Whereas,This is a financial services Agreement and an end-user licence agreement between you (“End-user” or “you”) and Nilipie payments limitedunder the laws of the Republic of Kenya with a company registration number, PVT-3QU9RYL (“Nilipie”, “us” or “we”) for the mobile application software, the data supplied with the software and the associated Services (defined below).
By accessing, using, downloading or installing any material that belongs to Nilipie payments limited, you agree to be bound by these Terms and Conditions.
These Terms and Conditions and any amendments or variations thereto take effect on their date of publication.
IT IS AGREED AS FOLLOWS:
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 5;
Agreement means this Agreement;
Account means your account with NILIPIE PAYMENTS LIMITED;
Credentials means your personal credentials used to access the USSD or NilipieService App and operate your Account;
Equipment means phone, tablet or any other equipment which whenused, enables you to access the Nilipieservices.
Nilipie Services means NilipiePaymentsLimited’s services.
Means events, circumstances or causes beyond its reasonable control of Nilipie payments limitedmaking Nilipie service performance of its obligations inadvisable, commercially impracticable, illegal, or impossible, including but not limited to acts of God, war, strikes or labour disputes, embargoes or government orders;
Encumbrance includes any 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 4;
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 authorized 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 Nilipie Service from you or purportedly from you through the Network and the System and upon which Nilipie Service is authorised to act;
Services shall include any form of financial services or products that Nilipie Service may offer you pursuant to this Agreement and as you may from time to time subscribe to and “Service” shall be construed accordingly;
SMS means a short message service consisting of a text message transmitted from your mobile phone to another;
System means Nilipie Service electronic communications software enabling you to communicate with Nilipie Service 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
Transaction Fees includes any fees and charges payable for the use of the Services as published by Network Provider and are subject to change the relevant regulatory bodies.
1.2.1 In addition to the definitions in clause 1.1, unless the context requires otherwise: the singular shall include the plural and vice versa;
1.2.3 All the headings and sub-headings in this Agreement are for convenience only and are not to be taken into account for the purposes of interpretation of this Agreement.
1.2.4 The recitals and schedules shall be deemed to form part of this Agreement.
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 Nilipie Service (the Terms and Conditions) before downloading or Opening an account with Nilipie Service which will govern the use and operation of the Account.
2.2 By downloading the Terms and Conditions and opening an Account with Nilipie Service, 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 Nilipie Service may have with respect to the Account in law or otherwise.
2.4 These Terms and Conditions may be amended or varied 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. Nilipie Service will take all reasonable measures to notify you of any changes.
2.5 From time to time updates 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 Nilipie Service Services, USSD / Portal, you consent to us collecting and using technical information about the service 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.
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 Nilipie Service services 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 inter-operability of the App with another software program, and provided that:
18.104.22.168 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;
22.214.171.124 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 USSD / Portal or any Service (the Technology).
Together Licence Restrictions
4.1 You must:
4.1.1 Not use the 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 Nilipie Service portal / USSD or any Service or any operating system;
4.1.2 Not infringe our intellectual property rights or those of any third party in relation to your use of the Service, including the submission of any material (to the extent that such use is not licensed by this Agreement);
4.1.3 Not transmit any material that is defamatory, offensive or otherwise objectionable in relation to your use of the Service;
4.1.4 Not use the Service in a way that could damage, disable, overburden, impair or compromise our systems or security or interfere with other users; and
4.1.5 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.
Together Acceptable Use Restrictions
5.1 INTELLECTUAL PROPERTY RIGHTS
5.1.1 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-code form.
5.2 USE OF THE SERVICES
5.2.1 The Services offered by Nilipie Service can only be utilized by persons over the age of 18. Nilipie Service reserves the right to verify the authenticity and status of your Mobile Money Account with the relevant Mobile Money Provider.
5.2.2 Nilipie Service acceptance of your application for an Account will be displayed on the App. You hereby acknowledge and accept that the acceptance by Nilipie Service of your application for an Account does not create any contractual relationship between you and the Mobile Money Providers beyond the terms and conditions that apply to your Mobile Money Account from time to time.
5.3 PERSONAL INFORMATION
5.3.1 You hereby agree and authorise Nilipie Service to verify information provided by you to Nilipie Service against the information held by the Mobile Money Providers in relation to your Mobile Money Account pursuant to the agreement between you and the relevant Mobile Money Provider for the
provision of its products and services and the Mobile Money Service.
5.3.2 The information that Nilipie Service may verify against the information held by the Mobile Money Providers includes (without limitation): your phone number, name, date of birth, Identification Number (“ID”) or other information that will enable Nilipie Service to identify you and comply with the regulatory “Know Your Customer” requirements (together the “Personal Information”).
5.3.3 You hereby agree and authorise Nilipie Service to 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 Nilipie Service shall require for purposes of providing you the Services (the “Relevant Information”).
5.3.4 You hereby consent to Nilipie Service verifying the Personal Information and the Relevant Information with the Mobile Money Providers and using of the Personal Information and the Relevant Information to the extent necessary in the opinion of Nilipie Service.
5.3.5 You hereby agree and authorise Nilipie Service to obtain and procure your Personal Information and Relevant Information from your respective Mobile Money Provider and you further agree and consent to the disclosure and provision of such Personal Information by the Mobile Money Provider and further to indemnify and hold Nilipie Service and the Mobile Money 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.
5.3.6Nilipie Service reserves the right to request for further information from you pertaining to your application for an Account at any time. Failure to provide such information within the time required by Nilipie Service may result in Nilipie Service declining to accept your application for an Account.
Requests Made by Customer
6.1 You hereby irrevocably authorise Nilipie Service to act on all Requests received by Nilipie Service from you (or purportedly from you) through the System and to hold you liable in respect thereof. Nilipie Service may nevertheless refuse to carry out any Requests in its sole and absolute discretion.
6.2 Nilipie Service 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, Nilipie Service believes that it can correct the incomplete or ambiguous information in the Request without any reference to you being necessary.
6.3Nilipie Service 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 Nilipie Service may act if Nilipie Service has in good faith acted in the belief that such instructions have been sent by you.
6.4 Nilipie Service 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.
6.6 You agree to and shall release from and indemnify Nilipie Service against all claims, losses, damages, costs and expenses howsoever arising in consequence of, or in any way related to Nilipie Service having acted in accordance with the whole or any part of any of your Requests (or failed to exercise) the discretion conferred upon it.
6.7 You acknowledge that to the full extent permitted by law Nilipie Service shall not be liable for any unauthorised drawing, transfer, remittance, disclosure, any activity or any incident on your account by the fact of the knowledge and/or use or manipulation of your Account PIN, password, ID or any means whether or not occasioned by your negligence.
6.8 Nilipie Service 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.
6.9 In the event of any conflict between any terms of any Request received byNilipie Service from you and this Agreement, this Agreement shall prevail.
A statement and activity report in respect of your Account will be made available on Request. Requests shall be made via our e-mail address: email@example.com or via a contact link on the App.
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 Nilipie Service) in your Account initiated from your Equipment.
7.3 Your statement will show all amounts added or taken from your Account. You must check your statement carefully and notify Nilipie Service as soon as possible if it includes any transaction or other entry which appears to you to be wrong or not made in accordance with your instructions.
7.4 Nilipie Service reserves the right to rectify discrepancies, add and/or alter the entries in your statements, without prior notice to you. Nilipie Service will however inform you of any rectification, additions and or alterations effected on your statements within a reasonable time after the changes are effected.
7.5 You will be notified of all transactions on your Account by way of SMS and the charges for this service will be debited to your Account.
7.6 Save for a manifest error, a statement issued to you in respect of your Nilipie Service Account shall be conclusive evidence of the transactions carried out on your Nilipie Service Account for the period covered in the statement.
7.7You will be deemed to have approved and accepted the correctness of the statement if you will not have objected within Twenty-eight (28) days from its date.
8.1 Our transaction charges are as per our tariff available at the Nilipie Service website which may vary from time to time.
8.2 For a complete guide on our tariff, please visit http://
9.1 All payments to be made by you in connection with these Terms and Conditions are calculated without regard to any taxes payable by you. If any taxes are payable in connection with the payment, you must pay Nilipie Service an additional amount equal to the payment multiplied by the appropriate rate of tax. You must do so at the same time as making the payment.
9.2 You hereby consent and agree that Nilipie Service services may withhold amounts in your Account if any tax authority requires to do so, or Nilipie Service is otherwise required by law or pursuant to agreements with any tax authority to do so, or if Nilipie Service needs to comply with internal policies or with any applicable order or sanction of a tax authority.
10.1 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.
10.2 You shall be responsible for ensuring the proper performance of your Equipment. Nilipie Service shall neither be responsible for any errors or failures caused by any malfunction of your Equipment, and nor shall Nilipie Service 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 Nilipie Service shall not be responsible for losses or delays caused by any such service provider.
10.3 You shall follow all instructions, procedures and terms contained in this Agreement and any document provided by Nilipie Service concerning the use of the System and the Services.
10.4 You hereby agree and acknowledge that you shall be solely responsible for the safekeeping and proper use of your Equipment and for keeping your Credentials secret and secure. You shall ensure that your Credentials do not become known or come into possession of any unauthorised person. Nilipie Service shall not be liable for any disclosure of your Credentials to any third party and you hereby agree to indemnify and hold Nilipie Service harmless from any losses resulting from any disclosure of your Credentials.
10.5 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 Nilipie Service 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 Nilipie Service in the event that:
10.5.1 You have reason to believe that your Credentials are or may be known to any person not authorised to know the same and/or have been compromised; and/or
10.5.2 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.
10.6 You shall at all times follow the security procedures notified to you by Nilipie Service 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 a person authorised to do so.
10.7 You shall not at any time operate or use the Services in any manner that may be prejudicial to Nilipie Service.
Variation and Termination
11.1 Nilipie Service 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 Nilipie Service may cancel credits which it has granted.
11.2 Without prejudice to Nilipie Service’s rights under clause 11.1, Nilipie Service may at its sole discretion suspend or close your Account:
11.2.1 if you use the Account for unauthorised purposes or where Nilipie Service detects any abuse/misuse, breach of content, fraud or attempted fraud relating to your use of the Services;
11.2.2 if your Account or agreement with a Mobile Network Operator is terminated for whatever reason;
11.2.3 if Nilipie Service is required or requested to comply with an order or instruction of or a recommendation from the government, court, regulator or other competent authority;
11.2.4 if Nilipie Service reasonably suspects or believes that you are in breach of these Terms and Conditions
11.2.5 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;
11.2.6 if Nilipie Service 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
11.2.7 if you breach any of the Licence Restrictions or the Acceptable Use Restrictions.
11.3 Termination shall however not affect any accrued rights and liabilities of either party.
11.4 If Nilipie Service receives notice of your demise, Nilipie Service 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.
Exclusion of Liability
12.1 Nilipie Service 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 Nilipie Service’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, adverse weather or atmospheric conditions, and failure of any public or private telecommunications system.
12.2 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.
12.3 We only supply the App for domestic and private use. You agree not to use the App and Documents for any commercial, business or resale purposes, and we have no liability to you for any loss of profit, loss of business, business interruption, or loss of business opportunity.12.4 Nilipie Service will not be liable for any losses or damage suffered by you as a result of or in connection with:
12.4.1 any defect or fault in the App or any Service resulting from you having altered or modified the App;
12.4.2 any defect or fault in the App resulting from you having used the App in breach of the terms of this Agreement;
12.4.3 your breach of any of the Licence Restrictions or the Acceptable Use Restrictions;
12.4.4 unavailability of sufficient funds in your Mobile Money Account;
12.4.5 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;
12.4.6 any fraudulent or illegal use of the Services, the System and/or your Equipment; or
12.4.7 your failure to comply with these Terms and Conditions and any document or information provided by Nilipie Service concerning the use of the System and the Services.
12.5 If for any reason other than a reason mentioned in clauses 11.1 to 11.4, the Services are interfered with or unavailable, Nilipie Service’s sole liability under this Agreement in respect thereof shall be to re-establish the Services as soon as reasonably practicable.
12.6 Save as provided in clause 11.5, Nilipie Service shall not be liable to you for any interference with or unavailability of the Services, howsoever caused.
12.7 Under no circumstances shallNilipie Service be liable to you for any loss of profit or anticipated savings or for any indirect or consequential loss or damage of whatever kind, howsoever caused, arising out of or in connection with the Services even where the possibility of such loss or damage is notified to Nilipie Service
12.8 All warranties and obligations implied by law are hereby excluded to the fullest extent permitted by law.
13.1 In consideration of Nilipie Service complying with your instructions or Requests in relation your Account, you undertake to indemnify Nilipie Service and hold it harmless against any loss, charge, damage, expense, fee or claim which Nilipie Service suffers or incurs or sustains thereby and you absolve Nilipie Service from all liability for loss or damage which you may sustain from Nilipie Service acting on your instructions or requests or in accordance with these Terms and Conditions.
13.2 The indemnity in clause 13.1 shall also cover the following:
13.2.1 All demands, claims, actions, losses and damages of whatever nature which may be brought against Nilipie Service 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 Nilipie Service’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 Nilipie Service.
13.2.2 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.
13.2.3 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.
13.2.4 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 Nilipie Service as a consequence of any breach by these Terms and Conditions.
13.2.5 Any damages and costs payable to Nilipie Service in respect of any claims against Nilipie Service for recompense for loss where the particular circumstance is within your control.
Communication Between Us
14.1 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 firstname.lastname@example.org 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 e-mail
14.2 If you wish to speak to us directly you can reach us through our customer care number 0703012300.
14.3If we have to contact you or give you notice in writing, we will do so by e-mail or by sms to the mobile phone number or email address you provide to us in your request for the App.
15.1 Remedies Cumulative
15.1.1 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.
15.2 No waiver
15.2.1 No failure by Nilipie Service 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.
15.3 Effect of invalidity
15.3.1 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.
16.3 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.
17.1.1 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 20 shall apply.
17.2.1 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”).
17.2.2 Such arbitration shall take place in Nairobi and shall be conducted in accordance with the Rules of Arbitration of the Institute.
17.2.3 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.
17.2.4 Nothing in this clause 19.2 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.
18.1 This Agreement shall be governed by and construed in accordance with the laws of Kenya.