eLipa Terms and Conditions

GOVERNING LAW AND SETTLEMENT OF DISPUTES

  • This Agreement and all matters regarding its interpretation and / or enforcement shall be governed and construed in accordance with the laws of Kenya.
  • If any dispute arises out of or in connection with this Agreement, including any question regarding its existence, validity, interpretation, performance, non-performance or cancellation, expiration and termination (hereinafter referred to as a “Dispute”), the following procedures will apply:
    • Amicable Discussions
      • The Parties will endeavour to first settle a Dispute by amicable discussions over a minimum period of fifteen (15) Business Days from the date of receipt of the letter (sent with acknowledgement of receipt) by either party and notifying the existence of a Dispute (“the Dispute Notification”).
    • Continuance of performance
      • Throughout the duration of a Dispute or throughout the entire length of the legal proceedings relating to the said Dispute, each Party will continue to comply with its obligations arising by virtue of this Agreement.
    • Arbitration
      • If an amicable settlement cannot be reached within thirty (30) business days from the date of the Dispute Notification, the Dispute shall be finally settled under the Rules of Arbitration of the Chartered Institute of Arbitrators, Kenya Branch by one arbitrator appointed in accordance with said Rules. The seat, or legal place, of arbitration shall be Nairobi, Kenya. The language to be used in the arbitral proceedings shall be English.
    • Notwithstanding anything to the contrary contained in clause 8.2, neither party shall be precluded from obtaining interim injunctive or similar relief from a court of competent jurisdiction. However, the route of arbitration shall have been attempted first and seen to fail before the aggrieved party can seek legal redress in a court of competent jurisdiction.
  • Provided either party may elect to terminate this Agreement prior to settlement of the Dispute or conclusion of the legal proceedings relating to the Dispute.
  1. FORCE MAJEURE
  • Definition of Force Majeure
    • For the purposes of this Agreement, “Force Majeure” means an event which could not reasonably have been avoided by a diligent party in the circumstances, which is beyond the reasonable control of a party and which makes a party’s performance of its responsibilities hereunder impossible or so impractical as reasonably to be considered impossible in the circumstances and includes, but is not limited to, war, riots, civil disorder, earthquake, storm, flood or adverse weather conditions, strikes, lockouts or other industrial action, terrorist acts, confiscation or any other action by government agencies.
  • Negligence and intentional acts
    • Force Majeure shall not include any event which is caused by the negligence or intentional action of a Party or such Party’s subcontractors or agents or employees, or by a failure to observe good professional practice.
  • Financial constraints
    • Force Majeure shall not include insufficiency of funds or wilful failure to make any payment required herein.
  • Performance excused
    • The failure of a Party to fulfill any of its obligations hereunder shall not be considered to be a breach of, or default under, this Agreement insofar as such inability arises from an event of Force Majeure, provided that the Party affected by such an event has taken all reasonable precautions, due care and reasonable alternative measures, all with the objective of carrying out the terms of this Agreement.
  • Duty to mitigate
    • A Party affected by an event of Force Majeure shall take all reasonable measures to remove such Party’s inability to fulfill its obligations hereunder with a minimum of delay.  The Parties shall take all reasonable measures to minimize the consequence of any event of Force Majeure. Both parties acknowledge that the Service is not fault free and the quality and availability of the Service may be affected by factors outside the control of iPay Ltd, such as local geographic or physical obstructions, atmospheric conditions and other causes of radio interference as well as faults in other telecommunication networks to which iPay Ltd is connected or dependent. The Service may also from time to time require upgrading, modification, maintenance or other works that may also result in the Service or any part thereof becoming temporarily unavailable. iPay Ltd however undertakes to act on such interferences promptly. The aforementioned notwithstanding, iPay Ltd shall maintain continuity of business and contingency plans to reasonable satisfaction.
  • Notification
    • A Party affected by an event of Force Majeure shall notify the other party in writing of such event within 48 hours or as soon as is practically possible but in any event not later than three (3) days of the occurrence of such an event, and in any event not later than seven (7) days following the occurrence of such event, providing evidence of the nature and cause of such event, and shall similarly give notice of the restoration of normal conditions as soon as possible.
  • Consultation and Termination
    • Not later than fourteen (14) days after the Transaction Processor, as a result of an event of Force Majeure, has become unable to discharge a material portion of its obligations, the Parties shall consult with each other with a view to agreeing on appropriate measures to be taken in the circumstances. If no solution is arrived at within the stipulated period, shall be entitled (but not obliged) to terminate this Agreement forthwith by written notice and the provisions of clause 10 on Termination shall apply.
  1. SERVICE LEVEL RESPONSE TIMES
  • In the event of a service outage or a request for assistance from the eLipa will acknowledge receipt of this communication immediately it is received and will endeavour to solve the problem within 30 minutes of the acknowledgement and in consultation with other stakeholders, namely the mobile money services providers and your website design provider.
    Response Times will be: 8am8pm MondayFriday; 8am4pm Saturdays.
    Sundays & Public Holidays: iPay technical staff on call on 0713-129623.

    NOTICES

  • The Parties select as their respective addresses, the addresses set out below for all purposes arising out of or in connection with this Agreement at which addresses only all processes and notices arising out of or in connection with this Agreement may validly be served upon or delivered by the Parties.
  1. GENERAL
  • Language
    • This Agreement and any notices to be given shall be in the English language. Where texts exist in more than one language, including any part of this Agreement, the English language text shall govern.
  • Entire Agreement
    • This document contains the whole Agreement between the Parties relating to the subject matter of this Agreement and no variation, extension or cancellation of the expressed terms of this Agreement shall be binding upon the Parties as the case may be unless and until such variation, extension or cancellation is confirmed in writing under the hands of authorised representatives of both Parties.
  • No Waiver
    • Except where this Agreement provides otherwise, the rights and remedies contained in it are cumulative and not exclusive to rights or remedies provided by law.  The failure by either Party to enforce at any time or for any period any one or more of the terms or conditions of this Agreement shall not be a waiver of them or of the right at any time subsequently to enforce all terms and conditions of this Agreement.
  • Severability
    • If any provision of this Agreement is declared by any judicial or other competent authority or an arbitrator appointed hereunder to be void, illegal or otherwise unenforceable, the Parties shall amend that provision in such reasonable manner as achieves the intention of the Parties without illegality or at the discretion of the Merchant it may be severed from this Agreement and the remaining provisions of this Agreement shall remain in full force and effect.
  • Indemnity
    • The Merchant agrees that would violate the Law, and further agrees to defend, save and hold harmless the Transaction Processor and indemnify the Transaction Processor  from any and all claims, actions, suits, losses, damages and liabilities and costs including Advocates fees, relating to or resulting from any violation of, or failure to comply properly with, or claim or charge that there has been a violation of or failure to properly comply with the Kenyan laws, rules or regulations arising out of any acts or omissions of the Merchant.
    • Equally the Transaction Processor would violate the Law, and further agrees to defend, save and hold harmless the Merchant and indemnify the Merchant from any and all claims, actions, suits, losses, damages and liabilities and costs including Advocates fees, relating to or resulting from any violation of, or failure to comply properly with, or claim or charge that there has been a violation of or failure to properly comply with the Kenyan laws, rules or regulations arising out of any acts or omissions of the Transaction Processor.