WHEREAS
This Agreement is a financial services and an end-user licence agreement 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 a company registration number ……………………… (“Branch”, “Bank” “Us” or “We”) for the mobile application software, the data supplied with the software and the associated Services provided by the Bank (defined below) (“App”).
This Agreement (together with our Data Processing Terms and Conditions) and such other terms and conditions made available to you on the App, sets out the complete terms and conditions (the “Terms and Conditions”) which shall be applicable to the Account (as hereinafter defined) opened by you with the Bank.
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, 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:
Acceptable Use Restrictions has the meaning given to it in clause 5;
Agreement means this Agreement;
Account means your loan account with Branch;
Business Day means a day other than a Saturday, Sunday or national or public holiday in the Republic of Kenya;
Credentials means your personal credentials, including your Personal Identification Number used to access the App and operate your Account;
Credit Reference Bureau means a credit reference bureau duly licensed under the Banking Act pursuant to the Banking (Credit Reference Bureau) Regulations, 2013, as amended, revised or promulgated from time to time, to inter alia, collect and facilitate the sharing of customer credit information;
E-Money means the electronic monetary value depicted in your Mobile Money Account representing an equal amount of cash;
Equipment includes your mobile phone handset, SIM Card and/or other equipment which when used together enables you to access the Network;
Event of Default has the meaning given to it in clause 25.1;
Fixed Savings Account means the interest yielding account where your fixed Savings with Us is domiciled for the agreed duration;
Flexi Savings Account means the interest yielding account holding your Savings with Us and which you are entitled to withdraw at any time;
Force Majeure means events, circumstances or causes beyond Branch’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;
Encumbrance includes any mortgage or charge (whether legal or equitable), lien, option, security interest, restrictive covenant, pledge, assignment, title retention, trust arrangement or other restriction of any kind or other encumbrance securing or any right conferring a priority of payment in respect of any obligation of any person;
Licence Restrictions has the meaning given to it in clause 4;
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 or (as the context requires) the principal amount outstanding for the time being of that loan;
Mobile Money Account means your mobile money store of value, being the record maintained by Mobile Money Providers in Kenya of the amount of E-Money from time to time held by you in the Mobile Money Provider’s System;
Mobile Money means the money transfer and payments service operated by the Mobile Money Providers in Kenya;
Mobile Network Operator means a mobile network operator in Kenya registered with the Communications Authority of Kenya;
Mobile Money Provider means a Mobile Network Operator that has been duly 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;
Data Processing Terms and Conditions means the BIL 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;
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;
Savings means moneys deposited with us under any of our savings products;
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 and “Service” shall be construed accordingly;
SIM Card means the subscriber identity module which when used with the appropriate mobile phone handset enables you to access the Network and to use the Mobile Money Account;
SMS means a short message service consisting of a text message transmitted from your mobile phone to another;
System means Branch’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 a Mobile Network Operator’s System;
Technology has the meaning given to it in clause 3.1.4;
Third Party Partners mean banks, payment companies, asset management firms, credit reference bureaus, debt recovery companies, or any other person (entity) that provides any form of service or information to us for the provision of the Service;
Transaction Fees includes any fees and charges payable for the use of the Services as published by the Bank on the Bank’s 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
Wallet means the virtual storage account provided to you on the App.
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.
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 (the Terms and Conditions) before downloading or streaming the App or opening an account with Branch. These Terms and Conditions govern the use and operation of the App and the Account.
After downloading the App, you will be deemed to have accepted the Terms and Conditions upon clicking the “Accept” option on the Bank’s System 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 Bank’s System. 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 opening 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 the 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. 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
3.1.4 to comply with all technology control or export laws and regulations that apply to the technology used or supported by the App or any Service (the Technology).
4. TOGETHER 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. 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 the Bank can only be utilized by persons over the age of 18. The Bank reserves the right to verify the authenticity and status of your Mobile Money Account with the relevant Mobile Money Provider.
5.2.2 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 for a loan 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. The terms of the loan and the interest rate payable in relation to each loan application will be displayed on the App.
5.3 PERSONAL INFORMATION
5.3.1 You hereby agree and authorise the Bank to verify information provided by you to the Bank 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. You also authorise the Bank to verify any information you have provided against information held by any Third Party Partner or any other database or public registry containing information of the nature you have provided.
5.3.2 The information that BIL may verify against the information held by the Mobile Money Providers or Third Party Partner includes (without limitation): your phone number, name, date of birth, gender, address, occupation, Identification Number (“ID”) or Passport Number and such other information that will enable the Bank to identify you and comply with the regulatory “Know Your Customer” requirements (together the “Personal Information”).
5.3.3 You hereby agree and authorise the Bank 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 the Bank shall require for purposes of providing you the Services (the “Relevant Information”).
5.3.4 You hereby consent to the Bank verifying the Personal Information and the Relevant Information with 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.
5.3.5 You hereby agree and authorise the Bank to obtain and procure your Personal Information and Relevant Information from your respective Mobile Money Provider /Third Party Partners and you further agree and consent to the disclosure and provision of such Personal Information by the Mobile Money Provider /Third Party Partners and further to indemnify and hold the Bank and 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.
5.3.6 You hereby agree and authorise the Bank to obtain and procure your Personal 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.
5.3.7 The Bank 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 the Bank may result in the Bank declining to accept your application for an Account.
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, 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 is transferred to the Credit Reference Bureaus; and
5.3.10 the Credit Reference Bureaus provide a credit profile and possibly credit scores on your creditworthiness, subject to the credit record.
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 shall 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 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.
6.9 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. INTEREST AND FEES
7.1 The interest payable by you to the Bank in relation to any Loan shall be displayed on the App. 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. When 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 endeavors 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 counter claim and save in so far as required by the law to the contrary, free and clear of and without any deduction or withholding whatsoever. If you are at any time required to make any deduction or withholding from any payment to 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 loaned to you at a rate to be communicated to you.
8. STATEMENTS
8.1 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: support@branch.co 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 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. Branch 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 unauthorised person. Branch shall not be liable for any disclosure of your Credentials to any third party and you hereby agree and indeed, indemnify and hold Branch harmless from any losses resulting from any disclosure or use 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 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 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 Account, card, Wallet, Mobile Money 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 Branch reserves the right to cancel any reward or bonuses.
12. VARIATION AND TERMINATION
12.1 Branch 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 BIL may cancel credits which it has granted and require the repayment of outstanding debts resulting from such credits within such time as the Bank may determine.
12.2 Without prejudice to the Bank’s rights under clause 14.1, 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 BIL detects any abuse/misuse, breach of content, fraud or attempted fraud relating to your use of the Services;
12.2.2 if your 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 Banks 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 update or upgrade the contents or functionality of the Services from time to time; where your Account becomes inactive or dormant;
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; or
12.2.7 if you breach any of the Licence Restrictions or the Acceptable Use Restrictions.
12.3 If your Account has a credit balance at any time as a result of overpayment of your Loan, 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 Wallet.
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 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.
13. EXCLUSION OF LIABILITY
13.1 Branch 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, Force Majeure or error, interruption, delay or non-availability of the System or Mobile Network Operator, terrorist or any enemy action equipment failure, loss of power, adverse weather or atmospheric conditions, and failure of any public or private telecommunications system.
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 Branch 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 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 any fraudulent or illegal use of the Services, the System and/or your Equipment; or
13.4.7 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, Branch’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, Branch 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 Branch 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 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.
15.2 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.
15.3 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.
16. COMMUNICATION BETWEEN US
16.1 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 support@branch.co 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.
16.2 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.
17. GENERAL
17.1 Remedies Cumulative
17.1.1 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.
17.2 No waiver
17.2.1 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.
17.3 Effect of invalidity
17.3.1 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.
18. ENTIRE AGREEMENT
18.1 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.
18.2 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 Privacy Policy.
18.3 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.
19. DISPUTE RESOLUTION
19.1 Disputes
19.1.1 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.
19.2 Arbitration
19.2.1 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”).
19.2.2 Such arbitration shall take place in Nairobi and shall be conducted in accordance with the Rules of Arbitration of the Institute.
19.2.3 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.
19.2.4 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.
20. GOVERNING LAW
20.1 This Agreement shall be governed by and construed in accordance with the laws of Kenya.
This section covers the provision of loan products to You.
21. ELIGIBILITY
21.1 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 databanks for the purpose of underwriting your loan application.
22. YOUR LOAN APPLICATION
22.1 An application for the loan will be made on the App and upon a successful consideration of your loan application, the loan amount may be disbursed into your Branch Wallet or your mobile money account.
22.2 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.
22.3 Branch 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 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.
22.4 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.
23. CREDIT REFERENCE BUREAUS
23.1 In assessing your loan application, we may request your Personal Information, credit profile and credit related transactions from Credit Reference Bureaus in order to assess your creditworthiness and to assign you a credit score. You confirm that we may obtain such information from the bureaus and consent to the disclosure and provision of such Personal Information to the bureaus.
23.2 As part of our regulatory obligations, we may share information about your loan transactions (including noncompliance with the Terms and Conditions of this Agreement and default on any Loan) on the App with Credit Reference Bureaus and regulators.
24. YOUR RIGHTS AND OBLIGATIONS AS A BORROWER
24.1 As a borrower, You
24.1.1 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;
24.1.2 shall be held responsible for the repayment of any Loan disbursed to you on the App;
24.1.3 ensure that your card, Wallet or 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.
24.1.4 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.
24.1.5 provide all necessary assistance that we may require for the collection or realisation of any outstanding amounts due from You to us.
25. DEFAULT ON LOAN
25.1 An event of default (Event of Default) occurs when:
25.1.1 You fail to pay any sum payable under a Loan in accordance with a scheduled repayment;
25.1.2 any representation/information, warranty or assurance made or given by You in connection with the application for a Loan or any information or documentation supplied by the Borrower is incorrect, inaccurate or misleading;
25.1.3 you do anything which may prejudice the Bank’s rights under this Agreement;
25.1.4 you use or attempt to use the App or the Services for an unauthorised purpose;
25.1.5 you are declared bankrupt, insolvent or unable to pay his debts as they fall due under Kenyan law; or
25.1.6 you are in breach of any of the terms and conditions of this Agreement;
25.2 At any time after an Event of Default has occurred, Branch may, without prejudice to any other right or remedy granted to it under any law:
25.2.1 terminate this Agreement;
25.2.2 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;
25.2.3 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 25.4 and 26 below, the right to assign the Loan to collection agencies etc; and;
25.2.4 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.
25.2.5 Branch 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, Branch 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.
25.2.6 Branch also reserves the right to institute legal proceedings for the recovery of any outstanding Loan with or without any prior notice to you.
25.2.7 The Borrower shall be responsible for all legal costs and expenses incurred by Branch 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).
25.3 In the event that an Event of Default occurs, the Borrower grants BIL 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.
25.4 Where any Loan or any amount is due and outstanding following the due date, You authorise us (without notice to you) to set off any amounts outstanding in your Wallets or Investment Account, including all interests earned to repay the outstanding loan amount without any prior notice to you.
26. SET OFF
26.1 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 Branch 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 any such bank or financial institution.
26.2 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.
27. SAVINGS
27.1 You may deposit funds into your Fixed Savings Account with us for the tenure which you have indicated on the App. You agree that you will not be entitled to 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 Flexi Savings Account.
27.2 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.
27.3 Upon a withdrawal, your savings (including accrued interest where applicable) shall be transferred to you, less applicable taxes (including withholding tax).
28. FEES
28.1 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.
28.2 You authorise the Bank to deduct from your Savings Amount, (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.
29. FUNDING AND TRANSFER OUT OF YOUR WALLET
29.1 Save for any limits that are applicable to the Wallets, your Wallet may be credited by
29.1.1 transfers from another wallet holder on the App;
29.1.2 transfer from your mobile money or a third party mobile money account; or
29.1.2 by the Bank if your approved loan is disbursed into the Wallet
29.2 The funds in your wallet may be:
29.2.1 transferred to other wallets on the App;
29.2.2 your mobile money account or a third party account;
29.2.3 used to pay bills on the App.
29.2.4 You agree that you will be responsible for any processing charges and fees for the transfers to and from your Wallets.
29.3 We may not process your transfer or payment if:
29.3.1 your instructions are unclear;
29.3.2 you have insufficient funds;
29.3.3 there is a suspicion of criminal, fraudulent or illegal activity on your Branch Account;
29.3.4 there is a suspicion of unauthorised access on your Branch Account;
29.3.5 we (and/or our Partners) are legally restricted from completing the transfers;
29.3.6 it goes over your payment limits (where applicable);
29.3.7 your Wallet has been dormant for more than 12 months;
29.3.8 we are prohibited or restricted from doing so in accordance with the payment system regulations or any applicable law in Kenya.
29.4 You are responsible for providing the correct details for the recipient of your transfers or payments. 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.
29.5 You may be required to set a password to carry out transactions using the Wallets. When you enter your password to confirm a transaction, you confirm that we may treat the transaction as having been authorised.
29.6 Overdrawn amounts from your Wallet may be treated as a Loan which is immediately due and repayable to us. We also recover the Loan as we would under clause 25 above.
30. KEEPING YOUR WALLET SECURE
30.1 It is your duty to keep your Credentials to your Wallet and the App secure. Where you suspect that the security of your Wallet or your Branch Account 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 Wallet has been compromised by you, malware or human interference outside of our control.
31. DEPOSIT INSURANCE SCHEME
31.1 Funds in your Wallet (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.
32. CLOSING YOUR WALLET
32.1 Where you inform us or we have reasonable grounds to believe that your Wallet has been accessed without your authorisation, we may close your Wallet and disable your access to the Wallet. In this instance, we will notify you of the closure and also request the balance in your Wallet may be transferred to any bank account of your choice.
32.2 We may also close your Wallet in accordance with the Branch App’s Terms of Use.
33. DATA PROCESSING TERMS AND CONDITIONS
33.1 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.
33.2 Upon downloading the App and clicking the “Accept” option with respect to these Terms and Conditions, you will be deemed to have accepted BIL’s Data Processing Terms and Conditions, a copy of which is available on the App.