Business Advance Terms & Conditions
Date Published : 1st January 2018
1. THE AGREEMENT
1.1. This Agreement sets out the complete Terms and Conditions (hereinafter called "these Terms and Conditions") which shall be applicable to the Business advance Facility (as hereinafter defined) offered to you (as hereinafter defined) by Zanifu (as hereinafter defined).
1.2. These Terms and Conditions and any amendments or variations thereto take effect on their date of publication.
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. “Zanifu” means Zanifu Limited incorporated in Kenya as a limited liability company under the Companies Act (Chapter 486 of the Laws of Kenya);
2.1.2. “Merchant” means the individual who has signed up on the Zanifu platform to receive Business advance and other services offered by zanifu
2.1.3. “Business Advance” Means credit facility offered to Zanifu merchants to enable them fulfill an obligation, such as purchase of goods or provision of services.
2.1.4. “Phone” includes your mobile phone handset; SIM Card which when used together enables you to access the Network;
2.1.5. “Phone Number” means the unique 10-digit number assigned to a registered individual by a phone operator used to identify the registered individual;
2.1.6. “Account” means the phone number associated with your account
2.1.7. "PIN" means your personal identification number or password being the secret code used to access your phone
2.1.8. “Request” means a request or instruction received by the Zanifu through your phone number upon which the Zanifu is authorized to act;
2.1.9. “SMS” means a short message service consisting of a text message transmitted from one mobile phone to another;
2.1.10. “Transaction Fees” includes the Facility Fee (as defined at clause 4.3), Transaction Fees are subject to change from time to time and Zanifu will provide details of such amendment directly via SMS within a minimum of seven (7) days prior written notice;
2.1.11. “We,” “our,” and “us,” means the Zanifu and includes the successors and assigns of the Zanifu;
2.1.12. "You" or "your" means the Customer and includes the personal representatives of the Customer;
2.1.13. The word “Customer” shall include both the masculine and the feminine gender as well as juristic persons;
2.2. Words importing the singular meaning where the context so admits include the plural meaning and vice versa.
2.3. Headings in these Terms and Conditions are for convenience purposes only and they do not affect the interpretation of this Agreement.
3. TERMS OF THE CREDIT FACILITY
3.1. Each credit facility tranche shall be requested and disbursed via a verifiable process put in place by Zanifu.
3.2. Proceeds of the business advance facility drawdowns shall be made directly to the nominated account of the seller/provider/distributor of various goods or services the merchant
4. ACCEPTANCE OF THE TERMS AND CONDITIONS
4.1. Before accepting to take Business advance from Zanifu you should carefully read and understand these Terms and Conditions which will govern the use and operation of Business advance service
4.2. All notification requests for business advance including these terms and conditions shall be send via SMS to your number or nominated number.
4.3. All notification requests for business advance including these terms and conditions shall be send via SMS from +254708800937
4.4. If you do not agree with these Terms and Conditions, please reply with “NO” on the SMS;
4.5. You will be deemed to have read, understood and accepted these Terms and Conditions:-
4.5.1. Upon replying with the “YES” option from the Zanifu SMS option requesting you to confirm that you have read, understood and agreed to abide with these Terms and Conditions; and/or
4.5.2. By using or continuing to use the Business advance service.
4.6. These Terms and Conditions may be amended or varied by the Zanifu from time to time.
4.6.1. Zanifu will provide details of such amendment directly via SMS within a minimum of seven (7) days prior written notice
4.7. You acknowledge and accept that the Zanifu offers Business advance service only electronically and you agree to do business with Zanifu only by electronic means via the Mobile phone.
4.8. Zanifu reserves the right to decline your application for a Business advance or to revoke the same at any stage at Zanifu’s sole discretion and without assigning any reason or giving any notice thereto.
5. Transaction Fees.
5.1. All advances made under the proposed credit facility shall attract a fixed charge from the date of drawdown.
5.2. Zanifu shall communicate the charge to the Merchant before drawdown and further reserves the right to amend the charge from time to time.
5.3. In consideration of Zanifu granting the Business Advance, merchant shall pay Zanifu a facility fee being 7.5% of the amount advanced paid to zanifu in arrears
6.1. Subject to approval of your application for a Business advance, Zanifu shall credit your account with offer amount to be determined by Zanifu in its sole discretion, subject to a minimum amount of Kenya Shillings one thousand (KShs. 1,000/=) and a maximum amount of up to half of the purchase order value or as determined by Zanifu.
6.2. The proceeds of the Business advance shall be paid directly to the seller’s/provider’s/distributor’s account may be subject to any deductions on account of applicable Transaction charges.
6.3. Business advance amount and fees will be paid to zanifu within 7 days after the date of drawdown
7. INTEREST PAYABLE ON DEFAULT
7.1. All advances made under the proposed credit facility shall attract compound interest on late payment from the date of repayment (as well after as before any demand or judgment or the liquidation of the Merchant) at a rate of 1% (one per cent) compound interest per day for any amount after due date or such other rate determined by Zanifu from time to time.
7.2. All payments under this facility will be made without set-off or counterclaim and free and clear of any deductions.
8. EVENTS OF DEFAULT
8.1. The whole of the monies remaining payable hereunder shall immediately become due and payable by the Merchant to Zanifu without demand if any of the following events occur that is to say:- The Merchant fails to observe or perform any of his obligations hereunder;
8.1.1. If the Merchant dies;
8.1.2. If the Merchant makes any arrangements or composition with his creditors or any assignment for the benefit of such creditors;
8.1.3. A receiver of the Merchant’s undertakings or any part thereof shall be appointed; or
8.1.4. If the Merchant commits any act of bankruptcy;
8.1.5. If distress or execution is levied or threatened upon any of the Merchant’s property and remains undischarged for a period of ten (10) days;
8.1.6. The Merchant does or suffers to be done any act likely to prejudice the effectiveness of Zanifu’s rights under this agreement or there is good reason to assume that the Merchant's financial position or standing has materially deteriorated.
8.1.7. Any adverse information that may affect the financial standing of the Merchant
9.1. In case of default, Zanifu shall have the right to institute legal action against the Merchant for the full recovery of all monies lent with interest thereof and exercise powers of sale or appointment of receivers or receivers and managers pursuant to any security created in favor of Merchant.
10.1. The Merchant shall pay all legal costs and any other costs incurred by Zanifu in connection with the loan or the enforcement or preservation of Zanifu’s rights.
10.2. The Merchant shall indemnify Zanifu forthwith upon demand of any costs incurred by Zanifu in taking any steps to obtain payment of monies due under this credit facility agreement including costs of enforcement of any security held and including costs of advocates on “an advocate and own client basis”.
10.3. The Merchant agrees to reimburse Zanifu forthwith upon demand all costs [including stamp duties and advocates expenses] on a full indemnity basis incurred in connection with the establishment of the security [if any] and preparation of the necessary loan documents.
11. IRREVOCABLE AUTHORITY OF ZANIFU
11.1. You hereby irrevocably authorize Zanifu to act on all Requests received by Zanifu from you (or through authorized numbers by you) through the SMS and to hold you liable in respect thereof, notwithstanding that any such requests are not authorized by you or are not in accordance with any existing mandates given by you.
11.2. Zanifu 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, Zanifu believes that it can correct the incomplete or ambiguous information in the Request without any reference to you being necessary.
11.3. In the event of any conflict between any terms of any Request received by Zanifu from you and these Terms and Conditions, these Terms and Conditions shall prevail.
12. CUSTOMER’S PHONE AND CUSTOMER’S RESPONSIBILITIES
12.1. You shall at your own expense provide and maintain in safe and efficient operating order your Phone.
12.2. You shall be responsible for ensuring the proper performance of your Phone. Zanifu shall neither be responsible for any errors or failures caused by any malfunction of your Phone, and nor shall Zanifu be responsible for any computer virus or related problems that may be associated with the use of the Services and the Phone.
12.3. You shall be responsible for charges due to any service provider providing you with connection to the Network and Zanifu shall not be responsible for losses or delays caused by any such service provider.
12.4. You shall follow all instructions, procedures and terms contained in these Terms and Conditions and any document provided by Zanifu concerning the use of the Service.
12.5. You agree and acknowledge that you shall be solely responsible for the safekeeping and proper use of your Phone and for keeping your phone PIN/password secret and secure.
12.6. Zanifu shall not be liable for any disclosure of your phone PIN/password to any third party and you hereby agree to indemnify and hold Zanifu harmless from any losses resulting from any disclosure.
12.7. You shall take all reasonable precautions to detect any unauthorized use of the Services. To that end, you shall ensure that all communications from Zanifu 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 phone will be detected.
12.8. You shall at all times follow the security procedures notified to you by Zanifu from time to time or such other procedures as may be applicable to the Services from time to time.
12.9. You acknowledge that any failure on your part to follow the recommended security procedures may result in a breach of your service confidentiality.
12.10. 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.
12.11. You shall not at any time operate or use the Services in any manner that may be prejudicial to Zanifu.
13. EXCLUSION OF LIABILITY
13.1. Zanifu 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 Phone, or (b) any other circumstances whatsoever not within Zanifu’s control including, without limitation, force majeure or error, interruption, delay or no availability of the System, terrorist or any enemy action Phone failure, loss of power, adverse weather or atmospheric conditions, and failure of any public or private telecommunications system.
13.2. Zanifu will not be liable for any losses or damage suffered by you as a result of or in connection with:-
13.2.1. Failure, malfunction, interruption or unavailability of the System, your Phone, the Network;
13.2.2. Your failure to give proper or complete instructions for payments or transfers relating to your Business advance
13.2.3. Any fraudulent or illegal use of the Services and your Phone; or
13.3. Your failure to comply with these Terms and Conditions and any document or information provided by Zanifu concerning the use of the Services.
13.4. Under no circumstances shall Zanifu be liable to you for any loss of profit or anticipated
13.5. All warranties and obligations implied by law are hereby excluded to the fullest extent permitted by law.
14. INTELLECTUAL PROPERTY RIGHTS
14.1. You acknowledge that the intellectual property rights in the service (and any amendments, upgrades or enhancements thereto from time to time) and all associated documentation that Zanifu provides to you through the SMS or otherwise are vested either in Zanifu or in other persons from whom Zanifu has a right to use and to sub-license the service and/or the said documentation.
15.1. In consideration of Zanifu complying with your instructions or Requests in relation the Fuel advance, you undertake to indemnify Zanifu and hold it harmless against any loss, charge, damage, expense, fee or claim which Zanifu suffers or incurs or sustains thereby and you absolve Zanifu from all liability for loss or damage which you may sustain from Zanifu acting on your instructions or requests or in accordance with these Terms and Conditions.
15.2. The indemnity in clause 15.1 shall also cover the following:
15.2.1. All demands, claims, actions, losses and damages of whatever nature which may be brought against Zanifu 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 Phone, 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 Zanifu’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 Zanifu.
15.2.2. 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.
15.2.3. Any unauthorized access to your Phone 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 Phone.
15.2.4. 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 the inability of a third party to process a transaction or any loss which may be incurred by Zanifu as a consequence of any breach by these Terms and Conditions.
15.2.5. Any damages and costs payable to Zanifu in respect of any claims against Zanifu for recompense for loss where the particular circumstance is within your control.
16. VARIATION AND TERMINATION OF RELATIONSHIP
16.1. Zanifu may at any time, upon notice to you, terminate or vary its business relationship with you and terminate the service but without prejudice to the generality of the foregoing Zanifu may cancel credit which it has granted and require the repayment of outstanding debts resulting therefrom within such time as Zanifu may determine.
16.2. Without prejudice to Zanifu rights under clause 16.1, Zanifu may at its sole discretion suspend the service
16.3. Termination shall however not affect any accrued rights and liabilities of either party.
17. DISCLOSURE OF INFORMATION
17.1. You hereby expressly consent and authorize Zanifu to disclose receive record or utilize your personal information or information or data relating to your Business advance and any details of your use of the Services:
17.1.1. 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;
17.1.2. to and from Zanifu’s service providers, dealers, agents or any other company that may be or become Zanifu’s subsidiary or holding company for reasonable commercial purposes relating to the Services;
17.1.3. to Zanifu’s lawyers, auditors or other professional advisors or to any court or arbitration tribunal in connection with any legal or audit proceedings;
17.1.4. For reasonable commercial purposes connected to your use of the Services, such as marketing and research related activities; and
17.1.5. In business practices including but not limited to quality control, training and ensuring effective systems operation.
18.1. These Terms and Conditions (as may be amended from time to time) form a legally binding agreement binding on you and your personal successors.
18.2. Zanifu shall only process the Partner’s personal data for the purposes of providing the Services herein;
18.3. This Agreement and any rights or liabilities accruing thereunder may not be assigned by you to any other person.
18.4. Zanifu may not vary or amend at any time and without notice these Terms and Conditions and the Transaction Fees. ZANIFU will provide details of such amendment directly via SMS within a minimum of seven (7) days prior written notice
18.5. No failure or delay by either yourself or Zanifu in exercising any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy prevent any further or other exercise thereof or the exercise of any other right or remedy.
18.6. The rights and remedies herein provided are cumulative and not exclusive of any rights or remedies provided by law.
18.7. If any provision of these Terms and Conditions shall be found by any duly appointed arbitrator, court or administrative body of competent jurisdiction to be invalid or unenforceable the invalidity or unenforceability of such provision shall not affect the other provisions herein.
18.8. Any addition or alteration to these Terms and Conditions may be made from time to time by Zanifu and of which notice has been given to you by way of publication and shall be binding upon you as fully as if the same were contained in these Terms and Conditions.
19.1. Zanifu may send information concerning the Business advance via SMS to the Mobile Phone number associated with your account
19.2. You acknowledge that you have no claim against Zanifu for damages resulting from losses, delays, misunderstandings, mutilations, duplications or any other irregularities due to transmission of any communication pertaining to the business advance.
20. DISPUTE RESOLUTION, JURISDICTION AND ARBITRATION
20.1. Any dispute arising out of or in connection with this Agreement that is not resolved by Zanifu representatives shall be referred to arbitration by a single arbitrator to be appointed by agreement between the parties or in default of such agreement within 60 days of the notification of a dispute, upon the application of either party, by the Chairman for the time being of the Chartered Institute of Arbitrators (Kenya Branch). Such arbitration shall be conducted in the English language in Nairobi in accordance with the Rules of Arbitration of the said Institute and subject to and in accordance with the provisions of the Arbitration Act 1995.
20.2. To the extent permissible by Law, the determination of the Arbitrator shall be final, conclusive and binding upon the parties hereto.
20.3. This Agreement shall be governed by and construed in accordance with the laws of the Republic of Kenya.