Terms and conditions

​The following Device financing terms and conditions (hereinafter referred to as the “Financing Terms” as updated from time to time) are applicable to all our Products. These Financing Terms are explicitly incorporated into the Device Agreement (the “Device Agreement”) specific to the exact Device being sold to the Customer (“Borrower”).  Borrower should therefore read the below Financing Terms carefully. Acceptance of the Device Agreement shall constitute acceptance of these Financing Terms and the Privacy Policy.  Should you have any questions about their interpretation or meaning, contact us through the application we have preloaded on your Product (MoApp) or send us an email to support@mophones.co.

 

DEFINITIONS

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”).

By signing this Agreement the Borrower hereby consents and authorizes the Lender to collect, process, store and transfer the Borrower’s personal information, and data relating to the Loan application, the Loan, the Repayment details and any other data or details within the limits permitted by law. The information collected, processed and stored under this clause will be treated in accordance with our Privacy Policy. The permitted uses may include:

(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;

(e)  transmitting Borrower’s credit information and related financial statements to and from a Credit Reference Bureau or credit reference service provider to obtain Borrower’s credit report and shall ensure the relevant Credit Reference Bureau adheres to the Data Protection Act, No. 24 of 2019 and our Privacy Policy regarding the processing of such Personal Information;

(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.

10.4 The Lender shall ensure that such Personal Information and data is processed in accordance with the Borrower’s right to privacy and in compliance with the Data Protection Act, No. 24 of 2019 (“the DPA”); the Lender’s Privacy Policy available here; and undertakes that it will duly observe its obligations as a data controller under the DPA which arise in connection with the collection and processing of the Personal Information..

 

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. Notices

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. Miscellaneous

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.

13.13 The Agreement is effective on the date of paying the deposit for the Device and shall apply to the Lender and Borrower.