Key Facts Statement
This is a condensed guide to the full terms and conditions provided here below. You understand that this is a financial agreement between you (“End-user” or “you”) and Afri Kash Limited. Please read carefully the Key Facts statement as it highlights key points of this agreement:
Afri Kash Limited
Terms and Conditions
This Agreement is a financial service and an end-user license agreement between you (“End-user” or “you”) and Afri Kash Limited, a company duly incorporated under the laws of the Republic of Kenya with a company registration number PVT/2016/003517 (“AKL”, “us”, “we”) for the mobile application software, the data supplied with the software and the associated Services (defined below) (“AKL Application”)
This Agreement sets out the complete terms and conditions (the “Terms and Conditions”) which shall be applicable to the Account (as hereinafter defined) opened by you. These Terms and Conditions and any amendments or variations thereto take effect on their date of publication.
Furthermore, this agreement follows and is compliant with the Kenya Information and Communication Act and the Data Protection Act of the Kenyan Parliament.
As indicated in section 8 of this Agreement, our Data Protection and Privacy Statement hereby states that any personal information provided by you to AKL through either its software and or any of its associated services of will be used for the purpose of providing and operating the products and services you have requested and for additional related purposes which may include updating and enhancing AKL's records, understanding your financial needs, verifying or compiling credit checks, reviewing credit worthiness and advising you of other products and services which may be of interest to you, for crime/fraud prevention and debt collection purposes, for purposes required by law or regulation, and to plan, conduct and monitor AKL's business. The information collected from you by AKL will be valuable in improving the design and marketing of our range of services and related products for customer use.
This Data Protection and Privacy Statement relate solely to information supplied by you to AKL. It is to be noted that AKL respects the privacy of your personal information and will treat it confidentially and securely.
IT IS AGREED AS FOLLOWS
i. Agreement means this Agreement;
ii. Account means your loan account with AKL;
iii. Business Day means a day other than a Saturday, Sunday or national or public holiday in the Republic of Kenya;
iv. Credentials means your personal credentials used to access the AKL Application and operate your Account;
v. E-Money means the electronic monetary value depicted in your Mobile Money Account representing an equal amount of cash;
vi. Equipment includes your mobile phone handset, SIM Card and/or other equipment which when used together enables you to access the Network;
vii. Force Majeure means events, circumstances or causes beyond its reasonable control of AKL making AKL’s performance of its obligations inadvisable, commercially impracticable, illegal, or impossible, including but not limited to acts of God, war, strikes or labour disputes, embargoes or government orders;
viii. 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;
ix. Loan means the principal amount of the loan made or to be made by AKL to you under this Agreement from time to time through the AKL Application or (as the context requires) the principal amount outstanding for the time being of that loan;
x. 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;
xi. Mobile Money means the money transfer and payments service operated by the Mobile Money Providers in Kenya;
xii. Mobile Network Operator means a mobile network operator in Kenya registered with the Communications Authority of Kenya;
xiii. 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;
xiv. Mobile Money Service means the money transfer and payments service provided by the Mobile Money Providers through the Mobile Money System;
xv. Mobile Money System means the system operated by the Mobile Money Providers in Kenya for the provision of the Mobile Money Service;
xvi. Network means a mobile cellular network operated by a Mobile Network Operator;
xvii. Request means a request or instruction received by AKL from you or purportedly from you through the Network and the System and upon which AKL is authorized to act;
xviii. Services shall include any form of financial services or products that AKL may offer you pursuant to this Agreement and as you may from time to time subscribe to and “Service” shall be construed accordingly;
xix. 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;
xx. SMS means a short message service consisting of a text message transmitted from your mobile phone to another;
xxi. System means AKL’s electronic communications software enabling you to communicate with AKL 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;
xxii. Service charge includes any fees and charges payable for the use of the loan and services as published by AKL on AKL’s website or by such other means as AKL shall in its sole discretion determine. Service charge(s) are subject to change at any time at AKL’s sole discretion.
2. UNDERSTANDING AND INTERPRETATION
i. Unless the context defines otherwise, the singular shall include plural and vice versa
ii. The schedules shall be deemed to form part of this Agreement
3. ACCEPTANCE OF TERMS AND CONDITIONS
i. You will be required to carefully read and understand the Terms and Conditions set out in this Agreement and as amended from time to time by AKL (the Terms and Conditions) before downloading or streaming the AKL Application or opening an account with AKL which will govern the use and operation of the AKL Application and the Account.
ii. After downloading the AKL Application, you will be deemed to accept the Terms and Conditions upon checking/ticking the box “Accept terms and conditions” option on AKL’s System asking you to confirm that you have read, understood and agreed to abide by the Terms and Conditions.
iii. By downloading the AKL Application and opening an Account with AKL, 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 AKL may have with respect to the Account in law or otherwise.
iv. These Terms and Conditions may be amended or varied by AKL from time to time and the continued use of the Services constitutes your agreement to be bound by the terms of any such amendment(s) or variation(s). AKL will take all reasonable measures to notify you of any changes.
v. From time to time updates to the AKL Application 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 AKL Application and accepted any new terms and conditions.
vi. By using the AKL Application 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 AKL Application.
4. COMMUNICATION BETWEEN US
i. If you wish to contact us in writing, or if any condition in these Terms and Conditions requires you to give us notice, you can send this to us by e-mail to firstname.lastname@example.org or to such e-mail address that may be communicated to you from time to time. We will confirm receipt of this by contacting you in writing by e-mail.
ii. If we have to contact you or give you notice in writing, we will do so by e-mail and/or by SMS to the mobile phone number or email address you provide to us in your request for the AKL Application.
5. GRANT AND SCOPE OF LICENSE
i. In consideration of you agreeing to abide by the terms of this Agreement, we grant you a non-transferable, non-exclusive license to use the AKL Application 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,
ii. You agree:
i. not to rent, lease, sub-license, loan, translate, merge, adapt, vary or modify the AKL Application;
ii. not to make alterations to, or modifications of, the whole or any part of the AKL Application, or permit the AKL Application or any part of it to be combined with, or become incorporated in, any other programs;
iii. not to disassemble, decompile, reverse-engineer or create derivative works based on the whole or any part of the AKL Application 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 AKL Application with another software program, and provided that 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 AKL Application;
iv. to include our copyright notice on all entire and partial copies you make of the AKL Application on any medium; not to provide or otherwise make available the AKL Application in whole or in part (including object and source code), in any form to any person without prior written consent from us; and
v. to comply with all technology control or export laws and regulations that apply to the technology used or supported by the AKL Application or any Service (Technology), together License Restrictions. You must:
vi. not use the AKL Application 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 AKL Application, any Service or any operating system;
vii. not infringe our intellectual property rights or those of any third party in relation to your use of the AKL Application or any Service, including the submission of any material (to the extent that such use is not licensed by this Agreement); not transmit any material that is defamatory, offensive or otherwise objectionable in relation to your use of the AKL Application or any Service;
viii. not use the AKL Application or any Service in a way that could damage, disable, overburden, impair or compromise our systems or security or interfere with other users; and
ix. not collect or harvest any information or data from any Service or our systems or attempt to decipher any transmissions to or from the servers running any Service, together Acceptable Use Restrictions.
6. INTELLECTUAL PROPERTY RIGHTS
You acknowledge that all intellectual property rights in the AKL Application and the Technology anywhere in the world belong to us or our licensors, that rights in the AKL Application are licensed (not sold) to you, and that you have no rights in, or to, the AKL Application 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 AKL Application in source-code form.
7. USE OF THE SERVICES
i. The Services offered by AKL can only be utilized by persons over the age of 18. AKL reserves the right to verify the authenticity and status of your Mobile Money Account with the relevant Mobile Money Provider.
ii. AKL’s acceptance of your application for an Account will be displayed on the AKL Application. You hereby acknowledge and accept that the acceptance by AKL 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.
iii. AKL reserves the right to decline your application for a loan or to revoke the same at any stage at AKL’s sole and absolute discretion and without assigning any reason or giving any notice thereto.
iv. AKL 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 AKL Application.
v. As per Kenyan Law any individual “who knowingly and without authority causes any loss of property to another by altering, erasing, inputting or suppressing any data stored in a computer, commits an offence and is liable on conviction to imprisonment for a term not exceeding five years or to a fine not exceeding five hundred thousand shillings or both.” AKL will assist Kenyan authorities to pursue and apprehend any individual, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or loans by means of false or fraudulent activity utilizing AKL Application.
8. PERSONAL INFORMATION
i. You hereby agree and authorize AKL to verify information provided by you to AKL 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. The information that AKL may verify against the information held by the Mobile Money Providers includes (without limitation): your phone number, name, date of birth, Identification Number (“ID”) or Passport Number and such other information that will enable AKL to identify you and comply with the regulatory “Know Your Customer” requirements (together the “Personal Information”).
ii. You hereby agree and authorize AKL 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 AKL shall require for purposes of providing you the Services (the “Relevant Information”).
iii. You hereby consent to AKL verifying the Personal Information and the Relevant Information with the Mobile Money Providers and using of the Personal Information and the Relevant Information to the extent necessary in the opinion of AKL.
iv. You hereby agree and authorize AKL to obtain and procure your Personal Information and Relevant Information from your respective Mobile Money Provider and you further agree and consent to the disclosure and provision of such Personal Information by the Mobile Money Provider and further to indemnify and hold AKL and the Mobile Money Provider harmless with respect to any claims, losses, liabilities and expenses (including legal fees and expenses) that may arise as a result of the disclosure and reliance on such Personal Information and/or Relevant Information.
v. You hereby agree and authorize AKL 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.
vi. Additionally, you hereby authorize AKL to register details of the conduct of your account with the Credit Reference Bureau (CRB), and you waive any claim you may have against AKL in respect of such disclosure
vii. AKL reserves the right to request for further information from you pertaining to your application at any time. Failure to provide such information within the time required by AKL may result in AKL declining to accept your application.
9. REQUESTS MADE BY THE BORROWER
i. You hereby irrevocably authorize, AKL to act on all Requests received by AKL from you (or purportedly from you) through the System and to hold you liable in respect thereof. AKL may nevertheless refuse to carry out any Requests in its sole and absolute discretion.
ii. Subject to its discretion, AKL 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 AKL.
iii. AKL 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, AKL believes that it can correct the incomplete or ambiguous information in the Request without any reference to you being necessary.
iv. AKL 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 AKL may act if AKL has in good faith acted in the belief that such instructions have been sent by you.
v. AKL may, in its absolute discretion, decline to act on or in accordance with the whole or any part of your Request pending further inquiry or further confirmation (whether written or otherwise) from you.
vi. You agree to and shall release from and indemnify AKL against all claims, losses, damages, costs and expenses howsoever arising in consequence of, or in any way related to AKL having acted in accordance with the whole or any part of any of your Requests (or failed to exercise) the discretion conferred upon it.
vii. You acknowledge that to the full extent permitted by law AKL shall not be liable for any unauthorized 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.
viii. AKL is authorized 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.
In the event of any conflict between any terms of any Request received by AKL from you and this Agreement, this Agreement shall prevail.
10.SERVICE CHARGE AND FEES
i. The service charge payable by you to AKL in relation any Loan shall be displayed by AKL on the AKL Application. AKL shall be entitled to set and charge service fees, in connection with your use of the Services and from time to time amend or vary any fees for the Services. If AKL decides to start charging fees or where already applicable, vary or amend its fees, the fees payable on any new application for Services will be displayed on the AKL Application. AKL will use reasonable endeavors to try notify you of any changes in relation to fees within a reasonable period before such changes are implemented including displaying notices of the changes on the AKL Application or AKL website. Please refer to the Key Facts Statement in the top of this document for further reference.
ii. 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 AKL you shall immediately pay to AKL such additional amounts as will result in AKL receiving the full amount it would have received had no such deduction or withholding been required.
iii. If you fail to make any payments due to AKL at the due date for payment, AKL will be authorized to apply late fees on such amount loaned to you at a rate to be communicated to you. If your payments are over 30 days late from the due date, AKL will notify a collections agency to recoup the loan. In addition to late fees, you will also be liable to settle collections fees. Please refer to the Key Facts Statement in the top of this document for further reference.
i. A statement and activity report in respect of your Account will be made available on Request. Requests shall be made via our e-mail address: email@example.com or via a contact link on the AKL Application.
ii. The statement on the AKL Application shall provide details of the last 4 (four) transactions (or such other number of transactions as determined by AKL) in your Account initiated from your Equipment.
iii. Your statement will show all amounts added or taken from your Account. You must check your statement carefully and notify AKL 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.
iv. AKL reserves the right to rectify discrepancies, add and/or alter the entries in your statements, without prior notice to you. AKL will, however, inform you of any rectification, additions and or alterations effected on your statements within a reasonable time after the changes are affected.
v. 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.
vi. Save for a manifest error, a statement issued to you in respect of your AKL Account shall be conclusive evidence of the transactions carried out on your AKL Account for the period covered in the statement.
i. 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 AKL 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.
ii. You hereby consent and agree that AKL may withhold amounts in your Account if any tax authority requires AKL to do so, or AKL is otherwise required by law or pursuant to agreements with any tax authority to do so, or if AKL needs to comply with internal policies or with any applicable order or sanction of a tax authority.
i. 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.
ii. You shall be responsible for ensuring the proper performance of your Equipment. AKL shall neither be responsible for any errors or failures caused by any malfunction of your Equipment, and nor shall AKL 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 a connection to the Network and AKL shall not be responsible for losses or delays caused by any such service provider.
iii. You shall follow all instructions, procedures and terms contained in this Agreement and any document provided by AKL concerning the use of the System and the Services.
iv. 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.
v. You shall ensure that your Credentials do not become known or come into possession of any unauthorized person. AKL shall not be liable for any disclosure of your Credentials to any third party and you hereby agree to indemnify and hold AKL harmless from any losses resulting from any disclosure of your Credentials.
vi. You shall take all reasonable precautions to detect any unauthorized use of the System and the Services. To that end, you shall ensure that all communications from AKL are examined and checked by you or on your behalf as soon as practicable after receipt by you in such a way that any unauthorized use of and access to the System will be detected. You shall immediately inform AKL in the event that:
vii. You have reason to believe that your Credentials are or may be known to any person not authorized to know the same and/or have been compromised; and/or
viii. You have reason to believe that unauthorized use of the Services has or may have occurred or could occur and a transaction may have been fraudulently input or compromised.
ix. You shall at all times follow the security procedures notified to you by AKL 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 authorized to do so.
x. You shall not at any time operate or use the Services in any manner that may be prejudicial to AKL.
14.DEFAULT ON LOAN
i. An event of default (Event of Default) occurs when you fail to pay any sum payable for a Loan granted under these Terms and Conditions for a period of ninety (90) consecutive days unless failure to pay is caused solely by an administrative error or technical problem; or are declared bankrupt.
ii. At any time after an event of default has occurred which is continuing, AKL may, without prejudice to any other right or remedy granted to it under any law: terminate this Agreement declare that the Loan (and all accrued service fees and all other amounts outstanding under this Agreement) shall become immediately due and payable; engage an external collections agency to seek repayment;
iii. In the event of a loan default by the End User, and failure to settle any outstanding loans after multiple attempts have been made by AKL via multiple channels, (SMS, customer service calls, and external collections agency), to recoup the defaulted loan, AKL as a last resort, has the right to forward your details for blacklisting to any or all the registered Credit Reference Bureaus (CRB’s). Please refer to the Key Facts Statement in the top of this document for further reference.
15.VARIATION AND TERMINATION
i. AKL 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 AKL may cancel credits which it has granted and require the repayment of outstanding debts resulting from such credits within such time as AKL may determine.
ii. if you use the Account for unauthorized purposes or where AKL detects any abuse/misuse, breach of content, fraud or attempted fraud relating to your use of the Services;
iii. If your Account or agreement with a Mobile Network Operator is terminated for whatever reason;
iv. If AKL is required or requested to comply with an order or instruction of or a recommendation from the government, court, regulator or other competent authority;
v. If AKL 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;
vi. 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;
vii. If AKL 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
viii. If you breach any of the License Restrictions or the Acceptable Use Restrictions
ix. If your Account has a credit balance at any time as a result of overpayment of your Loan, you may issue a Request to AKL for payment of such credit balance and AKL will return any such balance to you, less any applicable fees, provided that such amount falls above the minimum transfer amounts specified by the relevant Mobile Money Provider.
x. Termination shall however not affect any accrued rights and liabilities of either party.
xi. If AKL receives notice of your demise, AKL 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.
16.EXCLUSION OF LIABILITY
i. AKL 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 AKL’s control including , without limitation, Force Majeure or error, interruption, delay or non- availability of the System, terrorist or any enemy action equipment failure, loss of power, adverse weather or atmospheric conditions, and failure of any public or private telecommunications system.
ii. You acknowledge that the AKL Application 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 AKL Application as described meet your requirements.
iii. We only supply the AKL Application for domestic and private use. You agree not to use the AKL Application 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.
iv. AKL will not be liable for any losses or damage suffered by you as a result of or in connection with:
v. If the defect or fault in the AKL Application or any Service results from you having altered or modified the AKL Application;
vi. if the defect or fault in the AKL Application results from you having used the AKL Application in breach of the terms of this Agreement;
vii. if you breach any of the License Restrictions or the Acceptable Use Restrictions; unavailability of sufficient funds in your Mobile Money Account; 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;
viii. any fraudulent or illegal use of the Services, the System and/or your Equipment; or your failure to comply with these Terms and Conditions and any document or information provided by AKL concerning the use of the System and the Services.
ix. Under no circumstances shall AKL 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 AKL.
x. All warranties and obligations implied by law are hereby excluded to the fullest extent permitted by law.
i. In consideration of AKL complying with your instructions or Requests in relation your Account, you undertake to indemnify AKL and hold it harmless against any loss, charge, damage, expense, fee or claim which AKL suffers or incurs or sustains thereby and you absolve AKL from all liability for loss or damage which you may sustain from AKL acting on your instructions or requests or in accordance with these Terms and Conditions.
ii. The indemnity shall also cover the following:
iii. All demands, claims, actions, losses and damages of whatever nature which may be brought against AKL 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 AKL’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.
iv. 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.
v. Any unauthorized 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
vi. Any loss or damage occasioned by the failure by you to adhere to these Terms and Conditions and/or by supplying of incorrect information or loss or damage occasioned by the failure or unavailability of third party facilities or systems or the inability of a third party to process a transaction or any loss which may be incurred by AKL as a consequence of any breach by these Terms and Conditions.
vii. Any damages and costs payable to AKL in respect of any claims against AKL for recompense for loss where the particular circumstance is within your control.
a) Remedies Cumulative
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.
b) No waiver
No failure by AKL 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.
c) Effect of invalidity
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.
iii. 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.
a) Effect of invalidity
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.
i. 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 thirty (30) days of the notification of any dispute by either party to the other then, upon application by either party.
ii. 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.
Nothing in this clause 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.
This Agreement shall be governed by and construed in accordance with the laws of Kenya.