This Agreement sets out the complete Terms and Conditions (hereafter referred to as the "Terms and
Conditions") which shall be applicable and legally binding on You ("Customer", "Borrower", "your",
"Company") and KoaSave Africa Limited ( "Koa", "Us", "We", "Our", "Lender", "Lotus").
Please read this Agreement carefully before accepting to be bound by the Terms and Conditions
- Definitions and Interpretation
For the purposes of this Agreement, unless the context otherwise requires:
"Agreement" means this agreement between the Customer and Koa which contains the Terms and
Conditions;
"Account" means your Koa account;
"Bank Account" means a unique bank account with Choice Microfinance Bank Limited created for you and
maintained by us and Choice Microfinance Bank Limited, upon setting up an Account on the Site;
"Banking Partner" means Choice Microfinance Bank Limited, a Central Bank of Kenya regulated
entity.
"Capital Limit" means the maximum credit available to the Borrower by the Lender, following the
creation
of a Koa Account. Subject to our review, the Capital limit shall be at the discretion of Koa.
"Disbursement Date" means the date Koa disburses the Loan to the Customer"s Koa Bank Account which
shall
be provided within a communicated timeframe, which is at the discretion of Koa, from the time of the
Customer"s receipt of the Loan approval;
"Event of Default" shall have the meaning ascribed to it in clause 13;
"Interest" means an interest rate on the Loan for the duration of the Loan Term communicated by Koa
upon
registration of the Loan, including a penalty rate will be applied if the due date for payment is
not
met by the Customer;
"Initial Loan Term" means a period beginning from the Disbursement Date of the Loan to the expected
repayment date. The Term is at the discretion of Koa, and will be communicated to the User before
acceptance of any Loan.
"Loan Term" means collectively, an Initial Loan Term and the Additional Loan Term if an extension is
granted by Koa.
"Party" means the Customer and Koa individually;
"Parties" means the Customer and KOA collectively;
"Personal Data" means any information about the business and or company, and their stakeholders
provided
to us by you or in the use of our Site and services such as your name, email address, physical
address,
password, billing and payment information, and KRA PIN. This includes non-personal information like
the
domain name of your internet service provider, your geographical location, operating system, and
other
relevant statistics;
"Privacy Policy" means our privacy policy available on the Site, which sets out the manner in which
personal data we collect from you, or you provide to us, will be used and processed by us;
"Repayment Date" means such date as may be agreed and selected by the Borrower in which the Loan and
Interest shall become due and payable by the Borrower to Koa;
"Site" means Koa"s website, product, and/or any other platform or media through which Koa offers its
lending services;
- Interpretations
- 2.1. All headings in this Agreement are for convenience only and shall not be used in its
interpretation.
Unless this Agreement indicates a contrary intention.
- 2.2. The singular shall include the plural and vice versa.
- 2.3. A reference to any one gender shall be capable of being construed as a reference of any of
the
others.
- Acceptance of Terms and Conditions
- 3.4. By ticking the "I have read, understood and I agree to Koa"s Privacy Policy, and Terms and
conditions", on the Site, which you hereby adopt as your electronic signature, you accept to be
bound by the Terms and Conditions provided in this Agreement, and you agree that:
- 3.5. You hereby expressly consent and authorize Koa and/or any of our duly authorized agents or
partners,
to debit your or Koa Bank Account for the purpose of repaying any outstanding such as Loan and
accrued Interest as and when due;
- 3.6. You consent to us transferring your data to third parties to local and foreign countries to
process
such data, in so far as such transfer is required for the performance of our obligations to you
under this Agreement;
- 3.7. We can provide materials and other information about your legal rights and duties to you
electronically;
- 3.8. We can send all important communications, billings statements, reminders, and demand
notices
(collectively referred to as "Notifications") to you electronically via our Site or to an email
address you have provided us with;
- 3.9. We are authorized to share, receive and use data/information collected from your
transaction with
other affiliated third parties including but not limited to switching companies, credit bureaus,
and
other financial institutions;
- 3.10. We can alert you when Notifications are available, by sending you an electronic
communication;
- 3.11. By consenting, the electronic Notifications shall have the same meaning and effect as if
we provided
paper Notifications to you. When we send you an email alerting you that Notifications are
available
to you, such electronic Notifications shall have the same effect as paper Notifications whether
or
not you chose to view the Notifications, unless you had previously withdrawn your consent to
receive
electronic Notifications.
- 3.12. You accept and subscribe to the Banking Partners' Terms and Conditions as may be amended
from time
to time. The Banking Partner's terms and conditions are adopted into these Terms and Conditions
and
can be found here.
- 3.13. Koa reserves the right, at its sole discretion, to modify or replace these Terms and
Conditions from
time to time. If you object to such changes, your sole recourse will be to cease using our
services
and the Site. Your continued use of our services and the Site following the changes to the Terms
and
Conditions will indicate your acknowledgment of such changes and agreement to be bound by the
amended Terms and Conditions.
- Account Opening Process
- 4.14. In order to access our services, you must set up an Account on the Site wherein you shall
provide us
with all requested information about your registered company.
- 4.15. You are required to provide us with basic information such as the registered name of your
company,
email address, phone number, KRA Personal Identification Number (PIN), full names of the
directors
where applicable, names of shareholders, and their percentage ownership, details of the founders
(names, email addresses, phone numbers, and details of their referees), copies of the company"s
incorporation documents, copies of government-issued IDs of the shareholders of a company, and
any
other information needed by us to process your application.
- 4.16. By providing us with information about your company, you represent and warrant that you
have the
authority to legally bind the entity and grant us all permissions and licenses to perform our
obligations as provided in these Terms and Conditions.
- 4.17. Our services, and the Site, can only be utilized by persons over the age of 18. Koa
reserves the
right to verify the authenticity of any Account created on the Site, including through
third-party
services. Subject to prior consent, Should Koa deem the use of third-party services necessary,
Koa
may elect to bill you for such services.
- 4.18. On opening an Account, and subject to any required further information and documentation,
you accept
that a corresponding Bank Account shall be opened with the Banking Partner.
- Bank Account
- 5.19 To use the Koa Bank Account, you agree and acknowledge the following:
- 5.19.1. that you have the authorization of the company to act on its behalf;
- 5.19.2. that the company has a functional bank account with a financial institution
domiciled in
Kenya;
- 5.19.3. that you shall provide us with all information as may be requested by us for the
creation of a
Bank Account for you. Such information shall include but shall not be limited to the
company"s
name, email address, and phone number;
- 5.19.4. that you represent and warrant that all Customer Information you provide to us is
truthful,
accurate, and complete;
- 5.19.5. that you agree to promptly notify us of changes to your Customer Information by
updating your
Account & Profile on the Site;
- 5.19.6. that for our compliance purposes and to provide the Bank Account services to you,
you hereby
authorize us to, directly or through a third party, obtain, verify, and record information
and
documentation that helps us verify your identity and the bank account information provided;
- 5.19.7. that By using the Koa Account and providing Customer Information to us, you
automatically
authorize us to obtain or provide, directly or indirectly and without any time limit or the
requirement to pay any fees, information about you and your Bank Account from or to the
Banking
Partner and other databases as necessary to provide the Koa Account to you.
- Payments and Transactions
- 6.20. All payments and transactions requested by you through the Site will be actioned by Choice
Microfinance Bank Limited;
- 6.21. Koa reserves the right to refuse any transaction requests it deems are in conflict with
any of these
Terms and Conditions or that would go against the laws of the Republic of Kenya;
- 6.22. Koa may reject any requests regarding transactions by you should its partners find any
fault or
issue with the request submitted;
- 6.23. Koa indemnifies itself from any failure to perform or for the delay in performing its
obligations
hereunder if such failure or delay is due to circumstances beyond its control or dependent upon
third parties or partners performing actions to complete any requests made.
- 6.24. Koa reserves the right to ask for further information before proceeding with any request
if it is
required by law, or whether its partners or third-party service providers require such mentioned
information.
- Account and Transaction Fees
- 7.25. The user will be informed of all fees related to the account and transactions and accepts
that his
or her account will be debited of such fees as per the schedule suggested by the pricing and
fees
documentation shared with the user.
- 7.26. Koa reserves the right to change the fees applicable to any account at any time at its own
discretion whilst informing the user promptly of any change.
- 7.27. Koa also reserves the right to instate and charge account-related or subscription-related
fees (i.e.
account maintenance fees) at its own discretion.
- Invoice Creation
- 8.28. Koa provides within its Site a service to produce invoices for you.
- 8.29. Koa is not responsible or liable for any illegality or misrepresentation of invoices
created by
you;
- 8.30. All invoices created on the platform shall be construed as a legally binding document and
you are
solely responsible for ensuring that all legal requirements are complied with in respect of the
invoice.
- 8.31. Koa is not responsible for or involved with any transactional party of yours for any and
all issues
that might arise out of your invoicing;
- 8.34. The obligation of declaring your invoices and sales for tax purposes falls upon you,
whereby Koa is
indemnified against any tax or business compliance-related issues resulting from your business
operations and invoicing.
- Forex
- 9.1. Koa hosts forex services that are carried out by the Partner Bank. You will have an opt-in
option. You agree and accept that any forex transaction is a direct relationship between the
Partner Bank and you.
- 9.2. Currencies available for trade are at the discretion of the Partner Bank and will be
communicated to the User by Koa.
- 9.3. Koa plays a role in providing information relevant to both parties (i.e. currency prices)
for a
Forex trade to occur, with the Partner Banks and the User entering into an agreement between
themselves in order to complete any transaction that is agreed upon.
- 9.4. Koa takes no responsibility or liability for any failed forex transactions for whatever
reason
between the parties (i.e. the Partner Bank and User).
- 9.5. Forex transaction disclaimers and transaction requirements will be provided by the Partner
Bank
and agreed by the User in order to proceed, whereupon they will be responsible for their own
obligations towards the transaction.
- 9.6. Koa reserves the right to charge a service fee for the provision of such information and
enablement of the transaction between both parties that will be paid by the User. Such a fee, if
instated, will be communicated to the User prior to any transactional forex deal.
- Requirements for Loan Request
- 10.1. You must provide us with accurate, current, and complete information at all times during
the
application process.
- 10.2. Upon your request for a loan, Koa reserves the right to carry out an investigation to
verify
your status.
- 10.3. Upon the approval of a Loan request, your Koa main Account will be credited with the
requested
loan amount.
- Loans and Loan Request Policy
- 11.4. You hereby irrevocably authorize us to act on all requests for Loans received from you via
the Site,
and you shall be liable with respect thereof. Koa may however refuse to oblige any Loan requests
at
its sole and absolute discretion.
- 11.5. Subject to our discretion, we reserve the right to reject any Loan request from you even
if you have
previously been issued a Loan by Koa.
- 11.6. Following your Loan request, and subject to Koa"s discretion, your Koa Bank Account may be
credited
with the requested Loan. Where your Loan request is approved, you will immediately get a notice
of
approval via your Account and/or email confirming the amount to be disbursed into your Koa Bank
Account, the Disbursement Date, the Interest on the Loan, and the Loan Term. Where your request
is
denied, a notice of denial will be communicated to you via your Account and/or email.
- 11.7. You acknowledge that the Loan and accrued Interest shall be for the duration of the Loan
Term, and
you further agree that the Loan and the accrued Interest shall be repaid on the Repayment Date.
- 11.8. You hereby agree and acknowledge that:
- 11.8.1. Koa shall be deemed to have acted properly and to have fully performed all its
obligations to
you notwithstanding that your Loan request may have been initiated, or otherwise
communicated in
error or fraudulently, and you shall be bound by such request so far as Koa acted in good
faith,
believing that the Loan request was made by you.
- 11.8.2. Koa may, at its discretion, decline to act on or in accordance with the whole or any
part of
your Loan request pending further inquiry or further confirmation (whether written or
otherwise)
from you.
- 11.8.3. You agree to indemnify Koa against all claims, losses, damages, costs, and expenses
howsoever
arising in consequence of, or in any way related to Koa having acted in accordance with the
whole or any part of any of your Loan request.
- 11.8.4. To the full extent permitted by law, Koa shall not be liable for any unauthorized
drawings,
transfers, remittance, disclosures, activity, or any incident on your account by the fact of
the
knowledge and/or use or manipulation of your Account password, ID or any means whether or
not
resulting from your negligence.
- 11.8.5. Koa is authorized to act on such orders with respect to your Account and/or Koa Bank
Account as
may be required by any court order or competent authority or agency under the applicable law
- The Borrower"s Obligations
- 12.9. The borrower agrees to:
- 12.9.1. repay the Loan, and the accrued Interest charged to its Account on or before the
Repayment Date.
Where the Borrower fails to repay Loan and Interest on or before the Repayment Date, the
Borrower agrees to the following implications:
- 12.9.2. that the Borrower"s Koa account could be disabled from sending payments two (2) days
after the
default of the repayment obligation;
- 12.9.3. that the Borrower accepts that his or her Loan will be liable to a daily penalty
interest rate
fee as indicated on Koa"s loan agreement terms.
- 12.9.4. be held responsible for any unauthorized Loan request using its Account unless the
Borrower
notifies the Lender in writing, of imminent fraud by an unauthorized user on the Borrower"s
account within 24 hours of such fraud;
- 12.9.5. repay the Loan and accrued Interest via direct transfer to Koa via its Koa Account,
or an
electronic debit from its Koa Bank Account. The Borrower shall have the option to repay all
outstanding sums or partial sums at any point prior to the Repayment Date, provided that the
total Loan and Interest amount is repaid by the end of the Loan Term;
- 12.9.6. not use the Site and Koa"s services for any act of illegality or criminality, and
Koa shall not
be legally or criminally liable for any illegality committed by Customer"s actions on the
Site.
- The Lender's Obligations
- 13.10. The lender agrees to:
- 13.10.1. make the Loan available to the Borrower on the Disbursement Date (which shall in no
case exceed
the Credit Limit) subject to the Lender verifying and approving the Borrower"s Loan request;
- 13.10.2. conduct adequate checks on the Borrower prior to approving a Loan request;
- 13.10.3. demand repayment of Loans and Interest from the borrower as and when due;
and
- 13.10.4. to use all reasonable and legitimate means to recover unpaid Loans and Interest.
Such means of
recovery shall include engaging collection agencies and initiating court processes for the
recovery of debts.
- Personal Information
- 14.11. You agree to grant Koa an irrevocable right to collect and use any information you
provide us or we
collect from you, for the specific purpose of providing you with our services.
- 14.12. You hereby agree and authorize us to verify information provided by you to us against the
information held by local banks including but not limited to your phone number, date of birth,
National Identification Number (I.D), or Passport Number, and any other information that will
enable
us to identify you and comply with the regulatory "Know Your Customer" (KYC) requirements in
your
country.
- 14.13. Koa reserves the right to request further information from you pertaining to your Loan
request or
the creation of your Account, and Koa Bank Account at any time. Failure to provide such
information
within the time required by Koa may result in Koa declining to accept your Loan request or delay
the
creation of your Account, or Koa Bank Account.
- 14.14. You consent that we may disclose and or transfer your information to third parties or any
other
entity we deem necessary to perform our obligations to you under this Agreement.
- 14.15. All other provisions regarding the use of your personal information are contained in our
Privacy
Policy.
- Intellectual Property
- 15.16. The Site and our services contained therein, original content, features, and
functionality are and
shall remain the exclusive property of Koa. Our trademarks and trade name may not be used in
connection with any product or service without our prior written consent.
- 15.17. You shall not use, adapt, modify, prepare derivative works of, distribute, license, sell,
transfer,
publicly display, publicly perform, transmit, broadcast, or otherwise exploit the Site or
collective
content except as expressly permitted by Koa.
- 15.18. Subject to your compliance with these Terms and Conditions, Koa grants you a limited,
non-exclusive,
revocable, non-transferable license to access and view any collective content made available on
or
through the Site and accessible to you.
- Representations and Warranties
- 16.9. You make the following representations and warranties to us at the time of agreeing to
these Terms
and Conditions:
- 16.9.1. You are over the age of 18 years;
- 16.9.2. You are of sound mind and have the capacity to use our Site and services;
- 16.9.3. All information that you provide to us is true and accurate to the best of your
knowledge;
- 16.9.4. That your company has been duly registered as a legal entity at the office of the
appropriate
companies" registration agency;
- 16.9.5. You have carefully read and understood these Terms and Conditions;
- 16.9.6. That neither the company nor the stakeholders are subject to any bankruptcy claim,
and/or
pending or threatened criminal proceedings, that may in any way have an adverse effect on
the
financial assets of the company or stakeholders in the opinion of KOA;
- 16.9.7. If you are accepting these Terms and Conditions on behalf of a legal entity, you are
legally
authorized to do so and we may request evidence of such legal entitlement; and
- 16.9.8. That by accepting these Terms and Conditions, neither the company nor the
stakeholders are not
breaking any laws, regulations, or agreements that are applicable to them
- Event of Default
- 17.20. An Event of Default refers to the following instances:
- 17.21. you fail to pay the Loan and accrued Interest within two days of the agreed Repayment
Date;
- 17.22. any representation or information made or given by you in connection with your Account
and Loan
request is incorrect, inaccurate or misleading;
- 17.23. you carry out or attempt to carry out any act which may prejudice Koa"s rights under this
agreement
(including effecting or trying to effect any accrued Interest or fees payable on the Loan);
- 17.24. you are declared bankrupt, insolvent, or unable to pay your debt according to the
appropriate laws
in your country during the Loan Term:
- 17.25. Upon the occurrence of an Event of default as mentioned above, we may without prejudice
to any other
right or remedy granted to us under any law
- 17.26. terminate this agreement in accordance with clause 14;
- 17.27. declare that the Loan and all accrued Interest under this Agreement becomes due and
payable and you
shall immediately make all necessary payments;
- 17.28. Freeze your Koa Bank Account in regard to assurance of outstanding amounts; and
- 17.29. deduct funds from your Koa Bank Account or any other bank account as permitted by law
upon
compliance with the relevant legal requirements, as payment for your outstanding repayment
obligations.
- 17.30. Koa reserves the right to institute legal proceedings against you to recover the Loan,
and accrued
Interest, with or without prior notice.
- 17.31. You shall be liable for all legal costs and expenses incurred by Koa for any action taken
against
you by Koa for the recovery and repayment of the Loan (including any accrued Interest or fees
payable on the loan).
- 17.32. You agree that upon the occurrence of an Event of default, Koa or its authorized
representatives or
collections agent(s) may notify you and any other person who in Koa"s opinion, may assist in the
recovery and repayment of the outstanding Loan (including any accrued Interest or fees payable
on
the Loan).Upon the occurrence of an Event of default, Koa reserves the right to hold and utilize
the
personal information (including but not limited to their Identification Number (I.D), phone
number,
and email address) of your directors, shareholders, guarantors, or any other authorized
personnel as
the case may be, as part of the measures to guarantee recovery and repayment of the Loan
(including
any accrued Interest or fees payable on the Loan).
- Termination
- 18.33. We may terminate or suspend your Account immediately with or without prior notice or
liability, for
any reason whatsoever, including without limitation to if you breach these Terms and Conditions;
or
upon the occurrence of an Event of Default as stated in clause 15 above.
- 18.34. Upon termination, your right to use our Site, the Bank Account, and services will
immediately cease,
and all outstanding Loans (including any accrued Interest or fees payable on the Loan) shall
become
payable. If you wish to terminate your Account, you may simply discontinue using the Site and
our
services.
- 18.35. Upon termination you accept and agree and give KOA the authority to close the Bank
Account, pay
necessary fees, and take all necessary action on your behalf.
- Indemnity
- 19.36. You agree to indemnify and hold harmless KOA, its affiliates, and subsidiaries, its
officers,
directors, and employees, against all liabilities, costs, expenses, damages, and losses
(including
any direct, indirect, or consequential losses, loss of profits, loss of reputation and all
interest
penalties and legal and other reasonable professional costs and expenses) suffered or incurred
by
it, its affiliates and subsidiaries, its officers, directors, and employees, as a result of:
- 19.36.1. your fraudulent or illegal use of our Site or services;
- 19.36.2. any act of negligence or willful conduct by the stakeholders of the company with
respect to
fulfilling your obligations in connection with this Agreement;
- 19.36.3. any inaccurate, incomplete, or misleading information that you have provided to
us;
- 19.36.4. any unauthorized access to your Account as a result of your failure to keep your
username and
password confidential;
- 19.36.5. any service that you have offered, whether with or without our permission to a
third party using
the Company"s services or Site;
- 19.36.6. and any claim made against the company and/or its stakeholders for actual or
alleged
infringement of a third party"s intellectual property rights arising out of or in connection
with the use of our services or use of the Site.
- Force Majeure
- 20.37. Neither Party shall be liable for failure to perform, or for the delay in performing its
obligations
hereunder if such failure or delay shall be due to Acts of God, war, riot, civil commotion,
weather,
labor disputes, failure of sub-contractors or any other cause beyond its reasonable control.
- Limitation of Liability
- 21.38. In no event shall Koa, its directors, employees, partners, or affiliates, be liable for
any
indirect, incidental, special, consequential, or punitive damages, including without limitation,
loss of profits, data, use, goodwill, or other intangible losses, resulting from your use of the
Site or our services or your inability to use the Site or our services.
- Severability
- 22.39. If any part of this Agreement is held to be invalid or unenforceable in any jurisdiction,
the
invalidity and unenforceability of all remaining provisions contained in this Agreement shall
not in
any way be affected or impaired.
- Entire Agreement
- 23.40. This Agreement contains the entire agreement between the Parties with respect to the
subject matter
and supersedes all prior arrangements and understandings (whether oral or written).
- Waiver
- 24.41. In the event Koa does not strictly enforce its rights under this Agreement (including its
right to
insist on the repayment of all sums due on the Repayment Date), Koa shall not be deemed to have
waived or lost those rights and will not be prevented from enforcing such rights at a later
date.
- Assignment
- 25.42. Koa reserves the right to transfer or assign its rights and obligations under these Terms
and
Conditions. Koa will only notify you if such an assignment will change the arrangements of its
services to you.
- Amendment
- 26.43. Koa may at any time vary and revise these Terms and Conditions by updating this document.
You agree
to be bound by subsequent revisions and agree to review these Terms and Conditions periodically
for
changes. The most updated version of this document will be available for your review under the
"Terms and Conditions" that appears on the Site.
- Governing Law and Dispute Resolution
- 27.44. These Terms and Conditions shall be governed by and construed in accordance with the laws
of the
Republic of Kenya.
- 27.45. In the event of a dispute, we both undertake that we shall make an effort to achieve an
amicable
settlement. The discussions will be handled by our Authorized Representatives and you or your
authorized representatives. Any dispute arising out of this Agreement that cannot be settled, by
mutual agreement/negotiation within 1 (one) month from the commencement of the dispute shall be,
shall be subject to the jurisdiction of the courts of the Republic of Kenya.
- Class Action Waiver
- 28.46. You agree that any claims will be adjudicated on an individual basis, and you waive any
rights that
you may have to participate in a class, collective, or other joint action with respect to any
claims
that you may have against us.
- Contact us
- 29.47. If you have any questions about these Terms and Conditions, please contact us at: info@withlotus.com