Branch International | Terms of Use

Branch Microfinance Bank Limited Terms of Use and Account Agreement - Kenya

Terms and Conditions for the Opening and Use of an Account with Branch Microfinance Bank Limited

WHEREAS

This Agreement sets out the terms and conditions between you (“End-user” or “you”) and Branch Microfinance Bank Limited, a company duly incorporated under the laws of the Republic of Kenya and licensed as a microfinance bank with company registration number CPR/2015/183658 (“Branch”, “Bank” “Us” or “We”) for the use and operation of the Bank’s mobile application, (the “App”) the operation of your account with the Bank, your use, operation and access to any of the Bank’s Services as defined below and other ancillary matters.

In addition to these Terms and Conditions, additional terms relating to specific transactions or matters may be communicated to you on the App or our website (“Additional Terms”). Those Additional Terms are incorporated into this Agreement and shall form part of this Agreement and shall be applicable to your Account (as hereinafter defined) opened with the Bank and your use of the Services.

These Terms and Conditions and any amendments or variations thereto take effect on their date of publication.

You have the right to seek independent legal counsel in order to fully understand the implications and potential consequences of agreeing to these Terms and Conditions prior to clicking the “Accept” button. By clicking the “Accept” button on the App which you hereby adopt as your electronic signature, you indicate that you have read, understood and agreed to be bound by these Terms and Conditions (as may be amended, supplemented and varied from time to time).

IT IS AGREED AS FOLLOWS:

1.: DEFINITIONS AND INTERPRETATION

1.1: Definitions

For the purposes of this Agreement and the preamble above, unless the context requires otherwise:

1.1.1: Acceptable Use Restrictions has the meaning given to it in clause 5; Agreement means this Agreement;

1.1.2: Branch Account or “Account” means the bank account held by you with the Bank which is opened and operated on the App in accordance with the terms and conditions of this Agreement. For the avoidance of doubt, your Savings Accounts shall be treated as Branch Accounts;

1.1.3: Business Day means a day other than a Saturday, Sunday or national or public holiday in the Republic of Kenya;

1.1.4: Credentials means your personal credentials, including your Personal Identification Number used to access the App and operate your Account;

1.1.5: Credit Reference Bureau means a credit reference bureau duly licensed under the Banking Act pursuant to the Banking (Credit Reference Bureau) Regulations, 2013, as amended, revised or promulgated from time to time, to inter alia, collect and facilitate the sharing of customer credit information;

1.1.6: Data Processing Terms and Conditions means the Bank’s Data Processing Terms and Conditions that sets out the basis on which any personal data we collect from you, or that you provide to us, will be processed by us;

1.1.7: E-Money means the electronic monetary value depicted in your Mobile Money Account representing an equal amount of cash;

1.1.8: 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;

1.1.9: Equipment includes your mobile phone handset, SIM Card and/or other equipment which when used together enables you to access the Network;

1.1.10: Event of Default has the meaning given to it in clause 26.1;

1.1.11: Fixed Savings Account means the interest yielding account where your fixed Savings with the Bank is domiciled for the agreed duration;

1.1.12: Flexi Savings Account means the interest yielding account holding your Savings with the Bank and which you are entitled to withdraw at any time;

1.1.13: Force Majeure means events, circumstances or causes beyond the Bank’s reasonable control making the performance of its obligations inadvisable, commercially impracticable, illegal, or impossible, including but not limited to acts of God, war, pandemics, strikes or labour disputes, embargoes or government orders;

1.1.14: IPRS means Integrated Population Registration System;

1.1.15: Licence Restrictions has the meaning given to it in clause 4;

1.1.16: Loan means the principal amount of the loan made or to be made by the Bank to you under this Agreement from time to time through the App including the interest and fees payable under the Loan or (as the context requires) (b) any amount outstanding for the time being of that Loan;

1.1.17: 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;

1.1.18: Mobile Money means the money transfer and payments service operated by the Mobile Money Providers in Kenya;

1.1.20: 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;

1.1.21: Mobile Money Service means the money transfer and payments service provided by the Mobile Money Providers through the Mobile Money System;

1.1.23: Mobile Money System means the system operated by the Mobile Money Providers in Kenya for the provision of the Mobile Money Service;

1.1.25: Mobile Network Operator means a mobile network operator in Kenya registered with the Communications Authority of Kenya;

1.1.26: Network means a mobile cellular network operated by a Mobile Network Operator;

1.1.27: Pesalink Service means the Integrated Payment Service for all participating Banks in Kenya which facilitates instant local funds transfer in Kenya;

1.1.28: Request means a request or instruction received by the Bank from you or purportedly from you through the Network and the System and upon which the Bank is authorised to act;

1.1.29: Savings refer to any moneys deposited with us under any of our Savings Products;

1.1.30: Services shall include any form of financial services or products that the Bank may offer you pursuant to this Agreement and as you may from time to time subscribe to as well as your use of the Branch App and System and “Service” shall be construed accordingly;

1.1.31: 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;

1.1.32: SMS means a short message service consisting of a text message transmitted from your mobile phone to another;

1.1.33: System means the Branch App and it’s electronic communications software enabling you to communicate with the Bank for purposes of the Services. The System and the Services will for the purpose of this Agreement be accessed through the Mobile App;

1.1.34: Target Savings Account is the product available to you as the Bank’s customer and which allows you to save towards a target amount over a defined period of time and up to the target date. The funds in the Target Savings Account are locked in and earn interest up until the target date in accordance with these terms and conditions;

1.1.35: Technology has the meaning given to it in clause 3.1.4;

1.1.36: Third Party Partners mean banks, payment companies, identity verification companies, asset management firms, credit reference bureaus, debt recovery companies, or any other person (entity) that provides any form of service or information to us for the provision of the Service;

1.1.37: Transaction Fees includes any fees and charges payable for the use of the Services as published by the Bank on the App or website or by such other means as the Bank shall in its sole discretion determine. Transaction Fees are subject to change at any time at the Bank’s sole discretion; and

1.2: Interpretation

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;

1.2.2: a reference to any one gender, whether masculine, feminine or neuter, includes the other two.

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.

PART A- General Provisions

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 the Bank before streaming the App or opening an Account with The Bank. These Terms and Conditions govern the use and operation of the App and the Account.

2.2: After downloading the App, you will be deemed to have accepted the Terms and Conditions upon clicking the “Accept” option on the App 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 on the App. Please note that you will not be able to access the Services if you decline the Terms and Conditions. If you do not agree to the Terms and Conditions, we will not license the App to you.

2.3: By downloading the App and applying to open an Account with the Bank, 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 the Bank may have with respect to the Account in law or otherwise.

2.4: These Terms and Conditions may be amended or varied by the Bank from time to time and your continued use of the Services constitutes your agreement to be bound by the terms of any such amendment or variation. The Bank will take all reasonable measures to notify you of any changes.

2.5: From time to time updates to the App may be issued through the website or on the App. 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.

3.: GRANT AND SCOPE OF LICENCE

3.1

In consideration of you agreeing to abide by the terms of this Agreement, we grant you a non-transferable, non-exclusive licence to use the 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 inter-operability of the App with another software program, and provided that:

3.1.3.1: 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;

3.1.3.2: 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

4.: LICENCE RESTRICTIONS

4.1

You must:

4.1.1: 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;

4.1.2: 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);

4.1.3: not transmit any material that is defamatory, offensive or otherwise objectionable in relation to your use of the App or any Service;

4.1.4: 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

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.

5.: 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 the Bank can only be utilized by persons over the age of 18 and are legally resident in Kenya. Your application to open a Branch Account is dependent on the Bank’s verification of your identity, status and any other applicable information including verifying the authenticity and status of your Mobile Money Account with the relevant Mobile Money Provider.

5.2.2: Your application to open a Branch Account shall be filled electronically on the Branch App after you have provided the requested information and we have carried out our assessment. The Bank’s acceptance of your application for an Account will be displayed on the App. You hereby acknowledge and accept that the Bank’s acceptance 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.

5.2.3: The Bank reserves the right to decline your application to use any the App, open an Account or our Services or to revoke the same at any stage at its sole and absolute discretion and without assigning any reason or giving any notice thereto.

5.2.4: The Bank reserves the right (in its sole and absolute discretion) to issue, decline to issue a loan and/or vary the terms of any loan depending on its assessment of the credit profile of each individual borrower from time to time.

5.3

PERSONAL INFORMATION

5.3.1

In order to open and operate your Account and for you to use our Services, the Bank shall require personal information about you. The information that the Bank may collect about you include (without limitation):

Your full Name
Your Date of Birth
Phone number
Gender
Address
Occupation
Photograph
Identification Number (“ID”) or Passport Number,
Copy of a valid Government issued ID (national ID, international passport, permanent voter’s card or driver’s license);
Copy of recent utility bill, bank statement, affidavit, or another bill, dated within three months of our request, which carries your name and address; and
Such other information or documents that will enable the Bank to identify you, comply with the regulatory “Know Your Customer” requirements and satisfy our internal risk assessment (together the “Personal Information”).

5.3.2: The Bank may need to procure and verify information including, but not limited to, data relating to your phone (including, without limitation, your phone’s history) from your Equipment, from any SMS sent to you by the Mobile Money Providers and any financial services providers relating to your use of the Mobile Money Service and such other information as the Bank shall require for purposes of providing you the Services (the “Relevant Information”).

5.3.3: You warrant that all information and documentation provided to us are true, correct, and accurate. You also undertake to notify us of any changes to the information or documentation which you have provided.

5.3.4: Personal Information and Relevant Information may be obtained from IPRS, Mobile Money Provider and Third Party Partners and any other database or public registry containing such information. You hereby agree and authorise the Bank to obtain and procure your Personal Information and Relevant Information from IPRS, your respective Mobile Money Provider, Third Party Partners and any other database or public registry containing information of the nature you have provided. You further agree and consent to the disclosure and provision of such Personal Information by IPRS, the Mobile Money Provider, Third Party Partners and or other database and registries. You agree to indemnify and hold the Bank, IPRS, the Mobile Money Provider, Third Party Partners harmless with respect to any claims, losses, liabilities and expenses (including legal fees and expenses) that may arise as a result of the disclosure and reliance on such Personal Information and/or Relevant Information.

5.3.5: You hereby consent to the Bank verifying the authenticity of the Personal Information and the Relevant Information with IPRS, the Mobile Money Providers and Third Party Partners and using of the Personal Information and the Relevant Information to the extent necessary in the opinion of the Bank and in accordance with the Date Processing Terms and Conditions.

5.3.6: You hereby agree and authorise the Bank to obtain and procure your Personal (and other) Information from the Credit Reference Bureaus and you further agree and consent to the disclosure and provision of such Personal Information by the Credit Reference Bureaus. Such Information from the Credit Reference Bureau may be used to assess your creditworthiness.

5.3.7: The Bank reserves the right to request for further information from you pertaining to your application for an Account or the use of any of our Services at any time. Failure to provide such information within the time required by the Bank may result in the Bank declining to accept your application for an Account or the use of the Services.

5.3.8: The Bank reserves the right to supply consumer credit information to the Credit Reference Bureaus, and in this regard: you confirm that the Bank may transmit to the Credit Reference Bureaus data about your use of the App or our Services, your opening and termination of an Account.

5.3.9: You acknowledge that information on non-compliance with the Terms and Conditions of this Agreement shall be provided to the Credit Reference Bureaus or any other applicable Authority in Kenya;

5.3.10: You expressly consent to the transmission of your Personal Information, Relevant Information and Transactional Information to Credit Reference Bureaus (and such other credit authority) upon the breach of this Agreement and in accordance with applicable law. and

6. REQUESTS MADE BY THE BORROWER

6.1: You hereby irrevocably authorise the Bank to act on all Requests received by the Bank from you (or purportedly from you) through the System and to hold you liable in respect thereof. The Bank may nevertheless refuse to carry out any Requests in its sole and absolute discretion.

6.2: Subject to its discretion, the Bank reserves the right to reject any Request in relation to a Loan application from you even if you have previously been issued with a Loan by the Bank.

6.3: The Bank 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, it believes that it can correct the incomplete or ambiguous information in the Request without any reference to you being necessary.

6.4: The Bank 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 the Bank may act if the Bank has in good faith acted in the belief that such instructions have been sent by you.

6.5: The Bank 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 release from and indemnify the Bank against all claims, losses, damages, costs and expenses howsoever arising in consequence of, or in any way related to the Bank 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, the Bank 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: You can only cancel your request by contacting us through customer care. Cancellation will however only be allowed where your request is revocable and has not yet been acted on. If the Bank is able to cancel your instruction, you may be charged for such cancellation.

6.9: The Bank 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.

6.10: In the event of any conflict between any terms of any Request received by the Bank from you and this Agreement, this Agreement shall prevail.

7. TRANSACTION FEES

7.1: The Bank shall be entitled to set and charge Transaction Fees, in connection with your use of the Services and from time to time amend or vary its Transaction Fees for the Services. Where the Bank decides to charge Transaction Fees or where already applicable, vary or amend its Transaction Fees, the Transaction Fees payable on any Service will be displayed on the App. The Bank will use reasonable endeavours to notify you of any changes in relation to Transaction Fees within a reasonable period before such changes are implemented including displaying notices of the changes on the App or the Bank’s website.

7.2: All payments to be made by you under this Agreement shall be made in full without any set off or counterclaim and save in so far as required by the law to the contrary, free and clear of and without any deduction or withholding whatsoever. If you are at any time required to make any deduction or withholding from any payment to the Bank, you shall immediately pay to the Bank such additional amounts as will result in the Bank receiving the full amount it would have received had no such deduction or withholding been required.

7.3: If you fail to make any payments due to the Bank at the due date for payment, the Bank will be authorised to apply late fees, default interest or penalties on such amount due.

7.4: The Bank may deduct from your Account(s) any applicable Transaction Fees in respect of any Services provided to you.

7.5

The Bank may also debit your account with expenses incurred:

(a) in complying with your requests;
(b) in complying with the requests of authorized and accredited Government or other agencies in relation to your Account;
(c) in collecting or attempting to collect any amount of money you owe the Bank;
(d) Expenses incurred in realizing any security or protecting the subject matter of any security issued to the Bank.

8. STATEMENTS

8.1: A statement and activity report in respect of your Account (s) will be made available on Request. Requests shall be made via our e-mail address: [email protected] or via a contact link on the App.

8.2: The statement on the App shall provide details of the last 4 (four) transactions (or such other number of transactions as determined by the Bank) in your Account initiated from your Equipment.

8.3: Your statement will show all amounts added or taken from your Account. You must check your statement carefully and notify the Bank 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.

8.4: The Bank reserves the right to rectify discrepancies, add and/or alter the entries in your statements, without prior notice to you. The Bank will however inform you of any rectification, additions and or alterations effected on your statements within a reasonable time after the changes are effected.

8.5: 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.

8.6: Save for a manifest error, a statement issued to you in respect of your Branch Account shall be conclusive evidence of the transactions carried out on your Branch Account for the period covered in the statement.

9. TAXES

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 the Bank 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 the Bank may withhold amounts in your Account if any tax authority or regulatory body requires the Bank to do so, or the Bank is otherwise required by law or pursuant to agreements with any tax authority to do so, or if the Bank needs to comply with internal policies or with any applicable order or sanction of a tax authority or regulatory body.

10. USER'S RESPONSIBILITIES

10.1: You shall at your own expense provide and maintain your Equipment in safe and efficient operating order necessary for the purpose of accessing the System and the Services.

10.2: You shall be responsible for ensuring the proper performance of your Equipment. The Bank shall neither be responsible for any errors or failures caused by any malfunction of your Equipment, and nor shall the Bank be responsible for any computer virus or related problems that may be associated with the use of the System, the Services and the Equipment. You shall be responsible for charges due to any service provider providing you with connection to the Network and the Bank 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 the Bank 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 other person. The Bank shall not be liable for any disclosure of your Credentials to any third party and you hereby agree and indeed, indemnify and hold The Bank harmless from any losses resulting from any disclosure or use of your Credentials by persons other than you.

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 the Bank are examined and checked by you or on your behalf as soon as practicable after receipt by you in such a way that any unauthorised use of and access to the System will be detected. You shall immediately inform the Bank 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 communicated to you by the Bank from time to time or such other procedures as may be applicable to the Services from time to time. You acknowledge that any failure on your part to follow the recommended security procedures may result in a breach of your Account’s security and confidentiality. In particular, you shall ensure that the Services are not used or Requests are not issued or the relevant functions are not performed by anyone other than a person authorised to do so.

10.7: You shall not at any time operate or use the Services in any manner that may be prejudicial to the Bank.

10.8: You shall ensure that your Branch Accounts, Mobile Money, cards or other bank accounts are pre funded on or before the repayment dates. You hereby authorise us to charge any other card or accounts listed against your name on the App after unsuccessful attempts on any of your Account/cards. You shall also indemnify us for any charges or fees due in respect of failed or unsuccessful direct debits on your bank accounts or cards.

11. REWARDS AND BONUSES

11.1: We may give you rewards and bonuses which may include credits redeemable only on the App. These bonuses may be redeemed against specific transactions as indicated on the App.

11.2: The rewards will be credited in your Account once the qualifying transaction is completed or the conditions of issuance are satisfied.

11.3: These rewards may be withdrawn or cancelled if it comes to our knowledge that the bonuses were awarded in error or on the basis of fraud, collusion or false or inaccurate information or fictitious transaction.

11.4: The Bank reserves the right to cancel any reward or bonuses.

12. VARIATION AND TERMINATION

12.1: The Bank 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) cancel any Loan which it has granted and require the immediate repayment of outstanding debts resulting from such Loans within such time as the Bank may determine.

12.2

Without prejudice to the Bank’s rights under clause 12.1, the Bank may at its sole discretion suspend or close your Account:

12.2.1: if you use the Account for unauthorised purposes or where the Bank detects any abuse, misuse, breach of content, illegal activity, fraud or attempted fraud relating to your use of the System or the Services;

12.2.2: if your Mobile Money Account or agreement with a Mobile Network Operator is terminated for whatever reason;

12.2.3: if the Bank is required or requested to comply with an order or instruction of or a recommendation from the government, court, regulator or other competent authority;

12.2.4: if the Bank 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 14 days after the service of notice by email, SMS or other electronic means requiring you to do so;

12.2.5: where such a suspension or variation is necessary as a consequence of technical problems or for reasons of safety; to facilitate an update or upgrade the contents or functionality of the Services from time to time;

12.2.6: if the Bank 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;

12.2.7: where your Account becomes inactive or dormant; or

12.2.8: if you are in breach of any of the Licence Restrictions or the Acceptable Use Restrictions.

12.3: If your Account has a credit balance at any time following the suspension or closure of your Account, you may issue a Request to the Bank for payment of such credit balance and the Bank will return any such balance to you, less any applicable Fees, to your Mobile Money Account or any other bank account within Kenya.

12.4: Termination shall however not affect any accrued rights and liabilities of either party.

12.5: If the Bank receives notice of your demise, the Bank will not be obliged to allow any operation or withdrawal from your Account by any person except upon production of valid administration letters from a competent authority or confirmed grant of probate by your legal representatives duly appointed by a court of competent jurisdiction.

13. EXCLUSION OF LIABILITY

13.1: The Bank shall not be responsible for any loss suffered by you should the Services be interfered with or be unavailable by reason of the failure of any of your Equipment, or any other circumstances whatsoever not within the Bank’s control including, without limitation, (a) a Force Majeure event (b) any error, interruption, delay or non-availability of the System or Mobile Network Operator (c) any acts of terrorism or any enemy action resulting in equipment failure (d) loss of power (e) adverse weather or atmospheric conditions; and (f) failure of any public or private telecommunications system; (e) delay or failure with the transmission, delivery, or non delivery of electronic messages (including payment instructions) or any mistake, omission or error in transmission or delivery thereof in deciphering message from any cause whatsoever or from its misinterpretation or any other action beyond its control.

13.2: 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.

13.3: 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.

13.4

The Bank will not be liable for any losses or damage suffered by you as a result of or in connection with:

13.4.1: any defect or fault in the App or any Service resulting from you having altered or modified the App;

13.4.2: any defect or fault in the App resulting from you having used the App in breach of the terms of this Agreement;

13.4.3: your breach of any of the Licence Restrictions or the Acceptable Use Restrictions;

13.4.4: unavailability of sufficient funds in your Account or Mobile Money Account;

13.4.5: 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;

13.4.6: loss of funds or any other financial damage that you may suffer as a result of your failure to keep your Credential secure, secure access to your Branch App by maintaining a pin or any other reasonable safety precaution for users of mobile financial services;

13.4.7: any fraudulent or illegal use of the Services, the System and/or your Equipment;

13.4.8: your failure to comply with these Terms and Conditions and any document or information provided by the Bank concerning the use of the System and the Services.

13.5: If for any reason other than a reason mentioned in clauses 13.1 to 13.4, the Services are interfered with or unavailable, The Bank’s sole liability under this Agreement in respect thereof shall be to re-establish the Services as soon as reasonably practicable.

13.6: Save as provided in clause 13.5, The Bank shall not be liable to you for any interference with or unavailability of the Services, howsoever caused.

13.7: Under no circumstances shall the Bank 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 the Bank.

13.8: All warranties and obligations implied by law are hereby excluded to the fullest extent permitted by law.

14. INDEMNITY

14.1: In consideration of the Bank complying with your instructions or Requests in relation your Account, you undertake to indemnify the Bank and hold it harmless against any loss, charge, damage, expense, fee or claim which the Bank suffers or incurs or sustains thereby and you absolve the Bank from all liability for loss or damage which you may sustain from the Bank acting on your instructions or requests or in accordance with these Terms and Conditions.

14.2

The indemnity in clause 14.1 shall also cover the following:

14.2.1: all demands, claims, actions, losses and damages of whatever nature which may be brought against the Bank or which it may suffer or incur arising from its acting or not acting on any Request or arising from the malfunction or failure or unavailability of any hardware, software, or equipment, the loss or destruction of any data, power failures, corruption of storage media, natural phenomena, riots, acts of vandalism, sabotage, terrorism, any other event beyond the Bank’s control, interruption or distortion of communication links or arising from reliance on any person or any incorrect, illegible, incomplete or inaccurate information or data contained in any Request received by the Bank;

14.2.2: 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;

14.2.3: 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;

14.2.4: any loss or damage occasioned by, your failure to adhere to these Terms and Conditions and/or by supplying incorrect information or loss or damage occasioned by the failure or unavailability of third party facilities or systems or the inability of a third party to process a transaction or any loss which may be incurred by the Bank as a consequence of any breach by these Terms and Conditions;

14.2.5: any damages and costs payable to the Bank in respect of any claims against the Bank for recompense for loss where the particular circumstance is within your control.

15. ANTI MONEY LAUNDERING AND COUNTERING FINANCING OF TERRORISM

15.1: Prior to making our Services available to you or at any time during the course of our relationship with you, we may carry out such investigations and screenings including PEP Screening, Sanctions Screening and enhanced due diligence or any other investigation as required under applicable Money Laundering Regulations.

15.2: To comply with relevant AML obligations, we may request information on the transactions carried out on your Account such as (a) details of the recipient (b) source of funds being transferred (c) purpose of the transfer or payment being made. You confirm that you will provide all requested information required in respect of the transaction in this regard.

15.3: You also agree that we may cancel any transaction, suspend your Account or refuse to open an Account in your name if you refuse to provide the requested information or if any information provided is untrue or inaccurate.

15.4: Please note that for certain transactions, we or our Third Party Partners may be required to file AML or related reports (without notice to you) with the relevant regulators. These reports may include details of your Personal Information, transactions, investment activity, operation or proposed operation of the investment account or any of our Services. You agree and consent to us providing the aforementioned information to regulatory or law enforcement bodies.

16. TRANSACTION LIMITS

16.1: All transfer of funds, whether deposit or withdrawal from your Branch Account to your M-pesa Accounts or any other Account shall be subject to the deposit and withdrawal limits under the M-pesa Service or other Interbank or payment system network limits.

16.2

Services Singular Transaction Limit Daily Transaction Limit

Mpesa Kes 250,000 Kes 500,000

Pesalink Kes 999,999 N/A

16.3: Deposits to and withdrawals from your Branch Account available shall be subject to applicable limits or such limits you may have set on your Mobile App.

17. COMPLAINTS

17.1: Any complaint regarding these terms and conditions or the provision of any service to you may be made in writing by reaching out to our customer service team using the Contact Us tab within the App. You may also send an email to us at [email protected] We assure you that the Bank will take all reasonable measures to resolve your complaints within a reasonable time.

18. COMMUNICATION BETWEEN US

18.1: 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 [email protected] 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 or through the App.

18.2: If we have to contact you or give you notice in writing, we will do so by e-mail or by sms to the mobile phone number or email address you provide to us in your request for the App. You consent and agree that we may communicate with you by sms on the phone number on the Safaricom mobile phone number associated with your Mpesa account.

19. GENERAL

Remedies Cumulative

19.1: 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.

No waiver

19.2: No failure by the Bank 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.

Effect of invalidity

19.3: 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.

Assignment

19.4: The Bank reserves the right to transfer or assign its rights and obligations under this Agreement (including its obligation to lend money or the amount owed under this Agreement) to another person.

20. ENTIRE AGREEMENT

20.1: These Terms and Conditions, our Data Processing Terms and Conditions as well as such additional terms as may be made available to you on our App, constitute the entire agreement between you and us and supersede and extinguish all previous agreements, promises, assurances, warranties, representations and understandings between us, whether written or oral, relating to its subject matter.

20.2: You acknowledge that in entering into this Agreement you do not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in these Terms and Conditions or our Data Processing Terms and Conditions.

20.3: You and Us agree that neither of us shall have any claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.

21. DISPUTE RESOLUTION

21.1: The Parties shall use their good faith efforts to resolve any dispute, controversy or claim of any nature whatsoever arising out of or in relation to or in connection with this Agreement. Any dispute arising out of or in connection with this agreement that is not resolved by customer care representatives shall be escalated in line with the Bank’s complaint resolution policy and process.

22. GOVERNING LAW

22.1: This Agreement shall be governed by and construed in accordance with the laws of Kenya and the Kenyan Courts shall have jurisdiction.

Part B- OUR LOANS

This section covers the provision of loan products to You.

23. ELIGIBILITY

23.1: You may apply for a Loan on the Branch App after you have accepted these Terms and Conditions and the Data Processing Terms and Conditions. You hereby consent to us using information provided to us, from your Equipment or other databases or public registries for the purpose of underwriting your loan application.

24. YOUR LOAN APPLICATION

24.1: An application for the Loan will be made on the App and upon a successful consideration of your loan application, the Loan shall be disbursed into your Branch Account.

24.2: Your Loan Application shall be considered on the basis of Personal Information, Relevant Information, information from Credit Reference Bureaus, our Know Your Customer and Credit Evaluation Processes in order to assess your creditworthiness and to assign you a credit score.

24.3: If your loan application is unsuccessful, you will be notified on the App and the reasons for the refusal may be provided to you on the App. You will also be informed if you are eligible to reapply for a loan. Please note that your loan application will be unsuccessful if you have defaulted on any past Loan.

24.4: The Bank reserves the right (in its sole and absolute discretion) to approve or decline to approve a Loan even if you have previously been issued with a Loan on the App. We reserve the right to vary the terms of any Loan (including interest rate) depending on our assessment of the credit profile of each borrower from time to time. Notice of any changes to the terms of any existing Loan will be communicated to you.

24.5: The details of your Loan – principal amount, interest payable, repayment days, transaction fees etc. will be made available to you on the App for every successful loan application. Please do not click continue if the approved terms are not acceptable to you.

25. YOUR RIGHTS AND OBLIGATIONS AS A BORROWER

25.1

As a borrower, You

25.1.1: undertake to repay all amounts including principal, interest including (default interest where applicable), fees, taxes, or any other amount that may be due to us on the dates agreed using the repayment channels made available on the App;

25.1.2: shall be held responsible for the repayment of any Loan disbursed to you or your Account on the App;

25.1.3: shall ensure that your card, Branch Accounts or other bank accounts are pre funded on or before the repayment dates. You hereby authorise us to charge any other card or accounts listed against your name on the App after unsuccessful attempts on any of your account/cards. You shall also indemnify us for any charges or fees due in respect of failed or unsuccessful direct debits on your bank accounts or cards.

25.1.4: shall not use the proceeds of the Loan for any illegal or criminal activity including but not limited to money laundering or financing of terrorism.

25.1.5: provide all necessary assistance that we may require for the collection or realisation of any outstanding amounts due from You to us.

26. EVENTS OF DEFAULT

26.1

An event of default (Event of Default) shall be deemed to have occurred when:

26.1.1: you fail to pay any sum payable under a Loan in accordance with a scheduled repayment;

26.1.2: any representation, information, warranty or assurance made or given by You (or obtained by the Bank from a third party) in connection with your loan application is incorrect, inaccurate or misleading;

26.1.3: any document or information you provided in connection with your loan application ceases to be correct or accurate;

26.1.4: you do anything which may prejudice the Bank’s rights under this Agreement;

26.1.5: you use or attempt to use the App or the Services for an unauthorised purpose;

26.1.6: you are declared bankrupt, insolvent or unable to pay your debts as they fall due under Kenyan law; or

26.1.7: the Bank has reasonable grounds for coming to the conclusion that you are not able to repay a Loan granted to you on the due date; or

26.1.8: you are in breach of any of the terms and conditions of this Agreement.

26.2

At any time after an Event of Default has occurred, the Bank may, without prejudice to any other right or remedy granted to it under any law:

26.2.1: terminate this Agreement;

26.2.2: declare that the Loan (and all accrued interest and all other amounts outstanding) under this Agreement is immediately due and payable, whereupon they shall become immediately due and payable;

26.2.3: enforce its rights to recover the Loan by exercising all such rights available to a lender under Kenyan law including but not limited to the set off rights in clause 27 below, the right to assign the Loan to collection agencies etc. and;

26.2.4: supply information concerning the Event of Default to Credit Reference Bureaus. A copy of any information concerning you sent to a Credit Reference Bureau shall be made available to you upon written request.

26.2.5: The Bank reserves the right to assign its right, title and interest in the Loan and rights under the Agreement to an external collections agency who will take all reasonable steps to collect the outstanding Loan (together with any interest and fees accrued), and in this regard, the Bank shall have the right to share with such collection agencies, any information about the Borrower (including transaction history, Personal Information, Relevant Information) which it deems relevant. You consent to us sharing Personal Information, Relevant Information and transactional information with the collections agency for the purposes of collecting the Loan.

26.2.6: The Bank also reserves the right to institute legal proceedings for the recovery of any outstanding Loan with or without any prior notice to you.

26.2.7: The Borrower shall be responsible for all legal costs and expenses incurred by the Bank in connection with any enforcement action taken by the Bank or the collection agency for the collection and repayment of the Loan (together with any interest or fees due on the Loan).

26.3: In the event that an Event of Default occurs, the Borrower grants the Bank the right to notify recovery or collection agencies who may assist with the recovery of the outstanding Loan amount. You agree and consent to such notification.

26.4: Where any Loan or any amount is due to us and outstanding following the due date, you authorise us (without notice to you) to set off any amounts outstanding in your Branch Accounts, Savings or Investment Account, including all interests earned to repay the outstanding loan amount without any prior notice to you.

26.5: The Bank shall have a general lien over all your property/assets in its possession in the event that you owe any money to the Bank including but not limited to cash, goods, securities or valuables deposited for safe custody as security, cheques presented, bills and any other movable or immovable property charged to secure repayment of any money, whether or not that money has been repaid, and also over all property in respect of which, by the general law, the Bank has lien.

27. SET OFF

27.1: By signing this Agreement and by drawing on the Loan, you covenant to repay the loan as and when due. In the event that You fail to repay the Loan as agreed, and the Loan becomes delinquent, you covenant and warrant that the Bank shall have power to set-off your indebtedness from all such monies and funds standing to your credit/benefit in any and all such accounts or from any other financial assets belonging to you and in the custody of the Bank. You covenant and agree that the Bank shall have the right to take whatever steps necessary to direct all banks and other financial institutions in Kenya to set-off your indebtedness from any money standing to your credit in any bank account and from any other financial assets they may be holding for your benefit.

27.2: You hereby waive any right of confidentiality whether arising under common law or statute or in any other manner whatsoever and irrevocably agree that you shall not argue to the contrary before any court of law, tribunal, administrative authority or any other body acting in any judicial or quasi-judicial capacity.

Part C- SAVINGS PRODUCTS

28.1: You may open a Target Savings Account (s) with the Bank where you save your funds on a regular basis towards the Target Savings Amount. The duration for such Target Savings shall be calculated by reference to weeks, months or years (for example, target date of 1 week or 1 month or 1 year) with the minimum target period being 30 days.

28.2: The interest rate on the Target Savings Account shall be the prevailing rate on the App on the day you deposit the funds in your Target Savings Account or such prevailing rate as applied by the Company and communicated to you. Interest on the funds in your Target Savings Account are calculated for the duration and such interest paid into your Target Savings Account on the Target Date.

28.3: Your Target Savings are locked until the target date indicated on the App. This means that you will lose any interest earned if you choose to withdraw any part or the full Target Savings Amount at any time before the target date. On the target date, the Target Savings Amount will be paid into your Branch Account.

28.4: You may open more than one Target Savings Account at any time.

29 FIXED SAVINGS ACCOUNT

29.1: You may deposit funds into your Fixed Savings Account with the Bank for the tenure which you have indicated on the App. The minimum period for the fixed savings is 30 days.

29.2: The interest rate on the Fixed Savings Account shall be the prevailing rate on the App when you deposit the funds in the Fixed Savings Account or such prevailing rate as applied by the Company and communicated to you from time to time. Interest on the funds in your Fixed Savings Account are calculated for the duration of the savings and accrued interest paid into your Fixed Account on maturity of the savings.

29.3: You agree that you cannot withdraw the balance in your Fixed Savings Account and/or accrued interest, whether partially or fully, before the maturity date. At maturity, your matured funds will be paid into your Branch Account.

30. FLEXI SAVINGS ACCOUNT

30.1: We offer a Flexi Savings Account where you can save your money, earn interest and withdraw the funds in the account at any time.

30.2: The interest rate on the Flexi Savings Account shall be the prevailing rate on the App when you deposit the funds in the Flexi Savings Account or such prevailing rate as applied by the Company and published on the App. All funds in your Flexi Savings Account shall accrue interest on a daily basis and such interest paid into your Flexi Account on a weekly basis.

30.3: You understand that you may withdraw the balance in your Flexi Savings Account and/or accrued interest at any time. In the event of a partial withdrawal of the balance from your Flexi Savings Account, you agree to us treating such balance as a new deposit, subject to the relevant interest rate and other terms and conditions at the prevailing time.

30.4: Upon a withdrawal, your savings (including accrued interest where applicable) shall be transferred to your Branch Account, less applicable taxes (including withholding tax).

31. PROVISIONS APPLICABLE TO ALL SAVINGS PRODUCTS

31.1: Other than the Flexi Savings Account, the Bank may change the prevailing rates on the Savings Products at any time provided that such change in rate will be communicated to you immediately. Interest rate on the Flexi Savings Account may be changed without prior notice to you.

31.2: All interest earned on the savings products are subject, at the point of payment or withdrawal, to applicable taxes including withholding tax.

31.3: The minimum amount on all Savings Accounts shall be Ksh10 while the duration for the Fixed or Target Savings Account shall be up to 12 months.

31.4: We may decline your request to open or operate a Savings Account with us at any time.

31.5: No overdraft or drawing is permitted on any of your Savings Account.

31.6: You agree to pay all Transaction Fees in connection with the Savings as shall be notified to you through the App. Any changes to the Transaction Fees will be communicated to you within a reasonable time.

31.7: You authorise the Bank to deduct from your Account, (without reference to you) any Transaction Fee and all other fees expenses and taxes, duties, impositions and expenses incurred in relation to your use of the Services.

PART D- BRANCH ACCOUNT

32. YOUR BRANCH ACCOUNT

32.1: Once your application to open an Account has been approved, a Branch Account will be opened for you. The Branch Account shall have the same number as the number associated with your Mobile Money Account.

33. FUNDING AND TRANSFER OUT OF YOUR BRANCH ACCOUNT

33.1: Subject to any Transaction Limits that are applicable to the Branch Accounts or your funding accounts, your Branch Account may be credited by transfers from (a) other Branch Account holders, (b) any bank or financial institution in Kenya, (c) your or a third Party Mobile Money Account in Kenya. Your Branch Account may also be funded by Branch if your approved Loan is disbursed into the Branch Account.

33.2: You may transfer the funds in your Branch Account to any Branch Account or any Mobile Money Account in Kenya. You can also use the funds in your Branch Account to pay bills on the Branch App. You undertake to pay and to indemnify Branch for any processing charges and fees for the transfers to and from your Branch Accounts.

34. PROCESSING TRANSACTIONS

34.1

We may not process your transfer or payment instructions if:

34.1.1: your instructions are unclear;

34.1.2: you have insufficient funds in your Account;

34.1.3: there is a suspicion of criminal, fraudulent or illegal activity on your Branch Account;

34.1.4: there is a suspicion of unauthorised access on your Branch Account;

34.1.5: we (and/or our Partners) are legally restricted from completing the transfers;

34.1.6: the amount being transferred exceeds your payment or Transaction limits (where applicable);

34.1.7: your Branch Account has been dormant for more than 6 months;

34.1.8: we are prohibited or restricted from doing so in accordance with the payment system regulations or any applicable law in Kenya;

34.1.9: your payment instruction cannot be executed using the selected service;

34.2.0: you have exceeded the transaction limit for that service.

34.2: You are responsible for providing the correct details for the recipient of your transfers or payments. We bear no liability where you enter the wrong amount or payment details for any funds transfer. Where payments are made according to your instructions and those instructions were wrong, but authorised, we will work with our partners to assist you in retrieving the amount if you notify us promptly. Where we are unable to retrieve the payment, we will assist you with the relevant information in our possession that you may need to reclaim your funds.

34.3: You are required to set a password to carry out transactions using the Branch Accounts. When your password is entered to confirm a transaction, you confirm that we may treat the transaction as having been authorised.

34.4: Overdrawn amounts from your Branch Account may be treated as a Loan which is immediately due and repayable to us. We also recover the Loan as we would under clause 26 above.

35. PESALINK SERVICE

35.1: The Bank offers an instant payment service using the Pesalink Service. This service is available on the Branch App for facilitating transactions with participating banks.

35.2: The Bank shall execute such payment instructions or the use of the Service by the Customer in accordance with the terms of this Agreement.

36. KEEPING YOUR BRANCH ACCOUNT SECURE

36.1: It is your duty to keep your Credentials to your Branch Accounts and the App secure. Where you suspect that the security of your Branch Accounts or your Branch App may have been compromised, you are required to inform us as soon as possible. Please change your Credentials immediately. Branch will not be liable for transactions carried out where access to your Branch Account has been compromised by you, accessed with your Credentials, malware or human interference outside of our control.

37. DEPOSIT INSURANCE SCHEME

37.1: Funds in your Branch Account (including your Savings but excluding any portion representing a disbursed loan) are covered under the Kenya Deposit Insurance System subject to the prevailing limits imposed by the Kenya Insurance Deposit Corporation.

38. DORMANT ACCOUNT

Your Branch Account (s) will be classified as inactive if you do not carry out any transaction on the Branch App for a cumulative period of six months. Where you do not carry out any transaction within two years (and where we have not received any communication from you), we will classify your account as dormant and consequently upon the fifth year, transfer the funds in your account to the Unclaimed Financial Assets Authority or such as other relevant authority at the prevailing time.

39. CLOSING YOUR BRANCH ACCOUNT

39.1: Your Branch Accounts will be closed in the following circumstances (a) on your written instructions directing that we close your Account; (b) in accordance with the regulatory directives or an order of the court.

39.2: Where you inform us or we have reasonable grounds to believe that your Branch App has been accessed and is being operated without your authorisation, we may close your Branch Account and disable your access to the Branch App.

39.3: In this instance of a closure, we will notify you and at your request, the balance in your Branch Account may be transferred to any bank account of your choice.

40. DATA PROCESSING TERMS AND CONDITIONS

40.1: We only use your personal information in accordance with our Data Processing Terms and Conditions. Please take the time to read our Data Processing Terms and Conditions, as it includes important terms which apply to you.

40.2: Upon downloading the App and clicking the “Accept” option with respect to these Terms and Conditions, you will be deemed to have accepted the Bank’s Data Processing Terms and Conditions, a copy of which is available on the App.

Terms of use