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Terms and Conditions

1. DEFINITIONS

 

For the purpose of this Contract, the terms used hereinafter shall have the following meanings:

 

Contract:  means this contract signed by both parties;

 

Client:  means the entity which, complying with this Contract, is entitled to place an order with the Issuer to issue the Apptivate Africa M-Kula/M-Tuza/Business Pass/M-Kapu Vouchers for use by the Users;

 

Force Majeure:  means a force majeure event under clause 11. Issuer means Apptivate Africa Ltd;

 

Law means all applicable legislation, statutes, directives, regulations, rules, judgements, decisions, decrees, orders, instruments, by-laws and other legislative measures or decisions having the force of law in Kenya from time to time;

 

Voucher means digital M-Kula/M-Tuza/Business Pass/M-Kapu or any other Voucher issued by the Issuer under this Contract, commercialized under the brand names owned by the Issuer, and valid up to six months from the date of their issuance. The usage of the Voucher is governed by the User Terms & Conditions of Use.

 

Merchant means the entity (es) authorized by the Issuer to provide Products or services to the Users in exchange for the Voucher;

 

Order means the data submitted by the Client on the Issuer’s portal whereby the number and value of Vouchers to be issued by the Issuer is established;

 

Parties means the Client and the Issuer and Party shall mean either one of them. Unit means the Merchant’s unit(s) that market(s) the Products for which M-Kula/M-Tuza/Business Pass/M-Kapu value can be redeemed against and in the list posted on the Apptivate Africa app;

 

User means individual person who the Client has sent Apptivate Africa M-Kula/M-Tuza/Business Pass/M-kapu Voucher(s) and / or value. VAT means value added tax under the Kenyan Value Added Tax Act (as amended from time to time).

 

2. PRIOR CONDITIONS

 

The Client represents and acknowledges that:

  1. It is a person(s) duly registered in Kenya;
  2. It shall place Orders in accordance with the provisions of this Contract;
  3. It shall perform their obligations under this Contract in strict compliance with its provisions, and the Law.

 

 

3. SUBJECT MATTER OF THE CONTRACT

 

The Client hereby appoints the Issuer to provide the Vouchers and the Issuer agrees to issue the same for the Users in accordance with the terms and conditions of this Contract.

The value of what is loaded into Voucher shall be established by Orders placed by the Client on the Issuer’s Portal.

 

 

4. PERIOD OF THE CONTRACT

 

This Contract shall enter into force on the date it is signed (physically or digitally) by both Parties.

This Contract may be terminated with a 1-month notice period, unless terminated by the Parties in accordance with clause 10. 5.

 

5. CONTRACT PRICE. NOMINAL VALUE

 

The Client undertakes to pay to the Issuer the nominal value of the vouchers, the service fee for contracted services, as well as the related VAT on the Service Charge.

The price of the Voucher, and related services is set out in Clause 21.3. The service fee does not include VAT or applicable taxes and will be borne by the Client. The prices for services are in Kenya Shillings (and if a percent, will be converted to Kenya Shillings), and shall be invoiced pursuant to an Order placed by the Client.

The price will be indexed or adjusted on a yearly basis, after negotiation and mutual agreement by the parties on the anniversary of the signature date of this Contract. The price index will be based on the official inflation rate, published by Kenyan authorities.

 

6. PAYMENT AND DELIVERY

 

The vouchers shall not be delivered before the full payment of the invoice transmitted by the Issuer to the Client for the concerned Order has been settled and funds have been cleared at the Issuer’s bank account via bank transfer, cheque or M-Pesa. The Issuer doesn’t accept cash in any form whatsoever.

 

7. OBLIGATIONS OF THE ISSUER

 

The Issuer undertakes:

  1. To organize and provide the services required to use the Vouchers;
  2. To disburse vouchers to the Users based on the Order placed by the Client and accordance with this Contract;
  3. To pay the Merchants who have redeemed value from the Vouchers from the Users in accordance with this Contract.
  4. Apptivate Africa will act as a coordinating agent between the Client and the Merchant and all payments made by Apptivate Africa to the Merchant on reimbursement of voucher will constitute a valid discharge of the Client’s obligation to pay directly to the Merchant. The Issuer will not manage any Merchant.
  5. To ensure that the value loaded is valid for a period of six months from issue unless otherwise specified. After six months it will be considered lost and void and neither the Client nor the employee will have any right to the expired amount.
  6. Apptivate Africa will provide the Client with the ability to change the phone number in case the client wants to transfer funds from one number to another. Expired funds cannot be transferred.

 

8. OBLIGATIONS OF THE Client

 

The Client undertakes:

 

  1. Not to order Vouchers or value if it does not meet any Law requirements in force and in relation to the Voucher at the moment the Order is placed; for this purpose, the placement of an Order shall be an acknowledgement by the Client that the Client has met the relevant legal conditions;
  2. To inform the Issuer, within 24 hours after the finding, of any theft of value from the Vouchers, as well as of any such attempts; the notice under this clause shall include the use of a User’s PIN by anyone other than the User.
  3. To accept and receive, from the Issuer and their partners, content generated by the Client by email, mail, SMS and other communication channels.
  4. To inform immediately the Issuer of any change occurred in relation with Users’ identification data (especially, first name, last name, personal identification number and mobile phone number).
  5. Impress on its each employees, that their PIN is private, and should not be shared (even with the Client), and that the Issuer will not be liable for any amounts that are deducted from the User’s Vouchers if they have shared their PIN with anyone. The Issuer will ensure full security of the platform and in the event of a breach and investigation thereafter showing that it is the Issuer’s fault, then only is the Issuer liable as per limitation of the liability.
  6. That Vouchers are non-refundable and that Issuer will only issue credit notes against erroneous orders for which payment has not yet been made.
  7. The Client will deposit the payment into to Issuer’s account indicated on the invoice at the Client’s cost.
  8.  Clients who opt for the QR code method of transactions understand that the transaction is PINless and therefore less secure. The Client will exempt the Issuer from all fraudulent transactions that may occur due to lost or stolen QR codes. The initial QR codes will be provided at no cost 2 days after the order has been placed.  Replacement codes will be charged at Ksh 30+VAT per QR code, plus the delivery fee.

 

9. WARRANTIES, LIABILITY AND INDEMNITY

 

  1. Each party warrants, represents and undertakes that in entering into this Contract it does not breach any obligation to any third party it has full capacity and authority to enter into this Contract and it has obtained all necessary and required permits to conduct its business.
  2. The Client warrants, represents and undertakes that in entering this Contract, its performance of its obligations under this Contract will not breach any applicable law
  3. Under no circumstances shall the Issuer be liable to the Client whether in contract, tort (including negligence) or otherwise for failure by a Merchant to provide the Products or any other claim in connection with the performance of a Merchants’ obligations.

 

 

10. CANCELLATION. SUSPENSION

 

  1. Notwithstanding any other provisions of this Contract and without prejudice to and any other remedies or rights that the Issuer may have:
    1. The Issuer may terminate this Contract within 7 days written notice if the Client fails to perform any of their obligations provided for under clauses 5 and 6 of this Contract, unless the Client has within such 7 days period began to meet its obligations again; and
    2. The Issuer may suspend this Contract with 7 days written notice:
      1. if the Client fails to perform of any of their obligations provided for under clause 8 of this Contract until the 1 Client meets its obligations to the satisfaction of the Issuer; or
      2. if the Issuer no longer holds, for any reason, the authorization to issue Vouchers, granted by the competent authorities.
  2. The Client may within 7 days’ written notice terminate this Contract for a material breach of the Contract by the Issuer, unless the Issuer has within such 7-day period cured such breach (if such breach is curable).
  3. The performance of this Contract shall be suspended for the period in which the Client no longer holds the legal right to grant Vouchers to its employees.
  4. This Contract may otherwise be terminated:
    1. in accordance with the provisions of clause 4.2 above; and
    2. by a Party if the other Party becomes insolvent or if an order is made or a resolution is passed for the winding up of the other Party (other than voluntarily for the purpose of solvent amalgamation or reconstruction),
    3. or if an administrator, administrative receiver or receiver is appointed in respect of the whole or any part of the other Party’s assets or business,
    4. or if the other Party commits an act of bankruptcy or if a receiving order shall be made against him or makes any composition with its creditors or takes or suffers any similar or analogous action in consequence of debt.

 

11. FORCE MAJEURE 

 

Neither of the Parties shall be liable, or shall be deemed to have breached this Contract in case it cannot meet one of its obligations (except for the price payment obligation, which should be met by the due date under any circumstances) in case of Force Majeure. Any external, unpredictable and insurmountable event beyond the control of the Parties shall be deemed as Force Majeure, such as war, fire, explosion, flood, earthquake, revolution.

 

The Party affected by Force Majeure shall send the other Party a certificate issued by the Kenyan Chamber of Commerce and Industry attesting the Force Majeure situation within 15 days after the occurrence of the Force Majeure event. If in case of Force Majeure, the Issuer or the Client is not able to meet its obligations under this Contract, the Parties shall meet within 5 (five) days after the occurrence of the event in order to establish the measures required to execute or cancel the Contract by mutual agreement. In case such communications have not been sent, by the above-mentioned means, the Party affected by Force Majeure shall be deprived of the right to invoke the Force Majeure event as a cause for exemption.

 

If, within 6 (six) months after the occurrence of the Force Majeure Event, the Parties do not reach an agreement, either of the Parties may unilaterally terminate this Contract.

 

12. AMENDMENT OF THE CONTRACT

 

  1. This Contract may only be amended in writing, when signed, dated and stamped by agreement of both parties. Any amendments shall only have effects for the future.
  2. The provisions of the above-mentioned paragraph shall not apply to a variation of the index under clause 5.3 or to any mandatory legal amendments, including the nominal value of the Vouchers.

 

13. CONFIDENTIALITY

 

  1. Each Party (“Receiving Party”) shall keep the confidential information of the other Party (“Supplying Party”) confidential and secret, whether disclosed to or received by the Receiving Party. The Receiving Party shall only use the confidential information of the Supplying Party for performing the Receiving Party’s obligations under this Contract. The Receiving Party shall inform its officers, employees and agents of the Receiving party’s obligation under the provisions of this clause, and ensure that the Receiving party’s officers, employees and agents meet the obligation.
  2. The obligations of clause 13.1 shall not apply to any information which:
    1. was known or in the possession of the Receiving Party before the Providing Party provided it to the Receiving Party;
    2. is, or becomes publicly available through no fault of the Receiving Party;
    3. is provided to the Receiving Party without restriction or disclosure by a third party, who did not breach any confidentiality obligations by making such a disclosure;
    4. was developed by the Receiving Party (or on its behalf) who had no direct access to, or use or knowledge of the confidential information supplied by the Supplying Party; or
    5. Is required to be disclosed by order of a court of competent jurisdiction.
  3. This clause 13 shall survive the termination of this Contract.

 

14. PERSONAL DATA

 

  1. The Issuer shall at all times during and following the termination or expiry of this Contract:
    1. Take appropriate technical and organisational measures against unauthorised and unlawful processing of Client’s and Client’s employees’ personal data and against accidental loss and destruction or damage to Client’s and Client’s employees’ personal data.
    2. Permit only those of its personnel that it reasonably believes are reliable and need to do so to have access to any of Client’s and Client’s employees’ personal data, such access is solely for the purpose of this Agreement; and privacy and information policies and practices to determine whether the Issuer is in compliance with this Contract.
    3. Inform Client immediately of the details of any breach of Client’s or Client’s employees’ personal data (including disclosure or loss of or damage to such personal data) and take steps to remedy any such breach as required by Client.
    4. The Client allows the Issuer to use the Client’s name and Logo in Marketing materials, Public Relations & General communication.

 

 

15. AUDIT RIGHTS AND DELIVERABLES

 

  1. Subject to the requirements of law and to the Issuer’s obligations of confidentiality to third parties, the Issuer shall, upon the provision of reasonable notice, allow the Client or its designated agent access during normal business hours to perform reviews and inspection of Issuer’s facilities, operations and records relating to the Services,
  2. The Issuer shall also provide the Client or its designated agent during normal business hours with books, records and supporting documentation adequate to evaluate the Issuer’s performance. Any determination made by the Client regarding the Issuer’s compliance with its obligations under this Contract shall not relieve the Issuer of any liability for breach of this Contract.

 

 

16. LIMITATION OF LIABILITY

 

  1. Except as provided by law of this Contract, each party shall only be liable for normal consequences of any breach under this Contract.
  2. Neither party shall have any liability whether based in contract or delict or otherwise for any punitive, exemplary, consequential, special, indirect or incidental damages, or use or interruption of business, arising from or related to this Contract even if advised of the possibility of such losses or damages.
  3. The aggregate liability of the Client to the Issuer for any losses related to this Contract arising from any and all events, whether based upon an action or claim in contract, delict, breach of warranty, misrepresentation, or otherwise (including any action or claim arising from the acts or omissions of the liable Client) shall not exceed the fees paid by the Client for the three calendar months immediately preceding the date on which the cause of action giving rise to the claim arises, or if three calendar months have not elapsed in the Term at the time a claim arises, the amount paid to the date of cause of action in terms of this Contract.
  4. Each Party agrees and acknowledges that the obligations of a Party under this Contract, including the indemnity provisions, are the obligations of the contracting Party only, and no shareholder, partner, director, employee or affiliate of any party shall have any liability arising out of a breach of this Contract or obligation hereunder.
  5. Nothing in this Contract will limit a party’s liability for:
    1. death or personal injury caused by that party’s negligence.
    2. any intellectual property related indemnity.
    3. that party’s fraud.
    4. any other liability that cannot be limited under any applicable law.

 

17. ANTI-BRIBERY

 

  1. The parties to this Contract agree that they will and they will procure that their respective officers, directors, employees or agents only use legitimate and ethical practices in the conduct of their respective businesses.
  2. The parties will not and they will procure that their officers, directors, employees and agents will not pay, offer, promise or authorise the payment or receipt, directly or indirectly, of any monies or gratification to or from any private or public body, trust or person (natural or juristic), for the purpose of unduly influencing any act or decision or to secure an improper advantage as contemplated in applicable law.

 

 

18. GENERAL

 

  1. Neither Party may assign, delegate, mortgage, charge or otherwise transfer any or all of its rights and obligations under this Contract without the prior written agreement of the other Party.
  2. No failure or delay by either Party in exercising any right, power or privilege under this Contract shall impair the same or operate as a waiver of the same nor shall any single or partial exercise of any right, power or privilege preclude any further exercise of the same or the exercise of any other right, power or privilege. The rights and remedies provided in this Contract are cumulative and not exclusive of any rights and remedies provided by law.
  3. This Contract shall not constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the Parties other than the contractual relationship expressly provided for in this Contract. Neither Party shall have, nor represents that it has any authority to make any commitments on the other Party’s behalf.
  4. If any provision of this Contract is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision shall, to the extent required, be severed from this Contract and rendered ineffective as far as possible without modifying the remaining provisions of this Contract, and shall not in any way affect any other circumstances of or the validity or enforcement of this Contract.

 

 

19. DISPUTE RESOLUTION

 

 

The Parties hereto will endeavour to settle amicably all disputes arising out of this Contract. If any dispute or difference shall arise between the Parties hereto as to the meaning or construction of this Contract or anything herein contained or as to the rights or obligations of either Party hereunder or otherwise in connection with this Contract or anything to follow hereon which cannot be settled amicably (within thirty (30) days), then, in all such cases, the same shall be referred for decision to a single arbitrator to be appointed by agreement between the Parties or failing such agreement within thirty (30) days after the date on which one of the Parties hereto first serves on the other a notice giving the name, address and a summary of the qualifications of a suggested arbitrator, to be appointed by the Chairman for the time being of the Chartered Institute of Arbitrators of the United Kingdom, Kenya Branch and any arbitration proceedings hereunder shall be conducted in Nairobi.

 

20. GOVERNING LAW

 

 

This Contract is regulated by all legal provisions in force in Kenya, including and in particular those of the Law with all rules, orders and implementing regulations (including amendments that may be enforced after signing the Contract), their mandatory rules forming an integral part of the Contract.

 

21. FINAL PROVISIONS

 

  1. Unless otherwise expressly provided for in this Contract, any notification/communication addressed by one of the Parties to the other shall be made by registered letter with acknowledgment of receipt or fax with acknowledgment of receipt or by email to the attention of the person, and to the addresses indicated in the recitals of the Contract.
  2. In the performance of this Contract, the Parties may exchange certain personal data of the Users. The Parties undertake to treat this information as confidential in accordance with applicable Law. Consequently, the Parties undertake to process such personal data solely for the purpose of performing the obligations under this Contract. Where the consent of the persons concerned (especially, without limitation to, Users) is required, the necessary approvals for the processing (including for personal data transfer by the Issuer) shall be the responsibility of the Client, and the Client shall indemnify the Issuer against any consequences and claims arising from the Users, third parties or any competent authorities.
  3. The Service Fee, which includes:
    • Providing the client with a guide on how to use an app
    • Grant access to the web platform for Clients to manage the Vouchers program i.e. loading Users’ accounts, checking accounts balance;
    • Processing each User creation requests (back-office processing, account creation, SMS notification to the User);
    • Processing each User activation request (account status update, activation confirmation);
    • Creating dedicated accounts for the Users upon Client’s instructions;
    • Maintaining access to web platforms for Clients to manage the program of Vouchers i.e. loading Users’ accounts, checking accounts balance;
    • Managing and improving network of Merchants;
    • Granting and maintaining access to a mobile application for Users to manage their Vouchers i.e. checking accounts balance and transaction history;
    • Providing customer service assistance to Clients and Users for any questions related to the use of Vouchers;