Terms and Conditions for use of the Pezesha Peer-to-Peer Platform
In this Agreement the following words and expressions (save where the context requires otherwise) bear the following meanings:
“Account” means an account held by you with the Pezesha and which is opened and operated in accordance with the terms and conditions herein contained;
“Applicable Interest Rate” means the rate of interest determined by Pezesha with respect to a loan application;
“Application” or “App” means Pezesha’s mobile software;
“Associated Third Party” means persons who provide support services necessary to operate the System.
“Credit Reference Bureau” means a Credit Reference Bureau duly licensed under the 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;
“E-Money” means the electronic monetary value depicted in your Mobile Money Account representing an equal amount of cash denominated in Kenya Shillings;
“Equipment” includes any device you use to access the Pezesha website;
“Facility Fee” – means the charge due to the Lender from the Borrower in consideration for the Lender advancing the loan to the Borrower;
“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;
"Lender" means a Customer who has registered as a lender on the P2P Platform and who lends money under a Loan Contract;
"Lending Criteria" means any amount you wish to lend, the rate you are prepared to lend at and the period over which you are prepared to lend;
"Loan Conditions" means the standard terms and conditions of a Loan Contract as displayed on the P2P Platform and automatically agreed by each Lender and Borrower when he or she enters into a Loan Contract;
"Loan Contract" means the agreement, incorporating the Loan Conditions, automatically entered into and agreed between a Borrower and a Lender when a Borrower is matched with a Lender recording the loan made between the Lender or Lenders and the Borrower or Borrowers;
“Mobile Money Account” means the account maintained by your mobile payment service provider;
“Mobile Payment Service Provider” means a telecommunications service provider licensed under the laws of the Republic of Kenya, as amended from time to time, to offer payment services;
“Mobile Network Operator” means the telecommunications service provider licensed under the laws of the Republic of Kenya, as amended from time to time, to provide mobile telecommunications services;
“Mobile Money Service” means the payments service provided by the Mobile Payment Service Providers;
“P2P Platform" means the peer-to-peer lending platform which Pezesha operates for the purpose of matching Lenders and Borrowers;
“Pezesha” means Pezesha Africa Limited, a limited liability company incorporated under the Companies Act 2015 in the republic of Kenya
"Pezesha Borrowing Criteria" means, in relation to a Borrower, the amount which a Borrower is entitled to borrow on the P2P Platform as calculated by the P2P Platform using a combination of the Borrowing Criteria as well as Pezesha’s calculation of the Borrowing Criteria taking into account various factors including Borrower’s profile;
"Pezesha Wallet" means, in relation to a Borrower, the part of the P2P Platform which can be accessed by that Borrower;
“Repayment” means each instalment due and payable by a Borrower under a Loan Contract, which shall comprise principal and any fees to the Lender, as well as any amount otherwise due and payable by the Borrower under the Loan Contract;
“Request” means a request or instruction received by Pezesha from you or purportedly from you through the System and upon which Pezesha is authorized to act;
“Services” shall include any form of loan facilities or products that Pezesha may offer you pursuant to this Agreement and as you may from time to time subscribe to and “Service” shall be construed accordingly;
“Service Fee” means the charge due to Pezesha from the Lender for use of the P2P Platform to access a loan in consideration for the Services offered under the P2P Platform and due in arrears;
“System” means the Pezesha Application and every aspect of the Pezesha Application enabling the delivery of the Services;
“Third Party Website” A social networking website, however accessed, which is used in connection with account opening and loan appraisal under the terms of this Agreement;
“User” refers to the person who accesses and uses the Pezesha website;
“We,” “our,” and “us,” means Pezesha and includes the successors and assigns of Pezesha;
"You" or "your" means the User and includes the personal representatives of the User;
The word “User” shall include both the masculine and the feminine gender as well as juristic persons;
Words importing the singular meaning where the context so admits include the plural meaning and vice versa;
Headings in these Terms and Conditions are for convenience purposes only and they do not affect the interpretation of this Agreement.
By selecting on the “accept” option on the Pezesha Application and/or by using or continuing to use and operate the Application 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
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.
Once accepted this Agreement will bind you, your personal representatives and assigns on the one hand and Pezesha’s successors and assigns on the other hand.
Any addition or alteration to this Agreement may be made from time to time by Pezesha and of which notice of 15 days shall be given to you by way of publication as provided herein shall be binding upon you as fully as if the same were contained in this Agreement.
It is your responsibility to review the terms of this Agreement regularly and to ensure that you understand any amendments made to them. Your continued use of the Application will indicate your agreement to be bound by the terms of the amended Agreement.
If you do not agree with any provision contained in this Agreement, please do not access this Application in any way.
A copy of this Agreement will be made available for you to download through the Application.
If you have any question in relation to this Agreement, please contact Pezesha’s customer care desk at email@example.com
When opening your account the Application will require you to grant access to your personal information as contained in other Third Party Website(s).
You hereby irrevocably authorize Pezesha to receive, record, utilize and/or disclose the information on your identity contained on your profile on any Third Party Website(s) you used to open your account
You warrant that the information that you provide while opening your Account is true and accurate.
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.
You authorize Pezesha to verify the information you have provided on your identity through any source which Pezesha may in its sole discretion decide to use.
You hereby authorize 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.
You hereby authorize Pezesha through the Pezesha Application to access information contained on your Equipment, relating to but not limited to, your phone usage and your mobile money account transaction history for the purposes of loan appraisal and for the purposes set out in this Agreement in general.
You hereby irrevocably authorize Pezesha to obtain your credit information from a Credit Reference Bureau.
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.
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.
In case of default you irrevocably authorize 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 so far as the information in question is not protected by any laws on data protection in Kenya you hereby irrevocably authorize Pezesha to disclose, receive, record or utilize any or all your personal information or information or data relating to your Account and any details of your use of the Services:
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;
to and from the Pezesha’s service providers, dealers, agents or any other company that may be or become the Pezesha’s subsidiary or holding company for reasonable commercial purposes relating to the Services;
to the Associated Third Parties in connection with services they provide to support the System;
for reasonable commercial purposes connected to your use of the Services, such as marketing and research related activities; and
in business practices including but not limited to quality control, training and ensuring effective systems operation.
You hereby authorize Pezesha to collect and use technical information about the performance of the Equipment and the Application to improve Pezesha’s System and service delivery.
Pezesha also reserves the right to reverse any money sent to your account upon the identification of suspicious activities. This is so as to protect all stakeholders on our platform. Suspicious activities are mentioned but not limited to those identified below.
Funding for terrorism
If instructed by the regulators and any other authorities to reverse or freeze the account
Any other activities deemed suspicious by the Pezesha business
You will be notified of all transactions in your Account through the Application.
You may request a statement and activity report on your Account through the Application.
The statement will provide you details of the last five (5) transactions in your Account.
For the purpose of identifying errors and ensuring that the position of your account is correct, you must carefully examine the statements supplied by Pezesha and promptly send a notification in writing of any error contained in or any omission or irregularity in the statement
If you do not notify Pezesha within thirty (30) days of the date you receive a statement that there was an error, omission, irregularity then the statement will be deemed correct, authorised and binding on you and to the extent permitted by law and you release Pezesha from all liability for any claim arising therefrom.
Pezesha reserves the right to rectify discrepancies, add and/or alter the entries in your statements, without prior notice to you. Pezesha will however inform you of any rectification, additions and or alterations effected on your statements within a reasonable time after the changes are effected.
5. IRREVOCABLE AUTHORITY TO PEZESHA
You hereby irrevocably authorize 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 authorized by you.
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 believes that it can correct the incomplete or ambiguous information in the Request without any reference to you being necessary.
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.
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.
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.
You acknowledge that to the full extent permitted by law Pezesha shall not be liable for any unauthorized 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.
You accept and understand that Pezesha is authorized 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.
In the event of any conflict between any terms of any Request received by the Pezesha from you and the terms of this Agreement shall prevail.
You shall at your own expense provide and maintain in safe and efficient operating order your Equipment necessary for the purpose of accessing the System and the Services.
You shall be responsible for ensuring the proper performance of your Equipment. Pezesha shall neither be responsible for any errors or failures caused by any malfunction of your Equipment, and nor shall Pezesha be responsible for any virus or related problems that may be associated with the use of the System, the Services and the Equipment. You shall be responsible for charges due to any service provider providing you with connection to the System and Pezesha shall not be responsible for losses or delays caused by any such service provider.
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.
You hereby agree and acknowledge that you shall be solely responsible for the safekeeping and proper use of your Equipment and for keeping your login credentials secret and secure. You shall ensure that your login credentials do not become known or come into possession of any unauthorized person. Pezesha shall not be liable for any disclosure of your login credentials to any third party and you hereby agree to indemnify and hold Pezesha harmless from any losses resulting from any disclosure of your login credentials.
You shall take all reasonable precautions to detect any unauthorized use of the System and the Services. To that end, you shall ensure that all communications from Pezesha are examined and checked by you or on your behalf as soon as practicable after receipt by you in such a way that any unauthorized use of and access to the System will be detected. You shall immediately inform Pezesha in the event that:
You have reason to believe that your Credentials are or may be known to any person not authorized to know the same and/or have been compromised; and/or
You have reason to believe that unauthorized use of the Services has or may have occurred or could occur and a transaction may have been fraudulently input or compromised.
You shall at all times follow the security procedures notified to you by Pezesha from time to time or such other procedures as may be applicable to the Services from time to time. You acknowledge that any failure on your part to follow the recommended security procedures may result in a breach of your Account’s confidentiality. In particular, you shall ensure that the Services are not used or Requests are not issued or the relevant functions are not performed by anyone other than a person authorized to do so.
You shall not at any time operate or use the Services in any manner that may be prejudicial to Pezesha.
6. EXCLUSION OF LIABILITY
Pezesha shall not be responsible for any loss suffered by you should the Services be interfered with or be unavailable by reason of
the failure of any of your Equipment; or
any other circumstances whatsoever not within Pezesha’s control 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.
Pezesha will not be liable for any losses or damage suffered by you as a result of or in connection with:-
failure, malfunction, interruption or unavailability of the System, your Equipment, or your Mobile Payment Service Provider’s mobile money system;
the money in your mobile money account being subject to legal process or other encumbrance restricting payments or transfers thereof;
any fraudulent or illegal use of the Services, the System and/or your Equipment; or
your failure to comply with this Agreement and any document or information provided by Pezesha concerning the use of the System and the Services.
If for any reason other than a reason mentioned in subparagraphs 10.1 or 10.2, the Services are interfered with or unavailable, Pezesha’s sole liability under this Agreement in respect thereof shall be to re-establish the Services as soon as reasonably practicable.
Save as provided in subparagraph 10.3 Pezesha shall not be liable to you for any interference with or unavailability of the Services, howsoever caused.
Under no circumstances shall Pezesha be liable to you for any loss of profit or anticipated savings or for any indirect or consequential loss or damage of whatever kind, however caused, arising out of or in connection with the Services even where the possibility of such loss or damage is notified to Pezesha.
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.
The indemnity in sub-paragraph 11.1 shall also cover the following:
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, 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.
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.
Any unauthorized 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.
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.
Any damages and costs payable to Pezesha in respect of any claims against Pezesha for recompense for loss where the particular circumstance is within your control.
INTELLECTUAL PROPERTY RIGHTS.
All copyright, trademarks, patents and other intellectual property rights in any material or content (including without limitation software, data, 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.
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.
Notwithstanding the provisions in paragraph 12.1 and 12.2 Pezesha grants you a limited, non exclusive, non transferable, non sublicensable license to use the Application on any mobile device or personal computer that you own or control.
You may not distribute or make the Application available over a network where it could be used by multiple mobile devices at the same time. You may not rent, lease, lend, sell, redistribute or sublicense the Licensed Application. You may not copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Application, any updates, or any part thereof. In addition, any commercial copying or distribution, publication or exploitation of the System, the Pezesha website or any content, software, code, data or materials on or from the System, are strictly prohibited unless you have received express prior written permission from us or the applicable rights holder. Any attempt to do so is a violation of our rights. The terms of the License will govern any upgrades provided by us that replace and/or supplement our Service, unless such upgrade is accompanied by a separate license in which case the terms of that license will govern.
LINKS TO THIRD PARTY WEBSITES AND SERVICES
We may provide links to third party websites and services. Such links do not necessarily imply any endorsement, agreement with, or support for, the information on or content of those third party websites or services. We do not control the information or content on those third party websites and neither we nor our affiliates makes any warranties in respect of the content of these websites nor will be responsible or liable in any manner whatsoever, for your access, or inability to access, such third party websites, or for any information or content, products or services made available on or through such third party websites, or for any loss, liability or damage which you may suffer as a result of access to a third party website through a link on the website. You further acknowledge and agree that we shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such third party websites and access to any such third party sites is entirely at your own risk and subject to any terms and conditions and privacy policies posted therein.
ASSIGNMENT, NOVATION AND OTHER DEALINGS
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.
You may not assign or novate this Agreement in the manner described in sub-paragraph 14.1 or at all.
Pezesha may send information concerning your Account through the Application via SMS or email to the mobile phone number or email address associated with your Account.
You accept that you have no claim against the Pezesha for damages resulting from losses, delays, misunderstandings, mutilations, duplications or any other irregularities due to transmission of any transmission of any communication pertaining to your Account.
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) days after that dispute arises or such extended time period as we may agree to.
In the event we are unable to resolve our 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.
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 part may request the chairperson of the Chartered Institute of Arbitration Kenya chapter to appoint the single Arbitrator.
The seat of the Arbitrator shall be in Nairobi and the arbitral proceedings shall be in English.
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.
GOVERNING LAW AND JURISDICTION
You agree that this Agreement shall be governed by and construed in accordance with the laws of the Republic of Kenya.
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.
This Agreement constitutes the entire agreement between you and Pezesha and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between us, whether written or oral, relating to its subject matter.
All rights granted to either of the parties shall be cumulative and no exercise by either of the parties of any right under this Agreement shall restrict or prejudice the exercise of any other right granted by this Agreement or otherwise available to it.
The parties are to act with loyalty and good faith towards one another.
Both parties will be released from their respective obligations in the event of a terror event, national emergency, war, prohibitive governmental regulation or if any other cause beyond the control of the parties or either of them renders the performance of this Agreement impossible.
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.
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 achieves the intention of the parties without illegality.
Pezesha may at any time, upon notice to you, terminate or vary its business relationship with you and close your Account.
Without prejudice to Pezesha’s rights under sub-paragraph 19.1, Pezesha may at its sole discretion suspend or close your Account:
if you use the Account for unauthorised purposes or where Pezesha detects any abuse/misuse, breach of content, fraud or attempted fraud relating to your use of the Services;
if your use of the service in the opinion of Pezesha is in contravention with the law of Kenya and or illegal and not limited to money laundering activities.
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;
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;
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
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.
Termination shall however not affect any accrued rights and liabilities of either party.
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.