Dawapay Terms and Conditions & Consent Form

TERMS AND CONDITIONS

1.   DEFINITIONS

1.1.  In this Agreement the following words and expressions (save where the context requires otherwise) bear the following meanings:

1.1.1.   "account" means a loan account held by you with Pezesha and which is opened and operated in accordance with the terms and conditions herein contained;

1.1.2.   "Applicable Interest Rate" means the rates determined by Pezesha with respect to a loan application subject to the conditions agreed upon with Dawapay depending on the loan product;

1.1.3.   "Credit Reference Bureau" means a Credit Reference Bureau duly licensed under the laws of the Republic of Kenya, as amended from time to time, to inter alia, collect and facilitate the sharing of customer credit information;

1.1.4.   "Borrower" means a customer of Dawapay or a customer registered with Dawapay;

1.1.5.   "equipment" includes any device you use to access the Pezesha website;

1.1.6.   "facility fee" means the charge due to Pezesha from the Borrower in consideration for the Lender advancing the loan to the Borrower;

1.1.7.   "IPRS" means the Integrated Population Registration System set up and maintained by the Government of Kenya under the Ministry of State for Immigration and Registration of Persons;

1.1.8. "KYC" means know your customer;

1.1.9.   "Lender” means Pezesha Africa Limited, trading as "Pezesha"

1.1.10.   "lending criteria'' means any amount lent to the borrower, at stated terms by the lender and on the borrower' credit assessment based on information provided by Dawapay as stated in section 3;

1.1.11. "loan contract" means the agreement, incorporating the loan conditions, automatically entered into and agreed between a Borrower and the Lender;

1.1.12. “Loan tenor” means a period of thirty (30) days;

1.1.13. "Pezesha" means Pezesha Africa Limited, a limited liability company incorporated under the Companies Act 2015 in the Republic of Kenya

1.1.14. "repayment" means each instalment due and payable by a Borrower under a loan contract, which shall comprise of principal and any fees to Pezesha as well as any amount otherwise due and payable by the Borrower under the loan contract;

1.1.15. “Dawapay'' means a Limited Liability Company incorporated in Kenya under registration number PVT-EYUBQBYR and whose registered office is at  Information House , 5th Floor along Mfangano Street; 

1.1.16.  "system" means the Pezesha lending platform; 

1.1.17. "request" means a request or instruction received by Pezesha from you or purportedly from you through the system and upon which Pezesha is authorised to act;

1.1.18. "services" shall include any form of loan facilities or products that Pezesha may offer you, as a borrower, pursuant to this Agreement and as you may from time to time subscribe to and "service" shall be construed accordingly;

1.1.19. "We," "our," and "us," means Pezesha and includes its successors and assigns; and

1.1.20. "You" or "your" means the Borrower and includes the personal representatives of the User;

2.   ACCEPTANCE

2.1.  By selecting or confirming "accept" in the Pezesha loan application process you will be deemed to have fully read and understood the contents of this Agreement and to have unconditionally accepted to be bound by its terms as amended from time to time.

2.2.  It remains your sole responsibility to seek independent legal advice on the legal consequences of entering this Agreement. You understand and accept that the cost of obtaining legal advice is to be borne by you and not Pezesha.

2.3.  Once accepted this Agreement will bind you and your personal representatives on the one hand and Pezesha and/or its successors and assigns on the other hand.

2.4.  Any addition or alteration to this Agreement may be made from time to time by Pezesha after issuance of a 15 days’ notice by way of publication as provided herein. The addition or alteration shall be binding upon you fully as if the same were contained in this Agreement. If you choose not to agree/accept the addition or alteration of this agreement upon being notified within the 15 days, then Pezesha shall have the right to demand all outstanding payments owed to Pezesha to be fully repaid within 15 working days.

2.5.  It is your responsibility to review the terms of this Agreement regularly and to ensure that you understand any amendments made to them.

2.6.  You accept that if your loan becomes non-performing that Pezesha may deal with this Agreement in accordance with clause 3.9. 

2.7.  If you do not agree with any provision contained in this Agreement, please do not access or accept the Pezesha loan application process in any way.

2.8.  A copy of this Agreement will be made available for you to download/view through a weblink.

2.9.  If you have any question in relation to this Agreement, please contact Pezesha's customer care desk at sme@pezesha.com

3.   PERSONAL INFORMATION

3.1.  To use the service, upon confirmation of interest to take up a loan, Pezesha shall through Dawapay gain access to your personal information as provided by Dawapay for the purpose of KYC. Your obtained personal information will include:

3.1.1.   Your full name as it appears on your national identity card or passport;

3.1.2.   Your national identity card or passport details;

3.1.3.   Your mobile telephone number;

3.1.4.  Your Mpesa Statements; 

3.1.5.   Your postal and physical address;

3.1.6.   Store location; and

3.1.7.   Any other information that Pezesha may require from time to time.

3.2.  You warrant that the information that you provide while opening your account is true and accurate.

3.3.  You understand that providing false information will constitute a breach of this Agreement and may constitute a crime and that Pezesha reserves all right to take any and all measures available in law to obtain relief.

3.4.  You authorise Pezesha to verify the information you have provided on your identity through any source which Pezesha may in its sole discretion decide to use.

3.5.  You hereby authorise Pezesha to verify the information you have provided on your identity when opening your account by obtaining and procuring your personal information contained in the IPRS and you further agree and consent to the disclosure and provision of such personal information by the Government of Kenya to Pezesha.

3.6.  You hereby irrevocably authorise Pezesha to obtain your credit information from a Credit Reference Bureau.

3.7.  You understand and agree that Pezesha reserves the right to make periodic checks during the currency of this Agreement to establish your most current credit information.

3.8.  You understand and agree that Pezesha reserves the right to vary the terms of your loan including, but not limited to, the repayment period and interest payable based on, but not limited to, your most current credit information.

3.9. In case of default you irrevocably authorise Pezesha to send your name, the transaction and the details of default to a Credit Reference Bureau for listing. You understand that this information may be used by banking institutions and other credit grantors in assessing applications for credit by you, associated companies, and supplementary account holders and for occasional debt tracing and fraud prevention purposes. In case of default you also irrevocably authorise Pezesha to send your name to an external debt collection agency to make efforts to collect any arrears in relation to your loan with Pezesha.

3.10.  In so far as the information in question is not protected by any laws on data protection in Kenya you hereby irrevocably authorise Pezesha to disclose, receive, record or utilise any or all of your personal information or information or data relating to your Account and any details of your use of the Services:

3.10.1. to and from any local or international law enforcement or competent regulatory or governmental agencies so as to assist in the prevention, detection, investigation or prosecution of criminal activities or fraud;

3.10.2. to and from Pezesha's service providers, dealers, agents or any other company that may be or become Pezesha's subsidiary or holding company for reasonable commercial purposes relating to the Services;

3.10.3. for reasonable commercial purposes connected to your use of the Services, such as marketing and research related activities; and

3.10.4. in business practices including but not limited to quality control, training and ensuring effective systems operation.

4.   LOAN APPLICATION

4.1.  A loan is accepted by the borrower or on behalf of the borrower once you have stated clearly your intentions or acceptance of a loan offer from Pezesha through the following process;

4.1.1. An account is only opened on your behalf once you have stated clearly your intentions or acceptance of a loan offer from Pezesha.

4.1.2. The amount you can borrow, the applicable rate of interest and the loan application fees (“the Terms of the Loan”) will be determined by Pezesha in its sole discretion. In making its determination Pezesha will make a credit assessment after considering information provided by Dawapay and other sources, including but not limited to, your outstanding invoices to be financed, your credit information from the Credit Reference Bureau, your history of use of the Service and prevailing market conditions.

4.1.3. Pezesha will after assessing you as a borrower, propose loan offers and notify you of the Terms of the Loan and will give you an option asking you to confirm whether or not you have read, understood and accepted to be bound by the Terms of the Loan.

4.1.4. If you accept the Loan from Pezesha, you will get confirmation of acceptance by SMS or mobile application.

4.1.5. If you accept the Terms of the Loan you will be bound to pay the loan amount applied for, strictly on those terms and the terms of this Agreement.

4.1.6. Once you have accepted the Terms of the Loan, Pezesha will process your loan.

4.1.7. The loan will be initiated upon customer signing the terms and conditions and expressing direct interest for the loan facility through the available official channels.

4.2. Notwithstanding anything that is contained in this paragraph, Pezesha retains the right to approve or reject your loan application without assigning any reason.

5.   LOAN REPAYMENT

5.1.  You understand and accept that the Applicable Interest Rate is a one-off fixed rate of interest charged and applied on a straight-line basis for the duration of the loan.

5.2.  You can repay your loan either by instalments or by making a single lump sum payment within thirty (30) calendar days by following the following process;

5.2.1.   Repayments of the loans happen through Pezesha's regular process i.e Borrower pays directly to Pezesha bank account or paybill account number 898927 as will be communicated through the SMS notifications and calls from Pezesha.

5.3.  For the avoidance of doubt, loan repayments will be deemed to have been made by the borrower upon Pezesha confirming receipt and communicating the same in the system.

5.4.  You will repay the loan without any set off or counterclaim and save in so far as required by the law to the contrary, free and clear of and without any deduction or withholding whatsoever. If you are at any time required to make any deduction or withholding from any payment to Pezesha you shall immediately pay to Pezesha such additional amounts as will result in Pezesha receiving the full amount it would have received had no such deduction or withholding been required.

6. DEFAULT

6.1 An event of default occurs when you: -

6.1.1.   Fail to repay the loan according to the provisions of clause 4 and 5 above.

6.1.2.   Become insolvent.

6.2.  Upon your default Pezesha will be entitled to: -

6.2.1. Demand immediate repayment of all outstanding amounts due to Pezesha within a period of Pezesha’s choosing;

6.2.2. Deny you further loans and/or access to Pezesha’s services; 

6.2.3. Send information regarding the loan and your default to a Credit Reference Bureau;

6.2.4. To pursue any means of debt recovery available at law and any other measures. Pezesha may in its sole discretion decide to take; including seizing the assets given up as collateral, until full payments are made.

6.2.5. You may incur penalties on late payments in line with the interest rate set out in this agreement. The penalty rates shall be determined as follows;

  1. 3-15 days late - Penalty charge is a quarter of the daily interest rate

  2. 16-30 days late - Penalty charge is a half of the daily interest rate

  3. 31-180 days late - Penalty charge is the daily interest rate

6.2.6. You will be required to commit to still paying the loan even if any of the events happen. The Pezesha collections team will follow up with you.

7.   IRREVOCABLE AUTHORITY TO PEZESHA

7.1.  You hereby irrevocably authorise Pezesha to act on all requests received by Pezesha from you through the system and to hold you liable in respect thereof, notwithstanding that any such requests are not authorised by you.

7.2.   Pezesha 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, Pezesha determines that the incomplete or ambiguous information is immaterial to its action on the request.

7.3.  If you request Pezesha to cancel any transaction or instruction after a request has been received by Pezesha from you, Pezesha may at its absolute discretion cancel such transaction or instruction but shall have no obligation to do so.

7.4.  Pezesha 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 Pezesha may act if Pezesha has in good faith acted in the belief that such instructions have been sent by you.

7.5.  You agree to and shall release from and indemnify Pezesha against all claims, losses, damages, costs and expenses howsoever arising in consequence of, or in any way related to Pezesha having acted in accordance with the whole or any part of any of your Requests (or failed to exercise) the discretion conferred upon it. 

7.6.  You acknowledge that to the full extent permitted by law Pezesha 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 login credentials or any means whether or not occasioned by your negligence.

7.7.  You accept and understand that Pezesha 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. 

7.8.  In the event of any conflict between any terms in this agreement and any request received by Pezesha from you and the terms of this Agreement shall prevail.

8.   BORROWER'S RESPONSIBILITIES

8.1.  You shall follow all instructions, procedures and terms contained in this Agreement and any document provided by Pezesha concerning the use of the system and the services.

8.2.  You shall take all reasonable efforts to ensure that the correct and agreed upon loan amount has been disbursed to you.

8.3.  You shall take all reasonable efforts to ensure loan repayments are successful and paid to the correctly provided payment details by Pezesha. Where any doubt arises you shall immediately contact Pezesha for clarification, and/or reversal of any adverse payments made to a wrong business account.

8.4.  You undertake to make good your repayments within the stipulated time and within the contract terms.

9.   INDEMNITY

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

9.2.  The indemnity in sub-paragraph 9.1. shall also cover the following:

9.2.1.   All demands, claims, actions, losses and damages of whatever nature which may be brought against Pezesha 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, act of God, pandemic, corruption of storage media, natural phenomena, riots, acts of vandalism, sabotage, terrorism, any other event beyond Pezesha'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 Pezesha.

9.2.2.   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.

9.2.3.   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.

9.2.4.   Any loss or damage occasioned by the failure by you to adhere to this Agreement 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 Pezesha as a consequence of any breach of this Agreement.

9.2.5.   Any damages and costs payable by Pezesha in respect of any claims against Pezesha for recompense for loss where the particular circumstance is within your control.

10. INTELLECTUAL PROPERTY RIGHTS.

10.1.  All copyright, trademarks, patents and other intellectual property rights in any material or content (including without limitation software, data, source code, applications, information, text, photographs, music, sound, videos, graphics, logos, symbols, artwork and other material or moving images) contained in or accessible via the system ("Intellectual Property") is either owned by us or has been licensed to us by the rights owner(s) for use as part of the Services. You will not infringe any such intellectual property rights. Having noted the foregoing, you shall not be entitled in respect of any Intellectual Property to change, edit, modify, reformat or adapt it in any way, sell, reproduce, display, distribute, or otherwise use the Intellectual Property in any way for any non-private, public or commercial purpose without our written consent.

10.2.  If you violate any of the foregoing provisions, your permission to use the Intellectual Property automatically terminates and you must immediately destroy any copies you have of the Intellectual Property.

11. ASSIGNMENT, NOVATION AND OTHER DEALINGS

11.1.  Pezesha may assign or novate this Agreement or otherwise deal with the benefit of it or a right under it, or purport to do so, without your prior written consent.

11.2.  You may not assign or novate this Agreement in the manner described in sub-paragraph 11.1 or at all.

12. NOTICES

12.1.  Pezesha may send information concerning your account via a phone call, or SMS to the mobile phone number or email address associated with your Account.

12.2.  You accept that you have no claim against Pezesha for damages resulting from losses, delays, misunderstandings, mutilations, duplications or any other irregularities due to mis-transmission of any communication pertaining to your Account.

13. ACCOUNT DELETION

13.1. Users may initiate account deletion where;

a. They have completely repaid the loan amount

b. They no longer wish to take any more loans

13.2. Accounts that have been inactive for a period of time shall be automatically deleted.

13.3. Upon initiation of the account deletion process, users will be prompted to confirm their decision. Deletion of the account will result in the permanent removal of all user data associated with the account.

13.4.  After the deletion, Pezesha shall retain the account information for a period of seven (7) years in line with the statutory and regulatory requirements;

13.5. You acknowledge that the account deletion process is irreversible and that all data, including but not limited to user profile information, preferences, and any content associated with the account, will be permanently deleted;

13.6. Upon successful deletion of the account, you shall receive a confirmation of deletion.

14. DISPUTE RESOLUTION

14.1.  If any dispute arises between the Parties to this Agreement regarding any provision of this Agreement, or its application or termination, then we agree that we will attempt to resolve our dispute peaceably by means of joint co-operation or discussion between the parties directly involved in the dispute within five (5) business days after notification of the dispute or such extended time period as we may agree to.

14.2.  In the event that the Parties are unable to resolve the dispute, that dispute shall be finally settled through Arbitration conducted under the Laws of Arbitration of the Republic of Kenya by a single Arbitrator to be appointed by the parties jointly. The cost of the arbitration will be borne equally by the parties.

14.3.  If the parties shall not be able to settle on the single arbitrator after fourteen (14) days of the request to result to Arbitration, the aggrieved party may request the chairperson of the Chartered Institute of Arbitration Kenya chapter to appoint the single Arbitrator.

14.4.  The seat of the Arbitrator shall be in Nairobi and the arbitral proceedings shall be in English.

14.5.  This sub-paragraph shall constitute your irrevocable consent to the arbitration proceedings, and you shall not be entitled to withdraw your consent or to claim that you are not bound by this sub-paragraph.

15. GOVERNING LAW AND JURISDICTION

15.1.  You agree that this Agreement shall be governed by and construed in accordance with the laws of the Republic of Kenya.

15.2.  You agree to the exclusive jurisdiction of the courts of the Republic of Kenya in respect of disputes which may arise out of your use of Pezesha's services and this Agreement.

16. MISCELLANEOUS

16.1.  The parties are to act with loyalty and good faith towards one another.

16.2.  The failure by Pezesha to enforce at any time or for any period any one or more of the terms or conditions of this Agreement shall not be a waiver of them or of the right at any time subsequently to enforce all terms and conditions of this Agreement.

16.3.  If any provision of this Agreement is declared by any judicial or other competent authority to be void, voidable, illegal or otherwise unenforceable or indications to that effect are received by either of the parties from any competent authority, the parties shall amend that provision in such reasonable manner as it achieves the intention of the parties without illegality.

17. TERMINATION

17.1.  Pezesha may at any time, upon notice to you, terminate or vary its business relationship with Dawapay or You and close your account with Pezesha.

17.2.  Without prejudice to Pezesha's rights under subparagraph 16.1, Pezesha may at its sole discretion suspend or close your account:

17.2.1. if you use the provided loan for unauthorised purposes or where Pezesha detects any abuse/misuse, breach of content, fraud or attempted fraud relating to your use of the Services;

17.2.2. if your use of the provided loan in the opinion of Pezesha is in contravention with the law of Kenya and or illegal and not limited to money laundering activities.

17.2.3. if Pezesha is required or requested to comply with an order or instruction of or a recommendation from the government, court of competent jurisdiction, regulator or other competent authority;

17.2.4. if Pezesha reasonably suspects or believes that you are in breach of the terms of this Agreement which you fail to remedy (if remediable) within the time given for you to respond to any notice sent to you requiring you to do so;

17.2.5. 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; or

17.2.6. if Pezesha 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.

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

17.4.  If Pezesha receives notice of your demise, Pezesha 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 a confirmed grant of letters of administration or a confirmed grant of probate by your legal representatives duly appointed by a court of competent jurisdiction.

INFORMATION SHARING CONSENT FORM

I do hereby give permission to Pezesha Africa Limited to share my personal information with third parties/other service providers for the following purposes;

  1. Verification of my identity;

  2. Listing me in the Credit Reference Bureau;

  3. Credit scoring;

To offer its services to myself, I acknowledge that Pezesha shall gain access to my personal information held by myself or third parties such as Government sites for the purpose of undertaking Know Your Customer (KYC) checks. My personal information will include:

  1. My full name as it appears on my national identity card or passport;

  2. My national identity card or passport details;

  3. Date of Birth;

  4. Gender;

  5. My mobile telephone number;

  6. Postal and physical address;

  7. Business premises location; and

  8. Any other information that Pezesha may require from time to time.

I warrant that the information that I provide to Pezesha Africa Limited (hereinafter ‘Pezesha’) is true and accurate.

I understand that providing false information will constitute a breach of this Agreement and may constitute a crime and that Pezesha reserves all right to take any and all measures available in law to obtain relief.

I further authorize Pezesha to verify the information that I have provided on my identity through any source which Pezesha may in its sole discretion decide to use.

I hereby authorize Pezesha to verify the information I have provided on my identity by obtaining and procuring my personal information contained in the Integrated Population Registration System (IPRS) and I further agree and consent to the disclosure and provision of such personal information by the Government of Kenya to Pezesha.

I hereby irrevocably authorize Pezesha to obtain my credit information from a Credit Reference Bureau.

I understand and agree that Pezesha reserves the right to make periodic checks during the currency of this Agreement to establish my most current credit information.

I understand and agree that Pezesha reserves the right to vary the terms of my loan including, but not limited to, the repayment period and interest payable based on, but not limited to, my most current credit information.

In case of default I irrevocably authorize Pezesha to send your name, the transaction and the details of default to a licensed Credit Reference Bureau for listing. I understand that this information may be used by banking institutions and other credit grantors in assessing applications for credit by me, associated companies, and supplementary account holders and for occasional debt tracing and fraud prevention purposes. In case of default I also irrevocably authorize Pezesha to send my name to an external debt collection agency to make efforts to collect any arrears in relation to my loan with Pezesha.

I further consent to Pezesha Africa Limited to process my personal information for the following reasons:

  1. Determining my credit score in order to determine how much money I qualify to borrow;

  2. Undertake due diligence on me as well as comply with any regulatory requirements;

  3. Create my profile on its lending platform/apps;

  4. Allow Pezesha to identify me for purposes of collection of the loan I owe it;

  5. in business practices including but not limited to quality control, training and ensuring effective systems operation;

  6. Provide third party service providers such as KYC service providers. 

I acknowledge that Pezesha will share my personal data with third party software providers who collect, store and process my personal data on behalf of Pezesha and who are contractually obligated to keep my personal data confidential subject to appropriate safeguards to prevent it from unauthorized disclosure; and

In so far as the information in question is not protected by any laws on data protection in Kenya I hereby irrevocably authorize Pezesha to disclose, receive, record or utilize such information or information or data relating to my Account and any details of my use of the Services:

  1. to and from any local or international law enforcement or competent regulatory or governmental agencies so as to assist in the prevention, detection, investigation or prosecution of criminal activities or fraud;

  2. to and from Pezesha's service providers, dealers, agents or any other company that may be or become Pezesha's subsidiary or holding company for reasonable commercial purposes relating to the Services including but not limited to KYC checks;

  3. in business practices including but not limited to quality control, training and ensuring effective systems operation.

Statement of consent

I understand the nature of personal information held by the Company;

I understand the implications of sharing my data with third parties;

I agree to my information being collected by the Company and shared with the Third Parties.

I understand that my consent to Pezesha to share my personal information is entirely voluntary and I may withdraw my consent at any time. 

Should you have any questions about this process, or wish to withdraw your consent please contact: compliance@pezesha.com Tel: +254755768547

By filling the form below, I confirm that I have read and that I accept all the terms and conditions set above.

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