1. THE AGREEMENT
In these Terms and Conditions the following words and expressions (save where the context requires otherwise) bear the following meanings:
In these Terms and Conditions the following words and expressions (save where the context requires otherwise) bear the following meanings:
- “Credit Reference Bureau” means a credit reference bureau duly licensed by Central Bank of Kenya under the Banking (Credit Reference Bureau) Regulations, 2013, as amended, revised or promulgated from time to time, to inter alia, collect and facilitate the sharing of customer credit information;
- “Customer” means the person in whose name the Bayes Account is existing;
- “Customer Care Centre ”means any Bayes’ Retail Shops or Branch or such Agents as may be notified to the Customer by Bayes from time to time;
- “E-Money” means the electronic monetary value depicted in your Bayes Account representing an equal amount of cash;
- “Equipment” includes your mobile phone handset, SIM Card and/or other equipment which when used together enables you to access the Network;
- “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 and its successors;
- “Bayes Account” means your mobile money store of value, being the record maintained by Bayes of the amount of E-Money from time to time held by you in the Bayes cloud System; and operated in accordance with the Terms and Conditions herein contained;
- “Bayes Application” means the Bayes’ mobile digital account downloaded by the customers using their mobile phone to enable them access their Bayes account.
- “Bayes cloud System” means the Bayes’ electronic and communications software enabling the Customer to communicate with Bayes for purposes of the Services accessed through the Bayes cloud System;
- “Bayes Menu ”means the Bayes Menu on the Bayes mobile application;
- “Bayes Loan Menu” means the Bayes Loan Menu on the Bayes mobile application;
- “Bayes PIN ”means your personal identification number being the secret code used to access and operate the Bayes Account;
- “Bayes Products” means the other accounts, products or services offered to the Customer to complement the Bayes Account;
- “Bayes Service” means the money transfer and payments service provided by Bayes through the Bayes cloud System;
- “Bayes Subscriber ”means any person who has downloaded the Bayes App and is registered to use the Bayes cloud System to send or receive money or make payments;
- “Network” ”means the mobile cellular network operated by any mobile phone services provider;
- “Request ”means are quest or instruction received by Bayes from you or purportedly from you through the Network and the System and upon which Bayes is authorized to act;
- “Services ”shall include any form of financial services or products that Bayes may offer you pursuant to this Agreement and as you may from time to time subscribe to and “Service” shall be construed accordingly;
- “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 Bayes cloud System;
- “SMS”“SMS” means a short message service consisting of a text message transmitted from one mobile phone to another;
- “Transaction Fees” includes the any fees and charges payable for the use of the Services as Bayes shall in its sole discretion determine. Transaction Fees are subject to change at any time at Bayes sole discretion;
- “USSD” (Unstructured Supplementary Service Data) means the Global System for Mobile (GSM) communication technology that will be used to send data between the customer’s mobile phone and the Bayes application program in the network.
- “We”, “our”, and “us”, means Bayes and includes the successors and assigns of Bayes;
- “You” or “your” means the Customer and includes the personal representatives of the Customer;
- The word “Customer” 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.
3. ACCEPTANCE OF THE TERMS AND CONDITIONS
- 3.1 Before applying to open Bayes Account via the Bayes cloud System you should carefully read and understand these Terms and conditions which will govern the use and operation of the Bayes Account.
- 3.2 If you do not agree with these Terms and conditions, please click “Decline” on the Bayes Menu.
- 3.3 You will be deemed to have read, understood and accepted these Terms and Conditions: upon clicking on the “Accept” option on the Bayes Menu requesting you to confirm that you have read, understood and agreed to abide with these Terms and Conditions; and/or by using or continuing to use and operate the Bayes Account and/or the Services.
- 3.4 By applying to download the Bayes app on your phone, you agree to comply with and be bound by these Terms and Conditions for the time being and from time to time in force governing the operation of the Bayes Account and you affirm that these Terms and Conditions herein are without prejudice to any right that Bayes may have with respect to the Bayes Account in law or otherwise.
- 3.5 These Terms and Conditions may be amended or varied by Bayes from time to time and the continued use of your Bayes Account and/ or the Services constitutes your agreement to be bound by the terms of any such amendment or variation.
4. ACCOUNT OPENING
- 4.2 You may open a Bayes Account solely by way of downloading the Bayes application using your mobile phone.
- 4.3 You can also login to the Bayes account through the internet or USSD.
- 4.3 You can also login to the Bayes account through the internet or USSD.
- 4.4 You hereby accept and confirm that we may disclose or receive personal information or documents about you including your phone number, name, date of birth, ID or Passport Number and such other information that will enable Bayes to identify you and comply with the regulatory “Know Your Customer” requirements (together the “Personal Information”).
- 4.5 You hereby consent to the disclosure of the Personal Information to Bayes.
- 4.6 You hereby agree and authorize Bayes to obtain and procure your Personal Information contained in the IPRS from the Government of Kenya and you further agree and consent to the disclosure and provision of such Personal Information by the Government of Kenya to Bayes.
- 4.7 You hereby further agree and authorize the Bayes to request Safaricom for your personal information in Clause 4.4 above, that is held by Safaricom pursuant to the agreement between you and Safaricom and verify the same against the information received from the Government of Kenya in your respect as contained in the IPRS.
- 4.8 We may contact you and/or your emergency contact. You expressly agree that, as part of the Service, you may, from time to time, receive communications from us via text message (SMS) or email, including our promotional newsletters or other information about the Service. You may stop receiving promotional messages by following the opt-out instructions in the message. Even if you choose to opt out of receiving promotional messages, you may not opt out of receiving service-related messages.
- 4.9 You also expressly authorize us to contact your emergency contact to verify your information or when we are unable to contact you or when we have not received a repayment from you. You confirm that your emergency contact has consented to the sharing of his/her information with us and to us contacting them with respect to your use of the Service.
- 4.10 Bayes reserves the right to request for further information from you pertaining to your application for Bayes Account at any time. Failure to provide such information within the time required by Bayes may result in Bayes declining to accept your application for a Bayes Account.
- 4.11 Acceptance by Bayes of your application for a Bayes Account shall be done via SMS sent to your Mobile Phone Number associated with your Bayes Account.
- 4.12 Bayes reserves the right to decline your application for a Bayes Account or to revoke the same at any stage at Bayes’ sole discretion and without assigning any reason or giving any notice thereto.
5. YOUR REQUESTS
- 5.1 You hereby irrevocably authorize Bayes to act on all Requests received by Bayes from you (or purportedly from you) through the System and to hold you liable in respect thereof. Bayes may nevertheless refuse to carry out any Requests which would lead to insufficient funds on your Bayes Account and/or if there are insufficient funds in your Bayes account.
- 5.2 Bayes 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, Bayes believes that it can correct the incomplete or ambiguous information in the Request without any reference to you being necessary.
- 5.3 Bayes 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 Bayes may act if Bayes has in good faith acted in the belief that such instructions have been sent by you.
- 5.4 Bayes may, in its absolute discretion, decline to act on or in accordance with the whole or any part of your Request pending further enquiry or further confirmation (whether written or otherwise) from you. Bayes shall not be under any obligation to so decline in any case, and shall in no event or circumstance be liable for not so declining.
- 5.5 You agree to and shall release from and indemnify Bayes against all claims, losses, damages, costs and expenses howsoever arising in consequence of, or in any way related to Bayes having acted in accordance with the whole or any part of any of your Requests (or failed to exercise) the discretion conferred upon it.
- 5.6 You acknowledge that to the full extent permitted by law Bayes 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 Bayes password, PIN or any means whether or not occasioned by your negligence.
- 5.7 You can only have your Request reversed in case of a transaction initiated or sent in error by you by contacting Bayes through your Bayes application requesting for a reversal. The reversal will however only be allowed where the request is revocable and has not yet been acted upon. If Bayes is able to cancel your instruction you will not be charged for such cancellation.
- 5.8 Bayes may refuse to make a payment if you do not have sufficient funds in your Bayes Account. In deciding whether you have sufficient funds, Bayes will take account of any instructions to make payments and regular payments which have not yet been paid from your Bayes Account. Bayes will not be obliged to take account of regular credits or any amounts received after it has decided not to make the payment.
- 5.9 Bayes is authorized to effect such orders in respect of your Bayes Account as may be required by any court order or competent authority or agency under the applicable laws.
- 5.10 In the event of any conflict between any terms of any Request received by Bayes from you and these Terms and conditions, these Terms and conditions shall prevail.
6. OVERDRAWING YOUR BAYES ACCOUNT
- 6.1 No Overdraft will be allowed on your Bayes Account.
- 7.1 Bayes shall have a general lien over all your money in the Bayes account.
- 7.2 Where you are indebted to Bayes in circumstances giving Bayes a right of set off, all cash held under lien in terms of sub-clause 7.1 hereof shall be deemed to be held as security for the debt.
- 7.3 Bayes may at any time give you notice in writing that if an accrued debt is not paid within a period being not less than 30 days (or such other period specified in the notice) from the date of receipt by you of the notice then Bayes may, without further notice, Realize any cash held in your Bayes account, or in the absence thereof, Bayes shall have the right to have you listed on CRB as a defaulting borrower to discharge the debt. Any part payment made will be accepted strictly on account and without prejudice to the Bayes’ rights.
- 7.4 You hereby constitute us as your attorney for the purposes of any transaction will be held on your behalf in relation to your Cash for purposes of discharging the debt.
- 8.1 Bayes may, upon notice, combine/consolidate outstanding funds on Bayes Account and the cash held if any and thereafter set off any amount held to your credit against any indebtedness you owe to Bayes.
- 8.2 Bayes may, upon notice to you, set off any amount held to your credit on your Bayes Account against any indebtedness you owe to Bayes.
- 8.3 Bayes may, upon notice to you, set off your Bayes Account against any other account or indebtedness in respect of which you are liable, notwithstanding that some other person may also be liable in respect thereof. In such circumstances, upon receipt of an indemnity acceptable to Bayes (against costs) and at your expense, Bayes will give you any assistance necessary in obtaining a refund.
- 8.4 If the set off is for debt recovery, Bayes will provide you with a detailed breakdown of the costs and expenses recovered from you together with a justification for such costs and expenses.
- 9.1 You may request for a statement or activity report in respect of your Bayes Account from Bayes using your Equipment (“Bayes Mini Statement”).
- 9.2 A Bayes Mini Statement shall provide details of the last 4 (four) transactions (or such other number of transactions as determined by Bayes) in your Bayes Account initiated from your Equipment.
- 9.3 A Bayes Mini Statement shall not be sent to you in printed form but shall be delivered to you either by SMS to the Mobile Phone Number associated with your Bayes Account or such other electronic means as Bayes may in its discretion determine. You shall be responsible for the payment of any charges levied in delivering the Bayes Mini Statement to you.
- 9.4 Bayes full Statements shall be emailed to you in an uneditable format such as pdf.
- 9.5 Save for a manifest error, a Bayes Mini Statement or Bayes statement issued to you aforesaid in respect of your Bayes Account shall be conclusive evidence of the transactions carried out on your Bayes Account for the period covered in the Bayes Mini Statement and/or Bayes statement.
- 9.6 Your statement will show all amounts added or taken from your Bayes Account during the period requested and/or since the previous statement. You must check your statement carefully and tell Bayes as soon as possible if it includes any transaction or other entry which appears to you to be wrong or not made in accordance with your instructions.
- 9.7 Bayes reserves the right to rectify discrepancies, add and/or alter the entries in your statements, without prior notice to you. Bayes will however inform you of any rectification, additions and or alterations effected on your statements within a reasonable time after the changes are effected.
- 9.8 You will be notified of all transactions on your Bayes Account by way of SMS and the charges for this service will be debited from your Bayes Account.
10. CUSTOMER COMPLAINTS
- 10.1 Complaints may be made in person, in writing, by post, fax, email, online chat or by telephone.
- 10.2 Bayes will take all measures within its means to resolve your complaints within a reasonable time. All complaints will be handled in accordance with Bayes complaints handling procedures, which are available on request from the Customer Care Centre. Where a notification regarding your complaint or any other matter is expected from Bayes but not received, the complaint must be made within a reasonable time after non-receipt of such notification.
- 10.3 Applicable tariffs will be charged by your telephone and internet service provider (s) when communicating with the Customer Care Centre.
11. INOPERATIVE AND DORMANT ACCOUNTS
- 11.1 Your Bayes Account will automatically be classified as inactive if you do not initiate any transactions on the account for a continuous period of3 months.
- 11.2 Bayes shall make reasonable endeavors to inform you of the intended classification of your Bayes Account as inactive at least one (1) month before such classification. Bayes shall, not later than seven (7) days from the date of such classification, inform you of such classification by way of SMS alerts addressed to your mobile telephone number.
- 11.3 Your Bayes Account will be classified as Dormant if it remains inactive for a further period of 3 months, in which case the account balances shall remain in your Bayes Account.
- 11.4 You will not be allowed to transact on an inactive or dormant account but Bayes shall, upon your written (e.g. letter/email/online chat) request, inform you of the procedure to be followed to activate your inactive/dormant account.
- 11.5 Bayes may (including without limitation) apply any one or more of the following conditions to your Bayes Account upon its classification as Dormant:
- Confirm the validity and authenticity of the first transaction reactivating the account;
- Suspend the payment of interest (if applicable);
- Suspend the issuance of statements;
- Charge a maintenance fee as we may determine from time to time;
- 11.6 If your Bayes Account will not have any transactions initiated by you for a continuous period of five (5) years or if you shall not have communicated with us for a continuous period of five (5) years regarding your Bayes Account, such account will be presumed abandoned and transferred to the Unclaimed Financial Assets Authority as such.
12 BAYES’ CHARGES AND EXPENSE INTEREST
- 12.1 Bayes may debit your Bayes Account with Bayes fees, commissions, costs and other charges in respect of Bayes products and services provided to you, including but not restricted to the following:
- Bayes may determine from time to time, which rate or rates may be different for different amounts. Such interest will be calculated on either weekly or monthly basis and deducted from the account once you deposit money to the Bayes account. Bayes will notify you within reasonable time prior to effecting any change(s) as regards interest rates. Where a higher rate of interest has been agreed, Bayes may charge such higher rate on any of your accounts. Such interest is payable notwithstanding the determination of your relationship with Bayes and until you repay the full amount you owe Bayes in full.
- Legal charges: Advocate and client charges, costs and expenses incurred in any legal, arbitration or other proceedings arising out of or connected with your Bayes Account;
- Commissions: Commissions at such rates as Bayes may determine from time to time
- Other charges and expenses: In addition to the debits authorised by sub-clauses (a) and (b) of this clause, all other proper expenses and charges including but not limited to fees with respect to requests and use of the app and Mpesa/ airtel transactions. Bayes may also debit your account with expenses incurred:
- In complying with your requests;
- In complying with the requests of authorized and accredited Government or other agencies in relation to your account;
- In maintaining your Account;
- In collecting or attempting to collect any amount of money you owe Bayes ; and
- Expenses incurred in realizing any security or protecting the subject matter of any security issued to Bayes.
- Bayes will provide you with a detailed breakdown of the costs, charges and expenses incurred under sub-clauses (a), (b), (c) and (d) of this clause in the account statements
- Bayes will give you at least seven (7) days’ notice of intention to effect new charges, fees, costs and/or commissions by way of email, SMS, letter, online chat and/or notices in the daily newspapers
13. SPECIFIC BAYES ACCOUNTS
- 13.1 Bayes account13.1.1 As a holder of a Bayes Account, you will be entitled, subject to these Terms and Conditions, to transfer money from your Bayes Account and/or make withdrawals therefrom into your Bayes Account, and/or to borrow money from Bayes as follows:
- You may make deposits into your Bayes Account or withdraw funds therefrom using the Bayes Menu on your Equipment.
- You may transfer money from your Bayes account to another Bayes account holder and also to a bank account both local or international.
- You will not be required to notify Bayes in advance of making a deposit or withdrawal into or from your Bayes Account.
- Transaction Fees and applicable Bayes fees, commissions and other charges will however be charged on all transactions between your other Bayes account (s).
- There will be no restrictions on the number of deposits into your Bayes Account over any period of time subject to a minimum deposit of Kshs. 10.
- Subject to availability of sufficient funds to your credit, Bayes shall impose no restrictions on the number of withdrawals you may make from your Bayes Account over any period of time. You may withdraw up to the maximum allowable limit which shall be Kshs. 150,000/=.
- The maximum deposit limit on your Bayes Account shall be Kshs. 150,000/= or such other minimum or maximum amount as Bayes may from time to time in its sole discretion determine. Your deposits shall however not exceed Kshs. 150,000 per day except with Bayes’ prior written approval and subject to your compliance with such further or other conditions and documentation as may be required by Bayes.
- Through the Bayes Menu on your Equipment, you may establish standing orders and instruct Bayes to make loan repayments and establish term deposits using funds from your Bayes Account and also instruct Bayes to pay your regular bills on your behalf through the standing orders.
- As a holder of a Bayes Account, you may, subject to these terms and conditions, apply for a loan from Bayes using the Bayes Menu on your Equipment.
- As a holder of a Bayes Account, you will be entitled, subject to these Terms and Conditions, to merchant payment services which include payments at the shops, hotels, supermarkets that are provided by Bayes through the Mpesa or Airtel paybill, masterpass, Visa or Bayes. Payment will be done using money from your Bayes account to the merchant.
- The costs that are going to be incurred in the transaction in clause X above shall be one of which shall include the money network provider’s cost plus Bayers’ cost.
- 13.2 Bayes transaction account
- 13.2.1 Only holders of Bayes Accounts will be eligible to open Bayes Transaction Accounts.
- 13.2.2 The maximum balance limit on your Bayes Transaction Account shall be Kshs.150,000/= or such other minimum or maximum amount as Bayes may from time to time in its sole discretion determine. If you however wish to store any amount above Kshs. 150,000 in your Bayes Transaction Account, you must provide Bayes with such further documentation and comply with any other or further conditions as may be required by Bayes.
- 13.2.3 The Maximum transfer amount into your Bayes Transaction Account shall be a maximum of Kshs. 150,000 per day.
- 13.2.4 The maximum deposit transfer into your Bayes Transaction Account shall be Kshs. 150,000 per deposit transaction.
- 13.2.5 The Minimum deposit for your Bayes Transaction Account and minimum transferrable amount from your Bayes Transaction Account shall be Kshs. 10.
- 13.2.6 You shall not be entitled to overdraw your Bayes Transaction Account.
14. BAYES LOANS
- 14.1 In order to qualify for a Bayes Loan, you must be at least 18 years old, a registered and an active Bayes Account holder.
- 14.2 Upon opening your Bayes Account, you will receive a confirmation message bearing your credit limit. You may thereafter, subject to these terms and conditions, apply for a loan using the request loan menu on the Bayes Menu on your Equipment. The Transaction Fees payable for transactions effected in respect of your Bayes Account from time to time will apply to any transactions effected in respect of your Bayes Loan.
- 14.3 Customers must transact for a period of 3 months to become eligible for a loan.
- 14.4 As you apply for the loan, you will be able to select your preferred loan repayment period from the Bayes Menu on your Equipment. The available repayment period options on the Bayes Menu will be for repayment within 7 calendar days, 30 calendar days and 60 calendar days respectively.
- 14.5 Your Bayes Loan application will be appraised according to the applicable loan appraisal processes of Bayes. Bayes reserves the right at its sole discretion and without assigning any reason to approve or decline your application for a loan.
- 14.6 Acceptance or rejection by Bayes of your application for a Bayes Loan shall be done via SMS sent to the Mobile Phone Number associated with your Bayes Account.
- 14.7 Subject to approval of your application for a loan, Bayes shall disburse to you a loan of an amount to be determined by Bayes in its sole discretion subject to a minimum amount of Kenya Shillings fifty (Kshs.50) and a maximum amount of Kenya Shillings Twenty thousand (Kshs. 20,000) or such other minimum or maximum amount as Bayes may from time to time in its sole discretion determine.
- 14.8 Bayes will directly credit the loan proceeds into your Bayes Account subject to any deductions on account of applicable Transaction Fees and interest charges.
- 14.9 You may only withdraw the loan from your Bayes Account in accordance with Clause 13.1.1.
- 14.10 In consideration of Bayes granting you the loan, you shall pay Bayes an interest which shall be determined by Bayes from time to time and depending on the loan product being offered :
- 14.11 The Customer loan will receive the full amount applied for.
- 14.12 You shall make all payments due from you to Bayes in respect of the loan and Transaction Fees through your Bayes Account.
- 14.13 In the event that you do not repay the loan in full within the agreed repayment period, Bayes will automatically roll over any outstanding amount in respect of the loan for a further period equal to the loan term or charge a penalty on the arrears amount.
- 14.14 In consideration of Bayes forbearing to demand the immediate payment of the outstanding amount due in respect of your loan and rolling over the same pursuant to Clause 14.13, you shall, in addition to paying the outstanding amount in respect of the loan any outstanding fee, pay to Bayes a roll-over fee to be advised prior to effecting the roll-over of the outstanding amount in respect of the Loan (the “Roll-Over Fee”).
- 14.15 You hereby agree to pay costs charges and expenses incurred by Bayes in obtaining or attempting to obtain payment of any loan owed under your Bayes Loan Account.
- 14.16 Bayes shall be entitled to terminate this Agreement and close your Bayes Account in accordance with the provisions of Clause 21 without prejudice to any of its rights accruing hereunder if you fail to repay the loan and/or the Transaction Fees due thereon within the agreed repayment period.
- 14.17 Bayes shall utilize funds in your account opened and operated by you to offset any amounts outstanding and due from you to Bayes in respect of your loan.
- 14.18 Bayes shall utilize the funds held in your Bayes Account to pay off any amounts outstanding from your loan. Bayes shall only exercise this option after giving you notice and after setting off all other funds held by Bayes.
- 14.19 Bayes reserves the right to vary the terms of the loan including the interest rate and fees payable thereon from time to time.
- 14.20 You hereby expressly consent and authorize Bayes to disclose, respond, advise exchange and communicate the details or information pertaining to your Bayes Account and or loan to Credit Reference Bureaus or any regulator or authority as required, as published, amended or revised from time to time or any other law.
- 14.21 You also hereby expressly consent and authorize Bayes to disclose, respond, advise exchange and communicate the details or information pertaining to your Bayes Account and or loan to third parties involved in the administration of your Bayes Account and or loan, underwriting of insurance policies, updating of databases, or provision of user support.
15. BAYES ACCOUNT TO BAYES ACCOUNT
- 15.1.1 The Customer will be able to send money from one Bayes account to another Bayes Account
- 15.1.2 Bayes limits will apply and normal person to person Bayes charges, if any, will be applicable.
- 15.2 Bayes Account Standing Order
- 15.2.1 Customers will be able to place standing orders from:
- 18.104.22.168 Bayes Account
- 22.214.171.124 The standing orders can be placed by the customer to pay bills such us electricity bills, tv bills, waters bills, or as provided in the Bayes application.
- 126.96.36.199 Bayes Account to Target savings Account
- 188.8.131.52 The Customer will be able to stop a standing order
- 184.108.40.206 The Customer can have more than one standing order account
- 16.1 You hereby expressly consent and authorize Bayes to disclose receive record or utilize your personal information or information or data relating to your Bayes Account and any details of your use of the Services:
- 16.1.1 to and from Bayes’ service providers, dealers, agents or any other company that may be or become Bayes’ subsidiary or holding company for reasonable commercial purposes relating to the Services;
- 16.1.2 to a Credit Reference Bureau;
- 16.1.3 to Bayes’ lawyers, auditors or other professional advisors or to any court or arbitration tribunal in connection with any legal or audit proceedings;
- 16.1.4 for reasonable commercial purposes connected to your use of the Services, such as marketing and research related activities; and
- 16.1.5 in business practices including but not limited to quality control, training and ensuring effective systems operation.
- 16.2 You authorize Bayes to disclose any information relating to your Bayes Account to any local or international law enforcement or governmental agencies so as to assist in the prevention, detection, investigation or prosecution of criminal activities or fraud or to any other institution or third party as required by the laws of any country and as Bayes may deem necessary.
- 16.3 In the event of death, your estate administrator will be granted access to your Account upon production of administration letters from a competent authority or confirmed grant of letters of administration or confirmed grant of probate by your legal representatives duly appointed by the Court.
17. YOUR EQUIPMENT AND RESPONSIBILITIES
- 17.1 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.
- 17.2 You shall be responsible for ensuring the proper performance of your Equipment. Bayes shall neither be responsible for any errors or failures caused by any malfunction of your Equipment, and nor shall Bayes be responsible for any computer 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 Network and Bayes shall not be responsible for losses or delays caused by any such service provider.
- 17.3 You shall follow all instructions, procedures and terms contained in these Terms and Conditions and any document provided by Bayes concerning the use of the System and Services.
- 17.4 You agree and acknowledge that you shall be solely responsible for the safekeeping and proper use of your Equipment and for keeping your Bayes PIN secret and secure. You shall ensure that your Bayes PIN does not become known or come into possession of any unauthorized person. Bayes shall not be liable for any disclosure of your Bayes PIN to any third party and you hereby agree to indemnify and hold Bayes harmless from any losses resulting from any Bayes PIN disclosure.
- 17.5 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 Bayes 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.
- 17.6 You shall immediately inform Bayes through the Customer Care Centre in the event that:
- 17.6.1 You have reason to believe that your Bayes PIN is or may be known to any person not authorized to know the same and/or has been compromised; and/or
- 17.6.2 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.
- 17.7 You shall at all times follow the security procedures notified to you by Bayes 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 Bayes 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.
- 17.8 You shall not at any time operate or use the Services in any manner that may be prejudicial to Bayes.
18. EXCLUSION OF LIABILITY
- 18.1 Bayes 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 Bayes ’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.
- 18.2 Bayes will not be liable for any losses or damage suffered by you as a result of or in connection with:
- 18.2.1 unavailability of sufficient funds in your Bayes Account’;
- 18.2.2 failure, malfunction, interruption or unavailability of the System, your Equipment, the Network and/or the service provider’s services;
- 18.2.3 the money in your Bayes Account being subject to legal process or other encumbrance restricting payments or transfers thereof;
- 18.2.4 your failure to give proper or complete instructions for payments or transfers relating to your Bayes Account;
- 18.2.5 any fraudulent or illegal use of the Services, the System and/or your Equipment; or
- 18.2.6 Your failure to comply with these Terms and conditions and any document or information provided by Bayes concerning the use of the System and the Services.
- 18.3 If for any reason other than a reason mentioned in subparagraphs 18.1 or 18.2, the Services are interfered with or unavailable, Bayes’ sole liability under this Agreement in respect thereof shall be to re-establish the Services as soon as reasonably practicable.
- 18.4 Save as provided in subparagraph 18.3 Bayes shall not be liable to you for any interference with or unavailability of the Services, howsoever caused
- 18.5 Under no circumstances shall Bayes be liable to you for any 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 Bayes.
- 18.6 All warranties and obligations implied by law are hereby excluded to the fullest extent permitted by law.
19. 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 Bayes provides to you through the System or otherwise are vested either in Bayes or in other persons from whom Bayes 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 Bayes.
- 20.1 In consideration of Bayes complying with your instructions or Requests in relation the Bayes Account, you undertake to indemnify Bayes and hold it harmless against any loss, charge, damage, expense, fee or claim which Bayes suffers or incurs or sustains thereby and you absolve Bayes from all liability for loss or damage which you may sustain from Bayes acting on your instructions or requests or in accordance with these Terms and conditions.
- 20.2 The indemnity in clause 20.1 shall also cover the following:
- 20.2.1 All demands, claims, actions, losses and damages of whatever nature which may be brought against Bayes 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 Bayes ’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 Bayes .
- 20.2.2 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
- 20.2.3 Any unauthorized access to your Bayes 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.
- 20.2.4 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 Bayes as a consequence of any breach by these Terms and conditions.
- 20.2.5 Any damages and costs payable to Bayes in respect of any claims against Bayes for recompense for loss where the particular circumstance is within your control.
21. VARIATION AND TERMINATION OF RELATIONSHIP
- 21.1 Bayes may at any time, upon notice to you, terminate or vary its business relationship with you and close your Bayes Account and in particular but without prejudice to the generality of the foregoing Bayes may cancel credits which it has granted and require the repayment of outstanding debts resulting therefrom within such time as Bayes may determine.
- 21.2 Without prejudice to Bayes rights under clause 21.1, Bayes may at its sole discretion suspend or close your Bayes Account:
- 21.2.1 if you use the Bayes Account for unauthorized purposes or where Bayes detects any abuse/misuse, breach of content, fraud or attempted fraud relating to your use of the Services;
- 21.2.2 if your Bayes Account is terminated for whatever reason;
- 21.2.3 if Bayes is required or requested to comply with an order or instruction of or a recommendation from the government, court, regulator or other competent authority;
- 21.2.4 if Bayes reasonably suspects or believes that you are in breach of these terms and conditions (including non-payment of any Loan amount due from you where applicable);
- 21.2.5 where such a suspension or variation is necessary as a consequence of technical problems or for reasons of safety;
- 21.2.6 to facilitate update or upgrade the contents or functionality of the Services from time to time;
- 21.2.7 where your account becomes inactive or dormant;
- 21.2.8 if Bayes decides to suspend or cease the provision of
- 21.3 You may close your Bayes Account at any time through the Bayes app
- 21.4 If your Bayes Account has any credit balance at the time of its closure, we will return any such balance to you, less any applicable fees. If your Bayes Loan Account is in arrears at the time of closure of your Bayes Account, you agree to pay to us immediately all amounts you owe us.
- 21.5 Termination shall however not affect any accrued rights and liabilities of either party.
- 21.6 If Bayes receives notice of your demise, Bayes will not be obliged to allow any operation or withdrawal from your Bayes Account by any person except upon production of administration letters from a competent authority or confirmed grant of letters of administration or confirmed grant of probate by your legal representatives duly appointed by the Court.
- Each party undertakes and warrants that it will treat as confidential all information related to and received from the other party, which it acquires as a result of the operation of this Terms and conditions and to afford in the same degree of confidential treatment as it affords to its own confidential information. Neither party will reveal any confidential information of the other to any third party, without the express written consent of the disclosing party except where such information is already in the public domain, has been legally acquired by the third party or where disclosure of the confidential information is ordered by a court or other competent authority.
- 23.1 These terms and conditions (as may be amended from time to time) form a legally binding agreement binding on you and your personal successors.
- 23.2 This Agreement and any rights or liabilities accruing thereunder may not be assigned by you to any other person.
- 23.3 Bayes may vary or amend these terms and conditions and the Transaction Fees at any time and without notice to you. Any such variations or amendments may be published in posters or pamphlets, on Bayes’ website and/ or by any other means as determined by Bayes and any such variations and amendments shall take effect immediately upon publication.
- 23.4 No failure or delay by either yourself or Bayes 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.
- 23.5The rights and remedies herein provided are cumulative and not exclusive of any rights or remedies provided by law.
- 23.6 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.
- 23.7 Any ad
- Each party intend that this Terms and Conditions shall not benefit or create any right or cause of action in or on behalf of any person or entity other than Bayes and the Customer.
25. NO THIRD PARTY BENEFICIARIES
- Each party intend that this Terms and Conditions shall not benefit or create any right or cause of action in or on behalf of any person or entity other than Bayes and the Customer.
26. PERMISIBLE PURPOSE AND PROHIBITED USAGE AND CONDUCT
- 26.1 The customer hereby undertake to use Bayes services only for purposes set out in this Terms and Conditions and shall not vary or modify the purpose without the prior written consent of Bayes.
- 26.2 The Customer agrees not to use Bayes services to:
- Conduct any business that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful or racially ethnically or otherwise objectionable;
- Impersonate any person or entity including but not limited to Bayes official, fellow user or falsely utter or otherwise misrepresent your affiliation with a person or entity.
- Manipulate identifiers in order to disguise the origin of any content transmitted through the Bayes service.
- Conducting any business that causes or permit the uploading, transmission or otherwise making available any content or information that you do not have a right to make available under any law or under contractual or fiduciary relationships;
- e) Conduct any business that infringes any patent, trademark, trade secret, copyright or any other proprietary rights of Bayes.
- Conduct any business that infringes any patent, trademark, trade secret, copyright or any other proprietary rights of Bayes.
- Collects or store personal data about other Bayes users without their express authority.
- Conduct any business that intentionally or unintentionally violates any applicable local or international law including but not limited to laws and regulations promulgated in the Communications Commission of Kenya and any regulations having the force of law.
- 27.1 Bayes may send information concerning the Bayes Account via SMS to the Mobile Phone number associated with your Bayes Account.
- 27.2 You acknowledge that you have no claim against Bayes for damages resulting from losses, delays, misunderstandings, mutilations, duplications or any other irregularities due to transmission of any communication pertaining to the Bayes Account.
28. DISPUTE RESOLUTION, JURISDICTION AND ARBITRATION
- 28.1 You may contact the Customer Care Center to report any disputes, claims or Bayes Account discrepancies.
- 28.2 Any dispute arising out of or in connection with this Agreement that is not resolved by Customer Care Centre 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.
- 28.3 To the extent permissible by Law, the determination of the Arbitrator shall be final, conclusive and binding upon the parties hereto.
- 28.4 This Agreement shall be governed by and construed in accordance with the laws of the Republic of Kenya.