Terms and Conditions

Infiniti General Terms and Conditions

These Terms and Conditions together with the digital application form [together “the Agreement”) contains the complete terms and conditions that apply to Client’s participation in DTB’s Infiniti SME Banking (hereinafter the “Services”) and unless otherwise stated herein, supersedes all other agreements entered into between the Client and the Bank in relation to the provision of the Service [defined below].

Infiniti, a product of Diamond Trust Bank, herein after referred to as “the Bank” seeks to provide you with relevant services to make it easier for you to accept, process and manage payments (the “Service”).

DEFINITIONS AND INTERPRETATION

In this Agreement, the following words and expressions shall, unless inconsistent with or otherwise indicated by the context, have the following meanings and similar expressions shall have corresponding meanings:

“Business Day” means any day of the week not being a weekend, gazetted public holiday or designated bank holiday within the Republic of Kenya;

“Business Number” means a destination code or numbering plan created by the bank and provided through Infiniti Platform for the identification of its Clients;

“Confidential Information” means, without limitation, all information, software, data manuals, concepts relating to marketing methods, products, developments, business and financial affairs and trade secrets, and other information of value to a party and not generally known, (whether or not designated as ‘confidential information” by any Party and whether written, oral or in electronic form) and any other information clearly designated by a Party as “confidential information” or that is evidently confidential by its nature or the nature of its disclosure, and includes the terms of this Agreement;

“Customer” means a consumer of the Clients services who pays what is due to the Client through services enabled through Infiniti and ”Customers” shall be construed accordingly;

“Effective Date” means the date upon which the Client’s Infiniti’s Account is activated by the Bank:

“EFT” means electronic funds transfer of the Client’s entitlement to value held in its Infiniti account, from the Banks designated Infiniti Account to the designated beneficiary and/or nominated bank account and may include all locally available payment methods as have been made available by the bank;

“Intellectual Property Rights” means, in respect of each Party, such Party’s proprietary rights, title and interest intellectual property of whatever nature, description or form, vesting in that Party as at the Effective Date or acquired by such Party at any time after the Effective Date;

“Infiniti Account” means the transacting account belonging to the Client created in the Infiniti system through which the Client receives payments from Customers and can also transact by use of the same;

“Infiniti Service” or “Service” means the Banking Platform service provided by the Bank and envisaged under this Agreement through which Customers can make payments to the Client,

“Infiniti System” or “Infiniti” means the system operated by the Bank providing the Infiniti Services and “Infiniti User” means either of The Client or the Customer participating in the Infiniti system;

“Infiniti Website” means the site located at https://www.infinitiafrica.co;

“Transaction” means any movement of money within and/or without the Infiniti system. These include payments made into and out of the Client’s Infiniti account through any payment mode made available through the Infiniti System

“Bank” means Diamond Trust Bank Kenya Limited, and its Branches and subsidiaries as may from time to time be specified by the Bank to the Client.

“Card Payments” means a Payment made by a Customer to a Client via VISA, MasterCard and any other card scheme approved and undertaken through the Bank.

“Chargeback” means a demand by a Customer for a Client to make good the loss on a fraudulent Card Payment transaction.

“Client” means an organization, business and/or person who signs up to use services availed through Infiniti System.

“Conﬁdential Information” means any information in any form and format whatsoever (whether or not marked as confidential) disclosed to, or obtained by the Client from the Bank or a third party acting on the Bank’s behalf and without prejudice to the generality of the foregoing shall include but not be limited to any information ascertainable by the inspection or analysis of samples, any information relating to the Bank’s operations, processes, plans, intentions, product information know-how, designs, trade secrets, software, market opportunities, customers, potential customers and business affairs.

“Data” means any data, including personal data, supplied to a Party by the other Party and held, stored, collected, collated, accessed, or processed on behalf of the ﬁrst-mentioned Party by the other Party.

“Data Protection Laws” means all applicable statutes, laws, secondary legislation, and regulations pertaining to ownership, sharing, privacy, conﬁdentiality, and/or the protection and/or storage of Data in the Relevant Country.

“Service Fee” means any fees levied to the Client as a result of using services within the Infiniti System.

“MNOs” means the mobile network operators licensed to provide mobile telephony services in the Relevant Country or Territory.

“Parties” means (jointly) the Client and the Bank as parties to this Agreement and “Party” shall have a singular and composite meaning.

“Payment Facility Provider” means and includes ﬁnancial institutions and MNOs which have entered into and implemented agreements with the Bank by which their systems have been connected with the Infiniti System for the effective provisioning of Payment Services to the Clients and their customers.

“Payment Services” as referred to in this Agreement shall mean using one or more of the following modes of payment which can be used by Customers to make payments through the Payment Gateway: (a) Mobile Money Transfer facilities offered by MNOs; (b) Digital Wallet transfers as may be offered by the Bank and its authorized service providers; (c) Any Bank Account transacting channel as the Bank may deem fit, including but not limited to mobile and internet/online banking, debit card and branch; (d) Prepaid or Credit Card (e) SWIFT; (f) Locally powered transaction methods, and (g) Any other mode of payment as may be made applicable by the Bank from time to time;

“Relevant Country” means the country in which the service shall be performed and/or received and whose laws and regulations the parties shall abide by.

Words in the singular include the plural and vice versa.

Words importing any one gender include each of the other two genders.

References to natural persons include legal persons (incorporated or unincorporated) and vice versa.

A reference to a Party shall include a reference to that Party’s successors in title and permitted assigns.

The headings of clauses are intended for convenience only and shall not affect the interpretation of this Agreement.

Schedules and Annexures to this Agreement shall be deemed to form part of this Agreement.

Unless redeﬁned within a particular annexure, terms deﬁned in this Agreement shall bear the same meaning in the annexures.

Where words have been deﬁned in the body of this Agreement, such words will have the meaning so assigned throughout the Agreement, unless the context clearly otherwise requires.

If any provision in a deﬁnition in this Agreement is a substantive provision conferring rights or imposing obligations on any Party, effect shall be given to it as if it were a substantive clause in the body of this Agreement, notwithstanding that it is only contained in the deﬁnition.

Where any period is prescribed in this Agreement, that period shall be reckoned inclusively of the ﬁrst day and exclusively of the last day unless the last day is not a Business Day, in which case the last day shall be the next succeeding Business Day.

References in this Agreement to any statute or statutory provisions shall include any statute or statutory provision, which amends, extends, consolidates, or replaces the same and shall include orders, regulations, instruments, or other subordinate legislation made under the relevant statute or statutory provision.

Any reference to an enactment is to that enactment as at the sign update hereof and as amended or re-enacted from time to time.

Where ﬁgures are referred to in numerals and in words, if there is any conﬂict between the two, the words shall prevail.

The rule of construction that the Agreement shall be interpreted against the Party responsible for the drafting or preparation of the Agreement shall not apply.

Where in terms of this Agreement any communication is required to be in writing, the term “writing” shall include communications by facsimile and electronic mail.

You may not access the Service if you are our direct competitor, except with our prior written consent. In addition, you may not access the Service for purposes of monitoring their availability, performance, or functionality, or for any other benchmarking or competitive purposes.

If you accept this Agreement, you represent that you have the capacity to be bound by it or if you are acting on behalf of a company or entity that you have the authority to bind such entity.

You may not use the Service and you may not accept this Agreement if you are not of a legal age to form a binding contract with the Bank.

By accepting this agreement, either by clicking a box indicating your acceptance or by executing an application or service order form that references this Agreement, the Client agrees that it is affirmatively stating that it has carefully read and understood the terms and conditions set forth herein and agrees to be bound by the said terms and conditions.

DURATION OF AGREEMENT

This Agreement shall be for an initial period of twelve (12) months [the “Initial Term”) from the Effective Date unless otherwise earlier terminated. Upon expiry of the Initial Term, this Agreement shall automatically renew for a further renewal period of twelve (12) months each leach period being is “Renewal Term”] on the terms and conditions appearing herein or as may be amended by the Bank in writing unless terminated in accordance with the terms of this Agreement.

DESCRIPTION OF SERVICE

The Service is an SME Banking proposition that will allow Clients to collect payments, make payments and access other ecosystem services that are relevant to their business and needs at the specific moment.

The Service will enable the following transactions;

Pay into and receive funds from an MNO wallet
Pay into and receive funds from a bank account through bank enabled local and international payment services
Make and receive Card Payments
Access to Business Management tools such invoicing, customer management, supplier management, reports, dashboards and any other features that the Bank may avail through the Infiniti Service from time to time

To be eligible to use this service:

You must have the accepted these terms and conditions; and

You must have successfully completed the KYC vetting procedures conducted on the Client by the Bank through the digital onboarding process.

If the Client fails to produce the necessary KYC documents as set out in Annexure 1 below, or fails to satisfy the minimum KYC requirements, the Bank will refuse to activate the Infiniti account and accordingly advise the Client as such (in which case this Agreement shall be null and void). For the avoidance of doubt, the Bank’s refusal to activate the Infiniti account shall neither confer on the Client any right to contest the Bank’s decision nor give rise to any legal claim against the Bank under this Agreement.

TERMINATION OF SERVICE
- Termination on Notice

Either party may terminate the agreement (i) by giving thirty (30) days prior notice in writing: or (ii] If either of the Parties commits a breach of any material obligation imposed on it in the terms of this Agreement and fails to remedy such breach within a period of 30 (thirty] days from the date on which written notice is given to the party in breach without prejudice to the right to hold the Defaulting Party liable in damages as a result of such termination,

Termination by the Bank

The Bank may terminate this Agreement immediately if the Client uses or is reasonably suspected of using the Infiniti Service in furtherance of any unlawful or criminal activity or for any conduct prohibited under clause 5.

The Bank may terminate the agreement if the Infiniti Account remains inactive for a period of six (6) months. For the avoidance of doubt, an ‘inactive’ Infiniti Account includes one which has not had any credit entries over a continuous period of six [6) months.

Termination not to Affect Remedies

The termination of this Agreement shall be without prejudice to all accrued rights and obligations of the Parties under this Agreement and to all obligations under this Agreement expressed to continue or take effect after expiration or termination. This Agreement shall come into force on the sign up date and shall continue to subsist unless terminated by either party in accordance with this clause.

In addition to any other termination rights granted by this Agreement, the Bank may terminate this Agreement immediately without liability and without any notice, if:

The Bank is notiﬁed or otherwise determines in good faith that the Client is using the Services in furtherance of any activity which violates any law, rule, or regulation or policy of The Bank as stipulated in Clause 5.

The Bank is notiﬁed by relevant parties that the number and quantum of charge back requests received in relation to the Client is beyond such limits as may have been advised in writing.

The Bank, or its directors, ofﬁcers, stockholders, employees, or agents are made the subject of a criminal or civil or civil action or investigation or are threatened by such action as a consequence of use of the facility by the Client.

The expiration or termination of this Agreement shall not affect such of the provisions of this Agreement which expressly provide that they will operate after any such expiration or termination or which of necessity must continue to have effect after such expiration or termination, notwithstanding that the clauses themselves do not expressly provide for this.

PROHIBITED USAGE AND CONDUCT

You agree to not use the Services to:

Conduct anything that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable or criminal;
Impersonate any person or entity, including, but not limited to, the Banks or an Infiniti agent and/or official, fellow user, or falsely utter or otherwise misrepresent your affiliation with a person or entity:
Forge headers or otherwise manipulate identifiers in order to disguise the origin of any content transmitted through the Service;
Conduct anything that makes available any content or information that you do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under non-disclosure agreements).
Conduct any activity that infringes any intellectual property rights;
Conduct any activity whether solicited or unsolicited, relating to or remotely connected to SPAM, junk mail, pyramid schemes, pornography, unlicensed gaming or gambling or any other form of solicitation;
Conduct any activity that makes available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
Conduct any business that interferes with or disrupts the Service or servers or Networks connected to the Service, or disobeys any requirements, procedures, policies or regulations of networks connected to the Service:
conduct any business that intentionally or unintentionally violates any applicable local or international law or regulation;
Collect or store personal data about other users without their express authority: or
Aggregate payments or create collection accounts on behalf of third party persons without the written consent of the Bank
Conduct any activity that deals with crypto currency and any such currency that is prohibited by financial market regulation and/or law.

SUSPENSION

The Bank may, with reasonable notice where practicable, suspend the availability of the Service to The Client wholly or partially for any reason, including without limitation, where

The Client fails to comply with any laws, rubs or regulations of the Kenya regarding the Service;
The Client fails to observe any term or obligation set out herein; or

The Client carries on prohibited activities using the Infiniti service as set out in Clause 5 above.

USE OF THE SERVICE

Our Responsibilities.

We shall provide our basic support for the Service to you at no additional charge and use commercially reasonable efforts to make the Service available 24 hours a day, 7 days a week, except for: (1) planned downtime (of which we shall give at least 8 hours’ notice via the Service, or (2) any unavailability caused by circumstances beyond our reasonable control, including without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving our employees), Internet service provider failures or delays, or denial of service attacks. We shall provide the Service only in accordance with applicable laws and government regulations.

Our Protection of Your Data.

We shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of your data. We shall not (a) modify your data, (b) disclose your data except for commercial purposes relating to the Service or as compelled by law , or (c) access your data except to provide the Service and prevent or address service or technical problems, or at your request in connection with customer support matters.

Personal Information.

The use of any information that we collect at part of providing the Service is governed by the Privacy Policy.

Your Responsibilities.

You shall

be responsible for the compliance with this Agreement,
be responsible for the accuracy, quality and legality of your data and of the means by which you acquired your Data,
use commercially reasonable efforts to prevent unauthorized access to or use of the Service, and notify the Bank promptly of any such unauthorized access or use, and
use the Service only in accordance with the applicable laws and government regulations. You shall not
1. make the Service available to anyone other than the registered user(s),
2. sell, resell, rent or lease the Service,
3. use the Service to store or transmit infringing, libelous, or otherwise unlawful or tortuous material, or to store or transmit material in violation of third-party privacy rights,
4. use the Service to store or transmit Malicious Code,
5. interfere with or disrupt the integrity or performance of the Service or third-party data contained therein, or
6. attempt to gain unauthorized access to the Service or their related systems or networks.

Usage Limitations.

The Service may be subject to other limitations, such as, for example, limits on the number of calls you are permitted to make against our application programming interface.

CARD CHARGEBACKS

In the event that a customer requests its issuing bank to lodge any chargeback requests:

The Client hereby grants irrevocable authority to the bank to hold the Chargeback amount until chargeback process is completed and any disputes in relation thereto resolved.
The Client shall pay any fees that relate to the Chargeback process and/or as levied upon the bank by the card scheme and/or the card issuer or any other party that is authorized to do so.
Where the Client informs the Bank to decline a chargeback request and the Bank so requires, the Client shall provide evidence that the goods/services were paid for/delivered.
Where the Client has made refunds to the Customer the evidence shall be provided to the Bank.
Any form of evidence or justification as may be requested by the Bank shall be provided by the Client in a timely manner.

TAXES
- You undertake to declare all income resulting from or in consequence of using the Services to the relevant tax authority and to pay all taxes levies and fees due on such income. We shall not be liable to you for any disclosure made to the relevant tax authority and you hereby indemnify us from any loss or damage arising from such disclosure to the relevant taxing authority.
- It is your responsibility to determine what, if any, taxes apply to the payments it receives and to collect, report and remit the correct tax to the relevant taxing authority. We shall not be obligated to determine whether taxes apply, and is not responsible for collecting, reporting, or remitting any taxes arising from any transaction.

RIGHTS YOU GRANT

By submitting your documentation during the digital account onboarding process and other content to the Bank through the Service, you are licensing that content to the Bank solely for the purpose of providing the Service. The Bank may use and store the content, but only to provide the Service to you. For purposes of this Agreement and solely to provide the Information to you as part of the Service, you grant the Bank a limited power of attorney, and appoint the Bank as your attorney-in-fact and agent, to access third party sites, retrieve and use your information with the full power and authority to do and perform each thing necessary in connection with such activities, as you could do in person.

You agree that The Bank may use your feedback, suggestions, or ideas in any way, including in future modifications of the Service, other products or services, advertising, or marketing materials. You grant the Bank a perpetual, worldwide, fully transferable, sub-licensable, irrevocable, fully paid-up, royalty free license to use the feedback you provide to the Bank in any way. The Bank will not sell, publish, or share your feedback in a way that could identify you without your explicit permission.

You agree that the Bank may upon notice from time to time automatically enroll you into new Services to be accessed via your Bank Client Account. This Terms of Service shall bind the new services unless otherwise specified. Full-service availability shall however be contingent upon successful completion and submission to The Bank of the requisite service on-boarding requirements to be provided to The Bank.

REVERSALS

The Client shall within a reasonable period (but in any event no later than 72 hours) initiate and complete reversal transactions where a payment made to it, is manifestly made in error.

Where the Client fails to initiate and complete the reversal in accordance with 5.1 in the event of a manifest error, then the Client consents to, the Bank initiating and complete the reversal. At all times The Bank shall only make the reversal having due regard to the circumstances of the erroneous payment,

Where a dispute in relation to a reversal arises, the Bank may suspend the Client’s Infiniti account to facilitate an amicable resolution of the dispute.

In the case of card reversal requests, the reversal will only be approved by the bank if the Clients Infiniti account is funded.

WARRANTIES, INDEMNITIES AND LIMITATION OF LIABILITY

The Client represents and warrants that none of its senior officers or directors; (i) has ever been convicted of any crime (other than minor traffic offences]; and has ever been charged of any crime relating to fraud, embezzlement, theft, money laundering. Financing terrorism or terrorist organizations, receiving stolen property, or illegal drugs or other controlled substances anywhere in the world. The Client shall notify the Bank in writing within forty-eight (48) hours after any of these representations and warranties cease to be true.

The Client warrants that it has obtained all the necessary approvals [whether internal or regulatory] to use the Service.

Each party shall indemnify the other, and keep each other indemnified, from and against any and all loss, damage or liability, costs and expenses (including legal expenses) howsoever arising and incurred by the other party resulting from any breach of this Agreement; or (ii) any third party claim in respect of any matter arising from any person’s conduct, provided that the liability has not been incurred directly through any default either party in relation to this Agreement.

The Client shall indemnify and defend The Bank against, and pay any final judgment awarded against The Bank, resulting from third party claims arising from the use of the Services leading to loss or damage (including consequential loss or damage] where the proximate cause of such loss or damage is attributable to the Client’s negligence, recklessness, indifference in their use of this service.
The Bank shall not be liable to the client or any other person where:

The transaction amount sought by the customer is below the minimum or above the maximum limits as communicated by The Bank from time to time;

The customer has entered incorrect details and the payment is made to the wrong system participant;

The client’s hardware, software or internet provider’s service is dysfunctional;

The transaction is suspicious or fraudulent resulting in losses to a third party;

The transaction details received are incorrect;

The Client’s receipt of funds is intercepted by legal process or other encumbrance restricting the transfer; or

Unforeseen circumstances prevent the execution of a transaction despite any reasonable precautions taken by The Bank.

Without prejudice to any other provisions of this Agreement, each party undertakes to indemnify the other party and keep the other party indemnified on demand for and against all proceedings, costs, claims, damages, expenses and liabilities of whatsoever nature howsoever suffered or incurred arising out of or by reason of any infringement or alleged infringement of any intellectual property rights arising as result of carrying out their obligations under this Agreement.

FEES AND PAYMENTS

The Service shall be subject to the charges and minimum/maximum transaction values appointed by the Bank from time to time. The bank may by notice from time to time vary the charges and minimum/maximum transaction values.

You shall pay all fees specified in the tariff guide attached as an Annexure as well as posted on the informational of the platform. Except as otherwise specified herein or in the tariff guide, fees are based on consumed services. Payment obligations are non-cancelable and fees are non-refundable.

The Bank may impose or vary service fees, as it shall from time to time determine upon giving at least one-month prior notification in writing.

The Bank may change its settlement procedure for Client Commission and/or Fees from time to time on notice to the Client.

YOUR LICENSE
- The Bank grants you a personal, limited, non-exclusive, revocable, non- transferable license, without the right to sublicense, to electronically access and use the Service. The Service includes our website, our software, programs, documentation, tools, internet-based services, components, and any updates (including software maintenance, service information, help content, bug fixes or maintenance releases) provided to you by The Bank. You will be entitled to download updates to the Service, subject to any additional terms made known to you at that time, when The Bank makes these updates available.
- You may not, nor may you permit any third party to do any of the following:
  1. access or attempt to access The Bank systems, programs or data that are not made available to public use:
  2. copy, reproduce, republish, upload, post, transmit, resell or distribute in any way material from The Bank;

permit any third party to use and benefit from the Service via a rental, lease, timesharing, service bureau or other arrangement;

transfer any rights granted to you under this Agreement;
work around any of the technical limitations of the Service, use any tool to enable features or functionalities that are otherwise disabled in the Service, or decompile, disassemble or otherwise reverse engineer the Service, except to the extent that such restriction is expressly prohibited by law;
perform or attempt to perform any actions that would interfere with the proper working of the Service, prevent access to or use of the Service by our other users, or impose an unreasonable or disproportionately large load on our infrastructure; or

otherwise use the Service except as expressly allowed under this section.

SETTLEMENT

Where the Bank collects Payments on behalf of the Client, the amount collected from the Customers after deducting any fees or other payments due or outstanding to the Bank from the Client (in respect of collections made by the Bank on behalf of the Client through any of the Payment Methods) shall be credited to such bank account or wallet provided by the Bank to the Client within twenty four (24) hours or any other agreed period but no more than seventy two (72) hours of collection.

CONFIDENTIALITY AND INTELLECTUAL PROPERTY

The Parties agree to maintain the conﬁdentiality of the Conﬁdential Information and to protect as a trade secret all portions of the other party’s Conﬁdential Information by preventing any unauthorized copying, use, distribution, installation or transfer of possession of such information. Dissemination of Conﬁdential Information by each party shall be limited to those employees with the need to such access for the advancement of the goals anticipated under this Agreement. Each party agrees to maintain at least the same procedures regarding Conﬁdential Information that it maintains with respect to its own Conﬁdential Information. Without limiting the generality of the foregoing, neither party shall permit any of its personnel to remove any proprietary or other legend or restrictive notice contained or included in any material provided by the other party and both parties shall not permit its personnel to reproduce or copy any such material except as expressly authorized hereunder.

The term “Conﬁdential Information shall not apply to any information which:

Is required to be disclosed by operation of law or any requirement of a competent authority PROVIDED ALWAYS that the disclosing Party shall promptly inform the other Party to whom the Conﬁdential Information belongs of any such requirement to enable such Party take any legal measures or otherwise for purposes of protecting its interests; or

Is reasonably required to be disclosed in conﬁdence to the Party’s professional advisors for use in connection with this Agreement PROVIDED ALWAYS the said Party shall be responsible for ensuring its said professional advisors adhere to the Party’s obligation of conﬁdentiality as if such advisors were the receiving Party

PROVIDED ALWAYS that the receiving Party’s obligations with regard to the information it holds in conﬁdence will not be transferred to its professional advisors but remain in it; or

Is or becomes within the public domain (otherwise than through the default of the recipient Party); or

Is in the possession of the receiving Party without restriction in relation to disclosure at the date of receipt from the disclosing Party; or

Is received from a third party who lawfully acquired it and who is under no obligation restricting its disclosure.

Neither Party shall (except in the proper course of performing its duties under this Agreement) during or after the period of this Agreement divulge to any person whatever or otherwise make use of Conﬁdential Information and each Party shall use its best endeavors to prevent the publication or disclosure of any Conﬁdential Information.

All Intellectual Property Rights belonging to a Party prior to the execution of this Agreement shall remain vested in that Party.

For the avoidance of doubt all Intellectual Property inherent in the software and other solutions provided by the Bank under this Agreement (including improvements and upgrades thereto) shall remain the sole and exclusive property of the Bank. Further and unless otherwise agreed in writing, neither Party shall be entitled to use of the Intellectual Property of the other save for the purposes of this Agreement.

All public announcements and/or press release in connection with the subject matter of this Agreement or its implementation shall only be made after mutual consultation and agreement on all the parameters thereof including but not limited to the contents of such public announcements and/or press releases.

Any breach of this Clause shall entitle the offended Party to terminate this Agreement in addition to other remedies entitled to it under law.

This provision on conﬁdentiality shall survive termination or expiry of this Agreement.

DATA PROTECTION

Each Party shall take all appropriate technical and organizational security measures to ensure that Data supplied by the other Party (“Discloser’s Data”) is protected against loss, destruction, and damage, and against unauthorized access, use, modiﬁcation, deletion, disclosure, or other misuse.

Each Party shall take reasonable steps to identify all reasonably foreseeable internal and external risks posed to the Discloser’s Data under its possession or control and establish and maintain appropriate safeguards against any risks identiﬁed. The safeguards shall be updated continually in response to new risks or deﬁciencies in previously implemented safeguards.

Each Party further warrants, represents and undertakes that it shall ensure that its technology, including all databases, systems, network and equipment on which the Discloser’s Data is processed as part of providing the Services, shall at all times be in a standard no less than the standards which are in compliance with the best industry practice for the protection, control and use of the Discloser’s Data and conform to the disclosing Party’s reasonable requirements.

Each Party shall and shall ensure that its employees, suppliers, agents, and sub-contractors shall, in respect of the Discloser’s Data.

Not process any Discloser’s Data (including personal or private information or personnel, clients, or Customers) for any purpose other than to the extent necessary to provide the Services under this Agreement.

At all times strictly comply with all the provisions and requirements of any of the disclosing Party’s protection policies and procedures which may be in force from time to time.

Comply with any request made or direction given by disclosing Party in connection with the requirements of any Data Protection and other Laws governing the provision of the services under this Agreement.

Not do or permit anything to be done which might jeopardize or contravene any Data Protection and other Laws governing the provision of the services under this Agreement.

Not disclose Discloser’s Data without the written authority of the disclosing Party (except for the purposes of fulﬁlling its obligations under this Agreement), and immediately notify the disclosing Party where it becomes aware that a disclosure of Discloser’s Data may be required by law; and

Immediately notify the disclosing Party when it becomes aware of a breach of this clause.

Each Party shall indemnify the other from and against all claims, actions, proceedings, costs (including attorneys’ fees), expenses, losses, damages and liabilities by the other Party arising out of or in connection to a breach of this clause subject to any limitations as to liability as may be provided in this Agreement.

PROCEDURE UPON TERMINATION

Upon termination of this Agreement for whatever reason:

All arrears of payments, if any, and any other agreed sums due under the terms of this Agreement shall be paid PROVIDED THAT any arrears shall only be payable for any Services provided during the period up to the date of termination of this Agreement.

The Parties shall return all Conﬁdential Information and other information, documents, material, and data obtained while carrying out the Services pertaining to this Agreement.

Subject to the provisions of this Agreement, the Parties shall be entitled to exercise any one or more of the rights and remedies given to it under law and under the terms of this Agreement and the determination of this Agreement shall not affect or prejudice such rights and remedies and each Party shall be and remain liable to perform all outstanding liabilities and obligations under this Agreement notwithstanding that the other may have exercised one or more of the rights and remedies against it.

FORCE MAJEURE

None of the Parties hereto shall be held liable for any breach of any of its obligations under this Agreement if such a breach results from an event of Force Majeure which for the purposes of this Agreement shall mean any event or circumstance which materially affects such Party hereto in a manner which prevents that party from performing or fulﬁlling all of its obligations under this Agreement and where such event or circumstance or its effects cannot be prevented, avoided or removed by such Party acting in accordance with prudent practice and has not been precipitated or caused by default, negligence, omission or act of any Party hereto.

Force Majeure event shall include, but shall not be limited to ﬂoods, earthquakes, natural phenomena, war, and decisions of any relevant Governmental Authority.

Where the Force Majeure event shall continue to subsist for a period of Twenty Eight (28) days the other Party may at any time thereafter terminate this Agreement upon not less than Fourteen (14) days’ notice in writing but without prejudice to any antecedent rights or liabilities of either Party.

NOTICES

Electronic notices will be sent to the email address or mobile number you have provided as your primary email address or mobile number. If your email address or mobile number changes, you are responsible for informing us of that change as soon as reasonably possible.

Except as otherwise specified in the Agreement, all notices, requests, approvals, consents and other communications required or permitted under the Agreement shall be in writing and shall be personally delivered or sent by mail, registered or certified, return receipt requested, postage pre-paid, courier service to the address specified above. Notices shall be deemed given on the day actually received by the party to whom the notice is addressed.

DISPUTE RESOLUTION

Any dispute arising between the Parties hereto and not settled in full by mutual agreement of the parties hereto evidenced in writing shall be referred to arbitration according to the Arbitration Law where the Bank’s entity is located.

If Parties cannot agree to on an arbitrator, the arbitrator shall be appointed by the Chair of the relevant arbitral body agreed upon by the Parties in the location of the Bank’s entity.

The rules of the said institute and the Arbitration Act in force in the relevant country as amended from time to time shall apply to the arbitration proceedings.

To the extent permissible by law the determination of the Arbitrator shall be final and binding upon the Parties.

The Language of the Arbitration hearing will be in English.

In the event that any dispute has arisen, and the parties have not been able to settle the same, within thirty (30) days then, any party may elect to commence arbitration. Such arbitration shall be referred to arbitration by a single arbitrator to be appointed by agreement between the Parties or in default of such agreement within 14 days of the notification of a dispute, upon the application of either Party, by the Chairman for the time being of the Kenya Branch of the Chartered Institute of Arbitration.

Such arbitration shall be conducted in Nairobi in accordance with the Rules of Arbitration of the said Institute and subject to and in accordance with the provisions of the Arbitration Act 1995.To the extent permissible by Law, the determination of the Arbitrator shall be final, conclusive and binding upon the parties. Pending final settlement or determination of a dispute, the Parties shall continue to perform their subsisting obligations. Nothing in this Agreement shall prevent or delay a Party from making claims or seeking injunctive or interlocutory relief in the High Court of Konya.

GOVERNING LAW AND JURISDICTION

The validity, construction and interpretation of this Agreement shall be governed by the laws of Kenya.

GENERAL

Nothing in this Agreement shall be construed to create a partnership, joint venture, or employer- employee relationship between the parties hereto or between the Bank and the Client’s employees. The Client shall have no right to obligate or bind the Bank in any manner. The employees of the Client shall not have any claim/right/beneﬁts whatsoever against the Bank.

Notwithstanding any other provision of this Agreement, the Client shall have no right to use any of the Bank’s trademarks, service marks, or trade names in connection with any products, services and/or promotion without the prior written consent of the Bank.

This Agreement shall be binding upon and ensure for the beneﬁt of the successors and / or assigns of the Parties.

This Agreement is personal to the Parties and may not be assigned at law or in equity without the prior written consent of the other Party.

The provisions of this Agreement may only be added to, modiﬁed, or varied by mutual consent of and the written agreement of the Parties.

PROVIDED that the terms and conditions and speciﬁcations of the Services under this Agreement including but not limited to the pricing & payment terms of this Agreement may be amended, altered and/or, modiﬁed by the Bank in consultation with the Client and upon prior written notice to the Client. Such amendment to or alteration or modiﬁcation of the Agreement shall be in writing and signed by the senior designated authorized signatory of the Bank.

This Agreement constitutes the whole agreement between the Parties relating to the subject matter of this Agreement and supersedes any previous written or oral Agreement between them in relation to the matters dealt with in this Agreement.

This Agreement may be entered into in any number of counterparts and by the Parties to it on separate counterparts, each of which when so executed and delivered shall be an original.

GENERAL

This Agreement, including its schedules may be amended by the Bank by way of bulletin, and notices. You acknowledge that such bulletin or notices shall be binding and shall have full legal force as it they were contained in this Agreement.