CLIENT CONSENT – BUSAM CASH TERMS & CONDITIONS
Section 1: Summary
These Terms & Conditions (T&C) constitutes an agreement between the client (the “End-user”) and Busam Capital Limited Mobile App (the “App”).
BUSAM CASH is one of the products of the Company which allows the End User to obtain Credit Advances. The maximum credit limit of any Credit Advance will vary by the End User’s credit score and repayment history, among other factors. Charges associated with the Credit Advance include, among others, the Service Fee, which typically varies as a percentage of the extent of the Credit Advance per defined advance period, as well as any associated third-party costs which are paid by the End User directly to such third parties.
These T&C take effect upon the End User’s acceptance of the same. Any amendments or variations to the T&C shall take effect on the date of their publication on the Company website or as may be indicated by the Company. It is the End User’s responsibility to track any amendments or variations to the T&C. By accepting the Credit Advance, the End User acknowledges to have read and accepted the T&C.
Section 2: Definitions and Interpretation
2.1 In these T&C the following words and expressions shall, save where the context otherwise requires, have the following meanings: –
2.1.1 “Account” means the End User’s account with the Company;
2.1.2 “Business Day” means a day other than a Saturday, Sunday or gazetted holiday in Kenya;
2.1.3 “Credentials” means the End User’s personal credentials used to access Busam cash and operate the Account;
2.1.4 “Credit Advance” means a loan provided by Busam cash under these T&C;
2.1.5 “E-Money” means the electronic monetary value depicted in the End User’s Account representing an equal amount of cash;
2.1.6 “Equipment” includes the End User’s mobile phone handset, SIM Card and/or other equipment which when used together enables him to access the Network;
2.1.7 “Event of Default” is an act of failing to pay any sum due on the Credit Advance granted under these T&C;
2.1.8 “Force Majeure” means events, circumstances or causes beyond a reasonable control of the Company making performance of its obligations inadvisable, commercially impracticable, illegal, or impossible, including but not limited to acts of God, war, strikes or labor disputes, embargoes or Governmental orders;
2.1.9 “Encumbrance” includes any mortgage or charge (whether legal or equitable), lien, option, security interest, restrictive covenant, pledge, assignment, title retention, trust arrangement or other restriction of any kind or other encumbrance securing or any right conferring a priority of payment in respect of any obligation of any person;
2.1.10 “License Restrictions” means actions listed in Section 4 which constitute a breach of these T&C;
2.1.11 “Loan” means the total sum of the Service Fee and the principal amount of the Credit Advance made or to be made by Busam cash to the End User under these T&C and also includes any accumulated penalties or any amount as may be advised by the Company from time to time;
2.1.12 “Mobile Money Account” means the value of the End User’s money based on the record maintained by Mobile Money Providers in Kenya of the amount of E-Money from time to time and held by the End User in the Mobile Money Provider’s System;
2.1.13 “Mobile Money” means the value of the End User’s money held by a Mobile Money Provider;
2.1.14 “Mobile Money Service” means the money transfer and payments service provided by the Mobile Money Providers through the Mobile Money System;
2.1.15 “Mobile Money System” means the system operated by the Mobile Money Providers for the provision of the Mobile Money Service;
2.1.16 “Mobile Network Operator” or “Mobile Money Provider” means a mobile network operator;
2.1.17 “Network” means a mobile cellular network operated by a Mobile (virtual) Network Operator;
2.1.18 “Personal Information” means the End User’s information such as phone number, name, date of birth, identification number or passport number and any other such information that will enable the Company to identify the End User and comply with the Company’s regulatory “Know Your Customer” requirements;
2.1.19 “Relevant Information” means information that the Company shall require for purposes of providing the Services;
2.1.20 “Request” means instructions received by the Company from the End User or purportedly from the End User through the Network and the System and upon which the Company is authorized to act;
2.1.21 “Rollover Fee” means the penalties applicable to the End User for failing to make any payments due to the Company at the due date for such payment;
2.1.22 “Services” shall include any form of services or products that the Company may offer to the End User pursuant to these T&C as the End User may from time to time subscribe to and “Service” shall be construed accordingly;
2.1.23 “SIM Card” means the subscriber identity module which when used with the appropriate mobile phone handset enables the End User to access the Network and to use the Mobile Money Account;
2.1.24 “SMS” means a short message service consisting of a text message transmitted from the End User’s mobile phone to another;
2.1.25 “System” means the infrastructure enabling the End User to access the Company for purposes of the Services. The System and the Services will be accessed through a Mobile Network Operator;
2.1.26 “Technology” means services used or supported by the USSD or App or any other such platforms;
2.1.27 “Service Fee” includes any fees and charges payable for the use of the Services. Service Fees are subject to change at any time at the Company’s sole discretion;
2.2 In addition to the above definitions, unless the context requires otherwise,
2.2.1 the singular shall include the plural and vice versa;
2.2.2 a reference to any one gender, whether masculine, feminine or neuter, includes the other two;
2.2.3 all the headings, subheadings and bullet points in these T&C are for convenience only and are not to be considered for the purposes of interpreting it;
2.2.4 Words and expressions defined in a statute shall bear the same meaning ascribed them in the relevant statute whenever used herein;
2.2.5 ” Days” shall be construed as calendar days unless qualified by the word ” Business“;
2.2.6 any reference to a statute or statutory provision or to any other rules or regulations of any competent authority shall be construed as references to such statute or statutory provision or rules or regulations as respectively amended or re-enacted or as their operation is modified by any other statute or statutory provision rules or regulations (whether before or after the date of these T&C ) and shall include any provisions of which they are re-enactments (whether with or without modification) and shall include subordinate legislation, made under the relevant statute;
2.2.7 The expression “hereof”, “herein” and similar expressions shall be construed as references to these Terms and Conditions as a whole and not be limited to the clause or provisions in which the relevant expression appears;
2.2.8 The words ” include” and ” including” followed by a specific example or examples shall not be construed as limiting the meaning of the general wording preceding it;
2.2.9 Words and expressions defined in any clause shall, unless the application of any such word or expression is specifically limited to that clause, bear the meaning assigned to such word or expression throughout these T&C;
2.2.10 unless specifically otherwise provided, any number of days prescribed for issuing any notice shall be determined by excluding the first and including the last day or where the last day does not fall on a Business Day, the next succeeding Business Day;
2.2.11 Where figures are referred to in numeral and in words, and there is any conflict between the two, the words shall prevail unless the context indicates a contrary intention;
2.2.12 If the day on which anything to be done is not a Business Day, then if it involves a payment other than a payment which is due on demand, it shall be done by close of business on the preceding Business Day, and in all other cases, it shall be done no later than by close of business on the next Business Day;
2.2.13 Reference to the Company or the End User shall include reference to the relevant legal personal representatives, successors in title and permitted assigns as the case may be and reference to the Company shall also include the Company’s affiliates, subsidiaries and business associates;
2.2.14 Any covenant by a Party not to do an act or thing shall be deemed to include an obligation not to permit or suffer such act or thing to be done by another person so far as this is within the power or control of such a Party.
Section 3: Acceptance of T&C
3.1. The End User will be deemed to have accepted all the T&C if he proceeds to request and access the Loan.
3.2. The End User acknowledges that these T&C are without prejudice to any other right that the Company may have with respect to the Services and/ or Account in law or otherwise.
3.3. These T&C may be amended or varied from time to time and the continued use of the Services constitutes the End User’s agreement to be bound by the terms of any such amendment or variation.
3.4. By using the Services, the End User consents to: –
3.4.1. the Company collecting and using any Confidential Information;
3.4.2. transmission, collection, retention, maintenance, processing and use of any data to determine credit scoring services or to improve the Services.
Section 4: Scope of License
4.1 In consideration of the End User agreeing to abide by these T&C, the Company grants to the End User a non-transferable, non-exclusive license to use the USSD and/ or the App.
4.2 Except as expressly set out in these T&C, the End User agrees: –
4.2.1 not to make alterations to, or modifications of, the whole or any part of the App, or permit the App or any part of it to be combined with, or become incorporated in any other programs;
4.2.2 not to disassemble, decompile, reverse-engineer or create derivative works based overall or any part of the App;
4.2.3 to include the Company’s copyright notice on all entire and partial copies that he makes of the App on any medium;
4.2.4 to comply with all technology control or export laws and regulations that apply to the technology used or supported by the App or any Services, together with third party License Restrictions.
4.2.5 not to use the App or any Service in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with these T&C, or act fraudulently or maliciously, for example, by hacking into or inserting malicious code, including viruses, or harmful data, into the App, any Service or any operating system;
4.2.6 not to infringe the Company’s intellectual property rights or those of any third party in relation to the use of the App or any Service, including the submission of any material (to the extent that such use is not licensed by these T&C);
4.2.7 not to transmit any material that is defamatory, offensive, illegal or otherwise objectionable in relation to the use of the App or any Service;
4.2.8 not to use the App or any Service in a way that could damage, disable, overburden, impair or compromise the Company’s systems or security or interfere with other users; and
4.2.9 not to collect or harvest any information or data from any Service or the Company’s systems or attempt to decipher any transmissions to or from the servers running any Service;
4.2.10 not to use the App, the USSD or any Service in a manner which is prejudicial to the Company.
Section 5: Intellectual Property Rights
The End User acknowledges that all intellectual property rights in the Technology anywhere in the world belong to the Company. The End User acknowledges that he has no right to have access to the App in source-code form.
Section 6: Use of the Services
6.1 The Services can only be utilized by persons who are of a majority age.
6.2 The Company reserves the right to verify the authenticity and status of the Mobile Money Account with the relevant Mobile Money Provider.
6.3 Acceptance of the application for a Credit Advance will be displayed on the App or USSD.
6.4 The Company reserves the right to decline applications for a Credit Advance or to revoke the same at any stage at its sole and absolute discretion and without assigning any reason or giving any notice thereto.
6.5 The Company reserves the right (in its sole and absolute discretion) to issue, decline to issue a Credit Advance and/or vary the terms of any Credit Advance depending on its assessment of the credit profile of each individual borrower from time to time and the Borrower will be bound to accept. The terms of the Credit Advance and the Service Fee payable in relation to each Credit Advance application will be displayed on the App and USSD.
6.6 Acceptance of an application for a Credit Advance does not create any contractual relationship between the End User and the Company beyond these T& C.
Section 7: Personal Information
7.1 The End User hereby agrees and authorizes the Company to verify information provided by himself to the Company against information held by third parties. In this regard, the End User hereby agrees and authorizes the Company to obtain any information held by third parties.
7.2 The Company reserves the right to request for further information from the End User or any person whatsoever pertaining to the application for a Credit Advance at any time. Failure to provide or obtain such information within the time required by the Company may, at the sole discretion of the Company, result in declining to accept the application for a Credit Advance.
7.3 The Company reserves the right to supply the End User’s credit information to third parties such as the Credit Reference Bureau (CRB).
7.4 Further, by accepting these T&C, the End User authorizes the Company to, among others: –
- access any information available from third parties e.g. Credit Reference Bureaus and Mobile Network Operators in order to assess his/her application for Credit;
- register details of the conduct of his Account with any third party and in this regard, the End User waives any claim that he may have against the Company or its affiliates in respect of such disclosure.
Section 8: Requests made by the Borrower
8.1 The End User hereby irrevocably authorizes the Company to act on all Requests received from them (or purportedly from them) through the System and to hold the End User liable in respect thereof. The Company may, nevertheless, refuse to carry out any Requests in its sole and absolute discretion.
8.2 Subject to its discretion, the Company reserves the right to reject any Request in relation to a Credit Advance application by an End User even if such an End User had previously been issued with a Credit Advance by the Company.
8.3 The Company 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 the Company’s absolute discretion, it believes that it can correct the incomplete or ambiguous information in the Request without any reference to the End User being necessary.
8.4 The Company shall be deemed to have acted properly and to have fully performed all the obligations owed to the End User notwithstanding that the Request may have been initiated, sent or otherwise communicated in error or fraudulently, and the End User shall be bound by any Requests on which the Company may act.
8.5 The Company may, in its absolute discretion, decline to act on or in accordance with the whole or any part of the End User’s Request pending further inquiry or further confirmation (whether written or otherwise) from the End User or any other person.
8.6 The End User agrees to and shall fully release and indemnify the Company against all claims, losses, damages, costs and expenses, howsoever arising in consequence of, or in any way related to the Company having acted (or failed to act) in accordance with the whole or any part of any of the End User’s Requests.
8.7 The End User acknowledges that the Company shall not be liable for any unauthorized drawing, transfer, remittance, disclosure, any activity or any incident on End User’s account by the fact of the knowledge and/or use or manipulation of Account PIN, password, ID or any means whether occasioned by the End User’s negligence.
8.8 The Company is authorized to affect such orders in respect to Credit Advance and/or Account as may be required by any court order or competent authority or agency under the applicable laws.
8.9 In the event of any conflict between any terms of any Request received by the Company from the End User and these T&C, the latter shall prevail.
Section 9: Service Fee
9.1 The Service Fee payable by the End User to the Company in relation any a Credit Advance shall be displayed on the App and USSD. The Company shall be entitled to vary the Service Fees from time to time. If the Company decides to vary or amend the Service Fees, the Service Fees payable on any new application for Services will be displayed on the App and USSD.
9.2 All payments to be made by the End User under these T&C shall be made in full without any setoff or counterclaim, free and clear of any charges and without any deduction or withholding whatsoever. If the End User is at any time required to make any deduction or withholding from any payment to the Company, he shall immediately pay to the Company such additional amounts as will result in the Company receiving the full amount it would have received had no such deduction or withholding been required.
9.3 If the End User fails to make any payments due to the Company at the due date for payment, the Company shall among others, apply the Rollover Fee on such amount loaned to the End User at a rate set by the Company, employ the services of debt collector or attorney to recover any outstanding debt at the End User’s cost. In this regard, the End User acknowledges that such outstanding debt will be recoverable as a summary debt and that the Company need not issue a demand before initiating the recovery process.
9.4 If there is any extraordinary increase or decrease in the effective purchasing power of Kenyan currency, as measured in the Company’s discretion, the Company shall have the right to make corresponding adjustments in the Service Fees.
Section 10: Statements
A statement and activity report in respect of the End User’s Credit Advance will be made available on Request. Requests shall be made in writing to the Company.
Section 11: Taxes
11.1 All payments to be made by the End User in connection with these T&C are calculated without regard to any taxes payable. If any taxes are payable in connection with the payment, the End User must pay the Company an additional amount equal to the payment multiplied by the appropriate rate of tax. The End User must do so at the same time as making the payment.
11.2 The End User hereby consents and agrees that the Company may withhold amounts in the End User’s Account, if any tax authority requires the Company to do so, or is otherwise required by law or pursuant to agreements with any tax authority to do so, or if the Company need to comply with internal policies or with any applicable order or sanction of a tax authority.
Section 12: Borrower’s Responsibilities
12.1 The End User shall, at his own expense, provide and maintain in safe and efficient operating order the Equipment necessary for the purpose of accessing the System and the Services.
12.2 The End User shall be responsible for ensuring the proper performance of the Equipment.
12.3 The Company shall neither be responsible for any errors or failures caused by any malfunction of the Equipment nor shall it be responsible for any computer virus or related problems that may be associated with the use of the System, the Services or the Equipment.
12.4 The End User shall be responsible for all charges due to any service provider providing them with connection to the Network and the Company shall not be responsible for losses or delays caused by any such service provider.
12.5 The End User shall follow all instructions, procedures and terms contained in these T&C and any document provided by the Company concerning the use of the System and the Services.
12.6 The End User hereby agrees and acknowledges that he shall be solely responsible for the safekeeping and proper use of the Equipment and for keeping Credentials secret and secure.
12.7 The End User shall ensure that Credentials do not become known or come into possession of any unauthorized person. This being the case, the Company shall not be liable for any disclosure of Credentials to any third party and the End User hereby agrees to indemnify and hold the Company harmless from any losses resulting from any disclosure of Credentials.
12.8 The End User shall take all reasonable precautions to detect any unauthorized use of the System and the Services. To that end, the End User shall ensure that all communications from the Company are immediately examined and checked by themselves or on their behalf in such a way that any unauthorized use of and access to the System will be detected. The End User shall inform the Company in the event that:
12.8.1 the End User has a reason to believe that their Credentials are or may be known to any person not authorized to know the same and/or have been compromised; and/or
12.8.2 the End User has reason to believe that unauthorized use of the Services has or may have occurred or could occur and a transaction may have been fraudulently input or compromised.
12.9 The communication to the Company as contemplated under section 12.8 herein should be done within Two (2) Hours of happening and even when this is done, it shall not impute liability on the part of the Company whatsoever.
12.10 The End User shall at all times follow the security procedures notified to him by the Company from time to time or such other procedures as may be applicable to the Services from time to time. Any failure on the part of the End User to follow the recommended security procedures may result in a breach of the Account’s confidentiality. In particular, the End User 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 authorized to do so.
Section 13: Default on a Credit Advance
13.1 At any time after an Event of Default has occurred, the Company may, without prejudice to any other right or remedy granted to it under any law:
13.1.1 terminate these T&C in accordance with section 14 below;
13.1.2 declare that the Credit Advance (and all accrued Service Fees and all other amounts outstanding under these T&C) is immediately due and payable,
13.1.3 engage an external collections agency to seek repayment; or
13.1.4 get indemnification upon demand against any reasonable loss or expense, which it may incur as a consequence of an Event of Default.
Section 14: Variation and Termination
14.1 The Company may at any time and without any notice, terminate or vary these T&C or the business relationship with the End User or/ and close the End User’s Account.
14.2 The Company may without any loss of any Service Fee recall the Credit Advances which it has granted and require the repayment of outstanding debts resulting from such Credit Advances immediately.
14.3 Without prejudice to any other rights under this clause, the Company may, at its sole discretion, suspend or close an Account: –
14.3.1 if it is used by unauthorized persons for unauthorized purposes or where the Company detects or reasonably suspects any abuse/misuse, breach of content, fraud or attempted fraud relating to the use of the Services;
14.3.2 if it is required or requested to comply with an order or instruction of or a recommendation from the Government, court, regulator or other competent authority;
14.3.3 if it reasonably suspects or believes that the End User is in breach of these T&C (including non-payment of any Credit Advance amount due);
14.3.4 where such a suspension or variation is necessary as a consequence of technical problems or for reasons of safety to facilitate, update or upgrade the contents or functionality of the Services from time to time;
14.3.5 where the Account becomes inactive or dormant;
14.3.6 if it decides to suspend or cease the provision of the Services for commercial reasons or for any other reason as it may determine in its absolute discretion; or
14.3.7 for the mere convenience of the Company;
14.3.8 for breach any of the License Restrictions.
14.4 Termination shall however not affect any accrued rights and liabilities of the Company.
14.5 If the Company receives notice of the death of an End User, it will not be obliged to allow any operation or withdrawal from the End User’s Account by any person except upon production of administration letters from a competent authority or confirmed grant of letters of administration or confirmed grant of probate by the End User’s legal representatives duly appointed by a court of competent jurisdiction.
Section 15: Indemnity and Limitation of Liability
15.1 The End User hereby fully indemnifies the Company for any loss or liability that it may face or suffer as a result of breach of any provisions (implied or express) of these T&C by the End User.
15.2 The Company shall not be liable whosoever for any loss or liability (howsoever occurring) faced or suffered by the End User or any other person in the course of provision of the Services by the Company.
15.3 The Company shall not be liable for any loss of profits or anticipated revenue or for any indirect or consequential loss or damage of whatever kind, howsoever caused, arising out of or in connection with the provision of the Services.
Section 16: Communication to the Company
16.1. All notices to the Company shall be send to firstname.lastname@example.org or to such e-mail address that may be communicated to the End User from time to time.
16.2. All notices to the End User from the Company shall be send to the End User’s email or by SMS to the mobile phone number that the End User has provided the Company at the time of the application.
Section 17: GENERAL
17.1 No single or partial exercise or failure or delay in exercising, on the part of the Company, any right, power or remedy under these T&C or the granting of time by the Company shall prejudice, affect or restrict the rights, powers and remedies of the Company under these T&C, nor shall any waiver by the Company of any breach of these T&C operate as a waiver of or in relation to any subsequent or any continuing breach of these T&C.
17.2 Any remedy conferred on the Company for breach of these T&C shall be in addition and without prejudice to all other rights and remedies available to the Company.
17.3 If any provision of these T&C shall be held to be illegal, void, invalid or unenforceable that shall not affect the legality of the other clauses.
Section 18: ENTIRE AGREEMENT
18.1. These T&C constitute the entire agreement between the End User and the Company and supersede and extinguish all previous agreements, promises, assurances, warranties, representations and understandings between the Company, whether written or oral.
18.2. By accepting these T&C, the End User acknowledges that he does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in these T&C.
18.3. The End User shall not have any claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in these T&C.
Section 19: Independent Legal Advice
The End User confirms that he has had the opportunity to seek and obtain independent legal advice of his choice relating to these T&Cs and is therefore fully aware of its terms, which he considers reasonable in all the circumstances. The language of these T&C therefore shall not be presumptively construed either in favour of or against the Company solely by virtue of its alleged status as the drafter of the T&C.
Section 20: Dispute Resolution
20.1 Should any dispute arise between the Parties with regard to any one or more of the provisions of these T&C, the dispute shall be resolved under provisions of the Kenyan Arbitration Act, 1995 (as amended from time to time or replaced by a subsequent enactment);
20.1 the arbitration tribunal shall consist of One (1) arbitrator to be appointed by the Company within Ten (10) Business Days of the first date when any Party gives notice of the identity of the proposed arbitrator;
20.1.1 the place and seat of arbitration shall be Nairobi and the language of arbitration shall be English;
20.1.2 the award of the arbitration tribunal shall be binding upon the Parties to the extent permitted by law and any Party may apply to a court of competent jurisdiction for enforcement of such award. The award of the arbitration tribunal may take the form of an order to pay an amount or to perform or to prohibit certain activities; and
20.1.3 notwithstanding the above provisions of this clause, a Party shall be entitled to seek preliminary injunctive relief or interim or conservatory measures from any court of competent jurisdiction pending the final decision or award of the arbitrator.
20.1.4 The arbitrator will advise on the costs.
While the Company shall take reasonable care to ensure that the Confidential Information is not divulged to uninterested parties, it shall not be liable if this policy is not achieved.