BOYA LIMITED APPLICATION USER TERMS AND CONDITIONS

These Terms and Conditions set out the rights and obligations of Boya Limited (“Boya”) and you in relation to your use of the Application to access the Services provided by Boya.

You agree to comply with all these Terms and Conditions in order to use the App and the Services. 

These Terms and Conditions shall be read together with Boya’s Privacy Policy. 

1.   Definitions
      
In these Terms and Conditions unless the context otherwise requires:“Account” means your account with Boya;
     “Application” or “App” means the Boya mobile application which enables the Users to link their credit cards, bank accounts and/or mobile money accounts and make payments anywhere, anytime;
     “Agreement” or “Terms and Conditions” means these Terms and Conditions executed by you in the manner set out at Clause 2;
     “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 Application and operate your Account;
     “Force Majeure” means an event which is beyond the reasonable control of a party and which makes the party’s performance of its obligations under these Terms and Conditions impossible or impractical as reasonably to be.          considered impossible in the circumstances and includes civil commotion, war, an act of God and network failure which has not been occasioned by the fault of either party to this Agreement;
     “Intellectual Property” includes any patent, rights to inventions, trade -secrets, copyright, trademarks, works, domain names, rights in get up, rights in goodwill, rights in confidential information, creation, improvements upon or.           additions to an invention; in each case whether registered or unregistered; including all applications and rights to apply for; granted renewals, extensions of and all similar or equivalent rights or forms of protection which subsist or.           will. subsist now or in the near future in any part of the world;
     “Personal Data” means information in relation to your name, identification number or passport number, date of birth, phone number, bank account and any other information that will enable us to identify you and comply with regulatory.           “Know Your Customer” requirements;
     “Privacy Policy” means the Boya privacy policy that sets out the basis on which any personal data we collect from you, or that you may provide to us will be stored and Processed by us;
     “Processing” means any operation or sets of operations which is performed on Personal Data and “Process” and “Processed” shall be construed accordingly;
     “Services” shall include any form of services or products that Boya may offer to you pursuant to this Agreement and as you may from time to time subscribe to and “Service” shall be construed accordingly;
     “Service Fee means technology service fee charged by Boya in connection with the provision of the Services;
     “SMS means a short message service consisting of a text message transmitted from your mobile phone to another;
     “Third-Party Applications” means an application that is not related to the Application;
     “Unauthorised Transactions” refers to transactions that have not been authorised by the User;
     “Updates” means any modification and or improvement made to the operation of the Application and includes bug- fixes, modification on the user interface and security upgrades;
     “User” means any debit/credit cardholder who has downloaded the Application and accepted the Terms and Conditions as set out in this Agreement;
     “Restricted Activities” means any of the transactions set out in Clause 13; and
     “Requests” means the request or instruction received by Boya from you in connection with the use of the App or access to the Services.

2 Interpretation

2.1 The following principles of interpretation shall apply to this Agreement:
    2.1.1 headings are only for ease of reference and shall not affect the interpretation of this Agreement;
    2.1.2 references to a person includes a natural person, corporate or unincorporated body where context allows,
    2.1.3 words importing the singular shall include the plural and vice versa;
    2.1.4 “you” and “your” refers to a User;
    2.1.5 “Boya”, “we”, “us”, “our” refers to Boya Limited, the owner of the Application; and 
   2.1.6 any words following the terms “including”, “include”, “in particular”, “for example” or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term.             preceding those terms.

3 Accepting these Terms and Conditions

     
3.1 You must carefully read and understand this Agreement as may be amended by us from time to time before using the Application and/or the Services. These terms will govern the use and operation of the App and the Account. 
     3.2 You will be deemed to execute this Agreement by clicking the “Accept” option on the Application asking you if you have read, understood and intend to be bound by this Agreement. If you do not agree with these Terms and Conditions please click the “Decline” option on the Application. Please note that you will not be able to access the Services if you decline these Terms and Conditions.
    3.3 If you are executing this Agreement on behalf of a company, government, organisation or other legal entity you represent and warrant that are authorised to do so and have the authority to bind such entity to this Agreement, in which case the words “you” and “your” as used in this Agreement shall refer to such an entity.
    3.4 By downloading the Application and opening an Account, you agree to comply with and be bound by these Terms and Conditions governing the provision of Services by us and affirm that the Terms and Conditions herein are without prejudice to any rights we may have in law in respect to the Services.

4. Services

   
4.1 Boya shall provide the User with the Application to enable the User to link his debit card, credit card, bank account and/or mobile money account to the Account to enable the User to transfer money to the User and third parties and make payments for various services, including parking, electricity, airtime and payment for goods, anywhere, anytime.
   4.2 Boya reserves the right to offer additional Services through the Application at any time. Further, Boya reserves the right to stop providing any Services to you or add or create new limits to the Services at any time. Where Boya discontinues a Service, where reasonably possible, we will give you advance notice of the discontinuation.

5 Eligibility for Use
   5.1 Our Services can only be utilized by persons over the age of 18 years. We reserve the right to verify your status. 
   5.2 Persons who wish to utilize our Services must have a bank account or mobile money account registered in Kenya or any other jurisdiction that Boya may set up its application.

6 Opening your Account 
   
6.1 For you to access our Services, you have to create an account with us.
   6.2 In creating an account with Boya, you shall provide us with your Credentials, including user name, identity card or passport number, location, a valid email address, mobile telephone number and any other details we may require from time to time.
7 Closing your Account
    
7.1 You may close your Account at any time by making a request to the Application through your Account profile. Any incomplete or pending transactions must be completed or cancelled before you close your Account. We shall not be liable for any loss or liability you or a third-party incurs as a result of cancelled transactions on account of the closure of your Account and you hereby agree to indemnify and hold us harmless from any losses resulting from such cancelled transactions.
   7.2 You may not close your Account if the Account:
             7.2.1 is subject to an internal investigation by Boya;
             7.2.2 is subject to a criminal investigation; or
             7.2.3 if you have a pending transaction or open dispute or claim.

8 Fees
    8.1 You hereby agree to pay the service Fee payable in connection with the use of the Services. The Service Fee for each Service will be displayed on the App before a transaction is authorised. 
    8.2 The Service Fee shall be directly debited from your debit card, credit card, bank account or mobile money account. You hereby irrevocably and unconditionally authorise Boya to debit the Service Fee from your debit card, credit card, bank account or mobile money account. 
   8.3 We shall be entitled to set and charge Service Fee, in connection with your use of the Services and from time to time amend or vary our Service Fee. If we decide to vary or amend our Service Fee, the Service Fee payable on any new application for Services will be displayed on the Application. Boya will use reasonable endeavors to try notify you of any changes in relation to the Service Fee within a reasonable period before such changes are implemented including displaying notices of the changes on the App. By continuing to use the Services you are agree to pay the varied or amended Service Fee. You agree to pay all other fees, expenses and taxes, duties, impositions and expenses incurred in complying with your Requests.


9 Obligations of the User
    
9.1 You shall, at your own expense, provide and maintain in safe and efficient operating order your device for the purpose of accessing the Application and the Services.
    9.2 You shall be responsible for ensuring the proper performance of your device. Boya shall neither be responsible for any loss, errors or failures caused by any malfunction of your device and nor shall we be responsible for any computer virus or related problems that may be associated with the use of the Application, the Services or device.
   9.3 You shall be responsible for charges due to any service provider providing you with connection to its network and we shall not be responsible for losses or delays caused by any such service provider.
   9.4 You shall follow all instructions, procedures and terms contained in this Agreement and any document provided by us concerning the use of the Application and the Services.
   9.5 You hereby agree and acknowledge that you shall be solely responsible for the safekeeping and proper use of your device and for keeping your Credentials secret and secure. You shall ensure that your Credentials do not become known or come into possession of any unauthorized person. We shall not be liable for any disclosure of your Credentials to any third party and you hereby agree to indemnify and hold us harmless from any losses resulting from any disclosure of your Credentials.
   9.6 You shall take all reasonable precautions to detect any unauthorized use of the Application and Services. To that end, you shall ensure that all communications from us, concerning your transactions, are examined and checked by you or on your behalf as soon as it is practicable after receipt. You shall immediately inform us in the event that:
       9.6.1 You have reason to believe that your Credentials are or may be known to any person not authorized to know the same and/or have been compromised; and/or
       9.6.2 You have reason to believe that unauthorized use of the Services has or may have occurred or could occur and a transaction may have been fraudulently input or compromised.
    9.7 You shall at all times follow the security procedures notified to you by us 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 authorized to do so.

10 Unauthorized Transactions
    
10.1 You should immediately notify Boya if you believe that there has been an Unauthorized Transaction or unauthorised access to your Account. Upon notification, Boya will commence investigations to determine whether there has been an Unauthorized Transaction or unauthorised access in your Account. Further, Boya shall take all reasonable steps necessary to stop the transaction including cancelling the transaction until investigations are completed.
   10.2 We will complete our investigation within fourteen (14) Business Days of the date we received your notification of the Unauthorized transaction or unauthorised access and inform you of your decision within two (2) days after completing out investigation. 
   10.3 Upon the termination of the investigation, Boya may take any necessary steps including but not limited to taking up criminal and civil action against the unauthorized access or transaction.

11. Errors.
If you erroneously send a payment to the wrong party or send a payment for the wrong amount your only recourse will be to contact the party to whom you sent the payment and ask them to refund the payment. Boya will not reimburse you or reverse a payment that you have made in error.

12 Limited License.
  
12.1 In consideration of you agreeing to abide by the terms of this Agreement, we grant you a non-transferable, non-exclusive license to use the Application on your device, subject to this Agreement.
  12.2 Except as expressly set out in this Agreement, you agree:
             12.2.1 not to rent, lease, sub-license, loan, translate, merge, adapt, vary or modify the Application;
             12.2.2 not to make alterations to, or modifications of, the whole or any part of the Application, or permit the Application or any part of it to be combined with, or become incorporated in, any other programs;
             12.2.3 not to disassemble, decompile, reverse-engineer or create derivative works based on the whole or any part of the Application 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 Application with another software program, and provided that the information obtained by you during such activities:
             a) is not unnecessarily disclosed or communicated without our prior written consent to any third party; and
            b) is not used to create any software that is substantially similar to the Application;
   12.2.4 to include our copyright notice on all entire and partial copies you make of the Application on any medium;
   12.2.5 not to provide or otherwise make available the Application in whole or in part (including object and source code), in any form to any person without prior written consent from us; and 
   12.2.6 to comply with all technology control or export laws and regulations that apply to the technology used or supported by the Application or any Services, together with the Restricted Activities.

13 Restricted Activities 

     13.1 You are not permitted to, and it is a breach of this Agreement to:
            13.1.1 use the Application 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 Application , any Service or any operating system;
            13.1.2 infringe our Intellectual Property rights or those of any third party in relation to your use of the Application or any Service, including the submission of any material (to the extent that such use is not licensed by this Agreement);
           13.1.3 transmit any material that is defamatory, offensive or otherwise objectionable in relation to your use of the Application or any Service;
           13.1.4 use the Application or any Service in a way that could damage, disable, overburden, impair or compromise our systems or security or interfere with other users; and
           13.1.5 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.
   13.2 If we notice the performance of a Restricted Activity by any User, we may take the following steps at our sole discretion:
            13.2.1 close, suspend, or limit your access to your Account or the Services; 
            13.2.2 refuse to provide the Services to you now or in the future;
            13.2.3 and/or institute a civil claim for damages on breach of contract or any other relief available to us. 

14 Processing of Personal Data
      14.1 By executing this Agreement, you consent and authorise Boya to Process your Personal Data in accordance with the Privacy Policy which can be obtained via https://www.boya.co/privacy-policy. By downloading the App and using the Services you confirm that you have carefully read and understood the Privacy Policy and agree to be bound by its terms. 
     14.2 Boya may request access to your contacts, messages, microphone and any such application that Boya may require from time to time for the operation of the Application. By consenting to such access, you grant Boya unlimited access to any information that is contained in any of these applications.
     14.3 From time to time, Boya may share the information collected from the use of the Application and share it with Third-Party Applications for marketing and analytical purposes. By accepting these Terms and Conditions you hereby authorize Boya to share information pertaining to the use of your account to Third-Party Applications.

     14.4 Boya takes no responsibility for the accuracy of the data acquired from the access granted by you in Clause 14.2 and transmitted to Third-Party Applications in accordance to Clause 14.4 of this Agreement.

15 Account Statements.
 
15.1 A statement and activity report shall be made available to you upon a written Request to Boya via support@boya.co. Your statement shall show the transactions made by you within the three (3) months preceding the Request unless the Request stipulates otherwise. 
 15.2 You must check your statements carefully and notify Boya as soon as possible when you encounter any transaction or entry which appears to you to be wrong.
 15.3 Save for manifest error, a statement issued to you in respect of your Account shall be conclusive evidence of the transactions carried out on your Account for the period covered in the statement.

16 Your Liability
You are responsible for all claims, fees, fines, penalties and other liability incurred by Boya, a User, or a third party caused by or arising out of your breach of this Agreement, and/or your use of the Services. You agree to reimburse Boya, a User, or a third party for any and all such liability.

17 Limitation of Liability.
 
17.1 Boya shall not be liable for any loss occurring from any instructions given by you on your Account upon the authentication of your Credentials and you hereby agree to indemnify and hold us harmless from any losses resulting from the said transaction.
 17.2 Boya shall not be liable for any loss suffered by you should your device fail or should the Services be interfered with or be unavailable by reason of a network failure, or any other circumstances whatsoever not within Boya’s control including, without limitation, Force Majeure, network interruption, terrorist or any enemy action, device failure, loss of power, adverse weather or atmospheric conditions, and failure of any public or private telecommunications system.
 17.3 Under no circumstances shall Boya be liable to you for any consequential, incidental, collateral, punitive or exemplary loss or loss of revenue, business opportunity or profit or anticipated goods 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 Boya.
 17.4 Notwithstanding the provisions of this Agreement, Boya’s maximum aggregate liability under this Agreement shall not exceed fifty percent (50%) of the Service Fee payable in the past twelve (12) months prior to the event giving rise to the liability. 

18 Indemnity 
 
18.1 In consideration of Boya complying with your instructions or Requests in relation to your Account, you undertake to indemnify Boya and hold it harmless against any loss, charge, damage, expense, fee or claim which Boya suffers or incurs or sustains thereby and you absolve Boya from all liability for loss or damage which you may sustain from Boya acting on your instructions or requests or in accordance with these Terms and Conditions.
 18.2 The indemnity in Clause 18.1 shall also cover the following:
        18.2.1 all demands, claims, actions, losses and damages of whatever nature which may be brought against Boya 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 device, 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 Boya’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 Boya;
       18.2.2 any loss or damage that may arise from your use, misuse, abuse or possession of any Third-Party Application, including without limitation, any operating system, browser software or any other software packages or programs;
       18.2.3 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 device;
      18.2.4 any loss or damage occasioned by the failure by you to adhere to these Terms and Conditions and/or by supplying of incorrect information or loss or damage occasioned by the failure or unavailability of third party facilities or systems or the inability of a third party to process a transaction or any loss which may be incurred by Boya as a consequence of any breach by these Terms and Conditions; and
      18.2.5 any damages and costs payable to Boya in respect of any claims against Boya for recompense for loss where the particular circumstance is within your control.

19 Termination.
  
19.1 Boya may at any time, upon notice, terminate or vary its business relationship with you and close your Account and in particular but without prejudice to the generality of the foregoing Boya may cancel any payments to pending transactions despite your authorisation for payment.
  19.2 Boya may also terminate your Account, pursuant to:
      19.2.1 an order or instruction of or a recommendation from the government, court, regulator or other competent authority;
      19.2.2 the breach of any terms of this Agreement;
      19.2.3 your Account becoming inactive or dormant;
      19.2.4 your demise, subject to the production of grant letters of administration and a death certificate by your personal representative;
      19.2.5 Boya’s decision 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
      19.2.6 where such a suspension or variation is necessary as a consequence of technical problems or for reasons of safety.

20 Assignment
This Agreement is personal to the parties and neither party shall assign, transfer, subcontract, delegate or deal in any manner with any of its rights and obligations under this Agreement.

21 Amendment
These Terms and Conditions may be amended or varied by Boya from time to time and the continued used of the Services constitutes your agreement to be bound by the terms of any such amendment or variation. Boya shall take all reasonable steps to inform you of any amendment or variation to these Terms and Conditions.

22 Updates 

From time to time, Boya may issue updates to the Application through  apple store, google play and/or other relevant channels. Boya shall not be liable for any system failure, loss or otherwise occurring from or in connection with updates issued to the Application.Depending on the update, you may not be able to use the Services until you have downloaded the latest version of the App and accepted any new terms and conditions.

23 Communication with Boya
     23.1 If you wish to contact us in writing, you can send us an email at support@boya.co.
     23.2 If we have to contact you or give you notice in writing, we may do so through the Application; by e-mail or SMS to the email address or phone number, respectively, provided to us by you upon registration.

24 Notices
 
24.1 Where notice is required to be given by any party to this Agreement, the notice shall be in writing and delivered in the methods listed in Clause 24.
 24.2 A party may send any notice required under this Agreement by hand delivery, registered post, email or SMS.
 24.3 A notice issued in accordance with clauses 24.2 above shall be deemed to be delivered upon:
    24.3.1 Signature of a delivery receipt if delivered by hand;
    24.3.2 Proof of postage for registered post; and
    24.3.3 If sent by email or SMS at the time of transmission.

25 General 
 
25.1 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.
 25.2 No failure by Boya 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.
 25.3 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.

26 Entire Agreement
These Terms and Conditions constitute the entire agreement between you and us and supersede and extinguish all previous agreements, promises, assurances, warranties, representations and understandings between us, whether written or oral, relating to its subject matter.

27 Governing Law 
This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the Laws of Kenya.

28 Dispute Resolution 
 
28.1 The parties shall use their best efforts to amicably settle any dispute arising out of or in connection with this Agreement (including any question regarding its interpretation existence validity or termination).
 28.2 If such dispute cannot be settled within ten (10) days after receipt by one party of the other party's request for such amicable settlement, it may be referred by any party to and finally resolved by arbitration in accordance with Clause.            28.3 to 28.6 below.
 28.3 The arbitration tribunal shall consist of one arbitrator to be appointed by agreement between the parties within ten (10) days of the first date when a party gives notice of the identity of the proposed arbitrator. Failing such agreement, the arbitrator shall be appointed (upon application by any party) by the Chairman of the Chartered Institute of Arbitrators of Kenya. The venue and seat of the arbitration shall be Nairobi. Except as stated herein, arbitration proceedings shall be conducted in accordance with the rules or procedures for arbitration of the Chartered Institute of Arbitrators, Kenya Branch. If for any reason an arbitrator is unable to perform his function, a substitute shall be appointed in the same manner as the original arbitrator. The language of the arbitration shall be English.

 28.4 The award of the arbitrator shall be final and binding upon the parties and any party may apply to a court of competent jurisdiction for enforcement of such award. The award of the arbitrator may take the form of an order to pay an amount or to perform or to prohibit certain activities.
 28.5 The fees and expenses of the arbitrator shall be borne by the parties in equal shares.
 28.6 Notwithstanding the foregoing, a party is entitled to seek preliminary injunctive relief or interim or conservatory measures from any court of competent jurisdiction pending the final decision or award of the arbitrator.