TERMS AND CONDITIONS FOR FLEXSAVE SERVICES

 

 

This Agreement sets out the complete Terms and Conditions (hereinafter called “these Terms and Conditions”) which shall be applicable to the Flexsave Account (as hereinafter defined) opened by you (as hereinafter defined) with the Bank (as hereinafter defined). Flexsave is a digital financial product powered by Choice Microfinance Bank Kenya Limited.

 

 

1.2. These Terms and Conditions and any amendments or variations thereto take effect on their date of publication.

 

  1. DEFINITIONS

 

2.1. In these Terms and Conditions, the following words and expressions (save where the context requires otherwise) bear the following meanings:

2.1.1. “Flexsave Account” means a bank account held by a Customer with the Bank and which is opened and operated in accordance with the terms and conditions herein contained;

2.1.2. “Bank” means Choice Microfinance Bank Kenya Limited CMBKL incorporated in Kenya as a limited liability company under the Companies Act (Chapter 486 of the Laws of Kenya) and duly licensed as a microfinance bank under the Banking Act (Chapter 488 of the Laws of Kenya) and includes subsidiaries of the Bank as may from time to time be specified by the Bank to you;

2.1.3. “Credit Reference Bureau” means a credit reference bureau duly licensed under the Banking Act pursuant to the Banking (Credit Reference Bureau) Regulations, 2008 to inter alia, collect and facilitate the sharing of customer credit information;

2.1.4. “Customer” means the person in whose name the Flexsave Account with the Bank is existing;

2.1.5. “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;

2.1.6. “Lock Savings Account” means a bank account held by a Customer with the Bank and which is opened and operated in accordance with these Terms and Conditions;

2.1.7. “Lock Period” means such minimum period of time not less than six (6) months and not exceeding 12 (12) months, or such other period communicated by the Bank from time to time in which the Customer requires that the Principal Amount be kept in the Lock Savings Account and during which period the Principal Amount will not be available to the Customer subject to the provisions of these Terms and Conditions (Accessing Locked Funds).

 

2.1.8. “Flexsave Account” means your mobile money store of value, being the record maintained by Choice Microfinance Bank of the amount of E- Money from time to time held by you in the System;

2.1.9. “Privacy Policy” means the Bank’s policy on how we collect and process your Personal Data;

2.1.10. “Personal Data” means any information relating to an identified or identifiable natural person;

2.1.11. “Personal Information” means personal identifiable information as prescribed in the Data Protection Act which includes but is not limited to name, address, phone number, identification number and location data.

2.1.12. “Principal amount” means such minimum amount prescribed by the Bank;

2.1.13. “Request” means a request or instruction received by the Bank from you or purportedly from you through the Network and the System and upon which the Bank is authorized to act;

2.1.14. “Services” shall include any form of banking services or products that the Bank may offer you pursuant to this Agreement and as you may from time to time subscribe to and “Service” shall be construed accordingly;

2.1.15. “SIM Card” means the subscriber identity module which when used with the appropriate mobile phone handset enables you to access the Network and to use the System;“SMS” means a short message service consisting of a text message transmitted from one mobile phone to another;

2.1.16. “System” means the Bank’s electronic banking and communication software enabling the Customer to communicate with the Bank for purposes of the Services. The System and the Services will for the purpose of this Agreement be accessed through the Flexsave System;

 

  1. Account Opening and Eligibility:

1.1       To open a loan and savings account, you must meet the eligibility criteria established by our financial institution in accordance with Kenyan law.

1.2       In order to open a Flexsave Account, you must be at least 18 years old and a       registered member of Flexsave.

1.3       You may open a Flexsave Account solely by way of an electronic application made by   you using your Equipment via the Flexsave Menu on the Flexpay System.

1.4.      You hereby agree and authorize the Bank to obtain and procure your Personal     Information from the Government of Kenya’s repositories, which includes but is not limited to IPRS and you further agree and consent to the disclosure and provision of such        Personal Information by the Government of Kenya to us.

1.5.      You hereby further acknowledge and authorize the Bank to verify your Personal Information received from Flexsave against the information received from the            Government of Kenya repositories (including but not limited to IPRS).

1.6.      The Bank reserves the right to request for further information from you pertaining to your             application for a Flexsave Account at any time. Failure to provide such information within             the time required by the Bank may result in the Bank declining to accept your application for a Flexsave Account.

1.7.      You hereby expressly consent and authorize us to disclose, receive, record or utilize your             Personal Information or information or data relating to your Flexsave Account with             respect to the Service and any details on your use of the CMFBL services for the purposes           of this Service and other services as we shall advise you between the Bank, CMFBL and      Flexsave for the purposes of this Service and other services as we shall advise you.

1.8.      Acceptance by the Bank of your application for a Flexsave Account shall be done via SMS             sent to the Mobile Phone Number associated with your Flesako Account. You             acknowledge and accept that the acceptance by the Bank of your application for a Flexsave             Account does not create any contractual relationship between you and Flexsave beyond             the terms and conditions that apply to your Flexsave Account from time to time.

1.9.      The Bank reserves the right to decline your application for a Flexsave Account or to revoke             the same at any stage at the Bank’s sole discretion and without assigning any reason or   giving any notice thereto.

1.10.    The Bank will adhere to the Privacy Clause herein to undertake its obligations herein.

1.11   By opening a loan and savings account, you confirm that you meet the eligibility             requirements and agree to comply with these Terms and Conditions.

 

  1. Savings Deposits and Interest:

2.1       The savings shall be held in a Custodial bank account with the bank on a trust basis with customers as the beneficiaries of the trust.

2.2. You are required to maintain a savings balance for a minimum period of 3 months before becoming eligible to apply for a loan.

2.3     The savings portion of your account will be locked in for a duration of 6 to 12 months,     depending on the specific account type.

 

 

 

 

  1. Loan Application and Approval:

3.1       Once you have maintained the required savings balance for the specified period, you       may apply for a loan from Mywagepay Limited or Choice Microfinance bank (hereby referred to as lenders), subject to these Terms and Conditions.

3.2.      Where you apply for a loan , your application shall be appraised according to the applicable loan appraisal processes of the lender. The lender reserves the right at its sole discretion and without assigning any reason to approve or decline your application for a loan.

3.3.      Subject to approval of your application for a loan the lender shall disburse to you a loan of an amount to be determined by the lender in its sole discretion

3.4.      The proceeds of the Loan shall be credited into your Flexsave Account subject to any             deductions on account of applicable Transaction Fees.

3.5.      You shall repay the Loan as per the repayment schedule outlined by the lender.

 

3.7.      You shall make all payments due from you to the Lender in respect of the Loan and             Transaction Fees using the Flexsave Service and the System only unless otherwise agreed             by the Lender in its discretion.

3.8.      In the event that you do not repay the Loan in full within (30) calendar days of the date of             disbursement of the Loan, the Lender will automatically roll over any outstanding amount in respect of the Loan including the Facility Fee for a further period of (30) calendar          days.

3.9.      In consideration of the Lender forbearing to demand the immediate payment of the             outstanding amount due in respect of your Loan and rolling over the same pursuant to   Clause 3.8, you shall, in addition to paying the outstanding amount in respect of the Loan     any outstanding Facility Fee, pay to the Lender a roll-over fee being 8% of the outstanding   amount in respect of the Loan (the “Roll-Over Fee”).

3.10.    The Lender shall be entitled to terminate this Agreement and close your Flexsave Account          in accordance with the provisions of Clause 13 without prejudice to any of its rights             accruing hereunder if you fail to repay the Loan and/or the Transaction Fees due thereon             within sixty (90) calendar days of the disbursement of the Loan.

3.11.    The Lender shall hold your funds in your Flexsave Deposit Account as collateral and             security for any loan outstanding and due from you to the Lender in respect of your             Flexsave Loan Account. You hereby agree and confirm that the Lender is entitled in its             discretion to prevent or restrict you from withdrawing in whole or in part the funds in in            your Flexsave Deposit Account for so long as and to the extent of the amount outstanding     in respect of your Flexsave Loan Account without the Lender giving any notice to you   and/or without incurring any liability to you whatsoever in that connection.

3.12.    The Lender reserves the right to vary the terms of the Loan including the fees payable             thereon from time to time having regard to the prevailing rules and regulations of the      Central Bank of Kenya and the policies of the Lender.

3.13.    The Lender shall have a right of lien and set off over funds held by you in your Flexsave             Deposit Account, any other Flexsave Account held by you and/or any other account held             by you in the Bank.

3.14.    You hereby expressly consent and authorize the Lender to disclose, respond, advise             exchange and communicate the details or information pertaining to your Flexsave             Account to Credit Reference Bureaus as required under the Banking Act or any other      regulatory body.

 

3.15. Loan applications will be evaluated based on your creditworthiness, financial history, and  our lending criteria.

3.16. Approval, loan terms, interest rates, fees, and repayment schedules may be outlined in a             separate loan agreement, compliant with Kenyan law.

 

  1. Loan Repayment:

4.1       Upon loan approval, you are responsible for repaying the loan amount, including any     applicable interest, fees, and charges, in accordance with the agreed-upon terms.

4.2       The repayment schedule, including the frequency and number of repayments, will be      provided in the loan agreement.

4.3       Failure to make timely loan repayments may result in additional fees, penalties, or legal action, as permitted by Kenyan law, including collection efforts and credit bureau   reporting.

 

  1. Loan Interest Rates and Fees:

5.1       The applicable interest rates and fees for loans will be disclosed during the loan   application process or in the loan agreement.

5.2       Interest rates may be fixed or variable, and our financial institution reserves the right to   modify them, in compliance with Kenyan laws and regulations.

  1. Fees:

4.1.      You hereby agree to pay all Transaction and registration Fees payable in connection with your use of the Services.

4.2.      You shall pay to the Bank and the Bank is entitled deduct from your Flexsave Account             (without reference to you):

4.2.1.   any Transaction Fees payable in respect of the Services;

4.2.2.   any legal charges including advocate and client costs incurred by the Bank in obtaining   legal advice in connection with your Flexsave Account and your dealings with the Bank       or incurred by the Bank in any legal, arbitration or other proceedings arising out of any         dealings in respect of your Flexsave Account; and

4.2.3.   all other fees, expenses and taxes, duties, impositions and expenses incurred in complying          with your Requests.

4.3.      You hereby agree to pay costs charges and expenses incurred by the Lender in obtaining or             attempting to obtain payment of any loan owed under your Flexsave Loan Account.

 

  1. 5. Statements:

5.1.      You may request for a statement or activity report in respect of your Flexsave Account from the Bank or Lender (“Flexsave Mini Statement”).

5.2.      A Flexsave Mini Statement shall provide details of the last 5 (five) transactions (or such other number of transactions as determined by the Bank) in your Flexsave Account     initiated from your Equipment.

5.3.      A Flexsave Mini Statement shall not be sent to you in printed form but shall be delivered             to you either by SMS or email associated with your             Flexsave Account or such other electronic means as the Bank may in its discretion             determine. You shall be responsible for the payment of any charges levied in delivering the Flexsave Mini Statement to you.

5.4.      You may obtain printed Flexsave Mini Statements or a printed bank statement pertaining             to your Flexsave Account from the Customer Care Centre. You shall be responsible for the payment of any charges levied by the Customer Care Centre for such printed       statements.

5.5.      Save for a manifest error, a Flexsave Mini Statement or bank statement issued to you             aforesaid in respect of your Flexsave Account shall be conclusive evidence of the             transactions carried out on your Flexsave Account for the period covered in the Flexsave        Mini Statement and/or bank statement.

 

  1. Use of Funds:

6.1       Loan funds must be used for the purposes specified in the loan agreement and in             accordance with Kenyan law.

6.2       Any misuse or diversion of loan funds may result in immediate repayment of the loan,    termination of the loan agreement, and legal action, as permitted by Kenyan regulations.

 

  1. Account Closure:

7.1       If you wish to close your loan and savings account, you must provide written notice to    our financial institution, as required by Kenyan procedures.

7.2       Upon account closure, any outstanding loans must be fully repaid, including interest, fees,          and charges accumulated during the loan period.

 

  1. Exclusion of Liability:

8.1.      Flexsave shall not be responsible for any loss suffered by you should the Services be                 interfered with or be unavailable by reason of (a) the failure of any of your Equipment, or           (b) any other circumstances whatsoever not within the Bank’s control or Flexsave including, without             limitation, force majeure or error, interruption, delay or non- availability of the System,   terrorist or any enemy action equipment failure, loss of power, adverse weather or     atmospheric conditions, and failure of any public or private telecommunications system.

8.2.      The Bank will not be liable for any losses or damage suffered by you as a result of or in    connection with:

8.2.1.   unavailability of sufficient funds in your Flexsave Account;

8.2.2.   failure, malfunction, interruption or unavailability of the System, your Equipment, the    Network, Flexsave System and/or Flexsave Service;

8.2.3.   the money in your Flexsave Account being subject to legal process or other encumbrance             restricting payments or transfers thereof;

8.2.4.   your failure to give proper or complete instructions for payments or transfers relating to your Flexsave Account;

8.2.5.   contributory fraud/negligence/deficiency on your part leading to any fraudulent or       illegal use of the Services, the System and/or your Equipment and whereupon you fail to         immediately report suspected or known breaches to the Bank; or

8.2.6.   Your failure to comply with these Terms and Conditions and any document or    information provided by the Bank concerning the use of the System and the Services.

8.3.      If for any reason other than a reason mentioned in subparagraphs 8.1 or 8.2, the Services are interfered with or unavailable, the Bank’s sole liability under this Agreement in    respect thereof shall be to re-establish the Services as soon as reasonably practicable.

8.4.      Save as provided in subparagraph 8.3 the Bank shall not be liable to you for any   interference with or unavailability of the Services, howsoever caused.

8.5.      Under no circumstances shall the Bank be liable to you for any loss of profit or anticipated             savings or for any indirect or consequential loss or damage of whatever kind, howsoever             caused, arising out of or in connection with the Services even where the possibility of such          loss or damage is notified to the Bank.

8.6.      All warranties and obligations implied by law are hereby excluded to the fullest extent    permitted by law.

 

 

  1. 9. Intellectual Property Rights:

You acknowledge that the intellectual property rights in the System (and any amendments, upgrades or enhancements thereto from time to time) and all associated documentation that the Bank provides to you through the System or otherwise are vested either in the Bank or in other persons from whom the Bank has a right to use and to sub-license the System and/or the said documentation. You shall not infringe any such intellectual property rights. You shall not duplicate, reproduce or in any way tamper with the System and associated documentation without the prior written consent of the Bank.

  1. 10. Indemnity:

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

10.2.    The indemnity in clause 10.1 shall also cover the following:

10.2.1. All demands, claims, actions, losses and damages of whatever nature which may be        brought against the Bank or which it may suffer or incur arising from its acting or not        acting on any Request or arising from the malfunction or failure or unavailability of any       hardware, software, or equipment, the loss or destruction of any data, power failures,    corruption of storage media, natural phenomena, riots, acts of vandalism, sabotage, terrorism, any other event beyond the Bank’s control interruption, or distortion of             communication links or arising from reliance on any person or any incorrect, illegible,     incomplete or inaccurate information or data contained in any Request received by the           Bank.

10.2.2. 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.

10.2.3. Any unauthorized access to your Flexsave 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.

10.2.4. Any loss or damage occasioned by the failure by you to adhere to these Terms and           Conditions and/or by supplying of incorrect information or loss or damage occasioned          by the failure or unavailability of third-party facilities or systems or the inability of a third party to process a transaction or any loss which may be incurred by the Bank as a     consequence of any breach by these Terms and Conditions.

10.2.5. Any damages and costs payable to the Bank in respect of any claims against the Bank for             recompense for loss where the particular circumstance is within your control.

 

  1. 11. Disclosures

11.1   The customer agrees and expressly consents that the Bank may in its absolute discretion:

 

11.2   disclose to the Central Bank of Kenya, the Kenya Revenue Authority, the police, correspondent saccos and agents, the Subsidiaries or any other person authorized by law            any matter concerning the operation or proposed operation of any account or concerning       the business of the customer;

11.3   disclose to Flexsave advocates for the purposes of seeking advice or drawing securities             or recovering any monies due to them, details of the customer’s account and the business being transacted between the customer and Flexsave; to any debt collection     agent or auctioneers for the purpose of collecting any sums due to Flexsave; and to a credit reference bureau in the event of breach by the customer;

11.4   obtain any information relating to the customer from any third party including the next              of kin advised by the customer or other institutions licensed under the Banking and                         Central Bank Act or credit reference bureaus if in Flexsave’s sole discretion such         information is necessary for the purpose of evaluating any application made to them     by the applicant(s) and or an account holder(s) or for any other lawful purpose.

11.7   The customer acknowledges that any information released by Flexsave under this clause             may be used by the recipient to assess applications for credit by the customer and any     related parties, for debt tracing and for fraud prevention purposes. The customer             acknowledges that such information being released to the recipients may affect the customer’s ability to maintain existing facilities with lenders or credit card companies.          The customer shall have no claim whatsoever against Flexsave for any loss, damage, fees             or expenses suffered or incurred by him in relation to the release of any information by             Flexsave under this clause, if Flexsave releases such information on its genuine belief       that the recipient is legally entitled to such information.

 

11.8   Flexsave shall not be under any duty to notify the customer of the disclosure to any third             party of any information in relation to the customer’s account or business as set out in this             clause.

 

  1. 12. Warranties and Representations:

The customer warrants and represents as follows:

12.1   The information given in the application form for establishing the account and any          Subsequent communications to Flexsave in respect of the account are true and accurate

12.2   The account will not be used by the holder in contravention of any law, regulation of rule           in force, nor as an aid to such contravention or circumvention of the law, regulation or        rule.

 

12.3   The customer has read, understood and agreed to comply with these Terms and Conditions and any other specific terms and conditions necessary in order to obtain the            Services.

 

  1. 13.  Customer Assignment:

13.1 This Agreement and any rights or liabilities accruing there under may not be assigned by            you to any other person. Flexsave may assign its rights, benefits and obligations under        this Agreement at any time. These Terms and Conditions (as may be amended from time       to time) form a legally binding agreement binding on the customer and the customer’s     assigns and successors (as the case may be). Any change in the constitution of   Flexsave or its absorption in or amalgamation with any other person or the acquisition           of all or part of its undertaking by any other person or any reconstruction or         reorganization of Flexsave shall not in any way prejudice or affect its rights.

 

  1. 14. Amendments:

14.1 We reserve the right to amend these Terms and Conditions at any time, in compliance     with Kenyan laws and regulations. The updated version will be effective upon posting on         our website or providing notice to you, as required by applicable laws.

14.2 It is your responsibility to review the Terms and Conditions periodically, and your          continued use of our services indicates your acceptance of any changes made in        accordance with Kenyan regulations.

 

  1. 15. Privacy:

15.1     Collection of information and Processing of Personal Data. You consent to us collecting   your Personal Data from you and where we are required by law to collect certain         personal information and are legally obligated to deny you the service if such             information is not availed. Apart from the legal obligation mentioned above, You consent     to us processing your Personal Data:

15.1.1 To provide you with a quality Service delivery, without which, we shall not be able to     provide you with quality service;

15.1.2  To carry our statistical and other analyses to identify potential market trends, evaluate    and improve our services;

15.1.3 For marketing purposes where you have consented to marketing; and for other purposes            as set out in the Privacy Policy.

15.2     Privacy

15.2.1. We are committed to respecting and protecting the privacy of the information we collect from You. You shall have the right to:

15.2.1.1. Request access to your Personal Data, request correction and erasure of your Personal                Data, object to processing of your Personal Data, request restriction of processing of your             Personal Data, request the transfer of your Personal Data to you or to a third party,             withdraw consent at any time where we are relying on consent to process your Personal       Data.

15.2.1.2. You agree and confirm that the above rights over your Personal Data are to be enjoyed subject to our Privacy Policy, as updated from time to time, which explains how we treat    your personal information, who we share your information with, and measures taken to                     protect your privacy when you use our Service.

 

  1. 16. Governing Law and Jurisdiction:

16.1. These Terms and Conditions are governed by and construed in accordance with the laws of Kenya.

16.2. Any disputes arising out of or in connection with these Terms and Conditions shall be subject to the exclusive jurisdiction of the courts of Kenya.