Terms and conditions

Terms and Conditions

Terms and Conditions

GENERAL TERMS & CONDITIONS

These general terms and conditions constitute a legally binding agreement between Fivespot Kenya Limited hereafter referred to as (We or iPay) and You for provision of the Services, unless otherwise agreed in writing by Us and You.

Please read carefully. Please do not use any part of the Services if You do not agree with any term of this Agreement.

By using or continuing to use any part of the Services, You will be deemed to have read, understood and accepted all the terms of this Agreement.

NOW THEREFORE, You agree that;

1. DEFINITIONS & INTERPRETATION

1.1 The following definitions shall apply in this Agreement

Agreement means this Agreement together with its annexes and any document incorporated herein by reference
Buyer Purchasers of Your goods and services from Your website or shop
Biller means the business entity to which a bill payment is to be directed
Chargeback means a Transaction that has been disputed by a Buyer following a credit or debit card payment, and which has been resolved in favour of the Buyer resulting in cancellation of the Transaction
Customer means a consumer of your service offering

Dashboard means a web enabled interface that allows access to iPay products and reports.
Effective Date means the first of the following events
(i) the day on which You click the AGREE button associated with this Agreement or
(ii) the day on which You execute an Agreement with iPay incorporating this Agreement by reference or
(iii) the date on which Your account with iPay for the provision of the Services is activated
Merchant means You the user of the Services
On-boarding means the date on which Your account with iPay for provision of the Services is activated
Parties mean iPay and You collectively. The term Party shall have a singular composite meaning
Payment means transfer/giving of funds to receive a good or service.
Payment Scheme means guidelines on how transactions are processed based on the channel
Card Scheme means central payment network that uses credit and debit cards to process payments.
PDQ means a device that allows You to accept card payments from your business premise
POS means payments accepted on premise through paybill numbers or mobile banking
Pricing Schedule means a list of fees and charges that is accepted by You
Refund means a repayment of funds to the Buyer initiated by You and effected by iPay
Regulator means the Central Bank of Kenya
Services includes collection, payout and billing services as further described in clause 3 herein
Settlement means iPay’s transfer of funds standing to the balance of Your account with iPay net of deductions. You have the option of initiating settlement manually through Your account with iPay or We can automate the Settlement in accordance with Your written instructions
Transaction means
(i) with regard to Collection services the process by which You receive money from Your Customer in exchange for goods and/ or services
(ii) with regard to Payout services, the process by which You make payments to individuals and/or businesses
(iii) with regard to Billing services by which Customers receive payments make payment to You for utilities and airtime
Vendor ID means unique identifier provided associated to your iPay account
1.2 Any substantive provision in a definition in this Agreement, conferring rights or imposing any obligations on any Party, shall be effected as if it were a substantive clause in the body of the Agreement, notwithstanding that it is only contained in the definition.
1.3 Headings are for convenience only and shall not affect the interpretation of this Agreement.

2. TERM OF AGREEMENT
This Agreement commences on the Effective Date and shall remain in force for an Initial period of 12 successive months. Thereafter, it shall renew automatically upon the same terms or as may be amended in writing for periods of 12 successive months each, unless terminated in accordance with this Agreement.

3. SERVICES
This Agreement applies to iPay’s collection, payout and billing services.
 3.1 COLLECTION
3.1.1 Under this service, iPay will enable You to;
(a) Receive payments on channels of Your preference that is online, POS, PDQ

3.1.2 To enable You use the Collection Service iPay shall;
(a) Review KYC documents provided and ensure they are in order.
(b) Setup your account and share the credentials and APIs if required.
3.1.3 Where integration is required, your technical team will effect the same. At Your request, iPay can perform the integration at a fee.

3.2 PAYOUT
3.2.1 Under this service, iPay will enable You to;
(a) Make payments to individuals or businesses
(b) Fund Your iPay account
3.2.2 To enable You use the Payout service, iPay shall;
(a) Review KYC documents provided and ensure they are in order.
(b) Setup your account and share the credentials and APIs if required.
3.2.3 Where integration is required, your technical team will effect the same. At Your request, iPay can perform the integration at a fee.

3.3 BILLING
3.3.1 Under this service, iPay will enable You to;
(a) To accept bill payments for airtime from different Telecommunication companies and utilities from an array of Billers
(b) Fund Your iPay account
(c) offer Your Customers airtime purchase and utility bill payment services

3.3.2 To enable You use the service, iPay shall;
(a) Review KYC documents provided and ensure they are in order.
(b) Setup your account and share the credentials and APIs if required.
3.3.3 Where integration is required, your technical team will effect the same. At Your request, iPay can perform the integration at a fee.

4. ACCESS TO SERVICES
4.1 You will be granted access rights to the Services once You have;
4.1.1 Duly filled and submitted the sign-up form to iPay.
4.1.2 Provided iPay with all the requested Know Your Customer (KYC) documents.
4.1.3 Accepted these Terms & Conditions as may be from time to time amended.

4.2 Your account may be suspended in whole or in part without iPay incurring any liability and with reasonable notice where practicable if;
4.2.1 in the reasonable opinion of iPay You are using deceptive, unfair or misleading advertising or marketing practices or selling products and services with unsubstantiated claims.
4.2.2 iPay has reasonable grounds to believe that You are engaging in prohibited products and services outlined in clause 5 of this Agreement.
4.2.3 iPay has reasonable grounds to believe that You are engaging in fraudulent activities.
4.2.4 You are undertaking actions that expose iPay to the risk of Chargebacks, Reversals and Refunds.
4.2.5 You do not, where required, have the necessary regulatory license to carry out your activity.
4.2.6 You do not comply with iPay’s request for additional KYC documents.
4.2.7 You do not co-operate with Chargeback investigations.
4.2.8 You are in material breach of this Agreement or payment scheme rules.
4.2.9 You engage in activity that interferes or disrupts the Services.
4.2.10 it is necessary for iPay to be compliant with any Applicable law or directive from the Regulator.

4.3 You will also be denied access the Services if;
4.3.1 Your account with iPay for provision of the Services does not have any activity for a period of 12 consecutive months. In such a case, we will classify Your account as Dormant and will block Your access to the Services until You comply with iPay’s instructions on reactivation.
4.3.2 If You do not reactivate Your account within 6 months of notification by iPay that Your account has been classified Dormant, iPay shall terminate this Agreement.
4.3.3 Upon termination in accordance with clause 4.3.2 above, iPay shall dispose of all funds standing to the balance of your account in accordance with the Unclaimed Financial Assets Act without incurring any liability whatsoever.

5. PROHITED PRODUCTS AND SERVICES
5.1 iPay does not support the following products and services
            5.1.1 Firearms and/or ammunition
            5.1.2 Pornography and adult content
            5.1.3 Hazardous materials, combustibles, and corrosives
            5.1.4 Cryptocurrency trading

5.2 iPay also does not support the following products and services unless You have the requisite license from the relevant authority
            5.2.1 Alcohol and Drug products
            5.2.2 Online betting or gambling
            5.2.3 market intermediaries (CMA licensed businesses)
5.3 It is solely Your duty to ensure that Your products or services are compliant with the Applicable laws and Card Association rules. For avoidance of doubt, iPay does not offer any advice as to the legality of Your products or services.

6. ACCOUNT PROTECTION
        6.1 Once You are On-boarded by iPay, you shall be provided with a Vendor ID and a password to grant You access to Your account for provision of the Services. It is Your duty to restrict access to Your password and to keep Your password safe
        6.2 iPay is entitled to rely on information received from Your account and may assume that all communication so received is from You or on Your behalf

 7. REPAYMENTS
        7.1 Repayments refer to Refunds, Reversals or Chargebacks.
        7.2 You shall be exclusively responsible for repayments including any additional fees, penalties or both regarding them.
        7.3 Fees collected by iPay for processing a payment which has subsequently been repaid shall not be returned to You.
        7.4 You are directly liable to iPay for any amounts due to iPay in connection with repayments as well as any applicable fees, penalties or both associated with repayments
        7.5 You shall deliver all necessary documentation as may be requested by iPay to explain the circumstances regarding the request for repayment.
        7.5.1 Your refusal to cooperate with iPay in providing any requested information in clause 7.5 above may lead to suspension of Your account and/ or termination of this Agreement.
        7.5.2 Without prejudice to and in addition to any rights or remedies legally available to iPay, you hereby authorize to set-off any or any part of Your liabilities to iPay under this Agreement against any settlement due to You under provision of the Services.
        7.6 The decision of a Payment Scheme with regard to a Chargeback shall be final and binding on You and We shall not be obligated to appeal the decision or act in any way to alter the outcome of the Payment Scheme’s decision.

8. BLOCKING OF FUNDS
        8.1 If a Buyer submits a claim that in particular demands a return of funds in connection with a Payment made, we may block the funds evidenced in Your account with iPay in connection with such Payment, to the extent necessary to wholly cover the claim. Such blockade does not impede Your right to Settlement of the remainder of funds in Your account with iPay.
        8.2 We may decline Payment where there is justifiable doubt as to the legality of the underlying Transaction or legality of the Payment itself

9. FEES & CHARGES
We shall deduct fees and other charges for the Services upon collection of funds in accordance with the Pricing Schedule.

10. ORDER OF PRIORITY
If in addition to this Agreement, you have signed a contract with iPay for any of the Services, the following order of priority will apply; (i) The other Contract (ii) This Agreement

11. DATA
You confirm that you have read and understood our Privacy Policy and Data Protection Statement. You hereby consent to iPay collecting, retaining, using, and sharing personal information in order to provide You with the Services.

12. SUPPORT
If You experience a service outage or need any assistance, kindly send an email to [email protected] and We shall endeavour to solve the problem in consultation with other stakeholders.

13. MARKETING
You hereby agree that Your Name and standard logo maybe used by iPay in our general commercial efforts.

14. FORCE MAJEURE
        14.1 Neither Party will be liable for delay or interruption in fulfillment of its obligations under the Agreement for reasons that are beyond its control and which exercise of reasonable diligence could not prevent (each event a ‘Force Majeure Event).
        14.2 Force Majeure events include and are not limited to acts of God, government or regulator action, adverse weather conditions, civil unrest, interruption in telecommunication networks.
        14.3 A Party affected by a Force Majeure event shall notify the other Party as soon as is reasonably practicable and will use commercially reasonable efforts to minimize the impact of the Force Majeure event.
        14.4 Force Majeure shall not include in insufficiency of funds or failure to make payment required under this Agreement.
        14.5 If an event of Force Majeure is not resolved within 14 days, then the other Party may terminate this Agreement in accordance with the provisions of termination herein.

 15. REPRESENTATIONS & WARRANTIES
        15.1 You represent and warrant that;
            15.1.1 You shall not use the Services in connection with any illegal or fraudulent activities.
            15.1.2 You shall use the Services only for the line of business for which You were signed up for.
            15.1.3 All information You have provided to iPay is truthful, accurate and complete in all material respects.
            15.1.4 You agree to comply with the Data Protection Act, 2019 and You shall not do any act that will cause iPay to be in breach of the data protection laws.
            15.1.5 You shall comply with card payment scheme regulations.

16. EXCLUSION & LIMITATION LIABILITY
        16.1 We are not Party to contracts concluded between You and Your Customers;
        16.2 You shall be exclusively responsible for the security and format of data transmitted to iPay.
        16.3 To the fullest extent permissible under the applicable law, iPay’s total liability arising under this Agreement shall not exceed the total fees received by it in the 6-month period immediately giving rise to the claim of liability
        16.4 iPay shall be liable solely for its acts and omissions and not acts and omission of third parties.
        16.5 iPay shall not be liable for any indirect loss including loss of profit and business.

17. INDEMNITY
        17.1 Subject to the provisions of clause 16, each Party shall indemnify and hold harmless the other Party from any claim brought against the other Party (including reasonable legal fees) resulting material breach of this agreement by a Party.
        17.2 You shall indemnify for and hold harmless iPay from any losses related to Chargebacks and associated fees and penalties.

18. DISPUTE RESOLUTION
        18.1 The Parties shall first attempt to settle any dispute arising under this Agreement amicably within 30 days of receipt of a dispute notification from the offended Party to the offending Party.
        18.2 If the Parties fail to settle the dispute amicably, the Dispute shall be finally settled under the rules of Arbitration of the Nairobi Centre for International Arbitration by one Arbitrator appointed in accordance with the said rules and in accordance with the Arbitration Act, 1995, as may be from time to time amended. The seat of arbitration shall be Nairobi, Kenya and the language to be used in the arbitral proceedings shall be English.
        18.3 The Parties shall continue to perform their obligations under the contract pending conclusion of the arbitral proceedings.

19. TERMINATION
        19.1 After the Initial Period, either Party may terminate this Agreement by giving at least 60 days prior written notice to the other Party.
        19.2 Termination shall not affect either Party’s rights and obligations accrued before such termination

20. AMENDMENT
        20.1 We may revise this Agreement by giving one (1) month written notice via email or by posting the revision on our website.
        20.2 If You continue using the Services or any part thereof after the one (1) month notice, you shall be deemed to have accepted the revisions.
        20.3 If You object to the revision, You may terminate this Agreement in accordance with clause 17 hereof, notwithstanding the provisions on the Initial Period of the contract.

21. GOOD FAITH
The Parties shall exercise good faith in all aspects of their relationship under this Agreement.22. GOVERNING LAW & JURISDICTION
This Agreement and any dispute or claim arising out of or in connection with it shall be governed and construed in accordance with the laws of Kenya.

23. ENTIRE AGREEMENT
This Agreement constitutes the understanding between the Parties and supersedes all prior agreements or understanding.