WHEREAS
This Agreement sets out the terms and conditions between you ("you") and Elmada Ventures Holdings Ltd, a company duly incorporated under the laws of the Republic of Kenya and an independent financial solutions company ("The Lender" "Us" or "We") for the use and operation of the lender's website, the operation of your account with the lender, your use, operation and access to any of the lender's Services as defined below and other ancillary matters.
In addition to these Terms and Conditions, additional terms relating to specific transactions or matters may be communicated to you on the website ("Additional Terms"). Those Additional Terms are incorporated into this Agreement and shall form part of this Agreement and shall be applicable to your Account (as hereinafter defined) opened with the lender and your use of the Services.
These Terms and Conditions and any amendments or variations thereto take effect on their date of publication.
You have the right to seek independent legal counsel in order to fully understand the implications and potential consequences of agreeing to these Terms and Conditions prior to clicking the "Accept" button. By clicking the "Accept" button which you hereby adopt as your electronic signature, you indicate that you have read, understood and agreed to be bound by these Terms and Conditions (as may be amended, supplemented and varied from time to time).
IT IS AGREED AS FOLLOWS:
1. DEFINITIONS AND INTERPRETATION
For the purposes of this Agreement and the preamble above, unless the context requires otherwise:
"Agreement" means this Agreement;
"Account" means the account held by you with the Lender which is opened and operated on the website in accordance with the terms and conditions of this Agreement.
"Business Day" means a day other than a Saturday, Sunday or national or public holiday in the Republic of Kenya;
"Credentials" means your personal credentials, including your Personal Identification Number used to access the website and operate your Account;
"Credit Reference Bureau" means a credit reference bureau duly licensed under the Banking Act pursuant to the Banking (Credit Reference Bureau) Regulations, 2013, as amended, revised or promulgated from time to time, to inter alia, collect and facilitate the sharing of customer credit information;
"Data Processing Terms and Conditions" means the lender's Data Processing Terms and Conditions that sets out the basis on which any personal data we collect from you, or that you provide to us, will be processed by us;
"Equipment" includes your mobile phone handset, SIM Card and/or other equipment which when used together enables you to access the Network;
"Force Majeure" means events, circumstances or causes beyond the lender's reasonable control making the performance of its obligations inadvisable, commercially impracticable, illegal, or impossible, including but not limited to acts of God, war, pandemics, strikes or labour disputes, embargoes or government orders;
"IPRS" means Integrated Population Registration System;
"Loan" means the principal amount of the loan made or to be made by the Lender to you under this Agreement from time to time including the interest and fees payable under the Loan or (as the context requires) (b) any amount outstanding for the time being of that Loan;
"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;
"Request" means a request or instruction received by the Lender from you or purportedly from you through the Network and the System and upon which the Lender is authorized to act;
"Services" shall include any form of financial services or products that the Lender may offer you pursuant to this Agreement and as you may from time to time subscribe to as well as your use of the website and System and "Service" shall be construed accordingly;
"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 phone to another;
"System" means the Elmada Ventures Holdings Ltd website and it's electronic communications software enabling you to communicate with the Lender for purposes of the Services. The System and the Services will for the purpose of this Agreement be accessed through the website;
"Third Party Partners" mean banks, payment companies, identity verification companies, asset management firms, credit reference bureaus, debt recovery companies, or any other person (entity) that provides any form of service or information to us for the provision of the Service;
"Transaction Fees" includes any fees and charges payable for the use of the Services as published by the Lender on the website or by such other means as the Lender shall in its sole discretion determine. Transaction Fees are subject to change at any time at the Lender's sole discretion;
2. ACCEPTANCE OF TERMS AND CONDITIONS
2.1 You may apply for a Loan on the Elmada Ventures Holdings Ltd website after you have accepted these Terms and Conditions. You hereby consent to us using information provided to us, from your Equipment or other databases or public registries for the purpose of underwriting your loan application.
2.2 You will be deemed to have accepted the Terms and Conditions upon clicking the "Accept" option asking you to confirm that you have read, understood and agreed to abide by the Terms and Conditions. If you do not agree with the Terms and Conditions please click the "Decline" option. Please note that you will not be able to access the Services if you decline the Terms and Conditions. If you do not agree to the Terms and Conditions, we will not license the website to you.
2.3 These Terms and Conditions may be amended or varied by the Lender from time to time and your continued use of the Services constitutes your agreement to be bound by the terms of any such amendment or variation. The Lender will take all reasonable measures to notify you of any changes.
3. GRANT AND SCOPE OF LICENCE
3.1 In consideration of you agreeing to abide by the terms of this Agreement, we grant you a non-transferable, non-exclusive licence to use the website on your Equipment, subject to these Terms and Conditions. We reserve all other rights. Except as expressly set out in this Agreement or as permitted by any local law.
4. LICENCE RESTRICTIONS
4.1 You must not use any Service in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with this Agreement, or act fraudulently or maliciously, for example, by hacking into or inserting malicious code, including viruses, or harmful data, into the website, any Service or any operating system;
4.2 You must not infringe our intellectual property rights or those of any third party in relation to your use of Service, including the submission of any material (to the extent that such use is not licensed by this Agreement);
5. ACCEPTABLE USE RESTRICTIONS
5.1 The Services offered by the Lender can only be utilized by persons over the age of 18 and are legally resident in Kenya. Your application to access our services is dependent on our verification of your identity, status and any other applicable information including verifying the authenticity and status of your Mobile Money Account with the relevant Mobile Money Provider.
5.2 Your application for a loan shall be filled electronically on the website after you have provided the requested information and we have carried out our assessment. The Lender's acceptance of your application for a loan will be displayed on the website.
5.3 The Lender reserves the right (in its sole and absolute discretion) to issue, decline to issue a loan and/or vary the terms of any loan depending on its assessment of the credit profile of each individual borrower from time to time.
6. PERSONAL INFORMATION
6.1 In order to open and operate your Account and for you to use our Services, the Lender shall require personal information about you. The information that the Lender may collect about you include (without limitation):
Your full Name
Your Date of Birth
Phone number
Gender
Address
Occupation
Photograph
Identification Number ("ID") or Passport Number,
Copy of a valid Government issued ID (national ID, international passport, permanent voter's card or driver's license);
Copy of recent utility bill, bank statement, affidavit, or another bill, dated within three months of our request, which carries your name and address; and
Such other information or documents that will enable the Lender to identify you, comply with the regulatory "Know Your Customer" requirements and satisfy our internal risk assessment (together the "Personal Information").
6.2 The Lender may need to procure and verify information including, but not limited to, data relating to your phone (including, without limitation, your phone's history) from your Equipment, from any SMS sent to you by the Mobile Money Providers and any financial services providers relating to your use of the Mobile Money Service and such other information as the Lender shall require for purposes of providing you the Services (the "Relevant Information").
6.3 You warrant that all information and documentation provided to us are true, correct, and accurate. You also undertake to notify us of any changes to the information or documentation which you have provided.
6.4 Personal Information and Relevant Information may be obtained from IPRS, Mobile Money Provider and Third Party Partners and any other database or public registry containing such information. You hereby agree and authorize the Lender to obtain and procure your Personal Information and Relevant Information from IPRS, your respective Mobile Money Provider, Third Party Partners and any other database or public registry containing information of the nature you have provided. You further agree and consent to the disclosure and provision of such Personal Information by IPRS, the Mobile Money Provider, Third Party Partners and or other database and registries. You agree to indemnify and hold the Lender, IPRS, the Mobile Money Provider, Third Party Partners harmless with respect to any claims, losses, liabilities and expenses (including legal fees and expenses) that may arise as a result of the disclosure and reliance on such Personal Information and/or Relevant Information.
6.5 You hereby consent to the Lender verifying the authenticity of the Personal Information and the Relevant Information with IPRS, the Mobile Money Providers and Third Party Partners and using of the Personal Information and the Relevant Information to the extent necessary in the opinion of the Lender and in accordance with the Date Processing Terms and Conditions.
6.6 You hereby agree and authorise the Lender to obtain and procure your Personal (and other) Information from the Credit Reference Bureaus and you further agree and consent to the disclosure and provision of such Personal Information by the Credit Reference Bureaus. Such Information from the Credit Reference Bureau may be used to assess your creditworthiness.
6.7 The Lender reserves the right to request for further information from you pertaining to your application for an Account or the use of any of our Services at any time. Failure to provide such information within the time required by the Lender may result in the Lender declining to accept your application for an Account or the use of the Services.
6.8 The Lender reserves the right to supply consumer credit information to the Credit Reference Bureaus, and in this regard: you confirm that the Lender may transmit to the Credit Reference Bureaus data about your use of the App or our Services, your opening and termination of an Account.
6.9 You acknowledge that information on non-compliance with the Terms and Conditions of this Agreement shall be provided to the Credit Reference Bureaus or any other applicable Authority in Kenya;
7. LOAN APPLICATION
7.1 An application for the Loan will be made on the website and upon a successful consideration of your loan application, the Loan shall be disbursed into an account/Mpesa Number provided by you.
7.2 Your Loan Application shall be considered on the basis of Personal Information, Relevant Information, information from Credit Reference Bureaus, our Know Your Customer and Credit Evaluation Processes in order to assess your creditworthiness and to assign you a credit score.
7.3 If your loan application is unsuccessful, you will be notified on the Website and the reasons for the refusal may be provided. You will also be informed if you are eligible to reapply for a loan. Please note that your loan application will be unsuccessful if you have defaulted on any past Loan.
7.4 The Lender reserves the right (in its sole and absolute discretion) to approve or decline to approve a Loan even if you have previously been issued with a Loan on the Website. We reserve the right to vary the terms of any Loan (including interest rate) depending on our assessment of the credit profile of each borrower from time to time. Notice of any changes to the terms of any existing Loan will be communicated to you.
7.5 The details of your Loan – principal amount, interest payable, repayment days, transaction fees etc. will be made available to you on the Website for every successful loan application. Please do not click continue if the approved terms are not acceptable to you.
8. YOUR RIGHTS AND OBLIGATIONS AS A BORROWER
8.1 As a borrower, You
8.1.1 undertake to repay all amounts including principal, interest including (default interest where applicable), fees, taxes, or any other amount that may be due to us on the dates agreed using the repayment channels made available on the Website;
8.1.2 shall be held responsible for the repayment of any Loan disbursed to you or your Account on the Website;
8.1.3 shall ensure that your card or other bank accounts are pre funded on or before the repayment dates. You hereby authorise us to charge any other card or accounts listed against your name on the Website after unsuccessful attempts on any of your account/cards. You shall also indemnify us for any charges or fees due in respect of failed or unsuccessful direct debits on your bank accounts or cards.
8.1.4 shall not use the proceeds of the Loan for any illegal or criminal activity including but not limited to money laundering or financing of terrorism.
8.1.5 provide all necessary assistance that we may require for the collection or realisation of any outstanding amounts due from You to us.
9. EVENTS OF DEFAULT
9.1 An event of default (Event of Default) shall be deemed to have occurred when:
9.1.1 you fail to pay any sum payable under a Loan in accordance with a scheduled repayment;
9.1.2 any representation, information, warranty or assurance made or given by You (or obtained by the Lender from a third party) in connection with your loan application is incorrect, inaccurate or misleading;
9.1.3 any document or information you provided in connection with your loan application ceases to be correct or accurate;
9.1.4 you do anything which may prejudice the Lender's rights under this Agreement;
9.1.5 you use or attempt to use the website or the Services for an unauthorised purpose;
9.1.6 you are declared bankrupt, insolvent or unable to pay your debts as they fall due under Kenyan law; or
9.1.7 the Lender has reasonable grounds for coming to the conclusion that you are not able to repay a Loan granted to you on the due date; or
9.1.8 you are in breach of any of the terms and conditions of this Agreement.
9.2 At any time after an Event of Default has occurred, the Lender may, without prejudice to any other right or remedy granted to it under any law:
9.2.1 terminate this Agreement;
9.2.2 declare that the Loan (and all accrued interest and all other amounts outstanding) under this Agreement is immediately due and payable, whereupon they shall become immediately due and payable;
9.2.3 the Lender shall enforce its rights to recover the Loan by exercising all such rights available to a lender under Kenyan law including but not limited to the set off rights below, the right to assign the Loan to collection agencies etc. and;
9.2.4 the Lender shall supply information concerning the Event of Default to Credit Reference Bureaus. A copy of any information concerning you sent to a Credit Reference Bureau shall be made available to you upon written request.
9.2.5 The Lender reserves the right to assign its right, title and interest in the Loan and rights under the Agreement to an external collections agency who will take all reasonable steps to collect the outstanding Loan (together with any interest and fees accrued), and in this regard, the Lender shall have the right to share with such collection agencies, any information about the Borrower (including transaction history, Personal Information, Relevant Information) which it deems relevant. You consent to us sharing Personal Information, Relevant Information and transactional information with the collections agency for the purposes of collecting the Loan.
9.2.6 The Lender also reserves the right to institute legal proceedings for the recovery of any outstanding Loan with or without any prior notice to you.
9.2.7 The Borrower shall be responsible for all legal costs and expenses incurred by the Lender in connection with any enforcement action taken by the Lender or the collection agency for the collection and repayment of the Loan (together with any interest or fees due on the Loan).
9.3 In the event that an Event of Default occurs, the Borrower grants the Lender the right to notify recovery or collection agencies who may assist with the recovery of the outstanding Loan amount. You agree and consent to such notification.
9.4 The Lender shall have a general lien over all your property/assets in its possession in the event that you owe any money to the Lender including but not limited to cash, goods, securities or valuables deposited for safe custody as security, cheques presented, bills and any other movable or immovable property charged to secure repayment of any money, whether or not that money has been repaid, and also over all property in respect of which, by the general law, the Lender has lien.
10. SET OFF
10.1 By signing this Agreement and by drawing on the Loan, you covenant to repay the loan as and when due. In the event that You fail to repay the Loan as agreed, and the Loan becomes delinquent, you covenant and warrant that the Lender shall have power to set-off your indebtedness from all such monies and funds standing to your credit/benefit in any and all such accounts or from any other financial assets belonging to you and in the custody of the Lender. You covenant and agree that the Lender shall have the right to take whatever steps necessary to direct all banks and other financial institutions in Kenya to set-off your indebtedness from any money standing to your credit in any bank account and from any other financial assets they may be holding for your benefit.
10.2 You hereby waive any right of confidentiality whether arising under common law or statute or in any other manner whatsoever and irrevocably agree that you shall not argue to the contrary before any court of law, tribunal, administrative authority or any other body acting in any judicial or quasi-judicial capacity.
11. TRANSACTION FEES
11.1 The Lender shall be entitled to set and charge Transaction Fees, in connection with your use of the Services and from time to time amend or vary its Transaction Fees for the Services. Where the Lender decides to charge Transaction Fees or where already applicable, vary or amend its Transaction Fees, the Transaction Fees payable on any Service will be displayed. The Lender shall use reasonable endeavours to notify you of any changes in relation to Transaction Fees within a reasonable period before such changes are implemented including displaying notices on the Lender's website.
11.2 All payments to be made by you under this Agreement shall be made in full without any set off or counterclaim and save in so far as required by the law to the contrary, free and clear of and without any deduction or withholding whatsoever. If you are at any time required to make any deduction or withholding from any payment to the Lender, you shall immediately pay to the Lender such additional amounts as will result in the Lender receiving the full amount it would have received had no such deduction or withholding been required.
11.3 If you fail to make any payments due to the Lender at the due date for payment, the Lender will be authorized to apply late fees, default interest or penalties on such amount due.
11.4 The Lender may deduct from your Account(s) any applicable Transaction Fees in respect of any Services provided to you.
11.5 The Lender may also debit your account with expenses incurred:
(a) in complying with your requests;
(b) in complying with the requests of authorized and accredited Government or other agencies in relation to your Account;
(c) in collecting or attempting to collect any amount of money you owe the Lender;
(d) Expenses incurred in realizing any security or protecting the subject matter of any security issued to the Lender.
12. STATEMENTS
12.1 A statement and activity report in respect of your Account shall be made available on Request.
12.2 The Lender reserves the right to rectify discrepancies, add and/or alter the entries in your statements, without prior notice to you. The Lender shall however inform you of any rectification, additions and or alterations effected on your statements within a reasonable time after the changes are effected.
12.3 You shall be notified of all transactions on your Account and the charges for this service will be debited to your Account.
13.0. USER'S RESPONSIBILITIES
13.1 You shall at your own expense provide and maintain your Equipment in safe and efficient operating order necessary for the purpose of accessing the System and the Services.
13.2 You shall be responsible for ensuring the proper performance of your Equipment. The Lender shall neither be responsible for any errors or failures caused by any malfunction of your Equipment, and nor shall the Lender be responsible for any computer virus or related problems that may be associated with the use of the System, the Services and the Equipment. You shall be responsible for charges due to any service provider providing you with connection to the Network and the Lender shall not be responsible for losses or delays caused by any such service provider.
13.3 You shall follow all instructions, procedures and terms contained in this Agreement and any document provided by the Lender concerning the use of the System and the Services.
13.4 You shall take all reasonable precautions to detect any unauthorised use of the System and the Services. To that end, you shall ensure that all communications from the Lender 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 the Lender in the event that:
13.4.1 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
13.4.2 You have reason to believe that unauthorised use of the Services has or may have occurred or could occur and a transaction may have been fraudulently input or compromised.
13.5 You shall at all times follow the security procedures communicated to you by the Lender from time to time or such other procedures as may be applicable to the Services 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 security and confidentiality. In particular, you shall ensure that the Services are not used or Requests are not issued or the relevant functions are not performed by anyone other than a person authorised to do so.
13.6 You shall not at any time operate or use the Services in any manner that may be prejudicial to the Lender.
14. EXCLUSION OF LIABILITY
14.1 The Lender shall not be responsible for any loss suffered by you should the Services be interfered with or be unavailable by reason of the failure of any of your Equipment, or any other circumstances whatsoever not within the Lender's control including, without limitation, (a) a Force Majeure event (b) any error, interruption, delay or non-availability of the System or Mobile Network Operator (c) any acts of terrorism or any enemy action resulting in equipment failure (d) loss of power (e) adverse weather or atmospheric conditions; and (f) failure of any public or private telecommunications system; (e) delay or failure with the transmission, delivery, or non delivery of electronic messages (including payment instructions) or any mistake, omission or error in transmission or delivery thereof in deciphering message from any cause whatsoever or from its misinterpretation or any other action beyond its control.
15. INDEMNITY
15.1 In consideration of the Lender complying with your instructions or Requests in relation your Account, you undertake to indemnify the Lender and hold it harmless against any loss, charge, damage, expense, fee or claim which the Lender suffers or incurs or sustains thereby and you absolve the Lender from all liability for loss or damage which you may sustain from the Lender acting on your instructions or requests or in accordance with these Terms and Conditions.
15.2 The indemnity in clause 15.1 shall also cover the following:
15.2.1 all demands, claims, actions, losses and damages of whatever nature which may be brought against the Lender or which it may suffer or incur arising from its acting or not acting on any Request or arising from the malfunction or failure or unavailability of any hardware, software, or equipment, the loss or destruction of any data, power failures, corruption of storage media, natural phenomena, riots, acts of vandalism, sabotage, terrorism, any other event beyond the Lender's control, interruption or distortion of communication links or arising from reliance on any person or any incorrect, illegible, incomplete or inaccurate information or data contained in any Request received by the Lender;
15.2.2 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;
15.2.3 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 Equipment;
15.2.4 any loss or damage occasioned by, your failure to adhere to these Terms and Conditions and/or by supplying incorrect information or loss or damage occasioned by the failure or unavailability of third party facilities or systems or the inability of a third party to process a transaction or any loss which may be incurred by the Lender as a consequence of any breach by these Terms and Conditions;
15.2.5 any damages and costs payable to the Lender in respect of any claims against the Lender for recompense for loss where the particular circumstance is within your control.
16. ENTIRE AGREEMENT
16.1 These Terms and Conditions, constitute the entire agreement between you and us and supersede and extinguish all previous agreements, promises, assurances, warranties, representations and understandings between us, whether written or oral, relating to its subject matter.
16.2 You acknowledge that in entering into this Agreement you do not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in these Terms and Conditions or our Data Processing Terms and Conditions.
16.3 You and Us agree that neither of us shall have any claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.
17. DISPUTE RESOLUTION
17.1 The Parties shall use their good faith efforts to resolve any dispute, controversy or claim of any nature whatsoever arising out of or in relation to or in connection with this Agreement. Any dispute arising out of or in connection with this agreement that is not resolved by customer care representatives shall be escalated in line with the Lender's complaint resolution policy and process.
18. GOVERNING LAW
18.1 This Agreement shall be governed by and construed in accordance with the laws of Kenya and the Kenyan Courts shall have jurisdiction.