K U U Z A TERMS + CONDITIONS
KUUZA Terms and ConditionsPlease read these terms and conditions (“Terms”) carefully. By clicking “accept,” you, an entity (“Customer” or “you”), are agreeing to, and to be contractually bound by these Terms. If you do not agree to be bound by these Terms, do not click “accept” and you may not access our Services (as defined below). As used in these Terms, Kuungana Technology Incorporated [1](“KTI” or “we”) and Customer may be individually referred to as a “Party” and collectively referred to as the “Parties.”
1. Definitions and Interpretation
1.1. In these Terms, unless the context otherwise requires, the following words and expressions shall have the following meanings: -
1.1.1. Affiliate means an entity that, directly or indirectly, controls, is under the control of, or is under common control with a party, where control means having more than fifty percent (50%) of the voting shares or other ownership interest, the majority of the voting rights of such entity, the ability to ensure that the activities and business of that entity are conducted in accordance with the controlling entity’s wishes or the right to receive the majority of the income of that entity on any distribution by it of all of its income or the majority of its assets on a winding up of that entity;
1.1.2. Confidential Information means, without limitation, all information, software, data, manuals, concepts relating to marketing methods, products, developments, business and financial affairs and trade secrets, and other information of value to a party and not generally known, (whether or not designated as “confidential information” by any Party and whether written, oral or in electronic form) and any other information clearly designated by a Party as “confidential information” or that is evidently confidential by its nature or the nature of its disclosure, and includes the terms of these Terms;
1.1.3. Customer Data means information or documentation provided by Customer to KTI including business information, financial information, accounting information, transaction information, social and community content, etc.
1.1.4. Dashboard Data means the Services information that the Customer has accepted and agreed to utilise including income, profit and expense reports, balance statements, account settings and such other information that may be availed from time to time at KTI’s discretion;
1.1.5. Financial Data means the Customer’s bank balance, cash balance, M-pesa balance, transactions, and account information accessible by the Kuuza App through direct input, Linked Accounts, M-pesa transaction messages or Third-Party Services.
1.1.6. Force Majeure Event means any event happening which is beyond the reasonable control of the parties and which negatively affects a Party’s performance of its obligations under these Terms and includes civil commotion, pandemic, war, an act of God and network failure which has not been occasioned by the fault of either party to these Terms;
1.1.7. Intellectual Property Rights means all Intellectual Property owned by KTI;
1.1.8. Intellectual Property means patents, utility models, rights to inventions, copyright and neighboring and related rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, topography rights, rights to use and protect the confidentiality of Confidential Information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;
1.1.9. Kuuza App means the Kuuza mobile application (including software, servers, and associated user interface) through which KTI shall offer its Services;
1.1.10. KYC means know your customer;
1.1.11. Marks means the trademarks, service marks, trade names, logos, slogans and other identifying symbols of KTI;
1.1.12. Notice means any physical or electronic communication, or legal notices related to these Terms that are provided to Customer through text or SMS, email or by other means.
1.1.13. PIN means the password, login ID, electronic identification signature or codes given to or chosen by a Customer to confirm their identity when accessing or using the Kuuza App;
1.1.14. Personal Data means any information in connection with these Terms that can reasonably be used to identify a natural person, or that may otherwise be considered personal data;
1.1.15. Services means provision of a bookkeeping tool with M-Pesa integration, the ability to separate business and personal financial data, digestible and consultative reporting of your financial position and provision of a digital library, access to aligned products at a discounted rate and real-life gamification through the KUUZA App and other services as shall be determined by KTI from time to time;
1.1.16. Third-Party Services means services and data provided by third parties connected to or provided through the Kuuza App. Third-Party Services include but are not limited to financial institutions, telecoms, payment processors and e-commerce platforms;
1.1.17. Third Party Service Provider means shall mean third party service providers including financial institutions, payment processors and e-commerce platforms, KYC verification service providers, contractors and agents, used by KTI during the course of these Terms; and
1.1.18. Updates means any modification and or improvement made to the operation of the Kuuza App including but not limited to bug- fixes, modification on the user interface and security upgrades.
1.2. InterpretationThe following principles of interpretation shall apply to these Terms:
1.2.1. any reference to a section, paragraph and sub-paragraph shall, unless otherwise provided, be construed as references to the sections, paragraphs or sub-paragraph of these Terms;
1.2.2. any reference to any statute or statutory provision shall, save as otherwise expressed in these Terms, be construed as a reference to that statute or provision as it is amended consolidated extended or re-enacted from time to time and any orders regulations instruments or other subordinate legislation made from time to time under any statute provided that any such amendment consolidation extension or re-enactment does not have retrospective effect;
1.2.3. 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;
1.2.4. headings are only for ease of reference and shall not affect the interpretation of these Terms;
1.2.5. references to a person includes a natural person, corporate or unincorporated body where context allows;
1.2.6. references to indemnifying any person against any circumstance includes indemnifying and keeping him harmless from all actions claims and proceedings from time to time made against that person and all loss or damage and all payments costs and expenses made or incurred by that person as a consequence of or which would not have arisen but for that circumstance;
1.2.7. references to these Terms means these Terms and shall include any amendments made to these Terms and any agreement which is supplemental to these Terms;
1.2.8. the expression person includes a natural person body corporate state agency governmental authority or firm;
1.2.9. where any obligation pursuant to these Terms is expressed to be undertaken or assumed by any party, such obligation shall be construed as requiring the party concerned to exercise all rights and powers of control over the affairs of any other person which that party is able to exercise (whether directly or indirectly) in order to secure performance of that obligation; and
1.2.10. words importing the singular shall include the plural and vice versa.
2. The Services
2.1. Registration and Acceptance of these Terms
2.1.1. If a Customer meets all of the criteria indicated on the Kuuza App at the time of registration, the Customer may register for the Services by providing the information required and accepting these Terms.
2.1.2. The Services are intended for business entities and for individual consumers.
2.1.3. KTI may, at its sole discretion, refuse to allow any person to register for the Services, without providing reasons.
2.1.4. The acceptance of these Terms is materialized by checking a consent box on the Kuuza App.
2.1.5. By accepting these Terms, the Customer expressly acknowledges that they have carefully read the Terms, that they have understood them and that they accept them in their entirety and without reservation.
2.1.6. The Customer agrees that checking the consent box on the Kuuza App constitutes its electronic signature. The Customer also agrees that its electronic consent has and will have the same legal effect as a physical signature. The Customer consents to KTI providing Notices and account statements to it electronically and understand that this has the same legal effect as would physical delivery.
2.2. Provision of Customer Data
2.2.1. The Customer must provide Customer Data to apply for and maintain a Kuuza Account in the Kuuza App. Customer Data may include registered business name, business address, ownership details, contact information including email and phone number, tax identification number, the nature of the business, financial information and other business information that KTI may require or request from time to time.
2.2.2. The Customer must also provide certain Personal Data including the name and contact information of the Customer i.e., phone number and email address, personal addresses, date of birth, national identification number. We may also require that you provide certain documentary information used to verify Customer Data and Personal Data including company registration certificate and proof of address or personal identification.
2.2.3. The Customer agrees to provide the required information to open and maintain an account on the KUUZA App (Kuuza Account) and agrees to keep such information current.
2.2.4. The Customer confirms that by creating a Kuuza Account and providing Personal Data and Customer Data, it consents to the collection, processing and use of such data by KTI in line with the Kuuza App Privacy Policy and these Terms.
2.3. Verification of information
2.3.1. KTI relies on the accuracy of the information provided by the Customer when opening and maintaining its Kuuza Account.
2.3.2. We may deny your application, interrupt provision of the Services to you, or suspend or close your Kuuza Account where the information you provided is incomplete, inaccurate, or out of date.
2.3.3. The Customer is aware that failure to comply with request(s) of documentation before accepting these Terms or during the relationship may result either in the impossibility for KTI to provide the Services or the termination by KTI of the Services.
2.3.4. In the event of a change affecting the Personal Data or Customer Data the Customer must update his/her details on the Kuuza App as soon as possible.
2.3.5. The Customer agrees that the information and documents sent by KTI in the context of the implementation of this paragraph 2.3 may be retained by KTI and/or its Third-Party Service Provider, for the duration and under the conditions provided by applicable law.
2.4. Access to the Services
2.4.1. Access to the Services by a Customer requires their registration on the Kuuza App. The Customer undertakes to use the Services in compliance with these Terms.
2.4.2. Customers may: add, remove or manage book keeping or accounting data, view their income reports, expense reports, profit and loss reports and personal finance reports; export any of these reports; send sale receipts to customers, run reports, provide or update Customer Data, connect Customer’s bank account or M-Pesa account, consent to any new or updated terms or conditions in connection with the use of the Services or the Kuuza App or other agreements or policies in connection to the Kuuza App, consent to supplemental agreements, or consent to any additional terms and take actions specified in these Terms. Customers must not authorize the use of Customer’s Kuuza Account by any third party and/or any Prohibited Person.
2.4.3. Customers may transact and use the Services only for valid, lawful, bona fide business or personal purposes.
2.5. Access, Safeguards and Credentials
2.5.1. Customer will keep their Kuuza Account secure and not provide access to any other third party.
2.5.2. Customer will take all reasonable steps to safeguard the privacy, confidentiality, and security of their credentials.
2.5.3. Customer will ensure that he/she does not share his/her login credentials with any other person or third party.
2.5.4. As soon as the Customer becomes aware of a security breach or fraudulent access to its Kuuza Account or if his/her Kuuza Account has been compromised or misused or where it knows or believes his/her login credentials are compromised or lost, the Customer must reset the PIN and/or inform KTI to assist in resetting the PIN and/or blocking the Kuuza Account pending resolution of the security breach.
2.5.5. This blocking request must be made by email to support@kuuza.tech.
2.5.6. KTI cannot be held liable for the consequences of a blocking request that does not come from the Customer.
2.5.7. Customer is responsible and liable for any actions or failure to act if his/her Kuuza Account is compromised.
2.6. Security
2.6.1. You are responsible for maintaining the confidentiality and security of usernames, passwords and other access credentials which allow the use of Kuuza App and access to the Services. You understand and agree that you are liable for any unauthorized use of your Kuuza Account.
2.6.2. We may suspend access to your Kuuza Account or the Services at any time and for any reason, in our sole and absolute discretion, without prior Notice. Some of the reasons we may suspend access to your Kuuza Account include: if we believe your Kuuza Account has been compromised; if we believe that not doing so may pose a risk to you, KTI or any third parties; if Customer Data or Personal Data is incomplete, inaccurate, or out of date; if we believe you have violated these Terms or the law; or if we are required to do so by law.
3. CUSTOMER OBLIGATIONS AND RESPONSIBILITIES
3.1. GeneralSubject to the terms of these Terms, the Customer shall:
3.1.1. ensure that all Customer Data and Personal Data is current, accurate and complete;
3.1.2. keep all administrative login credentials for the Kuuza App confidential acknowledging that it shall be responsible for all the activity taking place in the Kuuza App under such credentials;
3.1.3. protect all Intellectual Property Rights of KTI which the Customer has access to;
3.1.4. use the Kuuza App solely as set forth in these Terms;
3.1.5. comply with the Kuuza App Privacy Policy and all applicable law in connection with their use of the Kuuza App and the Services;
3.1.6. use the Kuuza App and the Services only for valid, lawful business, personal, family, or household use;
3.1.7. be liable for any breach or violation of these Terms or any of the agreements, terms, and policies incorporated by reference.
3.1.8. communicate respectfully and refrain from using any form of disrespectful, harassing, abusive, or hate speech with KTI team members. If KTI receives reports of any such behavior by the Customer towards our team, we may suspend access to your Kuuza Account and the Services or close your Kuuza Account.
3.2. Supply and update of information
3.2.1. The Customer undertakes to provide KTI with all the information necessary for the proper performance of the Services and, more generally, to actively cooperate with KTI for the proper performance hereof. If the Customer does not comply with this obligation, KTI reserves the right to suspend the Services until the required information are obtained.
3.2.2. The Customer guarantees to KTI that all information that it provides to KTI, including those provided on the Kuuza App are accurate, up-to-date and true on the day they are communicated to KTI and are not vitiated by any misleading nature or likely to mislead.
3.2.3. If the information and/or documents provided become inaccurate or obsolete during the term of these Terms, the Customer undertakes to update them as soon as possible.
3.2.4. It is the Customer's responsibility to formally notify KTI of any change in the information concerning it. KTI is not liable for any damage that may result from an inaccuracy or change about which it has not been notified.
3.3. Compliance with regulations
3.3.1. The Customer undertakes to (i) comply with these the Terms, (ii) comply with the laws and regulations in force and not to infringe the rights of third parties or public order and (ii) only perform activities that comply with the applicable laws and regulations.
3.3.2. The Customer shall indemnify KTI and shall pay any fine, financial penalty or damages incurred by KTI resulting from an activity of the Customer that would be illegal, unlawful or unethical.
3.4. Use of the Kuuza App and Services
3.4.1. The Customer undertakes: a) not breach or attempt to breach, scan or test the vulnerability of the security system and related systems of the Kuuza App; b) not to access or attempt to access any data that is not intended for the Customer; c) to refrain from interfering with the normal functioning of the Kuuza App and or performing any action that could cause the interruption or deterioration of one or more Services; d) not to upload to the Services, display, send by email or otherwise transmit any material containing software viruses or other computer codes, files or programs designed to interrupt, destroy or limit the functionality of the Kuuza App; e) not to attempt to interfere with the Services of any other customer or user, host or network, including, but not limited to, exposing the Services to a virus, creating a server overload, flooding the server, flooding the messaging services.
3.4.2. The Customer acknowledges having read about the characteristics and constraints, in particular technical, of all the Services. The Customer is solely responsible for its use of the Services.
3.4.3. The Customer is informed and accepts that the use of the Services requires an internet connection, and that the quality of the Services depends directly on this connection as well as on mobile phone hardware and/or third-party software, for which the Customer is solely responsible.
3.5. Personal use of the Kuuza App and ServicesThe Customer undertakes to use the Kuuza App and its Services on a strictly personal basis, and not to allow any third party to use them on his/her own behalf, except to bear full liability for such use.
4. KTI Obligations
4.1. Subject to the Customer abiding by these Terms, KTI agrees to:
4.1.1. provide the Services to the Customer;
4.1.2. provide technical advice and assistance to the Customer as may be reasonably necessary for the use of the Services;and
4.1.3. take all reasonable steps to ensure that any system malfunctions to the Kuuza App are rectified in the shortest time possible.
4.2. KTI does not guarantee to the Customer that the Services will be completely free of errors or defects or be continuously available. In addition, the Services are standard and are therefore not offered solely for a given Customer or to specifically meet its needs and expectations.
4.3. KTI undertakes to:
4.3.1. do its best to ensure the security of the Kuuza App;
4.3.2. inform the Customer of any reasonably foreseeable difficulty, in particular with regard to the implementation of the Services or the proper functioning of the Kuuza App;
4.3.3. notify Customers in good time when carrying out Updates to the Kuuza App; and
4.3.4. regularly carry out checks to verify the functioning and accessibility of the Kuuza App.
4.4. KTI reserves the right to at any time modify the technical means of access to the Services and/or to the Kuuza App based, in particular, on the evolution of the technology or its service offer. It is the Customer's responsibility to ensure that the software or telecommunications tools or hardware at its disposal are adapted to these developments.
5. Fees
5.1. Kuuza App’s general features are available free of charge to the Customer. General features include access to basic reporting (daily and weekly insights), access to five articles in the digital library and such other features as KTI may determine from time to time.
5.2. Kuuza App’s premium features are available at a subscription fee of KES. 238/USD 2.12 per month for 11 out of 12 months per year. The premium features include access to basic reporting plus monthly, quarterly + annual insights, ability to export reports, access to full digital library 200+ articles and such other features as KTI may determine from time to time.
5.3. The option to register for the general features or the premium features will be offered when creating a new Kuuza Account on the Kuuza App. You may upgrade to a premium Kuuza Account at any time by selecting the service and paying the subscription fees.
5.4. Subscription fees will be disclosed to you when opening your Kuuza Account or when you start using a new Service. We may update, add, or change our subscription fees upon 30 days' notice to you.
5.5. Failure to pay the subscription fees will suspend your access to the premium features until such time as payment is made.
6. Gamification
6.1. The Kuuza App enables Customers to participate in activities in exchange for badges that are visible on the Customer’s profile and can be displayed at the Customer’s business location.
6.2. KTI may determine when, how and under what circumstances you may qualify for badges and KTI may modify these conditions with or without notice to you. The badges will be awarded to the Customer based on their level of interaction with the Kuuza App.
6.3. The basis used to determine the level of interaction required to receive a badge can be modified by us from time to time with or without notice to you. Benefits arising from obtaining a badge may be subject to caps, revocation, or forfeiture as determined by KTI from time to time.
7. Changes to the Services and Notices
7.1. We may add Services or modify existing Services at any time. Some of these Services will be subject to additional terms. You acknowledge and understand that in order to use certain Services, you must agree to the additional terms that we will provide, and which will be incorporated by reference and form a part of these Terms.
7.2. We do not guarantee that each of the Services will always be offered to you, that they will be available to you, or that you will qualify or be able to utilize any particular Service. Services will change from time to time, and certain Services may be discontinued, or others may be added.
7.3. We will provide Notices regarding certain activity and alerts to your Kuuza Account electronically through your Kuuza Account, email, push notification, or via text or SMS to the contact information provided to us by you.
7.4. Notices regarding legal terms, and any other important Notices related to your Kuuza Account will be sent to you through your authorised email or to your mobile phone through push notifications from the Kuuza App or through text or SMS messages and are considered received 24 hours after they are sent. You understand that you may not use the Services unless you consent to receive Notices electronically. You may withdraw consent to receive Notices electronically by closing your Kuuza Account.
7.5. We may send Notices to the Customers mobile phones through push notifications from the Kuuza App, email, text or SMS messages to the mobile phone numbers provided to us by you. These Notices may include alerts about Services and may allow you to respond with information about your Kuuza Account. You may elect to not receive certain Notices via text or SMS, but this may limit the use of certain Services or may increase risks to you including losses caused by lost or stolen login credentials.
7.6. We may send emails or SMS messages to you in connection with use of login credentials (such as through multi-factor authorization), to allow us to verify your identity, to provide other information about your Kuuza Account and for other purposes that we identify and that are available through your Kuuza Account.
7.7. You are required to maintain updated mobile device operating systems to receive Notices correctly. You are responsible for all costs imposed by you respective internet or mobile service providers for sending or receiving Notices electronically.
8. Updates to your information
8.1. You will keep Customer Data and Personal Data current, complete, and accurate in your Kuuza Account at all times; whether you have general or premium access.
8.2. At any time during your use of the Services, we may require additional information from you, including Customer Data (such as copies of government-issued identification, business licenses, or other information related to your business) and Personal Data (such as copies of government-issued personal identification and proof of address) to verify or validate information you have provided and verify your identity
. 9. Content
9.1. Information provided on the Kuuza App and in other communications from us is for information purposes only. We believe it to be reliable, but it may not always be entirely accurate, complete or current. We may change or update information from time to time without Notice.
9.2. You should verify all information on the Kuuza App and in other communications from us before relying on it. You are solely responsible for all of your decisions based on information provided on the Kuuza App and in other communications from us, and we have no liability for such decisions.
9.3. Information we provide on the Kuuza App and in other communications to you may contain third-party content or links to third-party sites and applications. We do not control any such third-party content, sites, the Kuuza App, and we are not responsible or liable for the availability, accuracy, completeness, or reliability of third-party content or for damages, losses, failures, or problems caused by, related to, or arising from such third-party content or the products or practices of third parties.
10. PROCESSING OF COMPLAINTSAny claim related to the provision of the Services must be sent by the Customer to KTI's customer serviceby email to the following address: support@kuuza.tech
11. TELEPHONE RECORDINGSTelephone conversations with KTI staff may be recorded by KTI or any company appointed for this purpose, in order to improve the quality of the Services for the Customer.
12. INTELLECTUAL PROPERTY1
2.1. KTI and its Affiliates are and shall remain the owners of all right, title and interest in all the Intellectual Property Rights connected to or arising from these Terms and all data generated or provided pursuant to these Terms.
12.2. The Customer shall give notice to KTI of any Intellectual Property Rights infringement as soon as reasonably practicable on becoming aware of it.
12.3. The Customer agrees that no intellectual property right is transferred to the Customer concerning any of the elements of the Services and the Kuuza App made available to it under these Terms, including software, structures, infrastructure, source codes, databases, know-how, user interface, photos, brand, interactive elements or any content of any kind (texts, images, visuals, music, logos, brands, database, etc.) operated by KTI and the technical documentation that may be provided by KTI to the Customer.
12.4. Subject to acceptance of these Terms and where applicable the payment of the subscription fee for the premium features of the Kuuza App, KTI grants the Customer a personal, non-exclusive and non-transferable licence to use the Kuuza App and Services for its own purposes only. This right is granted for the duration of provision of the Services and shall terminate once the Customer ceases to use the Services.
12.5. The Customer shall refrain from carrying out:
12.5.1. any adaptation, modification, duplication, decomplication, disassembly or reproduction of the Services, the Kuuza App, regardless of its nature, extracting it in whole or in part and, in general, is prohibited from any act that would infringe the rights of KTI and/or its suppliers;
12.5.2. any reproduction of the Kuuza App, by any means whatsoever and on any medium whatsoever;
12.5.3. any form of use of the Kuuza App and associated documentation, in any manner whatsoever, for the purposes of design, production, distribution or marketing of similar, equivalent or substitute software;
12.5.4. any adaptation, modification, transformation, translation, or arrangement of the Kuuza App for any reason whatsoever, in particular with a view to the creation of derivative or entirely new software, including to correct errors;
12.5.5. any direct or indirect transcription, or any translation of the Kuuza App into other languages;
12.5.6. any modification or circumvention of the protection code such as, in particular, access codes or usernames; and/or
12.5.7. any deletion, partial or total modification of existing notices relating to copyright, trademark rights and more generally intellectual property rights, affixed to the Kuuza App;
12.5.8. decompiling, disassembling, reverse engineering or otherwise attempting to derive the source code or underlying technology, methodologies or algorithms of the Kuuza App; or
12.5.9. sublicense, lease, rent, sell, give, or otherwise transfer or provide the Kuuza App (or part of it) to any third party.
12.6. The Customer authorizes KTI to mention its name and logo as a commercial reference and for the promotion of its activities on any medium and worldwide.
13. PROHIBITED USAGE & CONDUCT
13.1. Your Kuuza Account and the Services may not be (a) used for any purpose that is unlawful or prohibited by these Terms, (b) used for the recording any transaction involving any illegal activities, (c) provided to or used for any transaction involving a Prohibited Person, or (d) used by third parties unaffiliated with Customer, or (e used for any purpose not related to the business of Customer.
13.2. Customer agrees to not use the Services to:
13.2.1. conduct any business that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable;
13.2.2. impersonate any person or entity, including, but not limited to, a KTI official, fellow user, or falsely utter or otherwise misrepresent your affiliation with a person or entity;
13.2.3. forge headers or otherwise manipulate identifiers in order to disguise the origin of any content transmitted through the Service;
13.2.4. conduct any business that causes or permits the uploading, posting, emailing, transmission or otherwise making available any content or information that you do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
13.2.5. conduct any business that infringes any patent, trademark, trade secret, copyright or other proprietary rights (“Rights”) of any party;
13.2.6. conduct any business whether unsolicited or not, relating to or remotely connected to SPAM, junk mail, pyramid schemes, pornography, gambling or any other form of solicitation;
13.2.7. conduct any business that causes or permits the uploading, posting, emailing, transmission or otherwise making any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
13.2.8. conduct any business that interferes with or disrupts the Service or servers, or networks connected to the Service, or disobeys any requirements, procedures, policies or regulations of networks connected to the Service;
13.2.9. conduct any business that intentionally or unintentionally violates any applicable local, or international law, including, but not limited to, laws and regulations promulgated by any regulations having the force of law;
13.2.10. collect or store personal data about other users without their express authority.
13.3. We will not approve and may terminate Kuuza Accounts that we know or believe are engaged in any illegal activities or otherwise do not comply with these restrictions.
13.4. You agree to pay all fines assessed against KTI for your violation of the restrictions and requirements of this section or any use of the Services in connection with any illegal activities.
14. Consent to Collection, Use and Processing of Data
14.1. We process Personal Data in accordance with the Kuuza App Privacy Policy. You acknowledge, understand, and agree that we will collect, process, and share Customer Data and Personal Data to provide the Services in accordance with these Terms and the Kuuza App Privacy Policy.
14.2. KTI and/or its Third-Party Service Providers may collect certain Customer Data, related to transactions made by the Customer through M-pesa.
14.3. To facilitate the collection and use of data:
14.3.1. the Customer, its employees, and/or appointed agents authorize KTI and its Third-Party Service Providers to use the Customer data and Personal Data as contemplated by and in furtherance of the objectives of these Terms and to provide the Services, including for identifying and tracking participating Customer members activity;
14.3.2. Customer authorizes KTI to list Customer as a participating Customer on the Kuuza App;
14.3.3. Customer permits the monitoring, collection, use, disclosure and sharing of Customer Data and Personal Data for the purpose of enabling the Services;
14.4. KTI agrees that it will only use Customer Data and Personal Data provided to it in connection with fulfilling its obligations to the Customer pursuant to these Terms and as outlined in the Kuuza App Privacy Policy.
14.5. Customer consents to the access and processing of Customer Data and Personal Data collected in connection with the Services, and acknowledges and agrees that KTI and its Third Party Service Providers may use such data for purposes of generating anonymous, aggregated, statistical models and compilations, trend analyses, program performance analyses, benchmarking, the development of case studies and for internal business purposes so long as such data is not publicly attributable to and no reference is made to the Customer, and that such data may be otherwise used by KTI and its Third Party Service Providers in accordance with these Terms and the Kuuza App Privacy Policy.
15. Data Protection LegislationKTI shall at all times comply with the Data Protection Act, 2019 and the regulations made thereunder.
16. SUSPENSION
16.1. KTI may, with reasonable notice where practicable, suspend the availability of the Service to the Customer wholly or partially for any valid reason, including without limitation, where (i) the Customer breaches these Terms, (ii) the Service is used in a manner contrary to the representations made to KTI by the Customer or in a manner inconsistent with the conditions of any approval granted to the Customer; (iii) investigations are contemplated or ongoing and KTI reasonably believes that suspension of the service is likely to facilitate the investigations; (iv) any approval for the Service granted to the Customer is subsequently revoked or expires.
16.2. In the event of suspension, KTI shall give the Customer reasonable notice (Suspension Notice) to remedy the cause of the suspension failure to which KTI shall be at liberty to terminate these Terms.
16.3. Upon conclusion of investigations, KTI may either reinstate the Services or terminate the Services in accordance with the provisions of paragraph 17.
17. TERMINATION
17.1. These Terms come into effect from the date Customer checks a consent box on the Kuuza App when registering for a Kuuza Account.
17.2. These Terms shall cease to have effect on the Customer in the following circumstances:
17.2.1. when the Customer opts to close their Kuuza Account; or
17.2.2. upon closure of a Customer’s Kuuza Account by KTI if the Customer materially breaches these Terms and fails to cure such breach within thirty (30) days after notice of said breach.
17.3. For the purposes of paragraph 17.2.2 material breach means a breach that is serious and has an effect, substantial or otherwise on the performance of these Terms in the reasonable opinion of KTI.
17.4. KTI may, by notice to the Customer, discontinue the Kuuza App and the Services. The expiration or termination of the Services shall be without prejudice to all accrued rights and obligations of the Parties under these Terms and to all obligations under these Terms expressed to continue or take effect after expiration or termination. This paragraph shall survive the termination of the Services.
18. Amendment of these Terms
18.1. KTI reserves the right to at any time amend all or part of these Terms.
18.2. Any proposed amendment of these Terms will be sent by KTI to the Customer, on the Kuuza App and/or by email, no later than one (1) month before the date proposed for its entry into force. The Customer shall be deemed to have accepted the proposed amendment if it has not notified KTI before the proposed effective date of these amendment, that it has not accepted them.
18.3. If a change is not acceptable to Customer, the Customer can terminate the Services by deleting their Kuuza Account from the Kuuza App.
18.4. KTI may not under any circumstances be held liable for any damage, in any respect whatsoever, in connection with the modification of the Terms if the Customer refrains from terminating the Services and continues to use the Services after the effective date of the modifications.
19. Warranties and Representations
19.1. By registering for the Services, the Customer represents and warrants that:
19.1.1. he/she has the authority to enter into these Terms and to fully perform its obligations hereunder;
19.1.2. these terms do not and will not conflict with any of Customer’s obligations to any third parties;
19.1.3. he/she complies and will comply with all applicable laws and regulations;
19.1.4. he/she is not engaged in any illegal activities;
19.1.5. he/she is authorized to provide information about his/her business, enter into binding agreements and manage the Customer’s Kuuza Account;
19.1.6. he/she is not a Prohibited Person. For the purpose of this paragraph, a Prohibited Person is any individual or organization that is subject to sanctions in any country in the world, or is subject to any law, regulation, or other list of any government agency that prohibits or limits KTI from providing a Kuuza Account or Services to such person or from otherwise conducting business with the person;
19.1.7. all information you provide to us is and will be current, accurate, and complete;
19.1.8. he/she will use its Kuuza Account exclusively for business purposes or personal, family, or household use; and
19.1.9. he/she has reviewed these Terms and all other terms, agreements, or policies incorporated by reference.
20. Limitation of Liability and Indemnity
20.1. The Customer acknowledges that KTI is only responsible for providing the Services and is not responsible for any damages, loss arising from or related to the Services.
20.2. The Customer acknowledges that KTI’s acceptance of the Customer as a Customer shall not be interpreted as an advice or opinion as to the legality of the Services and/or of the Customer’s intended use of the Services. The Customer shall indemnify and hold KTI harmless from any loss resulting from the use of the Services in any other intended manner other than as set out in these Terms.
20.3. KTI and its Third-Party Service Providers provide their respective services “as is.” KTI and its Third-Party Service Providers disclaim any and all promises, representations, and warranties, express or implied, with respect to these Terms and any other data, information, or other material furnished to customer hereunder and warranties of non-infringement, title, customer ability, or fitness for a particular purpose or use. Neither KTI nor any of its Third-Party Service Providers warrant that the Kuuza App, any internet connections, or third-party connectivity, will operate uninterrupted or error-free. KTI and its Third-Party Providers disclaim any and all liability arising from the transmission of information over the internet, or any impairment or disruption of the internet. If and to the extent that the services provided hereunder are delayed, suspended or terminated for reasons beyond KTI’s or its Third-Party Service Provider’s reasonable control, including the inability or unwillingness of third parties to provide supportive services, KTI and its Third-Party Service Providers hereby disclaim any and all liabilities associated therewith.
20.4. In no event shall KTI or its Third-Party Service Providers be liable to Customer or to any third party for any loss of profits, business interruption, or loss of business information; any incidental, special, exemplary, or consequential damages; or any claims or demands brought against Customer, even if KTI has been advised of the possibility of such damages.
20.5. Without prejudice to the foregoing, the Customer shall indemnify and keep KTI indemnified from, defend KTI against, and pay any final judgment awarded against KTI, resulting from third party claims arising from the use of the Services leading to loss or damage (including consequential loss or damage) where the proximate cause of such loss or damage is attributable to the Customer’s negligence, recklessness, indifference, delay or failure.
20.6. Customer shall defend, indemnify and hold harmless KTI and its Third Party Service Providers, and their respective affiliates, directors, officers, employees, agents, successors, heirs and assigns (collectively, the “Indemnitees”), from and against any and all losses, costs, taxes, liabilities, damages, fines, injuries, interest or expenses (including reasonable attorneys’ fees and costs of investigation and defense) suffered or incurred by any Indemnitee (collectively, “Losses”) to the extent such Losses are attributable to any Customer or third party claims, actions or proceedings (collectively, “Third Party Claims”) arising from, based upon or related to: (a) a claim that any Customer’s trademark infringes or otherwise violates any third party intellectual property or other proprietary rights or privacy rights or otherwise violates law; (b) any violation of law (including applicable data protection laws) or breach of any covenant, representation or warranty hereunder by Customer; or (c) any fraudulent or unauthorized transactions access to the Kuuza Account. Customer shall pay any judgments, settlement amounts, reasonable legal fees and other costs and expenses of litigation incurred by an Indemnitee of such third-party Claims. The foregoing indemnity obligation shall survive any termination or expiration of these Terms.
20.7. Notwithstanding any provision set out in these Terms, KTI’s total liability for any cause of action, claim, damages, fees, costs or expenses, excluding claims under this section (Indemnification), shall be limited to the amount of any subscription fees paid by Customer to KTI under this Terms during the six (6) months immediately preceding the date on which the claim at issue accrued.
21. Confidentiality Obligations
21.1. The Parties, to the extent of their contractual and lawful right to do so, will exchange proprietary or confidential information as reasonably necessary for each to perform its obligations under these Terms. All information relating to these Terms provided by either party (the Disclosing Party) to the other (the Receiving Party), whether oral or written, and when identified as confidential or proprietary, is hereby deemed to be confidential and proprietary information.
21.2. Save as set out in these Terms and in the Kuuza App Privacy Policy, the Receiving Party undertakes that it shall:
21.2.1. keep the Confidential Information secret and confidential;
21.2.2. not use or exploit the Confidential Information in any way, except for the purposes set out herein;
21.2.3. not directly or indirectly disclose or make available any Confidential Information in whole or in part except as expressly permitted in these Terms;
21.2.4. not make a copy of, reduce in writing, reproduce, transform, store or otherwise record the Confidential Information in an externally accessible computer or electronic information retrieval system or transmit it in any form or by any means outside its usual place of business;
21.2.5. apply the same security measures and degree of care to the Confidential Information as the Receiving Party applies to its own confidential information, which the Receiving Party warrants as providing adequate protection from unauthorized disclosure, copying or use; and
21.2.6. ensure that any document or other records containing Confidential Information kept at its registered address is not removed from the registered address through physical or electronic means.
21.3. The Receiving Party shall establish and maintain adequate security measures (including any reasonable security measures proposed by the Disclosing Party from time to time) to safeguard the Confidential Information from unauthorised access or use.
21.4. A Receiving Party will not be liable for disclosure of Confidential Information, or part thereof, if the Receiving Party can demonstrate that such Confidential Information:
21.4.1. was in the public domain at the time it was received or subsequently entered the public domain through no fault of the Receiving Party;
21.4.2. was known to or was in the possession of the Receiving Party at the time of receipt; and
21.4.3. became known to the Receiving Party from a source other than the Disclosing Party without breach of an obligation of confidentiality.
21.5. It is hereby acknowledged and agreed that KTI may preserve the Customer’s Confidential Information and may also disclose the Customer’s Confidential Information if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce the terms of these Terms; (c) respond to claims that the Customer’s use of the Kuuza App Service violates the rights of third-parties; or (d) protect the rights, property, or personal safety of KTI, the Kuuza App’s subscribers and the public.
21.6. Customer shall not make available to any third party any Confidential Information belonging to KTI unless compelled by law to do so.
21.7. In the event of any legal action or proceeding or asserted legal requirement for disclosure of Confidential Information furnished hereunder, the Receiving Party will promptly notify the Disclosing Party and, upon the request and at the expense of the Disclosing Party, will co-operate, to the extent permitted by law with the Disclosing Party in lawfully contesting such disclosure. Except in connection with any failure to discharge its responsibilities under the preceding sentence, the Receiving Party will not be liable for any disclosure pursuant to any court order or other lawful and proper demand by any competent authority.
21.8. Confidential Information will remain the property of the Disclosing Party and will, at the Disclosing Party's request and after it is no longer needed for the purposes of these Terms, promptly be returned thereto or destroyed, together with all copies made by the Receiving Party and by anyone to whom such Confidential Information has been made available by the Receiving Party in accordance with the provisions of this paragraph
21.21.9. The Disclosing Party may request at any time by notice in writing that the Receiving Party (to the extent practicable):
21.9.1. destroys or returns to the Discloser all documents, materials and any copies containing, incorporating or connected to the Disclosing Party’s Confidential Information; and or
21.9.2. erases all the Confidential Information from its computer and communications systems and devices used by it, or which is stored in electronic form.
21.10. The Receiving Party shall certify the Disclosing Party, in writing, that it has complied with the requirements of paragraph 21.9 of these Terms upon completing the destruction, return and or erasure of the Confidential Information.
21.11. If the certification by the Receiving Party under paragraph 21.10 is not conclusive proof of destruction and the Disclosing Party may seek additional evidence of the Receiving Party’s compliance with paragraph 21.9 of these Terms.
21.12. The obligations under this paragraph 21 shall survive termination of these Terms.
22. Further Assurance
22.1. The Customer shall at any time if and when reasonably required by KTI take such action as may be required to give full effect to these Terms.
22.2. KTI shall be entitled to place reliance upon and to act on any notice, confirmation, certificate, information or correspondence received (whether in writing or electronic form) from Customer in connection with these Terms and KTI shall not be under any obligation or duty to consider the genuineness authenticity or correctness of any such notice, confirmation, certificate, information or correspondence.
23. Force Majeure
23.1. Where a party to these Terms is prevented, hindered or delayed in performing any of its obligations under these Terms by a Force Majeure Event, the affected Party shall not be in breach of these Terms or otherwise liable for any such failure or delay in the performance of its obligations.
23.2. As soon and reasonably practicable after the start of a Force Majeure Event the affected party shall:
23.2.1. notify the other party in writing of the Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of the Force Majeure Event on its ability to perform any of its obligations under these Terms; and
23.2.2. use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.
23.3. Upon notification of the Force Majeure Event, the corresponding party shall suspend the performance of these Terms until the Force Majeure Event ceases.
23.4. Either party may terminate these Terms in the event that the Force Majeure Event lasts for more than ninety (90) days from the date of notification.
24. Notices
24.1. All notices or other communications to be given under these Terms shall be sent by e-mail transmission or SMS messages (save as otherwise stated).
24.2. Any notice or communication given under these Terms shall, in the absence of earlier receipt, be deemed to have been duly given as follows:
24.2.1. in the case of e-mail, when a delivery-receipt has been received by the sender in respect of the email address notified or an acknowledgement of the e-mail by the recipient sent to the sender; or
24.2.2. in the case of an SMS message, when a delivery-receipt has been received by the sender in respect of the Customer’s provided telephone number.
24.3. The addresses referred to in paragraph 24.2 are:
24.3.1. in the case of a notice given to KTI:KUUNGANA TECHNOLOGY INCORPORATED300 Creek View Road, Suite 209NewarkNew Castle 19711 Delaware, United States of America Email: support@kuuza.tech Attention: KUUZA APP
24.3.2. in the case of a notice given to Customer, the address provided by the Customer when registering for these Services or as updated from time to time.
24.4. If, in accordance with the above provisions, any such notice or other communication would otherwise be deemed to be given or made outside normal working hours in the place of service of the notice or other communication it shall be deemed to be given or made at the start of normal working hours on the next usual working day.
25. Independent Contractor/No Partnership
Nothing in these Terms is intended to or shall be deemed to establish any partnership or joint venture between any of the parties, constitute any party as an agent for the other party or authorise any party to make or enter into any commitments for or on behalf of any other party.
26. General
26.1. The Customer shall not be at liberty to assign, delegate, sub-contract or otherwise transfer any or all of its rights and obligations under these Terms without the consent of KTI. KTI shall be entitled to Assign these Terms to any party and shall provide Customer with written notice to this effect.
26.2. These Terms (together with any documents referred to in these Terms) constitutes the whole agreement between the parties relating to the matters contemplated herein and no party has relied on any representation made by any other party which is not a term of these Terms.
26.3. No agent or representative of any party has authority to make, and the parties shall not be bound by or be liable for, any statement, representation, promise or terms not set forth herein.
26.4. Failure by any of the parties to exercise any rights under these Terms in any one or more instances will not constitute a waiver of such rights in any other instance. Waiver by any of the parties of any default under these Terms will not be deemed a waiver of any other default.
26.5. If any provision of these Terms shall be held to be illegal void invalid or unenforceable under the laws of any jurisdiction, the legality validity and enforceability of the other provisions of these Terms shall not be affected and the legality, validity and enforceability of the whole of these Terms in any other jurisdiction shall not be affected.
26.6. Any action required or permitted to be taken, and any document required or permitted to be executed, under these Terms by any party may be taken or executed by the authorised representatives of such party.
27. Dispute Resolution
27.1. Each party shall settle amicably any dispute arising out of or in connection with these Terms or in its validity, interpretation or termination.
27.2. Save as herein otherwise specifically provided, any dispute (including as to the interpretation validity enforceability or termination of these Terms) between the parties as to matters arising under or pursuant to these Terms as aforesaid which cannot be settled amicably thirty (30) days after receipt by one party of the other party’s request for such amicable settlement may be submitted by either party to arbitration in accordance with the provisions of paragraphs 27.3 to 27.8 (both inclusive).
27.3. If the parties so agree, the dispute shall be referred to a single arbitrator or if they are unable to agree upon the person to be appointed as arbitrator within ten (10) days from the date of the notice requesting arbitration, the arbitrator shall, at the request of either party, be appointed by the Chairman of the Chartered Institute of Arbitrators of the United Kingdom, Nairobi Branch or failing him by the President of the Law Society of Kenya. The venue and seat of the arbitration shall be Nairobi.
27.4. Arbitration proceedings shall be conducted in accordance with the rules or procedures for arbitration of the Chartered Institute of Arbitrators of the United Kingdom, Kenya Branch.
27.5. 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.
27.6. The decision of the arbitrator shall be final and binding on the parties.
27.7. The fees and expenses of the arbitrator shall be borne by the parties in equal shares.
27.8. Notwithstanding the above provisions of this paragraph 27, 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 arbitrators.
28. Governing Law
These Terms and any dispute or claim, including non-contractual disputes or claims 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.
[1] Kuungana Technology Incorporated is a company incorporated in the State of Delaware whose registered address is at 300 Creek View Road, Suite 209, Newark, New Castle, 19711, Delaware, United States of America