Definitions and Interpretation
1.1 Definitions For the purposes of this Agreement and the preamble above, unless the context requires otherwise:
Acceptable Use Restrictions: Meaning given in clause 5;
Agreement: This Agreement;
Business Day: A day other than a Saturday, Sunday, or national/public holiday in Kenya;
Credentials: Your personal credentials used to access the App and operate your Account;
Credit Reference Bureau: A bureau licensed under the Banking Act for collecting and sharing customer credit information;
E-Money: The electronic monetary value in your Mobile Money Account representing an equal amount of cash;
Equipment: Your mobile phone handset, SIM Card, and/or other equipment used to access the Network;
Event of Default: Meaning given in clause 11.1;
Force Majeure: Events beyond the reasonable control of Kifaru Loan making performance inadvisable, impracticable, illegal, or impossible;
Encumbrance: Any mortgage, charge, lien, security interest, pledge, or other restriction securing payment of any obligation;
Licence Restrictions: Meaning given in clause 4;
Loan: The principal amount of the loan made or to be made by Kifaru Loan to you under this Agreement;
Mobile Money Account: Your mobile money store of value maintained by Mobile Money Providers in Kenya;
Mobile Money: The money transfer and payments service operated by the Mobile Money Providers in Kenya;
Mobile Network Operator: A mobile network operator in Kenya registered with the Communications Authority of Kenya;
Mobile Money Provider: A Mobile Network Operator authorized by the Central Bank of Kenya to offer Mobile Money Services in Kenya;
Mobile Money Service: The money transfer and payments service provided by the Mobile Money Providers;
Mobile Money System: The system operated by the Mobile Money Providers for providing the Mobile Money Service;
Network: A mobile cellular network operated by a Mobile Network Operator;
Privacy Policy: Kifaru Loan privacy policy for processing personal data;
Request: A request or instruction received by Kifaru Loan from you through the Network and System;
Services: Any financial services or products offered by Kifaru Loan under this Agreement;
SIM Card: The subscriber identity module enabling access to the Network and use of the Mobile Money Account;
SMS: Short message service text message transmitted from your mobile phone;
System: Kifaru Loan electronic communications software for the Services;
Technology: Meaning given in clause 3.1.4;
Transaction Fees: Fees and charges payable for using the Services, subject to change at Kifaru Loan's discretion;
Data Protection Act: The Data Protection Act, 2019 for regulating personal data processing and rights of data subjects.
1.2 Interpretation 1.2.1 In addition to the definitions in clause 1.1, unless the context requires otherwise:
The singular includes the plural and vice versa;
A reference to any gender includes the other two;
Headings and sub-headings are for convenience only and not for interpretation;
The recitals and schedules are part of this Agreement.
Acceptance of Terms and Conditions
2.1 You must carefully read and understand these Terms and Conditions before downloading or streaming the App or opening an account.
2.2 By clicking "Accept" on the App, you accept these Terms and Conditions. If you do not agree, click "Decline," and you will not be able to access the Services.
2.3 By downloading the App and opening an Account with Kifaru Loan, you agree to comply with these Terms and Conditions.
2.4 These Terms and Conditions may be amended by Kifaru Loan from time to time, and continued use of the Services constitutes your agreement to be bound by any amendments. Kifaru Loan will notify you of changes.
2.5 Updates to the App may be issued through the website. Depending on the update, you may not be able to use the Services until you have downloaded the latest version of the App and accepted any new terms and conditions.
2.6 By using the App or any Services, you consent to us collecting and using technical information about your Equipment and related software to improve our products and provide Services to you.
Grant and Scope of Licence
3.1 In consideration of you agreeing to abide by this Agreement, we grant you a non-transferable, non-exclusive license to use the App on your Equipment, subject to these Terms and Conditions. We reserve all other rights. You agree:
Not to rent, lease, sub-license, loan, translate, merge, adapt, vary or modify the App;
Not to make alterations to the App or permit it to be combined with any other programs;
Not to disassemble, decompile, reverse-engineer or create derivative works based on the App, except as necessary for interoperability with other software, and to not disclose or use obtained information for creating similar software;
Not to provide the App in whole or in part to any person without our prior written consent;
To comply with all technology control or export laws and regulations that apply to the Technology.
Licence Restrictions
4.1 You must:
Not use the App or any Service in any unlawful manner or for any unlawful purpose;
Not infringe our intellectual property rights or those of any third party;
Not transmit any material that is defamatory, offensive or otherwise objectionable;
Not use the App or any Service in a way that could damage, disable, overburden, impair or compromise our systems or security;
Not collect or harvest any information or data from any Service or our systems.
Acceptable Use Restrictions
5.1 Intellectual Property Rights You acknowledge that all intellectual property rights in the App and the Technology belong to us or our licensors, and you have no rights other than the right to use them in accordance with this Agreement.
5.2 Use of the Services
5.2.1 The Services can only be utilized by persons over the age of 18. Kifaru Loan reserves the right to verify the authenticity of your Mobile Money Account.
5.2.2 Kifaru Loan's acceptance of your application for an Account will be displayed on the App. Acceptance by Kifaru Loan does not create any contractual relationship between you and the Mobile Money Providers beyond your Mobile Money Account terms and conditions.
5.2.3 Kifaru Loan reserves the right to decline your loan application or revoke it at any stage without assigning any reason.
5.2.4 Kifaru Loan reserves the right to issue or decline a loan and to vary the terms of any loan depending on its assessment of your credit profile.
5.3 Personal Information
5.3.1 You agree and authorize Kifaru Loan to verify information provided by you against information held by the Mobile Money Providers.
5.3.2 Kifaru Loan may verify your phone number, name, date of birth, ID or Passport Number, and other information necessary for compliance with regulatory requirements.
5.3.3 You consent to KifaruLoan verifying information related to your phone and financial services from your Equipment, SMS, and other sources for providing the Services.
5.3.4 Kifaru Loan may obtain and use your Personal Information and Relevant Information as necessary.
5.3.5 You indemnify Kifaru Loan and the Mobile Money Provider against any claims arising from the disclosure and reliance on your Personal Information and Relevant Information.
5.3.6 By entering into this Agreement, you authorize Kifaru Loan to access and query your credit information from licensed CRBs and to receive credit reports/scores.
5.3.7 Kifaru Loan reserves the right to request further information from you at any time.
5.3.8 This consent shall not be withdrawn while your application is pending or you have an outstanding balance with Kifaru Loan.
5.3.9 This consent terminates upon clearing all loans with Kifaru Loan.
5.3.10 The CRBs provide a credit profile and possibly credit scores on your creditworthiness.
Requests Made by the Borrower
6.1 You authorize Kifaru Loan to act on all Requests received from you through the System and hold you liable for them. Kifaru Loan may refuse to carry out any Requests at its discretion.
6.2 Kifaru Loan reserves the right to reject any loan application Request even if you have previously been issued a loan.
6.3 Kifaru Loan may accept and act upon any incomplete or ambiguous Request if it believes it can correct the information without reference to you.
6.4 Kifaru Loan shall be deemed to have acted properly and performed all obligations owed to you, even if the Request was initiated or communicated in error or fraudulently, and you shall be bound by such Requests.
6.5 Kifaru Loan may decline to act on any Request pending further enquiry or confirmation.
6.6 You release and indemnify Kifaru Loan against all claims, losses, damages, costs, and expenses arising from Kifaru Loan acting on your Requests.
6.7 Kifaru Loan shall not be liable for unauthorized transactions on your account due to knowledge or manipulation of your Credentials.
6.8 Kifaru Loan is authorized to effect orders in respect of your Account as required by any court order or competent authority.
6.9 In case of any conflict between any terms of a Request and this Agreement, this Agreement shall prevail.
Interest and Fees
7.1 The interest payable on any Loan shall be displayed on the App. Kifaru Loan may charge Transaction Fees and amend them at its discretion.
7.2 All payments shall be made in full without set-off or counterclaim, and without deduction or withholding unless required by law.
7.3 If you fail to make payments when due, Kifaru Loan may apply late fees.
7.4 If you are unable to repay the Loan within the repayment period, Kifaru Loan may approve an extension subject to payment of accrued interest. The interest charged on the extension will be displayed on your Account.
Statements
8.1 A statement and activity report in respect of your Account will be available upon request via email.
8.2 The App statement will show recent transactions in your Account.
8.3 You must check your statement carefully and notify Kifaru Loan of any errors as soon as possible.
8.4 Kifaru Loan reserves the right to rectify discrepancies in your statements without prior notice.
8.5 You will be notified of all transactions on your Account by SMS, and charges for this service may be debited to your Account.
8.6 Save for manifest errors, a statement issued in respect of your Kifaru Loan Account shall be conclusive evidence of the transactions carried out.
Taxes
9.1 All payments in connection with these Terms and Conditions are calculated without regard to any taxes payable by you. If any taxes are payable, you must pay an additional amount equal to the payment multiplied by the tax rate.
9.2 Kifaru Loan may withhold amounts in your Account if required by law or agreements with tax authorities.
Borrower's Responsibilities
10.1 You shall provide and maintain your Equipment necessary for accessing the System and Services.
10.2 Kifaru Loan shall not be responsible for any errors or failures caused by malfunctioning Equipment or any related problems.
10.3 You shall follow all instructions and terms contained in this Agreement and any documents provided by Kifaru Loan concerning the System and Services.
10.4 You shall keep your Credentials secret and secure. Kifaru Loan shall not be liable for any unauthorized disclosure of your Credentials.
10.5 You shall take precautions to detect unauthorized use of the System and Services and inform Kifaru Loan immediately if you suspect any breach.
10.6 You shall follow the security procedures notified by Kifaru Loan.
10.7 You shall not use the Services in any manner prejudicial to Kifaru Loan.
Default on Loan
11.1 An Event of Default occurs when you fail to pay any sum payable for a Loan within ninety (90) consecutive days or are declared bankrupt.
11.2 Upon an Event of Default, Kifaru Loan may terminate this Agreement, declare the Loan immediately due and payable, and supply information concerning the Event of Default to Credit Reference Bureaus.
Variation and Termination
12.1 Kifaru Loan may terminate or vary its relationship with you and close your Account upon notice.
12.2 Kifaru Loan may suspend or close your Account at its discretion if you use it for unauthorized purposes, breach these Terms and Conditions, or if required by competent authority.
12.3 If your Account has a credit balance due to overpayment, you may request payment of the balance, less applicable fees.
12.4 Termination shall not affect accrued rights and liabilities.
12.5 Upon your demise, Kifaru Loan will not allow any withdrawal from your Account except upon production of appropriate legal documents.
Exclusion of Liability
13.1 Kifaru Loan shall not be responsible for any loss caused by failure of your Equipment or other circumstances beyond its control.
13.2 You acknowledge that the App may not meet your individual requirements and it is your responsibility to ensure its suitability.
13.3 The App is supplied for domestic and private use only. Kifaru Loan has no liability for any commercial use.
13.4 Kifaru Loan will not be liable for losses caused by your misuse of the App, unauthorized use, or failure to follow security procedures.
13.5 Kifaru Loan's sole liability in case of service interference is to re-establish the Services as soon as reasonably practicable.
13.6 Kifaru Loan shall not be liable for any loss of profit, business, or indirect/consequential loss.
13.7 All implied warranties and obligations are excluded to the fullest extent permitted by law.
Indemnity
14.1 You indemnify Kifaru Loan against any loss, charge, damage, expense, fee, or claim arising from acting on your instructions or requests.
14.2 This indemnity covers:
Claims arising from acting on your Requests or from system failure or unavailability;
Loss or damage from your use of third-party software;
Unauthorized access to your Account or data breaches;
Loss or damage from your failure to comply with these Terms and Conditions;
Damages and costs payable to Kifaru Loan for claims where the circumstance is within your control.
Communication Between Us
15.1 If we need to contact you, we will do so by email or SMS to the provided contact details.
General
16.1 Remedies are cumulative and not exclusive of other remedies.
16.2 No failure or delay by Kifaru Loan in exercising any right or remedy shall operate as a waiver.
16.3 If any provision of this Agreement is found invalid or unenforceable, the other provisions remain in full force and effect.
Entire Agreement
17.1 These Terms and Conditions and our Privacy Policy constitute the entire agreement between you and us.
17.2 You acknowledge that you do not rely on any statement not set out in these Terms and Conditions or our Privacy Policy.
17.3 Neither party shall have any claim for innocent or negligent misrepresentation based on any statement in this Agreement.
Dispute Resolution
18.1 Disputes shall be resolved through good faith efforts by appointed representatives.
18.2 If unresolved within thirty (30) days, disputes shall be referred to a single arbitrator appointed by agreement or by the Chairman of the Kenya Branch of the Chartered Institute of Arbitrators.
18.3 This clause does not restrict the right to seek preliminary injunctive relief or interim measures from a competent court.
Governing Law
19.1 This Agreement is governed by the laws of Kenya.