PRIVACY AND AUTHORISATION AGREEMENT
This Privacy and Authorization Agreement (“Agreement”) is made and signed electronically between :
1. Totem Tech Pesa Plus , a company established under Kenya Law pursuant having address in Setiabudi Atrium Building, 3th Kinimali Rd, Nairobi, Kenya here in after referred to as “First Party”.
2. You, in this matter act for and on behalf of itself, hereinafter referred to as “Second Party”. In this Agreement, the First Party and Second Party, collectively referred to as the “Parties” and individually referred to as “Party”.
Your acceptance of this Agreement is deemed to occur when signing up for an account. If you do not accept and agree with this Agreement, you must stop using any of our services immediately.
1. The First Party is a company providing financial technologies for a lending service that is registered with Nairobi in Kenya ;
2. The Second Party is an individual or a legal entity having legal capacity to represent itself under the prevailing laws and regulation in Kenya;
3. The Second Party intends use the services of First Party;
4. The First Party has an obligation to verify the identity of the borrowers; and5. The Second Party is willing to provide personal information to be used by First Party.
Now, therefore, the Parties agreed to be bound by the terms and conditions set forth in the following Articles:
The terms below, used in this Agreement have the following meanings :
“Affiliate” means any corporation or legal entity which (a) controls a Party directly or indirectly or (b) is controlled directly or indirectly by a Party or (c) is controlled directly or indirectly by a corporation or legal entity that directly or indirectly controls a Party. “Control” in this Article means direct on indirect ownership of majority share or voting rights in a corporation, partnership or legal entity.
“Pesa Plus Account” means the assigning of a unique identification method for the Second Party upon using First Party Service
“Private Data” means, including but not limited to, (i) name, (ii) identification/identity, (iii) addresses, (iv) telephone numbers and e-mail address (v) biometric information, (vi) and other information required by the First Party to verify the identification of the borrowers.
“Second Party Operation Information” means, including but not limited to, computer IP address, hardware model, operating system used by Second Party, Second Party location when accessing First Party Electronic System Service, and other information related to First Party services.
“Force Majeure” means a condition or an incident which is beyond and not caused by negligence of a Party, and cannot be foreseen before the Parties sign the Agreement, and which directly affects the execution of the Agreement. Such condition or incident include, but not limited to, fire, flood, earthquake, typhoon, volcanic eruption, epidemics, labor strike, war or acts of violence or the like either expressly stated or otherwise, Government’s action to amend/revoke/issue any laws and regulation related to the First Party’s business. Force Majeure excludes the lack or absence of Second Party’s fund, or revocation of business license.
“First Party Service” includes, but not limited to the assessment of credit ratings and other services provided by the First Party accessible through the First Party Electronic System.
“Government” means the Government of the Republic of Kenya represented by any ministry including any local government, and any authorized body and bureau. “Government” when capitalized shall mean Government.
“Third Party” means any party other than the First Party or the Second Party.
“POJK 77” means the regulation of Otoritas Jasa Keuangan No.77/POJK.01/2016.
“First Party Electronic System” means information technology owned by the First Party including but not limited to the website www.pesa360.com and Pesa Plus mobile app that is managed by the Service Provider in order to provide, administer and operate information borrowed and lending services based on information technology.
SCOPE OF AGREEMENT
2.1. Second Party agrees to provide Second Party Private Data and to allow the First Party to collect, to use, and to store Second Party Private Data for the purpose of verifying the potential borrower;
2.2. First Party agrees to accept and shall collect, use, store and keep in confidence the Second Party Private Data for purpose of verifying the identity of the Second Party as potential borrower.
2.3. Second Party is prohibited to disseminate or share any information obtained by means of use of the First Party service, whether information concerning the First Party as well as regarding the Second Party, to any third party without obtaining prior written approval from the First Party.
PRIVATE DATA OF SECOND PARTY
3.1 SECOND PARTY PRIVATE DATA COLLECTIONSecond Party gives authority to First Party to collect and to use Second Party Private Data.
3.1.1 Second Party Private Data required to be provided to the First Party and be collected, used, stored by the First Party includes but not limited to:
a) Personal Identity;b) Second Party’s bank account or other payment account;
c) Place of registration at Pesa Plus’s account on First Party Electronic System;
d) Social media information;
e) Information from phone book address containing in cellular phone, social media accounts and e-mail;f) Transaction information through Pesa Plus Account;
g) Information from Third Party in relation to the First Party’s services;
h) Second Party’s Operational Information;
i) Information provided when the Second Party contacted the First Party’s customer service team and information provided when the Second Party participated in the survey and questionnaire;
j) e-mail address and social media accounts; and
k) Information provided when the Second Party interacted with Affiliate and First Party’s business partners.
3.1.2 Collection of Second Party Private Data by First Party will be conducted by accessing, including but not limited to:
a) Second Party’s Pesa Plus account;
b) Second Party’s social media accounts (Facebook, Twitter, LinkedIn, and other accounts);
c) Second Party’s electronic commerce account (Tokopedia, Bukalapak, Blibli, Lazada, Elevenia, Ticket.com, Traveloka, Agoda, etc);
d) Second Party’s cellular phone number; and Verifying the beneficial ownership of bank account to be used for First Party services.
3.2 THE USE OF SECOND PARTY PRIVATE DATA
3.2.1 Second Party gives authority to First Party to use Second Party Private Data for the purpose of:
a) Complying with all applicable laws and regulations;
b) Arranging lending services;
c) Updating the First Party’s service for the Second Party
d) Notifying the Second Party regarding the First Party Service status or receiving information regarding the First Party Services, and notifying the Second Party of the status of marketing and other commercial electronic information;
e) Preventing illegal acts;Other purposes as permitted by the Second Party.
3.2.2. Subject to the above provisions, First Party may cooperate and exchange Second Party Private Data for the purpose of mitigating risk with:
a) Center Bank of Kenya (CBK);
b) Payment Gateway Partner and Payment Channel Partner;
c) Information technology based support service provider;
d) First Party’s Affiliate; and
e) First Party’s employee, officers, directors and Affiliates.
3.3 CHANGE OF SECOND PARTY PRIVATE DATA
Second Party may change Second Party Private Data in accordance with the procedure specified by First Party and must promptly inform the First Party.
PROTECTION OF SECOND PARTY PRIVATE DATA
First Party shall endeavour to keep in confidence of any Second Party Private Data, either directly submitted by the Second Party upon the registration of a Pesa Plus account, or collected by the First Party under the terms of this Agreement either through hardware or software which is reasonably certified physically electronically and administratively.
5.1 All Second Party Private Data received by First Party under this Agreement will be securely stored in Kenya and at the location of First Party’s Affiliates.
5.2 Upon expiration of the storage period as set forth in Article 6.2 of this Agreement, Second Party may request First Party to destroy Second Party’s Private Data on the First Party’s Electronic System.
6.1 This Agreement shall be effective on the registration date of Pesa Plus Account under the name of Second Party at the First Party Electronic System.
6.2 First Party has the right to store Second Party Private Data on the First Party’s Electronic System for at least 5 (five) years as of the closing of Second Party’s Pesa Plus Account under this Agreement. This provision shall survive termination or expiration of this Agreement.
REPRESENTATIONS AND WARRANTIES
7.1 Second Party represents and warrants that:
a) In relation to its capacity to bind themselves into this Agreement :
- Second Party is a company established under the law of Kenya, which has obtained the business licenses as required by the applicable laws and regulations and shall maintain the validity of the business licenses until the expiration of this Agreement, or
- Second Party is an Kenya citizen having the capacity under the law to act for and behalf itself;
b) Second Party is the owner of their Private Data and has the right to disclose Second Party Private Data to First Party;
c) Second Party is the only party entitled to use Second Party’s Pesa Plus Account;
d) Second Party shall keep in confidence Second Party’s Pesa Plus Account password;
e) Second Party shall be solely responsible for any actions and statements made by using Pesa Plus Account and for the use of Second Party’s Pesa Plus Account password;
f) Second Party shall provide accurate, true, valid, recent and complete Private Data in accordance with the registration requirements of Pesa Plus Account;
g) Second Party complies with all instructions, terms and conditions applicable when submitting application through of the First Party Electronic System;
h) Second Party shall not file a change of name request for any purpose that is unlawful or prohibited by this Agreement. Second Party may not use our Services in any way that could disable, disrupt or cause damage to another website; and
i) Second Party shall not acquire or attempt to acquire information other than those provided on the First Party Electronic System related to the First Party Service that is against the law or this Agreement.
7.2 REPRESENTATIONS AND WARRANTIES OF FIRST PARTY
First Party represents and warrants that:
a) First Party has registered and monitored by OJK;
b) Subject to the applicable laws regulations, First Party shall keep in confidence of the Second Party’s Private Data on the First Party’s Electronic System;
c) First Party shall use the Second Party’s Private Data for the purpose of the First Party’s loan application and service update for the Second Party.
Second Party shall defend, indemnify and hold harmless the First Party from and against any claims, losses, liabilities, demand, suits and verdict (including legal fee) arising from:
a) Third Party’s losses;
b) The misuse of Private Data by other party other than First Party;
c) The use of Pesa Plus account by the Second Party;
d) The use of loan fund by Second Party;
e) Disclosure of password to Third Party which is not done by First Party;
f) Link to any website other than the First Party Electronic System;
g) Trouble on the banking system used and chosen by the Second Party;
h) Network operation troubles related to bank connections or any Force Majeure event;
i) Use or failure of Second Party in using the First Party Service;
j) Cost and losses due to purchase or acquisition of good, sample, data, information or legitimate transactions from Second Party through First Party Service;
k) Misinterpretation by Second Party to First Party on its Services;
l) Other losses incurred from the First Party Service unattributable to the First Party;
m) Any damage caused by hackers, computer viruses or intrusions, technical adjustments in telecommunications sector, temporary closure due to government regulations, and any other real names unattributable to misinformation that has been authenticated by First Party is leaking, lost, stolen or damage;
n) Any risk arising from currency devaluation;
o) Unfulfillment due to factors such as validity, accuracy, exactness, reliability, quality, stability, completeness or punctuality of information and technology in the First Party Services.
AMENDMENT OF AGREEMENT
9.1 The Second Party agrees that the First Party, on the basis of the First Party’s own consideration, may amend or add the Terms from time to time. Amendments or additions to these Terms will apply after the First Party announces such amendments or additions to the Agreement through electronic media or other communications media chosen by the First Party. Changes to the Agreement will become effective immediately upon publication.
9.2 Second Party shall also be able to access the amendment of this Agreement through First Party Electronic System and First Party Service.
9.3 If the Second Party decides to continue using the First Party’s Service after the notification of the amended Agreement becomes effective, the Second Party shall be deemed to have fully read, understood and agreed with the entire contents of the Agreement including any amendments.
9.4 If the Second Party disagrees with the contents of the amended Agreement as referred to in Article 9.1, Second Party shall promptly notify such refusal to First Party and shall agree to cease using the First Party Service.
TERMINATION OF AGREEMENT
10.1 First Party may unilaterally terminate this Agreement earlier with a three (3) days prior notice if the Second Party is in breach of any of the terms and conditions of this Agreement;
10.2 In the event the First Party terminates this Agreement earlier as mentioned in Article 10.1, the First Party shall have the right to suspend or terminate the First Party Service to Second Party partly or wholly;
10.3 In the event of termination of this Agreement, the Parties agree to waive the provisions of Article 1266 of the Kenya Civil Code.
This Agreement shall be governed by and, on any matter, interpreted based on the laws of the Republic of Kenya.
Any dispute arising from or related to this Agreement, which cannot be settled amicably between the Parties within thirty (30) days as of the first dispute notification, shall be settled through the Kenya National Board of Arbitration (BANI) in accordance with the procedure under the BANI Rules applicable as at the registration of arbitration application.
IN WITNESS WHERE OF, the Parties have signed this Agreement via electronic means as per the laws of the Republic of Kenya in Law No. 11 of 2008 regarding Electronic Information and Transactions and is deemed to be executed on the date when First Party opened their account and will have the weight of law as if this agreement is executed in writing.