Terms and Conditions for the Opening and Use of the Online Medicine Ordering and Maisha Micro-Loan Account with DawaSwift.
This Agreement is an online medicine ordering, financial services and an end-user licence agreement between you (“End-user” or “you”) and DawaSwift of a company duly incorporated under the laws of the Republic of Kenya with a company registration number PVT-ZQUJQ7G and Registration Date 2018-08-14 (“DawaSwift”, “us” or “we”) for the mobile application software, the data supplied with the software and the associated Services (defined below) (“App”)
These Terms and Conditions and any amendments or variations thereto take effect on their date of publication.
The Following Agreement is Binding :
1. Definitions And Interpretation
For the purposes of this Agreement and the preamble above, unless the context requires otherwise:
Acceptable Use Restrictions has the meaning given to it in clause 5;
Agreement means this Agreement;
DawaSwift Account (or just “Account”) means your micro-loan account with DawaSwift;
Business Day means a day other than a Saturday, Sunday or national or public holiday in the Republic of Kenya;
Credentials means your personal credentials used to access the App and operate your Account;
Credit Reference Bureau means a credit reference bureau duly licensed under the Banking Act pursuant to the Banking (Credit Reference Bureau) Regulations, 2013, as amended, revised or promulgated from time to time, to inter alia, collect and facilitate the sharing of customer credit information;
E-Money means the electronic monetary value depicted in your Mobile Money Account representing an equal amount of cash;
Equipment includes your mobile phone handset, SIM Card and/or other equipment which when used together enables you to access the Network;
Event of Default has the meaning given to it in clause 11.1;
Force Majeure means events, circumstances or causes beyond its reasonable control of DawaSwift making DawaSwift’s performance of its obligations inadvisable, commercially impracticable, illegal, or impossible, including but not limited to acts of God, war, strikes or labour disputes, embargoes or government orders;
Encumbrance includes any mortgage or charge (whether legal or equitable), lien, option, security interest, restrictive covenant, pledge, assignment, title retention, trust arrangement or other restriction of any kind or other encumbrance securing or any right conferring a priority of payment in respect of any obligation of any person;
Licence Restrictions has the meaning given to it in clause 4;
micro-loan means the principal amount of the micro-micro-micro-micro-loan made or to be made by DawaSwift to you under this Agreement from time to time through the App or (as the context requires) the principal amount outstanding for the time being of that micro-micro-micro-micro-loan;
Mobile Money Account means your mobile money store of value, being the record maintained by Mobile Money Providers in Kenya of the amount of E-Money from time to time held by you in the Mobile Money Provider’s System;
Mobile Money means the money transfer and payments service operated by the Mobile Money Providers in Kenya;
Mobile Network Operator means a mobile network operator in Kenya registered with the Communications Authority of Kenya;
Mobile Money Provider means a Mobile Network Operator that has been duly authorized by the Central Bank of Kenya under applicable law to offer Mobile Money Services in Kenya;
Mobile Money Service means the money transfer and payments service provided by the Mobile Money Providers through the Mobile Money System;
Mobile Money System means the system operated by the Mobile Money Providers in Kenya for the provision of the Mobile Money Service;
Network means a mobile cellular network operated by a Mobile Network Operator;
Request means a request or instruction received by DawaSwift from you or purportedly from you through the Network and the System and upon which DawaSwift is authorised to act;
Services shall include any form of financial services or products that DawaSwift may offer you pursuant to this Agreement and as you may from time to time subscribe to and “Service” shall be construed accordingly;
SIM Card means the subscriber identity module which when used with the appropriate mobile phone handset enables you to access the Network and to use the Mobile Money Account;
SMS means a short message service consisting of a text message transmitted from your mobile phone to another;
System means DawaSwift’s electronic communications software enabling you to communicate with DawaSwift for purposes of the Services. The System and the Services will for the purpose of this Agreement be accessed through a Mobile Network Operator’s System;
Technology has the meaning given to it in clause 3.1.4; and
Transaction Fees includes any fees and charges payable for the use of the Services as published by DawaSwift on DawaSwifts website or by such other means as DawaSwift shall in its sole discretion determine. Transaction Fees are subject to change at any time at DawaSwift’s sole discretion.
You will be "Eligible" to use the Services only when you fulfil all of the following conditions:
1.2.1 You have attained at least 18 (eighteen) years of age.
1.2.2 You are competent to enter a contract under the Applicable Laws.
1.2.3 You have a valid registered mobile number
1.2.4 You agree to comply with our terms and conditions of use.
If you are not Eligible, please immediately abandon all attempts to register with us or use our services.
You acknowledge that we rely completely on the information provided by you and we shall not be held liable if you or anyone who uses your Account to access the services on the Website/Application is not eligible to use the same.
1.3.1 In addition to the definitions in clause 1.1, unless the context requires otherwise: the singular shall include the plural and vice versa;
1.3.2 a reference to any one gender, whether masculine, feminine or neuter, includes the other two.
1.3.3 All the headings and sub-headings in this Agreement are for convenience only and are not to be taken into account for the purposes of interpretation of this Agreement.
1.3.4 The recitals and schedules shall be deemed to form part of this Agreement.
1.4 Account Creation
1.4.1 You understand and acknowledge that you can register on the Website/Application only after complying with the requirements of Clause 1.2 and through a valid mobile number and Email ID.
1.4.2 You will be required to enter Your Registration Data on the Website/Application following which a One- Time Password (OTP) would be sent to the mobile number you have used to register. You will be required to enter the OTP to complete the registration process.
Upon completion of the verification process in accordance with Clause 2.2 above, you will be added to our platform through which you can avail the Services offered on the Website/Application.
1.4.3 You represent and warrant that the information you submit during registration via the Customer Information form is truthful and accurate and that you will maintain the accuracy of such information.
1.4.4 You shall not impersonate someone else or provide account information, an email address or any other information that is not Your own. We shall bear no liability for false, incomplete, old or incorrect Registration Data provided by you.
1.4.5 In the event of any change in the said Registration Data, you agree to promptly update your Registration Data on the Account to ensure that the communication we intend to send to you is promptly delivered and is not sent to any other entity/third party.
1.4.6 We reserve the right to suspend or terminate your Account with immediate effect and for an indefinite period, if we have a reason to believe that the Registration Data or any other data provided by you is incorrect or false, or that the security of your Account has been compromised in any way, or any other reason we may find to do so. DawaSwift.com will not be liable for any loss or damages as a result of your failure to maintain the confidentiality of your account credentials. If you suspect any unauthorized use of your DawaSwift account, you shall immediately notify DawaSwift.com on +254 712002975 or email@example.com. We also reserve the right to suspend your Account with immediate effect and for an indefinite period upon receipt of any complaint from the Service Provider.
1.4.7 You are eligible to only one account in respect of your Mobile Number and Email ID.
Your DawaSwift Account username and password are personal to you. You may not assign or otherwise transfer your account and you will be responsible for the activities associated with your DawaSwift Account.
1.4.8 By downloading, installing and using the mobile Application, you further agree that:
18.104.22.168 You will download the Application for your sole, personal use and will not resell it to a third party;
22.214.171.124 You will not authorize others to use your account;
126.96.36.199 You will not use the Application to cause nuisance, annoyance or inconvenience;
188.8.131.52 You will not try to harm Application in any way whatsoever;
184.108.40.206 You will provide us with whatever proof of identity we may reasonably request;
220.127.116.11 You will not use the Application for unlawful purposes, including but not limited to sending or storing any unlawful material or for fraudulent purposes;
2. Acceptance Of Terms And Conditions
2.1 You must carefully read and understand the Terms and Conditions set out in this Agreement and as amended from time to time by DawaSwift (the Terms and Conditions) before downloading or streaming the App or opening an account with DawaSwift which will govern the use and operation of the App and the Account.
2.2 After downloading the App, you will be deemed to accept the Terms and Conditions upon clicking the “Accept” option on DawaSwifts System asking you to confirm that you have read, understood and agreed to abide by the Terms and Conditions. If you do not agree with the Terms and Conditions please click the “Decline” option in DawaSwift’s System. Please note that you will not be able to access the Services if you decline the Terms and Conditions. If you do not agree to the Terms and Conditions, we will not license the App to you.
2.3 By downloading the App and opening an Account with DawaSwift, you agree (further to subclause 1.4.8 above) to comply with and be bound by the Terms and Conditions governing the operation of the Account and you affirm that the Terms and Conditions herein are without prejudice to any other right that DawaSwift may have with respect to the Account in law or otherwise.
2.4 These Terms and Conditions may be amended or varied by DawaSwift from time to time and the continued use of the Services constitutes your agreement to be bound by the terms of any such amendment or variation. DawaSwift will take all reasonable measures to notify you of any changes.
2.5 From time to time updates to the App may be issued through the website. Depending on the update, you may not be able to use the Services until you have downloaded or streamed the latest version of the App and accepted any new terms and conditions.
2.6 By using the App or any of the Services, you consent to us collecting and using technical information about the Equipment and related software, hardware and peripherals for Services that are internet-based or wireless to improve our products and to provide any Services to you. If you use these Services, you consent to us and our affiliates' and licensees' transmission, collection, retention, maintenance, processing and use of your data to determine our credit scoring services or to improve our Services and/or your experience while using the App.
2.7 DawaSwift does not endorse and is not responsible for any Submissions on its Website/App. We will not be liable for any loss or harm caused by the Submissions or your reliance on the information, including but not limited to, statements, opinions and reviews posted by the Users/Customers, which may be inaccurate, offensive, obscene, threatening or harassing.
3. Grant And Scope Of Licence
3.1 In consideration of you agreeing to abide by the terms of this Agreement, we grant you a non-transferable, non-exclusive licence to use the App on your Equipment, subject to these Terms and Conditions. We reserve all other rights. Except as expressly set out in this Agreement or as permitted by any local law, you agree:
3.1.1 not to rent, lease, sub-license, micro-micro-micro-micro-loan, translate, merge, adapt, vary or modify the App;
3.1.2 not to make alterations to, or modifications of, the whole or any part of the App, or permit the App or any part of it to be combined with, or become incorporated in, any other programs;
3.1.3 not to disassemble, decompile, reverse-engineer or create derivative works based on the whole or any part of the App or attempt to do any such thing except to the extent that such actions cannot be prohibited because they are essential for the purpose of achieving inter-operability of the App with another software program, and provided that:
18.104.22.168 the information obtained by you during such activities is not unnecessarily disclosed or communicated without our prior written consent to any third party; and is not used to create any software that is substantially similar to the App;
22.214.171.124 you include our copyright notice on all entire and partial copies you make of the App on any medium; not to provide or otherwise make available the App in whole or in part (including object and source code), in any form to any person without prior written consent from us; and
3.1.4 to comply with all technology control or export laws and regulations that apply to the technology used or supported by the App or any Service (the Technology).
4. Together Licence Restrictions
4.1 You must:
4.1.1 not use the App or any Service in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with this Agreement, or act fraudulently or maliciously, for example, by hacking into or inserting malicious code, including viruses, or harmful data, into the App, any Service or any operating system;
4.1.2 not infringe our intellectual property rights or those of any third party in relation to your use of the App or any Service, including the submission of any material (to the extent that such use is not licensed by this Agreement);
4.1.3 not transmit any material that is defamatory, offensive or otherwise objectionable in relation to your use of the App or any Service;
4.1.4 not use the App or any Service in a way that could damage, disable, overburden, impair or compromise our systems or security or interfere with other users; and
4.1.5 not collect or harvest any information or data from any Service or our systems or attempt to decipher any transmissions to or from the servers running any Service.
5. Together Acceptable Use Restrictions
5.1DawaSwift is a registered Trademark.
5.2 Rights Concerning Intellectual Property
5.2.1 You acknowledge that all intellectual property rights in the App and the Technology anywhere in the world belong to us or our licensors, that rights in the App are licensed (not sold) to you, and that you have no rights in, or to, the App or the Technology other than the right to use each of them in accordance with the terms of this Agreement. You acknowledge that you have no right to have access to the App in source-code form.
5.3 Use Of The Services
5.3.1 The Services offered by DawaSwift can only be utilized by persons over the age of 18. DawaSwift reserves the right to verify the authenticity and status of your Mobile Money Account with the relevant Mobile Money Provider.
5.3.2 DawaSwift’s acceptance of your application for an Account will be displayed on the App. You hereby acknowledge and accept that the acceptance by DawaSwift of your application for an Account does not create any contractual relationship between you and the Mobile Money Providers beyond the terms and conditions that apply to your Mobile Money Account from time to time.
5.3.3 DawaSwift reserves the right to decline your application for a micro-micro-micro-micro-loan or to revoke the same at any stage at DawaSwift’s sole and absolute discretion and without assigning any reason or giving any notice thereto.
5.3.4 DawaSwift reserves the right (in its sole and absolute discretion) to issue, decline to issue a micro-micro-micro-micro-loan and/or vary the terms of any micro-micro-micro-micro-loan depending on its assessment of the credit profile of each individual borrower from time to time. The terms of the micro-micro-micro-micro-loan and the interest rate payable in relation to each micro-micro-micro-micro-loan application will be displayed on the App.
5.4 Customer Information
5.4.1 You hereby agree and authorise DawaSwift to verify information provided by you to DawaSwift against the information held by the Mobile Money Providers in relation to your Mobile Money Account pursuant to the agreement between you and the relevant Mobile Money Provider for the provision of its products and services and the Mobile Money Service.
5.4.2 The information that DawaSwift may verify against the information held by the Mobile Money Providers includes (without limitation): your phone number, name, date of birth, Identification Number (“ID”) or Passport Number and such other information that will enable DawaSwift to identify you and comply with the regulatory “Know Your Customer” requirements (together the “Personal Information”).
5.4.3 You hereby agree and authorise DawaSwift to verify information including, but not limited to, data relating to your phone (including, without limitation, your phone’s history) from your Equipment, from any SMS sent to you by the Mobile Money Providers and any financial services providers relating to your use of the Mobile Money Service and such other information as DawaSwift shall require for purposes of providing you the Services (the “Relevant Information”).
5.4.4 You hereby consent to DawaSwift verifying the Personal Information and the Relevant Information with the Mobile Money Providers and using of the Personal Information and the Relevant Information to the extent necessary in the opinion of DawaSwift.
5.4.5 You hereby agree and authorise DawaSwift to obtain and procure your Personal Information and Relevant Information from your respective Mobile Money Provider and you further agree and consent to the disclosure and provision of such Personal Information by the Mobile Money Provider and further to indemnify and hold DawaSwift and the Mobile Money Provider harmless with respect to any claims, losses, liabilities and expenses (including legal fees and expenses) that may arise as a result of the disclosure and reliance on such Personal Information and/or Relevant Information.
5.4.6 You hereby agree and authorise DawaSwift to obtain and procure your Personal Information from the Credit Reference Bureaus and you further agree and consent to the disclosure and provision of such Personal Information by the Credit Reference Bureaus.
5.4.7 DawaSwift reserves the right to request for further information from you pertaining to your application for an Account at any time. Failure to provide such information within the time required by DawaSwift may result in DawaSwift declining to accept your application for an Account.
5.4.8 DawaSwift reserves the right to supply consumer credit information to the Credit Reference Bureaus, and in this regard: you confirm that DawaSwift may transmit to the Credit Reference Bureaus data about the App, opening and termination of an Account by you;
5.4.9 you acknowledge that information on non-compliance with the Terms and Conditions of this Agreement is transferred to the Credit Reference Bureaus; and
5.4.10 the Credit Reference Bureaus provide a credit profile and possibly credit scores on your creditworthiness, subject to the credit record.
6. Requests Made By The Borrower
6.1 You hereby irrevocably authorise DawaSwift to act on all Requests received by DawaSwift from you (or purportedly from you) through the System and to hold you liable in respect thereof. DawaSwift may nevertheless refuse to carry out any Requests in its sole and absolute discretion.
6.2 Subject to its discretion, DawaSwift reserves the right to reject any Request in relation to a micro-micro-micro-micro-loan application from you even if you have previously been issued with a micro-micro-micro-micro-loan by DawaSwift.
6.3 DawaSwift shall be entitled to accept and to act upon any Request, even if that Request is otherwise for any reason incomplete or ambiguous if, in its absolute discretion, DawaSwift believes that it can correct the incomplete or ambiguous information in the Request without any reference to you being necessary.
6.4 DawaSwift shall be deemed to have acted properly and to have fully performed all the obligations owed to you notwithstanding that the Request may have been initiated, sent or otherwise communicated in error or fraudulently, and you shall be bound by any Requests on which DawaSwift may act if DawaSwift has in good faith acted in the belief that such instructions have been sent by you.
6.5 DawaSwift may, in its absolute discretion, decline to act on or in accordance with the whole or any part of your Request pending further enquiry or further confirmation (whether written or otherwise) from you.
6.6 You agree to and shall release from and indemnify DawaSwift against all claims, losses, damages, costs and expenses howsoever arising in consequence of, or in any way related to DawaSwift having acted in accordance with the whole or any part of any of your Requests (or failed to exercise) the discretion conferred upon it.
6.7 You acknowledge that to the full extent permitted by law DawaSwift shall not be liable for any unauthorised drawing, transfer, remittance, disclosure, any activity or any incident on your account by the fact of the knowledge and/or use or manipulation of your Account PIN, password, ID or any means whether or not occasioned by your negligence.
6.8 DawaSwift is authorised to effect such orders in respect of your Account as may be required by any court order or competent authority or agency under the applicable laws.
6.9 In the event of any conflict between any terms of any Request received by DawaSwift from you and this Agreement, this Agreement shall prevail.
7. Micro-Loan Interest and Fees
7.1 The interest payable by you to DawaSwift in relation to any micro-loan shall be displayed by DawaSwift on the App. DawaSwift shall be entitled to set and charge Transaction Fees, in connection with your use of the Services and from time to time amend or vary its Transaction Fees for the Services.. If DawaSwift decides to start charging Transaction Fees or where already applicable, vary or amend its Transaction Fees, the Transaction Fees payable on any new application for Services will be displayed on the App. DawaSwift will use reasonable endeavors to try notify you of any changes in relation to Transaction Fees within a reasonable period before such changes are implemented including displaying notices of the changes on the App or DawaSwift website.
7.2 All payments to be made by you under this Agreement shall be made in full without any set off or counter claim and save in so far as required by the law to the contrary, free and clear of and without any deduction or withholding whatsoever. If you are at any time required to make any deduction or withholding from any payment to DawaSwift you shall immediately pay to DawaSwift such additional amounts as will result in DawaSwift receiving the full amount it would have received had no such deduction or withholding been required.
7.3 If you fail to make any payments due to DawaSwift at the due date for payment, DawaSwift will be authorised to apply late fees on such amount micro-micro-micro-micro-loaned to you at a rate to be communicated to you.
8. Account Statements
8.1 A statement and activity report in respect of your Account will be made available on Request. Requests shall be made via our e-mail address: firstname.lastname@example.org or via a contact link on the App.
8.2 The statement on the App shall provide details of the last 4 (four) transactions (or such other number of transactions as determined by DawaSwift) in your Account initiated from your Equipment.
8.3 Your statement will show all amounts added or taken from your Account. You must check your statement carefully and notify DawaSwift as soon as possible if it includes any transaction or other entry which appears to you to be wrong or not made in accordance with your instructions.
8.4 DawaSwift reserves the right to rectify discrepancies, add and/or alter the entries in your statements, without prior notice to you. DawaSwift will however inform you of any rectification, additions and or alterations effected on your statements within a reasonable time after the changes are effected.
8.5 You will be notified of all transactions on your Account by way of SMS and the charges for this service will be debited to your Account.
8.6 Save for a manifest error, a statement issued to you in respect of your Branch Account shall be conclusive evidence of the transactions carried out on your Branch Account for the period covered in the statement.
9.1 In Kenya, all pharmacy product prices include all applicable statutory taxes.
All pharmacies that have been vetted and enrolled on the DawaSwift App are responsible for ensuring that their pricing and availability of their products on our Website/App are consistent, accurate and up to date.
9.2 All payments to be made by you in connection with these Terms and Conditions are calculated without regard to any taxes payable by you. If any taxes are payable in connection with the payment, you must pay DawaSwift an additional amount equal to the payment multiplied by the appropriate rate of tax. You must do so at the same time as making the payment.
9.3 You hereby consent and agree that DawaSwift may withhold amounts in your Account if any tax authority requires DawaSwift to do so, or DawaSwift is otherwise required by law or pursuant to agreements with any tax authority to do so, or if DawaSwift needs to comply with internal policies or with any applicable order or sanction of a tax authority.
10. Borrower’s Responsibilties
10.1 You shall at your own expense provide and maintain in safe and efficient operating order your Equipment necessary for the purpose of accessing the System and the Services.
10.2 You shall be responsible for ensuring the proper performance of your Equipment. DawaSwift shall neither be responsible for any errors or failures caused by any malfunction of your Equipment, and nor shall DawaSwift be responsible for any computer virus or related problems that may be associated with the use of the System, the Services and the Equipment. You shall be responsible for charges due to any service provider providing you with connection to the Network and DawaSwift shall not be responsible for losses or delays caused by any such service provider.
10.3 You shall follow all instructions, procedures and terms contained in this Agreement and any document provided by DawaSwift concerning the use of the System and the Services.
10.4 You hereby agree and acknowledge that you shall be solely responsible for the safekeeping and proper use of your Equipment and for keeping your Credentials secret and secure. You shall ensure that your Credentials do not become known or come into possession of any unauthorised person. DawaSwift shall not be liable for any disclosure of your Credentials to any third party and you hereby agree to indemnify and hold DawaSwift harmless from any losses resulting from any disclosure of your Credentials.
10.5 You shall take all reasonable precautions to detect any unauthorised use of the System and the Services. To that end, you shall ensure that all communications from DawaSwift are examined and checked by you or on your behalf as soon as practicable after receipt by you in such a way that any unauthorised use of and access to the System will be detected. You shall immediately inform DawaSwift in the event that:
10.5.1 You have reason to believe that your Credentials are or may be known to any person not authorised to know the same and/or have been compromised; and/or
10.5.2 You have reason to believe that unauthorised use of the Services has or may have occurred or could occur and a transaction may have been fraudulently input or compromised.
10.6 You shall at all times follow the security procedures notified to you by DawaSwift from time to time or such other procedures as may be applicable to the Services from time to time. You acknowledge that any failure on your part to follow the recommended security procedures may result in a breach of your Account’s confidentiality. In particular, you shall ensure that the Services are not used or Requests are not issued or the relevant functions are not performed by anyone other than a person authorised to do so.
10.7 You shall not at any time operate or use the Services in any manner that may be prejudicial to DawaSwift.
11. Default on Mico-Loan
11.1 An event of default (Event of Default) occurs when you:
11.1.1 fail to pay any sum payable for a micro-loan granted under these Terms and Conditions for a period of ninety (90) consecutive days unless failure to pay is caused solely by an administrative error or technical problem; or are declared bankrupt.
11.2 At any time after an Event of Default has occurred which is continuing, DawaSwift may, without prejudice to any other right or remedy granted to it under any law:
11.2.1 terminate this Agreement in accordance with clause 12 below;
11.2.2 declare that the micro-loan (and all accrued interest and all other amounts outstanding under this Agreement is immediately due and payable, whereupon they shall become immediately due and payable; and
11.2.3 supply information concerning the Event of Default to Credit Reference Bureaus. A copy of any adverse information concerning you sent to a Credit Reference Bureau shall be made available to you upon written request.
12. Variation and Termination
12.1 DawaSwift may at any time, upon notice to you, terminate or vary its business relationship with you and close your Account and in particular but without prejudice to the generality of the foregoing DawaSwift may cancel credits which it has granted and require the repayment of outstanding debts resulting from such credits within such time as DawaSwift may determine.
12.2 Without prejudice to DawaSwift’s rights under clause 14.1, DawaSwift may at its sole discretion suspend or close your Account:
12.2.1 if you use the Account for unauthorised purposes or where DawaSwift detects any abuse/misuse, breach of content, fraud or attempted fraud relating to your use of the Services;
12.2.2 if your Account or agreement with a Mobile Network Operator is terminated for whatever reason;
12.2.3 if DawaSwift is required or requested to comply with an order or instruction of or a recommendation from the government, court, regulator or other competent authority;
12.2.4 if DawaSwift reasonably suspects or believes that you are in breach of these Terms and Conditions (including non-payment of any micro-loan amount due from you where applicable) which you fail to remedy (if remediable) within 14 days after the service of notice by email, SMS or other electronic means requiring you to do so;
12.2.5 where such a suspension or variation is necessary as a consequence of technical problems or for reasons of safety; to facilitate update or upgrade the contents or functionality of the Services from time to time; where your Account becomes inactive or dormant;
12.2.6 if DawaSwift decides to suspend or cease the provision of the Services for commercial reasons or for any other reason as it may determine in its absolute discretion; or
12.2.7 if you breach any of the Licence Restrictions or the Acceptable Use Restrictions.
12.3 If your Account has a credit balance at any time as a result of overpayment of your micro-loan, you may issue a Request to DawaSwift for payment of such credit balance and DawaSwift will return any such balance to you, less any applicable fees, provided that such amount falls above the minimum transfer amounts specified by the relevant Mobile Money Provider.
12.4 You agree that DawaSwift, in its sole discretion and for any or no reason, including without limitation if you breach these Terms and Conditions, may terminate your access to and use of the Website/App, at any time. You agree that any termination of your access to the Website/App or suspension of your account may be effected without prior notice, and you agree that DawaSwift shall not be liable to you for any such termination. Your right to use the DawaSwift Website/App/Service immediately ceases upon termination of your access/use of the Website/App.
12.5 Termination shall however not affect any accrued rights and liabilities of either party.
12.6 If DawaSwift receives notice of your demise, DawaSwift will not be obliged to allow any operation or withdrawal from your Account by any person except upon production of administration letters from a competent authority or confirmed grant of letters of administration or confirmed grant of probate by your legal representatives duly appointed by a court of competent jurisdiction.
13. Exclusive of Liability
13.1 DawaSwift shall not be responsible for any loss suffered by you should the Services be interfered with or be unavailable by reason of the failure of any of your Equipment, or any other circumstances whatsoever not within DawaSwift’s control including , without limitation, Force Majeure or error, interruption, delay or non- availability of the System, terrorist or any enemy action equipment failure, loss of power, adverse weather or atmospheric conditions, and failure of any public or private telecommunications system.
13.2 You acknowledge that the App has not been developed to meet your individual requirements, and that it is therefore your responsibility to ensure that the facilities and functions of the App as described meet your requirements.
13.3 We only supply the App for domestic and private use. You agree not to use the App and Documents for any commercial, business or resale purposes, and we have no liability to you for any loss of profit, loss of business, business interruption, or loss of business opportunity.
13.4 DawaSwift will not be liable for any losses or damage suffered by you as a result of or in connection with:
13.4.1 any defect or fault in the App or any Service resulting from you having altered or modified the App;
13.4.2 any defect or fault in the App resulting from you having used the App in breach of the terms of this Agreement;
13.4.3 your breach of any of the Licence Restrictions or the Acceptable Use Restrictions;
13.4.4 unavailability of sufficient funds in your Mobile Money Account;
13.4.5 failure, malfunction, interruption or unavailability of the System, your Equipment, the Network or a Mobile Money System; the money in your Account being subject to legal process or other encumbrance restricting payments or transfers thereof; your failure to give proper or complete instructions for payments or transfers relating to your Account;
13.4.6 any fraudulent or illegal use of the Services, the System and/or your Equipment; or
13.4.7 your failure to comply with these Terms and Conditions and any document or information provided by DawaSwift concerning the use of the System and the Services.
13.5 If for any reason other than a reason mentioned in clauses 13.1 to 13.4, the Services are interfered with or unavailable, DawaSwift’s sole liability under this Agreement in respect thereof shall be to re-establish the Services as soon as reasonably practicable.
13.6 Save as provided in clause 13.5, DawaSwift shall not be liable to you for any interference with or unavailability of the Services, howsoever caused.
13.7 Under no circumstances shall DawaSwift be liable to you for any loss of profit or anticipated savings or for any indirect or consequential loss or damage of whatever kind, howsoever caused, arising out of or in connection with the Services even where the possibility of such loss or damage is notified to DawaSwift.
13.8 All warranties and obligations implied by law are hereby excluded to the fullest extent permitted by law.
13.9 No Waiver
No failure on the part of DawaSwift to enforce any part of these Terms and Conditions shall constitute a waiver of any of DawaSwift's rights under these Terms and Conditions, whether for past or future actions on the part of any person. Neither the receipt of any funds by DawaSwift nor the reliance of any person on DawaSwift actions shall be deemed to constitute a waiver of any part of these Terms and Conditions. Only a specific, written waiver signed by an authorized representative of DawaSwift shall have any legal effect whatsoever.
14.1 In consideration of DawaSwift complying with your instructions or Requests in relation your Account, you undertake to indemnify DawaSwift and hold it harmless against any loss, charge, damage, expense, fee or claim which DawaSwift suffers or incurs or sustains thereby and you absolve DawaSwift from all liability for loss or damage which you may sustain from DawaSwift acting on your instructions or requests or in accordance with these Terms and Conditions.
14.2 You hereby agree to indemnify, defend, hold harmless DawaSwift and its officers, directors, employees, agents, information providers, partners, licensors, advertisers and suppliers from and against all claims, losses, expenses, damages and costs, including reasonable legal fees and costs, resulting from any violation of this agreement, or any activity related to your account, or any information or material you have submitted or will submit to us in violation of any law or in breach of any third party rights (including, but not limited to, claims in respect of defamation, invasion of privacy, or infringement of any other intellectual property right). DawaSwift reserves the right to exclusively defend and control any claims arising from the above and any such indemnification matters, and you hereby agree to cooperate fully with us in asserting any available defenses.
14.3 The indemnity in clause 14.1 shall also cover the following:
14.3.1 All demands, claims, actions, losses and damages of whatever nature which may be brought against DawaSwift or which it may suffer or incur arising from its acting or not acting on any Request or arising from the malfunction or failure or unavailability of any hardware, software, or equipment, the loss or destruction of any data, power failures, corruption of storage media, natural phenomena, riots, acts of vandalism, sabotage, terrorism, any other event beyond DawaSwift’s control, interruption or distortion of communication links or arising from reliance on any person or any incorrect, illegible, incomplete or inaccurate information or data contained in any Request received by DawaSwift.
14.3.2 Any loss or damage that may arise from your use, misuse, abuse or possession of any third party software, including without limitation, any operating system, browser software or any other software packages or programs.
14.3.3 Any unauthorised access to your Account or any breach of security or any destruction or accessing of your data or any destruction or theft of or damage to any of your Equipment.
14.3.4 Any loss or damage occasioned by the failure by you to adhere to these Terms and Conditions and/or by supplying of incorrect information or loss or damage occasioned by the failure or unavailability of third party facilities or systems or the inability of a third party to process a transaction or any loss which may be incurred by DawaSwift as a consequence of any breach by these Terms and Conditions.
14.3.5 Any damages and costs payable to DawaSwift in respect of any claims against DawaSwift for recompense for loss where the particular circumstance is within your control.
15. Communication Between Us
15.1 If you wish to contact us in writing, or if any condition in these Terms and Conditions requires you to give us notice, you can send this to us by e-mail to email@example.com or to such e-mail address that may be communicated to you from time to time. We will confirm receipt of this by contacting you in writing by e-mail.
15.2 If we have to contact you or give you notice in writing, we will do so by e-mail or by sms to the mobile phone number or email address you provide to us in your request for the App.
16.1 Remedies Cumulative
16.1.1 No failure on the part of any party to exercise, or delay on its part in exercising, any right, power or remedy provided by this Agreement or by law shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any further or other exercise of that, or any other, right, power or remedy.
16.2 No waiver
16.2.1 No failure by DawaSwift to exercise, and no delay in exercising, any right or remedy in respect of any provision of this Agreement shall operate as a waiver of such right or remedy.
16.3 Effect of invalidity
16.3.1 If any provision or part of a provision of this Agreement shall be, or be found by any court of competent jurisdiction to be, invalid or unenforceable, such invalidity or unenforceability shall not affect the other provisions or parts of such provisions of this Agreement, all of which shall remain in full force and effect.
17. Entire Agreement
17.1 DawaSwift reserves the right to amend these terms and conditions from time to time. DawaSwift will notify you of any material changes or additions to these Terms and Conditions and will provide you with a copy of the amended Terms and Conditions, either under this Website, by use of your email address provided to DawaSwift or by any other suitable means which ensure that you will be able to take notice of the changes to these Terms and Conditions.
17.4 You and we agree that neither of us shall have any claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.
18. Dispute Resolution
18.1.1 The Parties shall use their good faith efforts to resolve any dispute, controversy or claim of any nature whatsoever arising out of or in relation to or in connection with this Agreement. To this end, the Parties in dispute shall each promptly appoint representatives of appropriate standing who shall meet and attempt to resolve any dispute between them. In the event that an amicable settlement has not been reached within thirty (30) days of the parties’ representatives meeting as aforesaid, the following provisions of this clause 20 shall apply.
18.2.1 Any dispute, difference or question whatsoever and howsoever arising out of or in connection with this Agreement, save as specifically provided herein, shall be referred for final determination to a single arbitrator to be appointed by agreement between the parties hereto or in default of any such agreement within seven (7) days of the notification of any dispute by either party to the other then, upon application by either party, by the Chairman for the time being of the Kenya Branch of the Chartered Institute of Arbitrators (“Institute”).
18.2.2 Such arbitration shall take place in Nairobi and shall be conducted in accordance with the Rules of Arbitration of the Institute.
18.2.3 To the extent permissible by law the determination of the arbitrator shall be final and binding upon the Parties and shall not be subject to any appeal.
18.2.4 Nothing in this clause 20.2 shall restrict either Party’s freedom to commence legal proceedings of any nature for the purposes of seeking preliminary injunctive relief or interim or conservatory measures from any court of competent jurisdiction pending the final decision or award of any arbitrator.
19. Governing Law and Severability
19.1 This Agreement shall be governed by and construed in accordance with the laws of Kenya.
19.2 If any provision of these Terms and Conditions shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these Terms and Conditions and shall not affect the validity and enforceability of any remaining provisions.
21. Pricing and Payment
21.1 DawaSwift recommends that customers load their DawaSwift Account using mobile money services (Mpesa, Airtel, Equitel).
Customers who have debit or credit cards should also add them to the app.
21.2 Though very unlikely, there may be an error on a pharmacy’s pricing of a product or an error related to product availability. In such cases, we are not responsible for any typographical errors or other errors and we reserve the right to cancel the sale in consultation with the responsible pharmacy.
21.3 DawaSwift reserves the right to correct any inaccuracies or omissions related to pricing and product availability/descriptions, even after you have submitted your order, and to change or update any other information at any time without prior notice.