authorize Us to contact You and Your emergency contact who has expressly agreed upon it ,to verify Your information or when We are unable to contact you via other methods or when We have not received your payment in connection with Loan set out in Clause 11 herein.
4.9 You authorize the Kashway and third-party payment institution to use this bank card for auto-deduction if you fail to repay the loan on the agreed repayment date by submit this bank card verification.
5. Your Use of the Service
5.1 The Service offered by Us can only be utilized by persons over the age of 18. We reserve the right to verify the authenticity and status of Your Mobile Money Account with the relevant Mobile Money Provider.
5.2 Our acceptance of Your application for an Account will be displayed on the App. You hereby acknowledge and accept that the acceptance by Us of Your application for an Account does not create any contractual relationship between You and the Mobile Money Providers beyond the terms and conditions that apply to Your Mobile Money Account from time to time.
5.3 We reserve the right to decline Your application for a Loan or to revoke the same at any stage at Our sole and absolute discretion and without assigning any reason or giving any notice thereto.
5.4 We reserve the right (in Our sole and absolute discretion) to issue, decline to issue a Loan and/or vary the terms of any Loan depending on Our assessment of the credit profile of You from time to time. The terms of the Loan and the interest rate payable in relation to each Loan application will be displayed on the App.
6. Your Use of the System
Rights granted and reserved
6.3 While using the System, You shall not:
6.3.1 license , sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the System in any way;
6.3.2 modify or make derivative works based on the System, or reverse engineer or access the underlying software for any reason;
6.3.3 use the System to build a competitive product or service, build a product using similar ideas, features, functions or graphics as the System, copy any ideas, features, functions or graphics of the System, or launch an automated program or script which may make multiple server requests per second, or which unduly burdens or hinders the operation and/or performance of the System, or attempt to gain unauthorised access to the System or related systems or networks;
6.3.4 use any application or process to retrieve, index,“data mine”, or in any way reproduce or circumvent the navigational structure, presentation or content of the System;
6.3.5 post, distribute or reproduce in any way any copyrighted material, trademarks, or other proprietary information without obtaining the prior consent of the owner of such proprietary rights, or remove any copyright, trademark or other proprietary rights notices contained in the System;
6.3.6 send or store any material for unlawful or fraudulent purposes;
6.3.7 send spam or other unsolicited messages, or otherwise cause nuisance, annoyance, inconvenience or make fake bookings;
6.3.8 send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material;
6.3.9 send material containing software viruses, worms, trojan horses or other harmful computer code, files, scripts, agents or programs;
6.3.10 interfere with or disrupt the integrity or performance of the System or the data contained therein;
6.3.11 impersonate any person or entity or otherwise misrepresent Your affiliation with a person or entity;
6.3.12 deliberately misrepresent Your location; or
6.3.13 misrepresents any material information about Yourself , or as may relate our decision to engage in any related or other business with You;
6.3.14 damage Our or any of Our Group Companies’ reputation in any way;
6.3.15 collect or harvest any information or data from any Service or our systems or attempt to decipher any transmissions to or from the servers running any Service .
7. Your Account
7.1 In order to access the System as a user, You must register for and maintain an Account as a user of the App.
7.2 You are responsible for all activities conducted on Your Account. You:
7.2.1 must only have one Account;
7.2.2 must keep Your Account information confidential and secure;
7.2.3 must not provide any other person with access to Your Account, including to transfer the Account or information from Your Account to any other person;
7.2.4 must promptly notify Us if You suspect any unauthorised access to or use of Your Account; and
7.3 We reserve the right to block or deny access to Your Account, and/or block features available in the App, without prejudice to Our other rights and remedies:
7.3.2 during an investigation;
7.3.3 if You owe any principal, interest, Transaction Fees or tax to Us or any of Our Group Companies;
7.3.5 at any other time in Our reasonable discretion.
8. Your Personal Information
9. Requests Made By You
9.1 You hereby irrevocably authorise Us to act on all Requests received by Us from You (or purportedly from You) through the System and to hold You liable in respect thereof.
9.2 Subject to Our discretion, We reserve the right to reject any Request in relation to a Loan application from You even if You have previously been issued with a Loan by Us.
9.3 We shall be entitled to accept and to act upon any Request, even if that Request is otherwise for any reason incomplete or ambiguous if, in Our absolute discretion, We believes that it can correct the incomplete or ambiguous information in the Request without any reference to You being necessary.
9.4 We shall be deemed to have acted properly and to have fully performed all the obligations owed to You notwithstanding that the Request may have been initiated, sent or otherwise communicated in error or fraudulently, and You shall be bound by any Request on which We may act if We have in good faith acted in the belief that such instructions have been sent by You.
9.5 We may, in Our absolute discretion, decline to act on or in accordance with the whole or any part of Your Request pending further enquiry or further confirmation (whether written or otherwise) from You.
9.6 You agree to and shall release from and indemnify Us against all claims, losses, damages, costs and expenses howsoever arising in consequence of, or in any way related to Us having acted in accordance with the whole or any part of any of Your Requests (or failed to exercise) the discretion conferred upon it.
9.7 You acknowledge that to the full extent permitted by Applicable Law We shall not be liable for any unauthorised drawing, transfer, remittance, disclosure, any activity or any incident on Your account by the fact of the knowledge and/or use or manipulation of Your Account PIN, password, ID or any means whether or not occasioned by Your negligence.
9.8 We are authorised to effect such orders in respect of Your Account as may be required by any court order or competent authority or agency under the Applicable Law.
10. Your Responsibilities
10.1 You shall at Your own expense provide and maintain in safe and efficient operating order Your Mobile Device necessary for the purpose of accessing the System and the Service.
10.2 You shall be responsible for ensuring the proper performance of Your Mobile Device. We shall neither be responsible for any errors or failures caused by any malfunction of Your Mobile Device, and nor shall We be responsible for any computer virus or related problems that may be associated with the use of the System, the Service and the Mobile Device. You shall be responsible for charges due to any service provider providing with connection to the network and We shall not be responsible for losses or delays caused by any such service provider.
10.3 Your access to the App will be through Your Mobile Device. It is Your responsibility to check and ensure that You download the correct App for Your Mobile Device. We are not liable if You do not have a compatible device or if You do not have the latest version of the App for Your Mobile Device.
10.4 If Your Mobile Device is lost, stolen, broken and/or no longer in Your possession, and this exposes Your Account information and Your Credentials to someone else or otherwise affects Our legal rights and/or remedies, You must immediately notify Us and follow the procedures notified by Us. We shall not be liable for any disclosure of Your Account information and Your Credentials to any third party and You hereby agree to indemnify and hold Us harmless from any losses resulting from any disclosure of Your Account information and Your Credentials.
10.5 You are solely responsible for having in place an appropriate internet and mobile plan and for any fees charged by Your Mobile Service Operator, such as telephone, SMS and internet data fees. You acknowledge that Your use of the System may consume large amounts of data and that You will be solely responsible for such usage and the associated fees.
10.7 You shall take all reasonable precautions to detect any unauthorised use of the System and the Service. To that end, You shall ensure that all communications from Us are examined and checked by You or on Your behalf as soon as practicable after receipt by You in such a way that any unauthorised use of and access to the System will be detected. You shall immediately inform Us in the event that:
10.7.1 You have reason to believe that Your Credentials are or may be known to any person not authorised to know the same and/or have been compromised; and/or
10.7.2 You have reason to believe that unauthorised use of the Service has or may have occurred or could occur and a transaction may have been fraudulently input or compromised.
10.7.3 You shall at all times follow the security procedures notified to You by Us from time to time or such other procedures as may be applicable to the Service from time to time. You acknowledge that any failure on Your part to follow the recommended security procedures may result in a breach of Your Account’s confidentiality. In particular, You shall ensure that the Service are not used or Requests are not issued or the relevant functions are not performed by anyone other than a person authorised by You to do so.
11. Financial Terms
Interest and Transaction Fees
11.1 The interest payable by You to Us in relation to any Loan shall be displayed by Us on the App. Meanwhile, We shall be entitled to set and charge Transaction Fees, in connection with Your use of the Service and from time to time amend or vary Our Transaction Fees for the Service. If We decide to start charging Transaction Fees or where already applicable, vary or amend Our Transaction Fees, the Transaction Fees payable on any new application for Service will be displayed on the App. We will use reasonable endeavors to notify You of any changes in relation to Transaction Fees within a reasonable period before such changes are implemented including displaying notices of the changes on the App.
11.3 If You fail to make any payments due to Us at the due date for payment, We will be authorised to apply late fees on such amount loaned to You at a rate to be displayed on the App in advance.
11.5 You hereby consent and agree that We may withhold amounts in Your Account if any tax authority requires Us to do so, or We are otherwise required by law or pursuant to agreements with any tax authority to do so, or if We need to comply with internal policies or with any applicable order or sanction of a tax authority.
11.7 All payments must be in the local currency in the Territory.
12.1 An event of default occurs when You :
12.2 At any time after an event of default has occurred which is continuing, We may, without prejudice to any other right or remedy granted to it under Applicable Law:
12.2.3 supply information concerning the event of default to Credit Reference Bureaus. A copy of any adverse information concerning You and Your credit information sent to a Credit Reference Bureau shall be made available to You upon written request; and
12.2.4 impose You with late fees at the rate displayed on the App in connection with Your default in payment.
13. Term and Termination
13.2.1 at any time for any reason by giving notice to You ;
13.2.3 if Your account or agreement with a Mobile Network Operator or Mobile Money Provider is terminated for whatever reason;
13.2.4 where such a suspension or termination is necessary as a consequence of technical problems or for reasons of safety; to facilitate update or upgrade the contents or functionality of the Service from time to time; where Your Account becomes inactive or dormant;
13.2.5 if We are required or requested to comply with an order or instruction of or a recommendation from the government, court, regulator or other competent authority；or
13.2.6 if We decide to suspend or cease the provision of the Service for commercial reasons or for any other reason as We may determine in Our absolute discretion;
13.3.1 promptly (and in any event within three days), pay any principal, interest, Transaction Fees or tax owed to Us (which shall become immediately due and payable on termination); and
13.3.2 immediately delete and fully remove the App from Your Mobile Device.
13.4 Termination shall however not affect any accrued rights and liabilities of either party.
14. Indemnities and Exclusion of Liability
14.1 You shall defend, indemnify and hold harmless Us, Our licensors and each such party’s Affiliates and their respective officers, directors, members, employees and agents from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with:
14.1.2 Your use of the System and/or the Service, including:
188.8.131.52 any third party claims arising from Your use of the System and/or the Service;
184.108.40.206 any loss or damage that may arise from Your use, misuse, abuse or possession of any third party software, including without limitation, any operating system, browser software or any other software packages or programs;
220.127.116.11 any unauthorised access to Your Account or any breach of security or any destruction or accessing of Your data or any destruction or theft of or damage to any of Your Mobile Device; and
Exclusion of Liability
14.2 We shall not be responsible for any loss suffered by You should the Service be interfered with or be unavailable by reason of the failure of any of Your Mobile Device, or any other circumstances whatsoever not within Our control including , without limitation, Force Majeure or error, interruption, delay or non- availability of the System, terrorist or any enemy action equipment failure, loss of power, adverse weather or atmospheric conditions, and failure of any public or private telecommunications system.
14.3 You acknowledge that the App has not been developed to meet Your individual requirements, and that it is therefore Your responsibility to ensure that the facilities and functions of the App as described meet Your requirements.
14.4 We only supply the App for private use. You agree not to use the App for any commercial, business or resale purposes, and We have no liability to You for any loss of profit, loss of business, business interruption, or loss of business opportunity.
14.5 We will not be liable for any losses or damage suffered by You as a result of or in connection with:
14.5.1 any defect or fault in the App or any Service resulting from You having altered or modified the App;
14.5.3 Your breach of Clause 6 herein;
14.5.4 unavailability of sufficient funds in Your Mobile Money Account;
14.5.5 failure, malfunction, interruption or unavailability of the System, Your Mobile Device, the network or a Mobile Money System; the money in Your Account being subject to legal process or other encumbrance restricting payments or transfers thereof; Your failure to give proper or complete instructions for payments or transfers relating to Your Account;
14.5.6 any fraudulent or illegal use of the Service, the System and/or Your Mobile Device; or
14.6 Under no circumstances shall We be liable to You for any loss of profit or anticipated savings or for any indirect or consequential loss or damage of whatever kind, howsoever caused, arising out of or in connection with the Service even where the possibility of such loss or damage is notified to Us.
14.9 We do not accept any responsibility to you for:
14.9.1 malfunctions in communications facilities which cannot reasonably be considered to be under Our control and that may affect the accuracy or timeliness of messages You send or the material You access via the App;
14.9.2 any losses or delays in transmission of messages or material You access arising out of the use of any Internet access service provider or mobile network service provider or caused by any browser or other software which is not under our control;
14.9.3 viruses that may infect Your Mobile Device or other property on account of Your access to or use of the App/Service or Your accessing any materials on the App/Service;
14.9.4 any unauthorised use or interception of any message or information before it reaches the App or Our servers from the App;
14.9.5 any unauthorised use of or access to data relating to You or Your transactions which is held by Us (unless such use or access is caused by our negligence, fraud or failure to comply with laws relating to the protection of your data), to the extent permitted by Applicable Law;
14.9.6 any content provided by third parties.
15. Third Party Sites
15.1 We may establish on the Service or the App links and pointers to other websites or mobile applications that are operated and maintained by third parties (“Third Party Sites or Apps”). These links are provided solely as pointers to information on topics that may be useful to you. However, the establishment of any link to Third-Party Sites or Apps is not a recommendation or endorsement by us of any products, services, information, goods, ideas or opinions that may be found on any Third-Party Sites or Apps.
15.2 We make no warranties, either express or implied, concerning the content of any Third-Party Sites or Apps, including the accuracy, completeness, reliability or suitability thereof for any particular purpose. We do not warrant that any Third-Party Site or App is free from any claims of copyright, trademark or other infringement.We do not warrant that any Third-Party Site or App is free from any viruses or other contamination.
16 .Consent to Receive Direct Marketing Communications
By using the Services, Y ou agree to receive direct marketing communications from us. If You do not wish to receive marketing communications from us, You may express your choice where indicated on the applicable communication.
17. Disputes Resolution
17.3 Such arbitration shall take place in Nairobi and shall be conducted in accordance with the Rules of Kenyan Arbitration and Conciliation Act.
17.4 To the extent permissible by law the determination of the arbitrator shall be final and binding upon the Parties.
17.5 Nothing in this Clause 15 shall restrict either Party’s freedom to commence legal proceedings of any nature for the purposes of seeking preliminary injunctive relief or interim or conservatory measures from any court of competent jurisdiction pending the final decision or award of any arbitrator.
18.1 We shall not be liable for delay or failure in performance resulting from causes beyond Our reasonable control.
18.2 You shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of Us or any of Our Affiliates.
18.3 You understand and agreed that we may assign, transfer all or part of the creditor’s rights of the Loan at Our sole discretion from time to time without given notice to You(“Transfer”) . The above Transfer will not affect the obligation of You under these Terms. You shall make the payment according to the instructions displayed by Us on the App.
18.10 We may give notice to You by means of a general notice published on the App or the System or to Your email address set out in Your Account. You must give notice to Us by email to: firstname.lastname@example.org
18.11 All complaints and suggestions in connection with the System and the Service can be made by sending email to: email@example.com