TERMS AND CONDITIONS OF USE OF SMART KIOSK NUNUA
SK is proprietary software/service/application that enables you to:
obtain credit for business(smart kiosk nunua loans) and personal purposes (smart kiosk mteja loans)
The above is available once your profile / account has been verified and active.
These Terms and Conditions and any amendments or variations thereto take effect on their date of publication.
IT IS AGREED AS FOLLOWS:
1. DEFINITIONS AND INTERPRETATION
For the purposes of this Agreement and the preamble above, unless the context requires otherwise:
Acceptable Use Restrictions has the meaning given to it in clause 4;
Agreement means this Agreement;
Whatsapp means proprietary software owned by Meta Platforms Inc, installed by you on your mobile phone or device.
Whatsapp channel means a channel provided by us to you via Whatsapp through the mobile number 020 2500081 or as they may change from time to time.
Safaricom PLC "Safaricom" is a publicly listed Kenya mobile network
M-PESA - A mobile phone-based money transfer service operated by Safaricom
Equity Bank Kenya Limited "Equity" a public company in Kenya
Account means your loan or profile with SK;
Till / Paybill Number means a designation code or numbering plan created by:
Safaricom for the identification of M-PESA Buy Goods Accounts (Till number) or M-PESA Payment Accounts (Paybill Number)
Equity Bank Kenya LTD for the identification of Equity Buy Goods Accounts or payment accounts used by merchants to receive payments for goods and services.
'Ksmart' or 'K-Smart' is an auxiliary personal finance information module provided by us through a separate app belonging to us accessible on the google play store or online.
Credentials means your personal credentials used to access the App and operate your Account;
CBK refers to The Central Bank of Kenya;
Credit Reference Bureau or CRB 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;
E-Money means the electronic monetary value depicted in your Mobile Money Account representing an equal amount of cash;
Equipment includes your mobile phone handset, SIM Card and/or other equipment which when used together enables you to access the Network;
Pesalink: Money Transfer system offered by participating banks by Integrated Payment Services Limited (IPSL)
Working or business day - Any day (between Monday and Friday) , excluding Gazetted public holidays in Kenya.
Working Hours - The hours between 9am and 4pm during Working Days or as advised on our website or through other communication from us
DEFAULT ON YOUR LOAN OBLIGATIONS WITH US has the meaning given to it in clause 9.1;
Force Majeure means events, circumstances or causes beyond its reasonable control of SK making SK's performance of its obligations inadvisable, commercially impracticable, illegal, or impossible, including but not limited to acts of God, pandemics, war, strikes or labour disputes, embargoes or government orders;
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;
Licence Restrictions has the meaning given to it in clause 3;
Loan means the principal amount of the loan made or to be made by SK to you under this Agreement from time to time through the App or (as the context requires) the principal 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;
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 Communications Authority of Kenya;
Mobile Money Provider means a Mobile Network Operator that has been duly authorised by the Central Bank of Kenya under applicable law to offer Mobile Money Services 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;
Network means a mobile cellular network operated by a Mobile Network Operator;
Request means a request or instruction received by SK from you or purportedly from you through the Network and the System and upon which SK is authorised to act;
Services shall include any form of financial services or products that SK may offer you pursuant to this Agreement and as you may from time to time subscribe to 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 SK's electronic communications software enabling you to communicate with SK for purposes of the Services. The System and the Services will for the purpose of this Agreement be accessed through a Mobile Network Operator's System;
Technology has the meaning given to it in clause 3.1.4; and
Interest includes loan interest or penalties interest payable for the use of the Services as published by SK on SKs website or by such other means as SK shall in its sole discretion determine. Interest charges are subject to change at any time at SK's sole discretion and will be advised to you on every new borrowing. The interest chargeable is stipulated in your loan offer/agreement and remains binding.
In addition to the definitions in clause 1, unless the context requires otherwise:
the singular shall include the plural and vice versa;
a reference to any one gender, whether masculine, feminine or neuter, includes the other two.
All the headings and subheadings in this Agreement are for convenience only and are not to be taken into account for the purposes of interpretation of this Agreement.
The recitals and schedules shall be deemed to form part of this Agreement.
2. ACCEPTANCE OF TERMS AND CONDITIONS
2.1 You must carefully read and understand the Terms and Conditions set out in this Agreement and as amended from time to time by SK (the Terms and Conditions) before downloading or streaming the App or opening an account or obtaining and credit with SK which will govern the use and operation of the App and the Account.
2.2 After accessing or downloading the App, you will be deemed to accept these Terms and Conditions upon clicking the "Accept" option on SKs System (or by confirming the number selection presented on our whatsapp channel) 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 in SK's System or the appropriate number directed to you if using our whatsapp channel. 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 licence the App to you. By clicking on "accept" or the corresponding number denoting the same, during the borrowing process on the app, you confirm that you have read,understood and accepted to be bound by these terms and conditions and that these terms form the complete loan offer and loan agreement between you and us.
2.3 By downloading/accessing the App and opening an Account with SK, you agree to comply with and be bound by the Terms and Conditions governing the operation of the Account and you affirm that the Terms and Conditions herein are without prejudice to any other right that SK may have with respect to the Account in law or otherwise.
2.4 These Terms and Conditions may be amended or varied by SK from time to time and the continued use of the Services constitutes your agreement to be bound by the terms of any such amendment or variation. SK will take all reasonable measures to notify you of any changes. If you do not consent to the varied terms. You have a right to immediately get intouch with us in writing to terminate your agreement upon which you shall be required to repay any dues owed to us immediately and desist from using or accessing the app. You shall also remove any marketing or signage that bears our logo or business reference.
2.5 From time to time 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 or streamed the latest version of the App and accepted any new terms and conditions.
2.6 By using the App or any of the Services, you consent to us collecting and using technical information about the Equipment and related software, hardware and peripherals for Services that are internet-based or wireless to improve our products and to provide any Services to you. If you use these Services, 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 Services and/or your experience while using the App.
2.7 By signing up as a one user type (business owner or end user customer), you SHALL not sign up as another user on the smart kiosk platform.
2.7 By accepting our terms and conditions you may be automatically enrolled into the K-Smart personal finance management and connection app which is part of our product offering. Terms and conditions of use for the K-Smart app are displayed on the app.
3. 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 App 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, you agree:
3.1.1 not to rent, lease, sub-license, loan, translate, merge, adapt, vary or modify the App;
3.1.2 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;
3.1.3 not to disassemble, decompile, reverse-engineer or create derivative works based on the whole or any part of the App or attempt to do any such thing except to the extent that such actions cannot be prohibited because they are essential for the purpose of achieving interoperability of the App with another software program, and provided that:
184.108.40.206 the information obtained by you during such activities is not unnecessarily disclosed or communicated without our prior written consent to any third party; and is not used to create any software that is substantially similar to the App;
220.127.116.11 you include our copyright notice on all entire and partial copies you make of the App on any medium; not to provide or otherwise make available the App in whole or in part (including object and source code), in any form to any person without prior written consent from us; and
3.1.4 to comply with all technology control or export laws and regulations that apply to the technology used or supported by the App or any Service (the Technology).
3.1.5 We do not claim nor licence you to use the Whatsapp communication channel , whose rights belong to META
not use the App or 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 App, any Service or any operating system;
not infringe our intellectual property rights or those of any third party in relation to your use of the App or any Service, including the submission of any material (to the extent that such use is not licensed by this Agreement);
not transmit any material that is defamatory, offensive or otherwise objectionable in relation to your use of the App or any Service;
not use the App or any Service in a way that could damage, disable, overburden, impair or compromise our systems or security or interfere with other users; and
not 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.
4 . TOGETHER ACCEPTABLE USE RESTRICTIONS
4.1 INTELLECTUAL PROPERTY RIGHTS
You acknowledge that all intellectual property rights in the App and the Technology anywhere in the world belong to us or our licensors, that rights in the App are licensed (not sold) to you, and that you have no rights in, or to, the App or the Technology other than the right to use each of them in accordance with the terms of this Agreement. You acknowledge that you have no right to have access to the App in source form.
4.2 USE OF THE SERVICES
4.2.1 The Services offered by SK can only be utilised by : a) those over the age of 18. SK reserves the right to verify your age with any provider or government agency.
4.2.2 The connect module (if any) is provided with NO guarantee of uptime or availability. We reserve the right to withdraw the same with no notice at any time at our discretion. We do not guarantee and cannot be held liable for the accuracy of the same records nor do we authenticate or provide a promise or claim that that the same will assist or enable you access facilities or services from any institution.
4.2.3 SK's acceptance of your application for an Account will be displayed on the App. You hereby acknowledge and accept that the acceptance by SK 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.
4.2.4 SK reserves the right to decline your registration, award of purchase points, award of referral bonus or to revoke the same at any stage at SK's sole and absolute discretion and without assigning any reason or giving any notice thereto. You shall not seek any compensation as a result nor hold us liable for the same.
4.2.6 You confirm that the interest and penalties levied + the total costs you will incur on default are suitable, necessary, affordable & that you have sought independent financial advice before using the APP specifically as pertains to obtaining a loan/credit facility with us.
4.2.7 You have read , understood and satisfied yourself on all risks associated with using the APP including borrowing/ obtaining a credit facility from our webpage - https://www.ksmart.tech/education and as per these terms.
4.2.8 You acknowledge that the security measures provided and/or suggested on the APP are suitable for you and sufficient to secure your information and transactions.
4.3 PERSONAL INFORMATION
4.3.1 You hereby agree and authorise SK to verify information provided by you to SK against the information held by credit reference bureaus/mobile money providers, mobile money statement, identity information providers or county and national governments and government agencies in relation to your Account
4.3.2 The information that SK may verify against the information held in 4.3.1 includes (without limitation): your phone number, name, date of birth, Identification Number ("ID"), photo (selfie), ID image , your mobile money statement, shop location and details, licence (county or registrar) , your shops registration licence and such other information that will enable SK to identify you and comply with the regulatory "Know Your Customer" requirements (together the "Personal Information").
4.3.3 You hereby agree and authorise SK to verify the information under 4.3.1 and 4.3.2 (the "Relevant Information").
4.3.4 You hereby agree and authorise SK to obtain and procure your Personal Information and Relevant Information from your respective provider/s under 4.3.1 and you further agree and consent to the disclosure and provision of such Personal Information by the provider and further to indemnify and hold SK and the Provider 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.
4.3.5 You hereby agree and authorise SK to obtain and procure your credit, identify & bio data from any authorised Credit Reference Bureau's (CRB) in Kenya and you further agree and consent to the disclosure and provision of such Personal Information by the Credit Reference Bureaus, including your past and present credit/borrowing/repayment history/credit checks. You authorise us to carry out credit checks at any time from time to time at our sole discretion to any authorised Credit Reference bureau
4.3.6 SK shall request for information from CRB from time to time as long as you remain registered on our platform and have not formally terminated services. You consent to the same.
4.3.7 SK reserves the right to supply consumer credit information to the Credit Reference Bureaus, and in this regard: you confirm that SK may transmit to the Credit Reference Bureaus data about the App, opening and termination of an Account by you;
4.3.8 you acknowledge that information on non-compliance with the Terms and Conditions of this Agreement is transferred to the Credit Reference Bureaus; and
4.3.9 The Credit Reference Bureaus provide a credit profile and possibly credit scores on your creditworthiness, subject to the credit record.
4.3.10 You authorise us to share your identification details, contact details, transaction details , aggregated summaries with any of our connection partners in relation to accessing other financial products from regulated providers.
4.3.11 You authorise us to share your Kenyan ID details in relation to confirming the details contained in the ID shared with us through any of our communication channels and APP with any government body authorised to provide the same and/or any company that provides such a service. You shall indemnify us and such organisations for this service.
4.3.12 You authorise us to share your photo/selfie in relation to confirming the same with any company that provides such a service. You shall indemnify us and such organisations for all losses or compensation that you may seek as a result of using this verification service.
4.3.13 You authorise us and any 3rd party providers contracted by us to use machine learning algorithms to determine the authenticity of any documents and information shared with us. You shall indemnify us and any of our nominated 3rd party processors for any loss/decisioning, storage, correctness of the outcome.
4.3.14 No Suit, prosecution or other legal proceedings shall lie against CBK, CRB, KSMART or chairperson,director,member,auditor,adviser,officer, or other employee or agent of CBK, CRB or SK for any loss or damage caused or is likely to be caused by anything which is done or intended to be done in good faith in pursuance of CBK (Digital Credit Providers) Regulations ("Regulations"), 2022, guidelines or directives issued under these regulations, or under the banking (Credit Reference Bureau) Regulations,2020.
4.3.15 You authorise us to share information relating to your credit account with us with CRB including submitting negative and positive credit information on your account's performance.
4.3.16 Information submitted in 4.3.15 above shall be in compliance with CBK Regulations as stipulated under the CBK (Digital Providers ) Regulations (PART IV- Credit Information ) and as they may change from time to time.
4.3.17 You hereby authorise us to access your CRB information on registration to enable us assess a suitable credit limit and every so often to review your credit standing on CRB or when a credit purchase request is made or when you access this section on our app.
4.4 You agree that we may:
include personal data of you or your company or business in our computer systems which may be accessed by other subsidiaries of Kweli Smart Solutions LTD for credit assessment , statistical analysis including behaviour and scoring and to identify products and services(including those supplied by 3rd parties) which may be relevant to you and
permit other subsidiaries of Kweli Smart Solutions LTD to use personal data and any other information it holds about you on SK's computers systems to bring to its attention products and services which may be of interest to you.
You agree that we may disclose any information relevant to you and your account with us relating to on terms that such recipient is to treat in confidence any confidential information so disclosed to it and further agrees that we may disclose personal data and/or information relating to you or any relevant party outside SK whether such personal data and/or information is obtained after the borrower ceases to be an SK customer or during the continuance of our relationship or before such relationship was in contemplation:-
for fraud prevention purposes;
to licensed credit reference agencies or any other creditor if the borrower agrees that such information may be used by other institutions in assessing credit applications and for debt tracing;
to licenced credit reference agencies or any other creditor for determining the borrowers payment history and the borrower agrees that his/her payment history may be used by other institutions in assessing credit applications and for debt tracing;
to our external lawyers, auditors & subcontractors or other persons acting as agents of SK;
to any other person who may assume SK's rights under the letter;
to any regulatory, fiscal or supervisory authority;
if we have a right or duty to disclose or are permitted or compelled to do so by law and for purposes exercising any power , remedy, right authority or discretion relevant to the letter, the conditions of the security following the occurrence of an event of default, to any other person or 3rd party as well.
By entering into this agreement, you authorise us to access and query your credit information from any of the licensed CRBs and to receive credit reports/scores/identity information (bio-data)/contact information from any of the licensed CRBs on behalf of myself in order to assess my credit worthiness or verify my identity, from time to time from the time i register on smart kiosk & as long as i have not withdrawn this consent in writing in order to assist us to accomplish our objectives and to enforce its rights under this agreement. I further consent to my credit information being shared with the licensed credit reference bureaus.
This consent shall not be withdrawn during the period in which my application is pending to or I have an outstanding balance with us
This consent shall automatically terminate upon clearance of all existing loans by myself to us and as long as I have no outstanding facilities with us
4.5 You acknowledge and agree that notwithstanding the terms of any other agreement between you and us , the disclosure by us of the information relevant to you and the account or facilities in the circumstances contemplated in this clause does not violate any duty owed to you either in common law pursuant to any agreement between us and you or in the ordinary course of our business and the customs, usage and practice related thereto and further that the disclosure as aforesaid may be made without reference to or further authority from you and without inquiry by us as the justification or validity of such disclosure.
4.6 No failure to exercise, nor any delay or omission on the part of SK in exercising any right or remedy hereunder shall operate as a waiver thereof nor shall any single or partial exercise of any right or remedy prevent any further or other exercise or any other right or remedy and you expressly agree and covenants with SK that you shall not plead limitation under the limitation of actions ACT (Chapter 22 of the laws of Kenya) or any other similar enactment. The rights and remedies of SK in respect of this facility or this account are cumulative and not exclusive of any right provided by law.
4.7 Each of the provisions of this conditions is severable and distinct from the others and if at any time, any provision hereby is or becomes illegal, invalid or unenforceable in any respect under the law of any jurisdiction, neither the legality , validity or enforceability of the remaining provisions under the law of any jurisdiction shall in any way be affected or impaired thereby. You shall operate with us in substitution of new provision in compliance with the intention contained in the conditions.
4.8 You shall not assign or transfer any of your rights and/or obligations in respect of the facility. We may assign or transfer all of any of our rights and/or obligations in respect of any borrowing/loan to any person or persons and may disclose any information relevant to the facility/loan/borrowing in our possession relating to you, to any actual or prospective assignee or transferee (or any other person);
in connection with a securitization of all or any part of our assets from time to time or; who may otherwise enter into contractual relations with SK in relation to the loan/credit extended.
5. REQUESTS MADE BY YOU
5.1 You hereby irrevocably authorise SK to act on all Requests received by SK from you (or purportedly from you) through any of our systems or communication channels and to hold you liable in respect thereof. SK may nevertheless refuse to carry out any Requests in its sole and absolute discretion.
5.2 Subject to its discretion, SK reserves the right to reject any Request in relation to a loan application or app transaction from you even if you have previously been issued with a loan by SK or transacted with SK.
5.3 SK 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 its absolute discretion, SK believes that it can correct the incomplete or ambiguous information in the Request without any reference to you being necessary.
5.4 SK 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 Requests on which SK may act if SK has in good faith acted in the belief that such instructions have been sent by you.
5.5 SK may, in its 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.
5.6 You agree to and shall release from and indemnify SK against all claims, losses, damages, costs and expenses howsoever arising in consequence of, or in any way related to SK having acted in accordance with the whole or any part of any of your Requests (or failed to exercise) the discretion conferred upon it.
5.7 You shall ensure that you set suitable security mechanisms on your device that are used to access our services or APP to deter any person or machine (known or unknown to you) from accessing our systems. In particular our whatsapp channel relies on you maintaining a suitable reliable deterrence by yourself such as a Phone secret password/ PIN in deterring other parties/persons/machines/Bot's from accessing the service and issuing instructions as you. You shall not access our Whatsapp channel or APP if your device doesn't have this security facility set and shall immediately notify us to block your account. If you become aware of loss of your access device/s or suspect your device/s have been used without your knowledge or without your permission, you shall notify us immediately to block your account. This however shall not lift any obligations outstanding received from you or purportedly by you and the same shall remain due when they fall due.
5.8 You acknowledge that to the full extent permitted by law SK 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 Phone PIN/PASSWORD / Account PIN, password, ID or any means whether or not occasioned by your negligence.
5.9 By registering and/or accessing the APP or whatsapp channel/s you confirm and have satisfied yourself as to the effectiveness and suitability of our set security mechanisms that allow you to gain access to the same services and you confirm that set security mechanisms are suitable for you.
5.10 SK is 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 laws.
5.11 In the event of any conflict between any terms of any Request received by SK from you and this Agreement, this Agreement shall prevail.
6. Interest and Penalties
6.1 The interest payable by you to SK in relation to any Loan shall be displayed by SK on the App. SK shall be entitled to set and interest / penalties (Collectively referred as "The charges"), in connection with your use of the Services and from time to time amend or vary them. SK shall not amend or introduce new charges on an existing loan. Any new charges/interest will be levied on subsequent borrowings and shall always be advised to you before. Should any new charge/tax/levy be introduced by any authority including BUT not limited to excise tax, we shall levy the same to you on subsequent borrowings and NOT existing borrowings and shall inform you of the same with a 30 days notice on our website and/or via our official whatsapp channel and/or via SMS and/or email. Payment for the same shall be made in the same mode as the loan the same is applied on and all charges/levies applicable such as but not including late fees shall be levied on the same which will be part and parcel of the all repayments due from you.
6.2 All payments to be made by you under this Agreement shall be made in full without any set off or counter claim 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 SK, you shall immediately pay to SK such additional amounts as will result in SK receiving the full amount it would have received had no such deduction or withholding been required.
6.3 If you fail to make any payments due to SK at the due date for payment, SK will be authorised to apply late payment interest on such amount loaned to you at a rate to be communicated to you in the loan offer document/ loan agreement.
6.4 interest is charged on a daily basis on a daily reducing balance basis based on the outstanding principal amount at the beginning of each day (at midnight) in advance. Interest will be charged on your daily outstanding principal loan on a daily basis until you have FULLY settled the principal loan. You agree to settle the same promptly and without any reminders.
Example: if the monthly interest charge for your loan is 12%, the daily interest chargeable will be 12% / 30 = 0.4% (12% divided by 30 days) therefore 0.4% will be levied on your principal balance at the beginning of every day in advance from midnight. The daily interest charge will be levied on your full principal loan until completed in full. (Note your monthly interest will be displayed in your loan offer/agreement document)
6.5 On Initial loan disbursement, the first day's interest will be levied in advance. subsequently every midnight, the outstanding principal will be computed and daily interest levied until the full principal is settled.
6.6 A penalty of 10% (penalty interest) will be levied on any outstanding instalment principal outstanding if the instalment principal amount is not received in FULL by the end of day of the instalment date.
How payments made by you are applied:
To offset part or whole amount of any previous outstanding loans on a "earliest instalment repayable first". The amount shall be applied to settle in full first any outstanding penalties, second - any outstanding interest, third - any outstanding principal. This will be applied in order of the earliest repayment instalment first for any loan. All payments made through any of our payment channels are first applied to settle your earliest unpaid instalment/s. You shall not selectively or through any instruction alter this mode nor request that a payment be channelled to a particular loan account or instalment.
Any overpayments shall be credited to your overpayments account and utilised to settle your loan on your next loan with us.
You may request for overpayments made by you to be refunded to you at any time by sending us a request via email or on your app dashboard. Such a request will be acknowledged within 24 working hours and processed and paid within 3 working days and credited ONLY to your mobile money account provided during your last loan disbursement. NOTE: The net overpayment sent to you will be subject to deduction of all applicable mobile money Business to Consumer (B2C) charges at the time of disbursement of the overpayment. Please note this is subject to the minimum amount at the time of disbursement of the net overpayment. If the amount is below the minimum threshold that can be sent via b2c with the mobile money operator or the amount due after deduction of the B2C charge is less than the minimum threshold or zero or less, the amount will continue to be retained in your overpayments account until such time when there is not activity in your borrowing profile with us, after which the amount shall be surrendered to the unclaimed financial assets authority as per the law.
Summary and breakdown of interest charges and general loan information
This will be highlighted to you during the borrowing process and in the loan offer / loan agreement in electronic Portable Document File Format and in summary format through a WhatsApp message from us.
DO NOT ACCEPT to proceed with any borrowing until you have received, read,understood and agreed to be bound by loan offer/ loan agreement document presented to you via a link to your email.
We store the master copy of the loan offer document in our servers for reference when required. You can however download a copy for ease of reference to your local device, when you receive the email with the loan offer and before you agree to proceed with any borrowing and within 1 hour of receiving the email. Should any discrepancy arise in the documents, our master copy stored in our servers shall prevail.
The loan offer / loan agreement shall contain a breakdown of the loan.
Principal Loan borrowed, Instalment Repayable and the date repayable , Interest applicable, Annualised Percentage Rate(APR), Total Cost of Credit (TCC), Loan repayment schedule. Penalty interest applicable, Total Repayable, Interest Repayable
7. Summary of Transactions and statements
7.1 A full statement shall be sent to you monthly. A statement and activity report in respect of your transactions and account can also be made available on Request. Requests shall be made via our e-mail address: email@example.com or via the App. If there has not been any activity (loaning or repayment transaction) or you do not have any outstanding loan then no statement shall be sent monthly.
7.1.1 On request from you through any of our channels under clause 7.7 in this agreement, we shall send a copy of the terms and conditions constituting your credit/loan agreement via email through the Portable Document Format (PDF) format within 24 working hours on normal working days.
7.2 The statement on the App shall provide details of the last 4 (four) transactions (or such other number of transactions as determined by SK) in your Account
7.3 Your statement will show all amounts debited & credited to your specific loan account & any payments that may have been applied. You must check your statement carefully and notify SK as soon as possible incase of any discrepancies in your statements. Each loan taken out will have its own unique loan reference number repayable according to the loan schedule agreed on the loan offer/agreement.
7.4 SK may rectify any discrepancies in your statement after informing you in writing of the required changes through your registered email. An amended statement will be sent to your email for your confirmation.
7.5 You will be notified of all loan transactions on your Account by way of Whatsapp and/or Email and/or SMS receipt.
7.6 Save for a manifest error, a statement issued to you in respect of your Account shall be conclusive evidence of the transactions carried out on your Account for the period covered in the statement.
7.7 You shall pay all mobile money wallet charges whilst making repayments to us or any charges incurred withdrawing any amounts credited to your mobile money wallet by us.
7.7 Complaint Handling channels and procedures
You may raise a complaint to us using any of the following channels:
Telephone - 0791 578693
Email - firstname.lastname@example.org
Physical Office Address: Kweli Smart Solutions (Trading as "Smart Kiosk", 2nd Floor, Eaton Place, UN Crescent Drive. Nairobi
You app dashboard via the section Talk to Us
Our working days are Monday to Friday with the exceptions of gazetted public holidays
Our Working Hours are between 9am to 4PM during the working days above
All complaints received will be acknowledged within 24 working hours of receipt.
8. Your Responsibilities
In addition to responsibilities highlighted under clause 4.2 and 4.3 of this agreement,
8.1 You shall at your own expense provide and maintain in safe and efficient operating order your Equipment necessary for the purpose of accessing the System and the Services.
8.2 You shall be responsible for ensuring the proper performance of your Equipment. SK shall neither be responsible for any errors or failures caused by any malfunction of your Equipment, and nor shall SK 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 SK shall not be responsible for losses or delays caused by any such service provider.
8.3 You shall follow all instructions, procedures and terms contained in this Agreement and any document provided by SK concerning the use of the System and the Services.
8.4 You hereby agree and acknowledge that you shall be solely responsible for the safekeeping and proper use of your Equipment and for keeping your phone access security and/or app PIN/Password ("Credentials)" secret and secure. You shall ensure that your Credentials do not become known or come into possession of any person. SK shall not be liable for any disclosure of your Credentials to any third party and you hereby agree to indemnify and hold SK harmless from any losses resulting from any disclosure of your Credentials.
8.5 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 SK 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 SK in the event that:
8.5.1 Should You have reason to believe that your Credentials are or may be known to any person (apart from you) and/or have been compromised; and/or
8.5.2 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.
8.6 You shall at all times follow the security procedures notified to you by SK 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 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 you.
8.7 You shall not at any time operate or use the Services in any manner that may be prejudicial to SK.
8.8 You are responsible for maintaining the correctness of your details in SK and KSMART and shall at the earliest possible time after registration login to KSMART and request for a password/PIN reset.
8.9 If available you may maintain your daily purchase and expenses records on the APP by supplying ONLY correct and truthful records within the time allowed.
8.10 SK relies on 3rd payment providers and services providers, intermediaries, the internet and thus system breakdown or service delays may occur at any time. You shall not rely on it to obtain emergency credit nor rely on it for business purposes that require urgency to make payments for goods or services whose delay or failure may result in any business and personal loss/reputation damage/death/injury/embarrassment to you due to delays that may result from computer systems failures or delays. Any delays shall be reported to us immediately. You shall indemnify us and any provider we use from any claims or liabilities that may arise as a result
This clause shall survive this contract termination by either party.
8.11 You shall cooperate in any queries directed to you or us via email/whatsapp/sms or via phone call and respond to the queries in a timely manner.
8.12 Should you be or have been the subject or under sanction by any authority local or global, or have been subject to any investigation relating to money laundering, financing of terrorism, asset recovery, corruption, you shall immediately inform us and cease with immediate effect from using our system. You confirm that you or any of the directors or senior managers or your company are not under investigation for any of the listed related activities nor have you been convicted of the same in any jurisdiction.
9. DEFAULT ON YOUR LOAN OBLIGATIONS WITH US
9.1 A default on your loan obligation with us occurs when you:
9.1.1 fail to fully repay any sum payable for a Loan extended to you under these Terms and Conditions when any instalment falls due and remains unpaid in FULL, unless failure to pay is caused solely by an administrative error or technical problem on our end; or are declared bankrupt.
9.2 At any time after an Event of Default has occurred which is continuing, SK may, without prejudice to any other right or remedy granted to it under any law:
9.2.1 terminate this Agreement in accordance with clause 10 below;
9.2.2 declare that the Loan (and all accrued interest or charges and all other amounts outstanding under this Agreement is immediately due and payable, whereupon they shall become immediately due and payable; and
9.2.3 supply information concerning the Event of Default to Credit Reference Bureaus. A copy of any adverse information concerning you sent to a Credit Reference Bureau shall be made available to you upon written request.
9.2.4 Each loan extended to you is repayable in full (principal + All interest + penalties) as stipulated in the loan offer / agreement. Any unpaid amounts will cause your credit to be entirely withdrawn together with all other services provided under the APP. You shall keep us indemnified against any loss of business/costs/goodwill you may incur arising from this action. Notwithstanding this, we reserve the right to remove, provide, increase or decrease a credit limit without providing any prior notice nor justification.
9.2.5 You are liable to pay or compensate us for all interest charged including legal fees / debt collection charges and fees arising from a default arising from any credit extended by us.
9.2.6 Any proposal to defer payments shall result in additional associated interest and terms and shall only take effect on your consent to them.
9.2.7 You can prepay any loan without any additional interest /fees/penalties.
9.2.8 Any defaulted instalment shall attract a daily interest charge based on the monthly interest rate chargeable and broken down to a daily charge levied on the outstanding principal on a daily basis until the principle is fully repaid.
10. VARIATION AND TERMINATION
10.1 SK may at any time, upon notice to you, terminate or vary its business relationship with you and close your Account and in particular but without prejudice to the generality of the foregoing SK may cancel credits / accumulated purchase points / referral bonus which it has granted.
However this variation shall NOT take effect if it relates to the credit terms of a current running loan or a paid up loan or outstanding loan without providing you with a 30 days notice via either email,whatsapp or sms and upon your acceptance.
10.2 Without prejudice to SK's rights under clause 12.1, SK may at its sole discretion suspend or close your Account:
10.2.1 if you use the Account for unauthorised purposes or where SK detects any abuse/misuse, breach of content, fraud or attempted fraud relating to your use of the Services;
10.2.2 if your Account or agreement with a Mobile Network Operator is terminated for whatever reason;
10.2.3 if SK is required or requested to comply with an order or instruction of or a recommendation from the government, court, regulator or other competent authority;
10.2.4 if SK reasonably suspects or believes that you are in breach of these Terms and Conditions (including non-payment of any Loan amount due from you where applicable) which you fail to remedy (if remediable) within 3 days after the service of notice by email, SMS or other electronic means requiring you to do so;
10.2.5 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; where your Account becomes inactive or dormant;
10.2.6 if SK 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
10.2.7 if you breach any of the Licence Restrictions or the Acceptable Use Restrictions.
10.2.8 if your bank account or till number or paybill number is terminated or unusable or suspended or
10.2.8.1 In the opinion of our technical team, requests to your bank/mobile provider have not been responsive or have been resulting in errors or have generally been failing without due remedy offered by your provider or bank.
10.3 If your Account has a credit balance at any time as a result of overpayment of any Loan, you may issue a written request to SK for a refund of the same & SK will refund any such balance to you , less any applicable mobile money fees/charges or bank charges. Provided the amount to refund less applicable money charges does not result in an amount less than 10 Kenya Shillings or the lowest amount that can be sent to you via mobile money through the business to customer channel. The overpayment shall never earn interest.
10.4 Termination shall however not affect any accrued rights and liabilities of either party.
10.5 If SK receives notice of your demise, SK will not be obliged to allow any operation or withdrawal from your 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 your legal representatives duly appointed by a court of competent jurisdiction.
10.6 We may withdraw your credit limit at any time without providing reason or notice on the same. The discretion on the credit limit we can extend to you is purely at our discretion and we are not obliged to provide you with any credit limit.
11. EXCLUSION OF LIABILITY
11.1 SK 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 SK's 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, pandemics, adverse weather or atmospheric conditions, and failure of any public or private telecommunications system.
11.2 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.
11.3 The app is strictly for the purposes described in these terms and conditions. It is not for resale, you should not use it for critical business use or where you are likely to suffer losses due to downtime. You shall indemnify us all liability arising from any loss including but not limited to loss profit, loss of business, business interruption, or loss of business opportunities.
11.4 SK will not be liable for any losses or damage suffered by you as a result of or in connection with:
11.4.1 any defect or fault in the App or any Service resulting from you having altered or modified the App;
11.4.2 any defect or fault in the App resulting from you having used the App in breach of the terms of this Agreement;
11.4.3 your breach of any of the Licence Restrictions or the Acceptable Use Restrictions;
11.4.4 unavailability of sufficient funds in your Mobile Money Account crucial to enabling you complete non-credit purchases and/or partial credit purchases;
11.4.5 failure, malfunction, interruption or unavailability of the System, your Equipment, 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;
11.4.6 any fraudulent or illegal use of the Services, the System and/or your Equipment; or
11.4.7 Your failure to comply with these Terms and Conditions and any document or information provided by SK concerning the use of the System and the Services.
11.5 If for any reason other than a reason mentioned in clauses 11.1 to 11.4, the Services are interfered with or unavailable, SK's sole liability under this Agreement in respect thereof shall be to re-establish the Services as soon as reasonably practicable.
11.6 Save as provided in clause 11.5, SK shall not be liable to you for any interference with or unavailability of the Services, however caused.
11.7 Under no circumstances shall SK be liable to you for any loss of profit or anticipated savings or for any indirect or consequential loss or damage of whatever kind, however caused, arising out of or in connection with the Services even where the possibility of such loss or damage is notified to SK.
11.8 All warranties and obligations implied by law are hereby excluded to the fullest extent permitted by law.
12.1 In consideration of SK complying with your instructions or Requests in relation to your account, you undertake to indemnify SK and hold it harmless against any loss, charge, damage, expense, fee or claim which SK suffers or incurs or sustains thereby and you absolve SK from all liability for loss or damage which you may sustain from SK acting on your instructions or requests or in accordance with these Terms and Conditions.
12.2 The indemnity in clause 12.1 shall also cover the following:
12.2.1 All demands, claims, actions, losses and damages of whatever nature which may be brought against SK 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, pandemics, sabotage, terrorism, any other event beyond SK'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 SK.
12.2.2 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.
12.2.3 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.
12.2.4 Any loss or damage occasioned by the failure by you to adhere to these Terms and Conditions and/or by supplying of 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 SK as a consequence of any breach by these Terms and Conditions.
12.2.5 Any damages and costs payable to SK in respect of any claims against SK for recompense for loss where the particular circumstance is within your control.
13. COMMUNICATION BETWEEN US
13.1 You may contact us through the phone number - 0791 578693 during working hours and days or through a number as may be advised to you from time to time or through your dashboard under your profile > Talk to Us section or as may be advised to you from time to time.
If you wish to contact us in writing, or if any condition in these Terms and Conditions requires you to give us notice, you can send this to us by e-mail to email@example.com or to such e-mail address that may be communicated to you from time to time. We will confirm receipt of this by contacting you in writing by email.
13.2 If we have to contact you or give you notice in writing, we will do so by e-mail or by sms to the registered mobile phone number or email address you provide to us in your request or registration on the App. Evidence from us via our email copy or sms copy or server logs or Whatsapp logs from our WhatsApp Channel provider confirming the same from our server shall be sufficient proof of us having sent to you any communication or any communication between us having successfully taken place.
13.3 From time to time we may send you marketing or promotional material to you regarding our services and products or general service information by one or more of the following means a) SMS b) Email c) Whatsapp d) Phone call e) In app message. You can opt out of any marketing and promotions messages at any time as described in the message or by contacting us through any of our communication channels. Opting out of these channels may also hinder you receiving important security, service, transaction communication from us.
14.1 Remedies Cumulative
14.1.1 No failure on the part of any party to exercise, or delay on its part in exercising, any right, power or remedy provided by this Agreement or by law shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any further or other exercise of that, or any other, right, power or remedy.
14.2 No waiver
14.2.1 No failure by SK to exercise, and no delay in exercising, any right or remedy in respect of any provision of this Agreement shall operate as a waiver of such right or remedy.
14.3 Effect of invalidity
14.3.1 If any provision or part of a provision of this Agreement shall be, or be found by any court of competent jurisdiction to be, invalid or unenforceable, such invalidity or unenforceability shall not affect the other provisions or parts of such provisions of this Agreement, all of which shall remain in full force and effect.
15. ENTIRE AGREEMENT
15.3 You and we agree that neither of us shall have any claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.
16. DISPUTE RESOLUTION
16.1.1 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. To this end, the Parties in dispute shall each promptly appoint representatives of appropriate standing who shall meet and attempt to resolve any dispute between them. In the event that an amicable settlement has not been reached within thirty (30) days of the parties' representatives meeting as aforesaid, the following provisions of this clause shall apply.
16.2.1 Any dispute, difference or question whatsoever and howsoever arising out of or in connection with this Agreement, save as specifically provided herein, shall be referred for final determination to a single arbitrator to be appointed by agreement between the parties hereto or in default of any such agreement within seven (7) days of the notification of any dispute by either party to the other then, upon application by either party, by the Chairman for the time being of the Kenya Branch of the Chartered Institute of Arbitrators ("Institute").
16.2.2 Such arbitration shall take place in Nairobi and shall be conducted in accordance with the Rules of Arbitration of the Institute.
16.2.3 To the extent permissible by law the determination of the arbitrator shall be final and binding upon the Parties and shall not be subject to any appeal.
16.2.4 Nothing in this clause 18.2 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.
17. GOVERNING LAW
17.1 This Agreement shall be governed by and construed in accordance with the laws of Kenya.
18.3 SK may hold and process, by computer or otherwise, any information obtained about you as a consequence of your account with us.
19. SK's Education Portal
You confirm you accept and have educated yourself on the education portal found here (https://www.ksmart.tech/education) and that summarises key risks / benefits of using our services and you have found our services suitable for use.