Our refund, return and warranty policies
At Mophones (“Mosub Kenya Ltd”) we want to make sure we provide you with peace of mind. Our refunds and return policy below is aimed at ensuring you understand your refund and return rights. This policy details:
- Why we need some of your personal information
- How we collect, use, store, transfer and share it
- How we process information related to your devices
Can I return a device if I change my mind?
- You can initiate a request for a refund within 48 hours after delivery or collection for if you have changed your mind about the product
- Please note that a full refund will only be processed if the product is in the condition you received it, and all components and packaging is intact
How can I initiate a return?
- You can request a refund by contacting us via the App live chat feature, the email form in the App, our free short code 25044 or through WhatsApp 0728 444 442
- Once you have lodged a request for return, you have done what you need to do in order to comply with the 48 hour window for returns
What to expect once you have lodged a return request?
We will contact you to understand the reason for return, and - if approved for a return - we will organize for you to drop it off at one of our partner stores or we will come to pick it up from you
- Approval to return a product does NOT mean you will receive a refund
- A full refund will only be provided if the product is:
In its original packaging
Is in the same condition it was provided to you
Has all components you were initially provided
- It might take us up to 48 hours from receiving the returned product to determine if you are eligible for a refund in full or partial
- Please note that if the product is returned damaged or missing components, the value of the damage or missing items will be deducted from the value of the deposit - this may mean you are not eligible for a refund
- Once we have determined the amount of refund we will refund your money to the same account that you paid us, within 5 business days.
What is Mophones’ Warranty Policy?
- You will be automatically enrolled into the Mophones warranty program at the point of activation of the Product which is valid for 12 months
- During the Mophones warranty program, we will repair or replace a product if the proper functioning of the phone handset is impaired
- The Warranty is valid only if the product is used as instructed, and is not tampered/opened/modified and/or used in other ways not authorized by Mophones.
- To make a warranty claim, you must first contact Mophones customer service:
- You can make a warranty claim via the App live chat feature, the email form in the App, by calling our call center or in person at one of our service centers or partner shops
- In the event of a verified manufacturing defect, Mophones commits to fixing the Product or replacing the Product with a similar one for you, within 5 working days
- The warranty does not apply to any accessories accompanying the phone handset
Mophones Refunds Policy
You can initiate a request for a refund within 48 hours after delivery / collection for if you have changed your mind about the product. Please note that a full refund will only be processed if the product is in the condition you received it, and all components and packaging is intact.
How to contact us: You can request a refund by contacting us via the App live chat feature, the email form in the App, our free short code 25044 or through WhatsApp 0728 444 442. Once you have lodged a request for return, you have done what you need to do in order to comply with the 48 hour window for returns.
What happens once you have lodged a request: We will contact you to understand the reason for return, and if approved for a return, we will organize for you to drop it off at one of our partner stores or we will come to pick it up from you. Approval to return a product does NOT mean you will receive a refund. A full refund will only be provided if the product is:
- In its original packaging
- Is in the same condition it was provided to you
- Has all components you were initially provided
It will take us up to 48 hours from receiving the returned product to determine what amount of refund you will be eligible for. Please note that if the product is returned damaged or missing components, the value of the damage or missing items will be deducted from the value of the deposit. This may mean you are not eligible for a refund.
Once we have determined the amount of refund: We will refund your money to the same account that you paid us, within 5 business days.
Mophones Return Policy
For the first 15 days from Product activation, if you identify that the Product you received is the wrong model, size or make from the one you ordered, Mophones will replace it with the model you ordered, free of charge, as long as the Product you return (which was the wrong model, size or make) is returned in its original packaging, has the same condition you were provided it with, and has all components included.
Mophones Warranty Policy
Mophones will repair or replace a Product only as it relates to the proper functioning of the phone handset (“Warranty”). You will be automatically enrolled into the Mophones warranty program at the point of activation of the Product and will last for 12 months.
The Warranty is valid only if the Product is used as instructed, and is not tampered/opened/modified and/or used in other ways not authorized by Mophones.
In the situation where you want to make a warranty claim, you must first contact Mophones customer service. You can make a warranty claim via the App live chat feature, the email form in the App, by calling our call center or in person at one of our service centers or partner shops.
In the event of a verified manufacturing defect, Mophones commits to fixing the Product or replacing the Product with a similar one for you, within 5 working days.
The warranty does not apply to any accessories accompanying the phone handset or that may be sold through the marketplace separately by Mophones.
- Why we need some of your personal information
- How we collect, use, store, transfer and share it
- How we process information related to your devices
Why do we need some of your personal information?
- Mophones is required to undertake know-your-customer (KYC) and due diligence measures to verify the identity of all customers that Mophones interacts with. Therefore, the processing of your personal and device information by Mophones serves to avoid identity theft and to comply with anti-money laundering legislation
- We require and process your personal and device information to substantiate the performance of the contract into which you will enter with us in the case of a finance product.
- We may also process your personal and device information from time to time to enable us to improve the quality of the devices and services that we offer and to offer you additional products and services.
When do we collect personal and device information?
We collect your personal and device information when you:
- Sign up to purchase our products and services and fill out our customer registration form
- Respond to our know-your-customer screening questions
- Possess or use our products
- Use the Mophones customer application on your device
- Make payments to u
- Apply to us for employment.
- Call or otherwise contact us including via SMS, USSD, website, or an in-store visit
- Use the Mosub mobile application software (“App”) on your device
- The App is available on the Google Play Store or Apple App Store
- Participate in market studies, surveys or promotions
What personal information and device information do we process?
We process the following information about you:
Information you give us when we enter into a contract
- When you purchase our products or services you provide us with your personal details in our customer agreement. These include your name, email address, occupation, birth date, gender, mobile number, national identity number (or other similar identification numbers as applicable), geographical location, photograph, and physical address.
- For some products we might require additional KYC information from you such as your daily income/purchase potential or any information needed to comply with the terms and conditions of our contract with you.
The collection of the above information is mandatory. Failure to freely consent and provide any of the above-listed information might prevent us from entering into an agreement with you and would prohibit us from providing any products or services to you.
Information we collect about you from the continued use of our products and services
- Each time you use our App we will automatically collect personal data including device, content, identity and usage data. We collect this data using cookies and other similar technologies.
- We process the payments you make to us and your account information when using our services.
- We process your overall account balance and payment history.
- We also process in-app transaction history, preferences, feedback and survey responses
- We process your product location when analyzing your product performance, during repairs and replacement of the products and services, and while investigating loss or fraud.
We also may collect other information about you, your device and your use of the App in ways that we describe to you at the time of collection or otherwise with your consent.
Information from our website
If you visit our website, we may collect information about you to distinguish you from other users and to improve your experience using cookies.
What are cookies?
- Recognising and counting the number of visitors and to see how visitors move around our website and mobile apps when they are using it (this helps us to improve the way our website works, for example by ensuring that users can find what they are looking for).
- Identifying your preferences and subscriptions e.g. language settings, saved items, and items stored in your cart; and
- Sending you notifications and commercial/advertising messages tailored to your interests.
- Our approved third parties may also set cookies when you use our website and mobile app. Third parties include search engines, providers of measurement and analytics services, social media networks and advertising companies.
- Strictly Necessary Cookies: This cookie enables website functionality and is automatically enabled when you use the website. This is essential to the operation of the website to help you make the cart and checkout process possible. You cannot disable this category of cookie.
- Analytics Cookies: It is important for us to understand how you use the website, for example, how efficiently you are able to navigate around it, and what features you use. Analytics Cookies enable us to gather this information, helping us to improve our website and your experience of it.
- Functional Cookies: Functionality Cookies allow the website to remember the choice you made and provide you with enhanced personal features. The information these cookies collect is anonymised and doesn’t track your browsing activity on the website.
- Targeting Cookies: It is important for us to know when and how often you visit the website, and which parts of it you have used (including which pages you have visited and which links you have visited). As with Analytics Cookies, this information helps us to better understand you and, in turn, to make our website and advertising more relevant to your interests. Some information gathered by Targeting Cookies may also be shared with third parties.
- Third Party Cookies: Third party Cookies are not placed by us; instead, they are placed by third parties that provide services to us and/or to you. Third party Cookies may be used by advertising services to serve up tailored advertising to you on our website, or by third parties providing analytics services to us (these Cookies will work in the same way as Analytics Cookies described above).
- Persistent Cookies: Any of the above types of Cookie may be a persistent Cookie. Persistent Cookies are those which remain on your computer or device for a predetermined period and are activated each time you visit our website.
- Session Cookies: Any of the above types of Cookie may be a session Cookie. Session Cookies are temporary and only remain on your computer or device from the point at which you visit our Site until you close your browser. Session Cookies are deleted when you close your browser.
Before Cookies are placed on your computer or device, you will be shown a prompt requesting your consent to set those Cookies. By giving your consent to the placing of Cookies you are enabling us to provide the best possible experience and service to you. You may, if you wish, deny consent to the placing of Cookies (unless those Cookies are strictly necessary); however certain features of our website may not function fully or as intended. You will be given the opportunity to allow and/or deny different categories of Cookie that we use.
In addition to the controls that we provide, you can choose to enable or disable Cookies in your internet browser. Most internet browsers also enable you to choose whether you wish to disable all Cookies or only third- party Cookies. By default, most internet browsers accept Cookies but this can be changed. For further details, please consult the help menu in your internet browser or the documentation that came with your device.
The links below provide instructions on how to control Cookies in all mainstream browsers:
- Google Chrome
- Microsoft Internet Explorer
- Microsoft Edge
- Safari (Mac)
- Safari (iOS)
Information from third parties
We process information about you that we receive from third parties including Credit Reference Bureaus, Mobile Network Providers, Data and Analytics Firms, Business Process Outsourcing Firms, Financial Institutions and Firms performing credit scoring, KYC, fraud, money- laundering, anti-financial crime or similar screening directly or on our behalf., as well as marketing partners and analytics providers that may use mobile tracking technologies and/or website cookies to distinguish you from other users
Information obtained from analytic tools in our products
We process information related to your devices and the application on your device including temperature settings, battery life, SIM communications and performance, and customer usage information
Information obtained from our App
With your permission, the App may access the following device permissions, depending on your device’s operating system and the version of the App that you have downloaded:
- We may request you to upload photos as part of our identity verification process.
- We will retrieve information about your contact lists (such as contact names and numbers, contact frequency, and date of last contact). We may use this information in our credit and underwriting models to determine whether you are eligible for our services. We use automated processing to understand your network relationships, and this also helps our fraud models verify your identity. We will never reach out to any of your contacts or provide any of your information to your contacts unless you separately and expressly direct us to do so.
- Accounts on your device: We check the list of user accounts created on your device and the email address used to create each account. This helps our fraud models verify your identity. We also use this information in its credit and underwriting models to determine ongoing credit worthiness..
- Location: This helps our fraud models verify your identity. We also use this information in our credit and underwriting models to determine ongoing credit worthiness. We also use location data for research purposes.
- Phone status and identity: When you register the App, we will retrieve your phone number from your device automatically. This ensures that the mobile number is active and accurate, and that it is linked to the device you are using to open the account.
- Text messages: We will retrieve information about the SMS stored in your device (such as message ID, direction, timestamp, phone number, and keywords). We use this information in its credit and underwriting models. We use automated processing to understand your financial activity, and this also helps our fraud models verify your identity. We will never share the contents of your text messages.
- Receive text messages: This is used to automatically confirm the one-time password (OTP) sent to the user via SMS.
- Read, modify, or delete the contents of your SD card: We may request you to upload photos of your identification document. We may also request you to upload photos of documents as proof of income.
- Run foreground service: This permission is needed by the App to upload photos.
- Run at startup: This allows the App to send notifications to your device upon restart of your device.
- View and change network connectivity: This is used to notify us when network connectivity changes so that we can determine whether you are connected to the internet or not.
- View Wi-Fi connections: We use the IP address and network type of your device to detect and prevent fraud.
- Receive data from the internet. We need this permission in order to send requests through the App and to allow the App to access the internet.
- Prevent phone from sleeping: This permission is required by some of the features and services within the App, such as in-app messaging.
- Retrieve running apps: We will retrieve a list of apps installed on your device. We use this information in our credit and underwriting models.
How does Mophones process my personal information and device information?
We process your personal information for the following purposes:
- To carry out our obligations relating to your contract including communicating with you, providing you with our products and services under our contract and related information.
- To develop your credit profile and determine your eligibility for additional products and services that we may offer from time to time.
- To communicate with you about any delinquencies in payments.
- To investigate cases of fraud or illegal activity.
- To improve, test, and monitor the effectiveness of our products and services.
- To develop and test new features and notify you about changes to our services.
- To improve the safety and security of our services.
- To comply with any applicable legal and/or regulatory requirements.
We may also combine the information we receive from third party sources with the information you give to us and the information we collect about you. We may use this information and the combined information for the purposes set out above (depending on the types of information we receive).
We process information about your devices for the following purposes:
- To develop your credit profile.
- To activate or deactivate your device depending on its credit status.
- To monitor and investigate whether your device is being used in accordance with our terms and conditions found on our website and in the relevant product manual.
- To investigate cases of fraud or illegal activity.
- To monitor device performance including battery performance and charging information for the purposes of troubleshooting, data analysis, testing, research, statistical and survey purposes.
- To analyze customer usage in order to improve efficiency of the device features.
- To determine user location information to tailor our services according to the needs of a specific location.
Does Mophones share my information with any third parties?
We may share your information with selected third parties including:
- Business processing outsourcing firms including those handling customer care, customer communications (such as WhatsApp Business) and payment collections.
- Credit reference bureaus and other similar third parties offering credit scoring information, including reporting your credit histories with such parties.
- IT service providers including Software developers, platform providers or cloud providers.
- Firms performing Credit Scoring or similar services directly or on our behalf.
- Firms performing KYC, fraud, money- laundering, anti-financial crime or similar screening directly or on our behalf.
- Data processing firms, analytics firms or search engines to help us analyze our customer data.
- Academic or research institutions.
- Other business partners, suppliers and sub-contractors for the performance and execution of any contract we enter into with them or you.
- Advertisers and advertising networks to market products and services to you.
- Other affiliated entities within the Mophones group of companies. Any person or entity who invests in or finances (or may potentially invest in or finance), directly or indirectly, Mophones, and any of such person’s affiliates, officers, directors, employees, professional advisers, auditors, insurers or insurance brokers, service providers, partners and any delegate, agent, manager, administrator, nominee, attorney, trustee or custodian of any such person.
- When required by law, regulation, court order or other court proceedings.
What happens to my personal information if there was a change of control?
If we sell or otherwise transfer part or the whole of Mophones or our assets to another organization (in the course of a transaction like a merger, acquisition, bankruptcy, dissolution, liquidation), your information may be among the items sold or transferred. The buyer or transferee will have to honor the commitments we have made in this Policy.
How do we store and transfer our personal information and device information?
The personal information and device information that is collected through the provision of our services may be stored and processed in any country in which Mophones, its affiliates or service providers maintain facilities, subject to the requirements of any applicable laws.
By using the services and as part of our customer agreement, you consent to the transfer, storing or processing of your personal information and device information to any country in which Mophones, its affiliates or service providers maintain facilities. In these cases, we ensure that both ourselves and our service providers take adequate and appropriate technical, physical and organizational security measures to protect your personal information and device information and the use and disclosure of your personal information and device information as described in this policy.
We use appropriate, reasonable safeguards to help keep your personal information and device information secure. We also take reasonable steps to verify your identity before granting you access to the service. As you will know, the transmission of information via the internet is not completely secure. Although we will do our best to protect your personal data, we cannot guarantee the security of your data during transmission, and any transmission is at your own risk. Once we have received your information, we will use strict procedures and security features to try to prevent unauthorized access.
How long do we keep your personal information and device information?
We store your personal information and device information for the duration of your repayment period. This period can be found on your customer agreement. Once your device has been repaid or upon the termination or deactivation of your account, Mophones, its affiliates, or its service providers may retain your personal and device information for as long as is required under applicable law in order to determine your eligibility for additional products or services, to perform analytics and help improve future product offerings and services or otherwise for backup, archival, and/or audit purposes or to comply with any applicable law.
What do I need to know about profiling and automated decision making?
As part of being a highly technical and innovative company, we may use Automated Decision Making (ADM) in order to improve your experience or to help fight financial crime. For example, so that we can provide you with fast and efficient services, we may use ADM to verify your identity documents or to confirm the accuracy of the information you have provided to us. None of our ADM processes have a legal effect on you.
What are my rights?
Subject to applicable data privacy laws:
- You have the right to correct any personal information we hold on you that is inaccurate, incorrect, or out of date.
- You have the right to request that we stop processing your personal information if this processing causes or is likely to cause unwarranted substantial damage or distress.
- You have the right to request that we stop processing your personal information for direct marketing purposes.
- You may have the right to confirm which of your personal information we possess and to request the identity of any third parties who have access to this information.
- You have the right to request that any decision which significantly affects you is not based solely on automated decision making.
How can I reach you?
Mophones may modify or update this policy from time to time, so please review it periodically. We may provide you additional forms of notice of modifications or updates as appropriate under the circumstances. Your continued use of our products and services after any modification to this policy will constitute your acceptance of such modification.
Terms and conditions
These Financing Terms use certain capitalized terms that are also used in the Device Agreement. Any capitalized terms that are used in these Financing Terms and not otherwise defined have the same meaning as in the Device Agreement. For example, terms such as Product, Deposit, Credit Fee and Total Purchase Price have the same meaning when they are used in these Financing Terms and in your Agreement. These Financing Terms also have the following additional defined terms:
- “Account” means the Mosub customer account used for purposes of receiving payment of your Deposit, loan payments, penalties and Credit Fees.
- “Product” means any Device and/or service purchased from Mosub Kenya Limited
- “Lender” - Mosub Kenya Limited
1. Purpose of the Loan
1.1. The Loan Amount is the full Purchase price of the Device the Borrower has chosen to purchase. The Loan Amount is communicated to the Borrower in the Customer Contract as well as in the credit screening call from Mosub to you, prior to receiving your Deposit Fee.
1.2. The Loan Amount is issued for the Term set out in the Device Agreement and shall be repaid in weekly installments together with any other applicable payments, fees or Penalty according to the terms below.
1.3. The Device is selected by the Borrower, and the Lender is liable to supply the Device and to service within warranty terms.
1.4. The Borrower will be the beneficial owner of the Device and full rights of ownership and control will transfer upon the satisfaction of all payments, fees and/or penalties as per these Financing Terms.
2. Commencement and Duration
2.1. This Agreement shall commence once both the Deposit payment has been received and the customer is in possession of the phone.
3. Ownership and restrictions on the Product
3.1. The Borrower shall be the beneficial owner of the Product, subject to the Lender’s security interest in the Device pursuant to the Security systems on the Product.
3.2. The Lender has the rights to track the Device via GPS/GSM or any other method, to install an application on the Device that must remain on the Product, to restrict the primary sim used to the number registered with the Lender, to lock the Device from usage if it is not connected to data for more than your contractual minimum repayment days, and to lock the Device from usage if there is a violation of the terms of this Agreement. The Borrower shall not remove, interfere, damage, make any alterations to the system on the Device and the Borrower hereby authorizes the Lender at the Lender’s discretion to control or switch off the Device remotely. Any breach of this clause by the Borrower will constitute an event of default and result in Borrower’s immediate obligation to repay the entire Repayment Amount.
3.3 Lender retains ownership of any and all intellectual property that is used to run the Device and the data generated there from. In addition, the application and the data received through the application that is installed on the Device is the sole property of Mosub Kenya Limited.
4. Repayment of the Loan and Interest
4.1. The Borrower shall repay the Loan within a time period indicated in the Device Agreement. The Loan shall be repaid by weekly installments starting one week from the Deposit payment date.
4.2. Each weekly payment shall be made in seven (7) day intervals by the Borrower who must ensure that the preceding week’s arrears have been cleared before the start of another week.
In consideration of the Lender granting to the Borrower the Loan, the Borrower shall pay the Lender the interest at the Interest Rate indicated in the Device Agreement (the “Interest”). Interest will be calculated on a flat rate basis payable weekly.
For the purposes of these Financing Terms, the total interest is calculated based on the applicable monthly interest rate. The weekly repayment installment is calculated by dividing the sum of Loan Amount principal and Interest amount by the actual number of weeks the Loan is issued for. The sum of weekly repayments shall be equal to the total Loan Amount principal and Interest as set out in these Financing Terms
Total Repayment Amount as stated in the Device Agreement includes the Loan Amount but excludes any Penalty for late payments or other applicable fees. The Lender shall in addition to the Repayment Amount be entitled to the payment of other arrears and internal recovery expenses as set out in the Device Agreement.
4.4. The Borrower shall make all payments due to the Lender in respect of the Loan, including but not limited to the Penalty and other fees, using the M-PESA Service into the Pay Bill Account notified by the Lender, MoApp or by signed bank standing order from borrower to Lender bank accounts. The Lender may provide additional payment methods for the Borrower’s convenience during the course of the Loan.
4.5. The Borrower may repay the weekly installments in relation to the Loan at any time before the due date. However, this does not affect the Total Loan Amount payable, which must be paid in full, unless prepayment discounts are otherwise communicated to the Borrower by the Lender in writing..
4.6. If the Borrower accumulates more than 7 days of arrears, and fails to repay the Loan Amount or any other sum due or owing by the Borrower to the Lender the Borrower will be charged the Penalty of 0.5% daily from the date of default from any outstanding balance owed
4.7. In addition to the Penalty, the Lender may apply a Collection Charge of up to 3,000 Ksh (three thousand Kenyan shillings) to cover internal recovery expenses if the Borrower is in arrears for more than 7 (seven) days. The Borrower acknowledges, agrees and confirms that the aforesaid late payment collection charge represents a reasonable pre-estimate of the loss to be suffered by the Lender. The Borrower understands that the Lender may at its discretion apply a lower collection charge once internal recovery expenses have been incurred.
4.8. The Lender shall apply all payments received from the Borrower under these Financing Terms in following order or as otherwise determined in the Lender’s sole discretion: 1) fees and expenses payable under the Financing Terms, 2) accrued and unpaid Penalties, 3) Interest and 4) the principal of the Loan Amount.
4.9 If any payment hereunder would otherwise be due to be made on a day which is not a business day in Kenya, it shall be made on the next succeeding business day.
4.10 If at any time it is unlawful or contrary to any request from or requirement of any central bank or other fiscal, monetary or other authority, for the Lender to make, fund or allow to remain outstanding all or any part of the Loan Amount, then if the Lender so requires, the Borrower shall on such date as the Lender specifies repay the Loan Amount together with accrued Interest on it and any other amounts then due to the Lender hereunder.
5. Payment Fees and Taxes
5.1. The Borrower is responsible for all applicable tax payments, including deduction of any withholding tax.
5.2. All M-PESA transaction fees, bank draft or other fees payable in connection with the repayment of Loan, Penalty, Collection charge or other applicable fees shall be borne by the Borrower.
5.3. The Borrower shall indemnify the Lender against:
(a) any legal charges including, without limitation, legal fees related to the Borrower’s dealings with the Lender or incurred by the Lender in any legal, arbitration or other proceedings arising out of any dispute in respect of the Loan or default of the Loan;
(b) all other fees, expenses and taxes, duties, impositions and operational expenses; and
(c ) expenses incidental and incurred in respect of the Loan, obtaining or attempting recovery of the Loan, Penalty, internal recovery expenses and Collection Charges including as a consequence of the occurrence of any Event of Default
5.4. The certificate of the Lender as to the amount of such indemnified loss or expense shall be final and conclusive.
5.5. The Borrower hereby agrees to pay all costs, charges and expenses incurred by the Lender in obtaining or attempting to recover the Loan, Penalty or any other sum due from the Borrower.
5.6. All payments due from the Borrower hereunder shall be made free and clear of and without deduction for or on account of any present or future taxes. If at any time, any regulatory requirement or any taxing authority requires the Borrower to make any deduction or withholding in respect of taxes from any payment due from them for the account of the Lender, the sum due from the Borrower in respect of such payment shall be increased to the extent necessary to ensure that, after the making of such deduction or withholding, the Lender receives a net sum equal to the sum which the Lender would have received had no such deduction or withholding been required to be made and the Borrower shall indemnify the Lender against any losses or costs incurred by the Lender by reason of any failure of the Borrower to make any such deduction or withholding.
6. Loss or Theft
6.1. Borrower agrees that in the event the Device is lost or damaged and such damage renders the Device unusable or irreparable, the Borrower will be responsible and obligated to pay the remaining Loan amounts including any interest and Penalties outstanding in full. The Lender at its discretion may offer revised Loan Repayment Terms/structure to the Borrower in such a situation, and the Borrower is at liberty to accept or reject the revised Loan Repayment structure
7. Termination and Events of Default
7.1. The Lender may, without prejudice to its other rights under the this Agreement, terminate its obligation to make the Device available and declare the Loan Amount together with the full other applicable payments and fees under this Agreement immediately (or in accordance with such declaration) is repayable on demand if any of the following events occur:
(a) Any weekly installment or any other amount due under the Loan Agreement is not paid on the due date;or
(b) The Borrower fails to perform any of the Borrower’s obligations under this Agreement (including but is not limited to the operation of the Device outside legal use); or
(c) The Borrower defaults under any loan agreement, or
(d) Any representation, undertaking, statement or warranty made by the Borrower pursuant to this Agreement is incorrect; or
(e) If an order is made for the bankruptcy or insolvency of the Borrower or the Borrower becomes insolvent or is unable to pay his debts, or a receiver is appointed of the whole or any material part of the assets of the Borrower; or
(f) It becomes unlawful or impossible for the Lender to maintain the Loan in effect;
(i) The Borrower had removed, interfered, damaged, or made any alterations to the Device system and tracking.;
(j) Any judgment or order is made against the Borrower which is not complied with within seven (7) days.
7.2. If an Event of Default occurs, the entire Loan Repayment Amount as defined in the Customer Contract then outstanding together with any other payments or fees shall immediately become due and payable to the Lender and the Lender shall cease to be under any further commitment to the Borrower. The Lender shall be entitled at its option to sue for the repayment of the Loan Repayment Amount (or so much thereof as shall be outstanding) and enforce the payment thereof and/or enforce the powers rights and privileges conferred on the Lender by the Customer Contract and Financing Terms for the recovery of the Loan Amount such as repossession of the Device among other remedies available. The Lender is permitted to repossess the Device if the Borrower has not yet paid two thirds (2/3) of the Loan Amount.
7.3 Consequences of termination:
7.3.1 Except as otherwise expressly provided herein, upon the termination of these Financing Terms, all rights and obligations contained herein shall forthwith cease, without prejudice to the rights and obligations relating to the period prior to such termination and any continuing obligations or liabilities under these Financing Terms or at law. The Lender will thereby transfer full ownership of the Device to the Borrower only in the event of full and complete payment of the Loan Amount and any other outstanding amounts due or otherwise demanded.
7.3.2 Provisions of this clause shall be without prejudice to the right of parties under law or contract.
7.3.3 Notwithstanding the aforementioned clauses on termination, Lender’s responsibility to perform repairs on the Devices sold under the terms of these Financing Terms will terminate save for any repairs under the applicable warranty terms and conditions for the relevant warranty period. During such warranty period that may subsist after termination of the Financing Terms, the provisions of Clause 10 will continue to apply
8. Representations and Warranties
8.1. The Borrower hereby represents and warrants to the Lender as at the date hereof:
(a) The Borrower’s obligations under this Agreement will constitute valid and binding obligations of the Borrower enforceable in accordance with their respective terms;
(b) The Borrower is not in default in respect of any other indebtedness (including obligations under guarantees and indemnities) and the borrowing and repayment of the Loan Amount will not contravene any existing applicable law or regulation or any contractual or other restriction or limitation binding on the Borrower;
(c) Any information the Borrower has provided to the Lender was, when given, true and no change has occurred since the date the information was supplied which renders it inaccurate; and
(d) No insolvency or bankruptcy proceedings have been commenced against the Borrower or to the best of the Borrower’s knowledge threatened against the Borrower.
8.2. These warranties shall be deemed repeated by the Borrower on and as of each day that there are monies due to the Lender hereunder are outstanding.
8.3. By accepting this Agreement the Borrower undertakes to the Lender that until all monies owing hereunder have been repaid in full and confirmed by the Lender in writing via SMS, the Borrower:
(a) without the prior written consent of the Lender will not initiate or consent to the commencement of any bankruptcy, insolvency or analogous proceedings in respect of the Borrower;
(b) will not approve any agreement to sell, lease to another party, or create any Encumbrance over the Product;
(c) Indemnify and keep the Lender fully and effectually indemnified (on a full and unqualified indemnity basis) from and against all actions, proceedings, costs, claims, liabilities, taxes, charges, expenses and demands whatsoever occasioned from the use and/or beneficial ownership of the Product; by any Event of Default or any breach or non-observance of any of the covenants, stipulations or warranties on the part of the Borrower contained in this Agreement.
9. Variation and Termination of Relationship
9.1. The Lender may at any time, upon 7 (seven) days’ notice to the Borrower, terminate or vary its business relationship with the Borrower.
10. Disclosure of Information
10.1. In order for the Lender to assess the Loan application and to provide the Loan, the Borrower provides the Lender with certain personal information including but not limited to: name, address, telephone, date of birth, income details, copy of ID document (“Personal Information”).
(a) in order to provide the Lender’s services to the Borrower;
(b) in order to perform the Lender’s obligations under these Financing Terms, including the servicing of the warranty;
(c) prevention, detection, investigation or prosecution of criminal activities or fraud;
(d) exchange of information with the Lender’s service providers,dealers, agents, assignees or any other company that may be or become the Lender’s subsidiary or holding company for reasonable commercial purposes relating to the Customer Contract and Financing Terms;
(f) to the Lender’s lawyers, auditors or other professional advisors;
(g) any court or arbitration tribunal in connection with any legal proceedings related to the Financing Terms;
(h) for legitimate interests related to the Device financing, such as marketing and commercial related activities and the Borrower’s interests and fundamental rights are not prejudiced by those interests.; and
(i) in business practices including but not limited to quality control, training and ensuring effective systems operation.
10.2. The Borrower hereby agrees and authorizes the Lender to obtain and procure Personal Information contained in the IPRS from the Government of Kenya and the Borrower further agrees and consents to the disclosure and provision of such Personal Information by the Government of Kenya to the Lender.
10.3. The Borrower hereby expressly consents and authorizes the Lender to request and receive any credit history data about the Borrower from a Credit Reference Bureau.
11. Assignment and Appointment of Attorney
11.1. The Borrower agrees that the Lender may at any time assign and transfer all or any part of its rights or obligations under the Loan Agreement to any person. After any such assignment and transfer the expression the “Lender” shall be deemed to include such assignee(s) to the extent of their respective participations.
11.2. The Borrower shall not, without the prior written consent of the Lender, assign or transfer any of his rights or obligations or benefits under the Loan Agreement
11.3. The Lender may disclose to any person to which the Lender is assigning or transferring its rights or obligations such information about the Borrower as the Lender shall consider necessary in the circumstances.
11.4. The Borrower hereby irrevocably appoints the Lender to be the attorney of the Borrower and in the name and on behalf of the Borrower to execute and do any assurances, acts and things which the Borrower ought to execute and do under the covenants and agreements herein contained and generally to use the name of the Borrower in the exercise of all or any of the powers hereby or by law conferred on the Lender.
12.1. Any notice, demand or other communication served on the Borrower by the Lender under or in connection with this Agreement shall be made in writing and, unless otherwise stated and to the extent permitted by law, may be given or made by letter, mobile text message (SMS), e-mail or through an advertisement in a newspaper with national circulation.
12.2. Save as otherwise expressly provided herein and to the extent permitted by law, any such notice, demand or other communication shall be deemed to have been properly served on the Borrower by the Lender when served in any one or more of the following ways:
(a) if by way of letter and sent by personal delivery, upon delivery at the physical address of the Borrower; or
(b) if by way of mobile text message (SMS) on the next working day after transmission;or
(c) if by way of letter and sent by registered post, seven (7) days after the date of posting provided that proof is given that the notice was properly addressed and duly dispatched by registered post; or
(d) if by way of email, on receipt of a confirmation of receipt by the receiver and in any event, on the next working day after transmission, provided that notice sent by email alone shall not constitute a valid notice, and the notice giver shall use either of the other forms of notice provided in this clause in addition to sending a notice by email; or
(e) if by way of advertisement in a newspaper with national circulation, on the date of publication of the newspaper.
12.3. The relevant address, mobile telephone number and email address of the Borrower for any notice, demand or other communication to be served on the Borrower under or in connection with this Agreement is as indicated in the Device Agreement.
13.1. No failure or delay by the Lender in exercising any right, power or privilege shall impair the same or operate as a waiver thereof, nor shall any single or partial exercise of any right, power or privilege preclude any further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies herein provided are cumulative and not exclusive of any rights and remedies provided by law.
13.2. A certificate by an officer of the Lender as to the amounts outstanding under this Agreement for the time being shall, save in the case of manifest error, be binding and conclusive upon the Borrower.
13.3. Any waiver of any right under this Agreement is only effective if it is in writing and it applies only to a party to whom the waiver is addressed and the circumstances for which it is given and shall not prevent a party which has given the waiver from subsequently relying on the provision it has waived.
13.4. If at any time any provision of this Agreement is or becomes illegal, invalid or unenforceable in any respect under the law, the legality, validity and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby.
13.5. The parties agree that this Agreement constitutes the whole and entire agreement between the parties relating to the Loan Amount and supersedes and extinguishes any prior agreements, undertakings, representations, warranties and arrangements of any nature whatsoever whether or not in writing relating to the Loan Amount.
13.7. No amendment to this Agreement shall be effectual or binding on the parties unless it is in writing and duly executed by or on behalf of each of the parties.
13.8. Any change in the constitution of the Lender or its absorption in or merger with any other person or the acquisition of all or part of its undertaking by any person shall not in any way prejudice or affect its rights hereunder.
13.10. Words denoting the singular number shall include the plural and vice versa.
13.11. This Agreement shall be governed by the laws of the Republic of Kenya, and parties’ consent and submit to the jurisdiction of the courts of law of Kenya in respect of all or any claims arising under this Agreement.
13.12. These Financing Terms are made available at the Lender’s office and are available on Mosub Kenya Limited website at www.mophones.co.
13.13 The Agreement is effective on the date of paying the deposit for the Device and shall apply to the Lender and Borrower