GENERAL TERMS & CONDITIONS
- In these Terms and Conditions the following definitions apply:
“eLipa” is a trading name by iPay Limited;
“Agent” is an individual or company subscribing to offer billing services for a commission;
“Customer” means the individual or company to whom billing service is provided;
“eLipa Agent app” is the eLipa mobile application installed from Google Playstore or Apple Store.
“Purchase Price” means the price for the Service as detailed in the Proposal;
“Service” means the payment service being provided;
“Software” means the software that is used to provide the Service;
“Subscription” means the monthly charge specified in the Proposal for the ongoing provision of the software and support;
“First Line Support” means initial analysis and fault logging;
“Support Time” means the time spent assisting the Customer with issues related to the service. It includes administration time related to the issue, including but not limited to the time taken to log details of telephone calls;
“Confidential Information” for each party the terms of this Agreement and all information and/or data belonging to or relating to that party, its associates, its or their businesses, activities, affairs, products, services, suppliers, customers or prospective customers disclosed (whether in writing, verbally or by any other means and whether directly or indirectly) by that party, its representatives or advisers, to the other party, its representatives or advisers whether before, on or after the date of this Agreement;
“Deliverable” means a set of services that may be delivered at one time, for example: power token, airtime;
“Event” means a Service delivered on a particular date, for example: a training course, a speaker delivering a presentation, or a series of presentations;
“Business Day” means any day which is not a Saturday, Sunday or a bank or public holiday in Kenya;
- In these Terms & Conditions (except where the context otherwise requires):
- the clause headings are included for convenience only and shall not affect the interpretation of these Terms & Conditions;
- use of the singular includes the plural and vice versa;
- use of any gender includes the other genders;
- any reference to “persons” includes natural persons, firms, partnerships, companies, corporations, associations, organisations, governments, states, foundations, and trusts (in each whether or not having separate legal personality);
- any reference to a statute, statutory provision or subordinate legislation (“legislation”) shall (except where the context otherwise requires) be construed as referring to:
- such legislation as amended and in force from time to time and to any legislation which (either with or without modification) re-enacts, consolidates or enacts in rewritten form any such legislation; and
- any former legislation which re-enacts, consolidates or enacts in rewritten form.
- any phrase introduced by the terms “including”, “include”, “in particular”, “such as” or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
- FORCE MAJEURE
eLipa shall not be liable for any delay or failure in performance of its obligations under this agreement which is due to or results from any circumstances beyond its reasonable control. In any such event eLipa shall be entitled to delay or cancel delivery of the Service.
This agreement shall be governed and construed in all respects in accordance with the Law of Kenya and shall be subject to the exclusive jurisdiction of a Kenyan Court of Law.
4.1. If any term or provision of this Agreement shall be found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or in conflict with the law, the validity or enforceability of the remainder of this agreement shall not be affected thereby.
4.2. If any provision of this Agreement is found to be invalid or unenforceable but would be valid or enforceable if some part of the provision were deleted, the provision in question shall apply with such modification(s) as may be necessary to make it valid and enforceable.
No failure or delay by either party in exercising, wholly or partially, any of its rights with regard to any breach or default of this agreement by the other party shall constitute a waiver of such rights and no waiver of any such breach or default shall be deemed to constitute a waiver of any other rights or any subsequent or continuing breach of default.
The Customer may not sub-licence, assign, transfer or otherwise dispose of its rights under this Agreement or any part of it without the written consent of eLipa.
7.1. Any notice or other communication pursuant to this Agreement must be in writing and signed by or on behalf of the party giving it and may be served by pre-paid first class post to the address of the relevant party as set out in this Agreement, by fax or subject to the provisions of clause 7.2 by email. All such notices or demands shall be deemed to have been received:
7.1.1. in the case of pre-paid first class post two Business Days after posting; and
7.1.2. in the case of fax, at the time of transmission, provided that if receipt occurs before 9am on a Business Day the notice shall be deemed to have been received at 9am on that day, and if receipt occurs after 5pm on a Business Day, or on a day which is not a Business Day, the notice or demand shall be deemed to have been received at 9am on the next Business Day.
7.2. A communication sent by email shall not be effective unless the addressee acknowledges receipt of such communication, such acknowledgement to take the form of a reply email to include the communication being acknowledged.
8.1. During the period of this Agreement after both parties undertake:
8.1.1. to keep the Confidential Information confidential;
8.1.2. not to use the Confidential Information for any purpose except the performance of its obligations under this Agreement; and
8.1.3. not to use the Confidential Information so as to procure any commercial advantage over the other party.
8.2. The obligations contained in clause 10.1 above shall not apply to any Confidential Information which:
8.2.1. is already in the possession of the disclosing party other than as a result of a breach of this Agreement;
8.2.2. is at the date of this Agreement or at any time after the date of this Agreement comes into the public domain other than through breach of this Agreement; or
8.2.3. is required to be disclosed by any applicable law or regulation or by any governmental or administrative authority or by an order of any court of competent jurisdiction.
8.3. Each party undertakes to take all such steps as shall from time to time be necessary to ensure compliance with the provisions of Clause 10 by its employees, agents and sub-contractors.
8.4. The Agent agrees that the ideas, materials and other documents relating to the Service are confidential and all proprietary rights belong to eLipa and shall not be used or disclosed except as permitted by this agreement.
- INTELLECTUAL PROPERTY RIGHTS
9.1. Once full payment has been made and the deliverables have completed, the ownership of the rights to the deliverables created will pass to the Customer.
9.2. Third party materials, such as imagery, used in the deliverables may be subject to usage liabilities such as royalties and license fees. eLipa shall procure such license as necessary for the use of third party materials.
9.3. Unless otherwise stated, eLipa reserves the continuing right to use any deliverables it produces for the promotion of its services.
10.1. The following provisions set out the entire financial liability of eLipa (including any liability for the acts or omissions of its employees, agents or subcontractors) to the Agent in respect of:
10.1.1. any breach of this Agreement; and
10.1.2. any representation, statement or tortious act or omission including negligence arising under or in connection with the contract.
10.2. Subject as expressly provided in these conditions, all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
10.3. Nothing in these conditions excludes or limits the liability of eLipa for death or personal injury caused by negligence or for fraudulent misrepresentation.
10.4. Subject to clauses 12.2 and 12.3:
10.4.1. eLipa shall not be liable to the Customer for any loss or damage, costs or expenses (whether direct, indirect, incidental or consequential and whether relating to loss of profit, loss of business, business interruption, loss of data, depletion of goodwill or other such losses), suffered by the Customer which arise out of or in connection with the supply of the Service or their use by the Customer.
10.4.2. The Customer assumes all risks as to the suitability, quality, and performance of the Service.
10.4.3. eLipa’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise arising in connection with the performance or contemplated performance of this contract shall be limited to, and in no event shall exceed, the amount originally paid to eLipa for the Service.
10.4.4. eLipa shall not be liable for any loss, damage or delay which arises as a result of the termination of the contract between us, or for our compliance with relevant statutory or regulatory requirements.
10.4.5. It is the responsibility of the Agent to ensure that the deliverables comply with all laws, regulations and codes in all countries where the deliverables are used. The Customer agrees to indemnify eLipa against any costs arising from the use or misuse of the deliverables.
10.5. No verbal or written information or advice given by eLipa or its dealers, distributors, employees or agents shall in any way extend, modify or add to these conditions.
- PAYMENT TERMS AND PRICING
11.1. The Agent shall earn the following percentage commission of the of transaction value.
11.1.1 KPLC Prepaid – 1%
11.1.2 KPLC Post-paid – 0.5%
11.1.3 Nairobi Water – KSH. 5
11.1.4 DSTV – 0.5%
11.1.5 GOTV – 0.5%
11.1.6 Startimes – 1%
11.1.7 Zuku – 1%
11.1.8 Safaricom Prepaid – 3%
11.1.9 Airtel – 4%
11.1.10 Orange – 5%
- CHANGES TO TERMS AND CONDITIONS
12.1. eLipa reserves the right to change these Terms and Conditions at any time. The most current version of these Terms and Conditions may be found on our website.
12.2. When changes are made to the Terms and Conditions a notice shall be placed in our email newsletter. The Agent shall be deemed to have accepted such changes if they have not notified any objections to such changes within one calendar month of the notice.
12.3. The most current version of the Terms and Conditions shall supersede all previous versions.
- ENTIRE AGREEMENT
13.1. This Agreement and the documents referred to in it, constitute the entire agreement and understanding of the parties and shall supersede any previous agreement between the parties relating to the subject matter of this Agreement. No variation of this Agreement shall be valid unless in writing signed by both parties.
13.2. Each of the parties acknowledges and agrees that in entering into this Agreement, and the documents referred to in it, it does not rely on, and shall have no remedy in respect of, any statement, representation, warranty or understanding (whether negligently or innocently made) of any person (whether party to this Agreement or not) which it may have relied on in entering into this Agreement. The only remedy available to it shall be for breach of contract under the terms of this Agreement. Nothing in this clause shall, however, operate to limit or exclude any liability for fraud.
Should you have any questions concerning these Terms and Conditions, contact eLipa before submitting installing the eLipa Agent app.