- Definitions and Interpretation
For the purposes of this Agreement, unless the context otherwise requires:
“Agreement” means this agreement between the Customer and Koa which contains the Terms and Conditions;
“Account” means your Koa account;“Banking Partner” means Choice Microfinance Bank, a Central Bank of Kenya regulated entity.
“Capital Limit” means the maximum credit available to the Borrower by the Lender, following the creation of a Koa Account. Subject to our review, the Capital limit shall be at the discretion of Koa.
“Disbursement Date” means the date Koa disburses the Loan to the Customer’s Koa Bank Account which shall be within 2 days from the Customer’s receipt of the Loan approval;
“Event of Default” shall have the meaning ascribed to it in clause 13;
“Interest” means an interest rate of 0.25% daily on the Loan for the duration of the Loan Term or any other interest rate as may be communicated by Koa to the which a penalty rate will be applied if the due date for payment is not met by the Customer;
“Initial Loan Term” means a period of 1 - 90 (one to ninety) days beginning from the Disbursement Date of the Loan.;
“Loan Term” means collectively, an Initial Loan Term and the Additional Loan Term if an extension is granted by Koa.
“Party” means the Customer and Koa individually;
“Parties” means the Customer and KOA collectively;
“Personal Data” means any information about the business and or company, and their stakeholders provided to us by you or in the use of our Site and services such as your name, email address, physical address, password, billing and payment information, and KRA PIN. This includes non-personal information like the domain name of your internet service provider, your geographical location, operating system and other relevant statistics;
“Privacy Policy” means our privacy policy available on the Site, which sets out the manner in which personal data we collect from you, or you provide to us, will be used and processed by us;
“Repayment Date” means such date as maybe agreed and selected by the Borrower in which the Loan and Interest shall become due and payable by the Borrower to Koa;
“Site” means Koa’s website, product, and/or any other platform or media through which Koa offers its lending services;
“Koa Bank Account” means a unique bank account with Choice Bank Plc created for you and maintained by us and Choice Bank Plc, upon setting up an Account on the Site; - Interpretations
All headings in this Agreement are for convenience only and shall not be used in its interpretation. Unless this Agreement indicates a contrary intention.
The singular shall include the plural and vice versa.
A reference to any one gender shall be capable of being construed as a reference of any of the others. - Acceptance of Terms and Conditions
By ticking the “I have read, understood and I agree to Koa’s Privacy Policy, and Terms and conditions”, on the Site, which you hereby adopt as your electronic signature, you accept to be bound by the Terms and Conditions provided in this Agreement, and you agree that:
You hereby expressly consent and authorize Koa and/or any of our duly authorized agents or partners, to debit your or Koa Bank Account for the purpose of repaying any outstandings such as Loan and accrued Interest as and when due;
You consent to us transferring your data to third parties to local and foreign countries to process such data, in so far as such transfer is required for the performance of our obligations to you under this Agreement;
We can provide materials and other information about your legal rights and duties to you electronically;
We can send all important communications, billings statements, reminders and demand notices (collectively referred to as “Notifications”) to you electronically via our Site or to an email address you have provided us with;
We are authorized to share, receive and use data/information collected from your transaction with other affiliated third-parties including but not limited to switching companies, credit bureaus and other financial institutions;
We can alert you when Notifications are available, by sending you an electronic communication;
By consenting, the electronic Notifications shall have the same meaning and effect as if we provided paper Notifications to you. When we send you an email alerting you that Notifications are available to you, such electronic Notifications shall have the same effect as paper Notifications whether or not you chose to view the Notifications, unless you had previously withdrawn your consent to receive electronic Notifications.
You accept and subscribe to the Banking Partners Terms and Conditions as may be amended from time to time. The banking partners terms and conditions are adopted into these Terms and Conditions, and can be found here.
Koa reserves the right, at its sole discretion, to modify or replace these Terms and Conditions from time to time. If you object to such changes, your sole recourse will be to cease using our services and the Site. Your continued use of our services and the Site following the changes to the Terms and Conditions will indicate your acknowledgement of such changes and agreement to be bound by the amended Terms and Conditions. - Account Opening Process
In order to access our services, you must set up an Account on the Site wherein you shall provide us with all requested information about your registered company.
You are required to provide us with basic information such as the registered name of your company, email address, phone number, KRA Personal Identification Number (PIN), full names of the directors where applicable, names of shareholders and their percentage ownership, details of the founders (names, email addresses, phone numbers, and details of their referees), copies of the company’s incorporation documents, copies of government issued IDs of the shareholders of a company, and any other information needed by us to process your application.
By providing us with information about your company, you represent and warrant that you have the authority to legally bind the entity and grant us all permissions and licenses to perform our obligations as provided in these Terms and Conditions.
Our services and the Site, can only be utilized by persons over the age of 18. Koa reserves the right to verify the authenticity of any Account created on the Site, including through third-party services. Subject to Prior consent, Should Koa deem the use-of third party services necessary, Koa may elect to bill you for such services. - Requirements for Loan Request
You must provide us with accurate, current and complete information at all times during the application process.
Upon your request for a loan, Koa reserves the right to carry out an investigation to verify your status.
Upon the approval of a Loan request, your Koa main Account will be credited with the requested loan amount. - Koa Bank Account
To use the Koa Bank Account, you agree and acknowledge the following:
that you have the authorisation of the company to act on its behalf;
that the company has a functional bank account with a financial institution domiciled in Kenya;
that you shall provide us with all information as may be requested by us for the creation of a Koa Bank Account for you. Such information shall include but shall not be limited to the company’s name, email address, and phone number;
that you represent and warrant that all Customer Information you provide to us is truthful, accurate, and complete;
that you agree to promptly notify us of changes to your Customer Information by updating your Account & Profile on the Site;
that for our compliance purposes and to provide the Koa Bank Account services to you, you hereby authorize us to, directly or through a third-party, obtain, verify, and record information and documentation that helps us verify your identity and the bank account information provided;
that By using the Koa Account and providing Customer Information to us, you automatically authorize us to obtain or provide, directly or indirectly and without any time limit or the requirement to pay any fees, information about you and your bank account from or to the financial institution holding your bank account and other databases as necessary to provide the Koa Account to you. - Payments and Transactions
All payments and transactions requested by you through the Site will be actioned by Choice Bank Plc;
Koa reserves the right to refuse any transaction requests it deems are in conflict with any of these Terms and Conditions or that would go against the laws of the Republic of Kenya;
Koa may reject any requests regarding transactions by you should its partners find any fault or issue with the request submitted;
Koa indemnifies itself from any failure to perform, or for delay in performing its obligations hereunder if such failure or delay is due to circumstances beyond its control or dependent upon third parties or partners performing actions to complete any requests made.
Koa reserves the right to ask for further information before proceeding with any request if it is required by law, or whether its partners or third party service providers require such mentioned information. - Invoice Creation
Koa provides within its Site a service to produce invoices for you.
Koa is not responsible or liable for any illegality or misrepresentation of invoices created by you;
All invoices created on the platform shall be construed as a legally binding document and you are solely responsible for ensuring that all legal requirements are complied with in respect of the invoice.
Koa is not responsible for or involved with any transactional party of yours for any and all issues that might arise out of your invoicing;
The obligation of declaring your invoices and sales for tax purposes falls upon you, whereby Koa is indemnified against any tax or business compliance related issues resulting from your business operations and invoicing. Loans and Loan Request Policy
You hereby irrevocably authorize us to act on all requests for Loans received from you via the Site, and you shall be liable with respect thereof. Koa may however refuse to oblige any Loan requests at its sole and absolute discretion.
Subject to our discretion, we reserve the right to reject any Loan request from you even if you have previously been issued a Loan by Koa.
Following your Loan request, and subject to Koa’s discretion, your Koa Bank Account may be credited with the requested Loan. Where your Loan request is approved, you will immediately get a notice of approval via your Account and/or email confirming the amount to be disbursed into your Koa Bank Account, the Disbursement Date, the Interest on the Loan, and the Loan Term. Where your request is denied, a notice of denial will be communicated to you via your Account and/or email.
You acknowledge that the Loan and accrued Interest shall be for the duration of the Loan Term, and you further agree that the Loan and the accrued Interest shall be repaid on the Repayment Date.
You hereby agree and acknowledge that:
Koa shall be deemed to have acted properly and to have fully performed all its obligations to you notwithstanding that your Loan request may have been initiated, or otherwise communicated in error or fraudulently, and you shall be bound by such request so far as Koa acted in good faith, believing that the Loan request was made by you.
Koa may, at its discretion, decline to act on or in accordance with the whole or any part of your Loan request pending further enquiry or further confirmation (whether written or otherwise) from you.
You agree to indemnify Koa against all claims, losses, damages, costs, and expenses howsoever arising in consequence of, or in any way related to Koa having acted in accordance with the whole or any part of any of your Loan request.
To the full extent permitted by law, Koa shall not be liable for any unauthorized drawings, transfers, remittance, disclosures, activity or any incident on your account by the fact of the knowledge and/or use or manipulation of your Account password, ID or any means whether or not resulting from your negligence.
Koa is authorized to act on such orders with respect to your Account and/or Koa Bank Account as may be required by any court order or competent authority or agency under the applicable law
The Borrower’s Obligations
The borrower agrees to:
repay the Loan, and the accrued Interest charged to its Account on or before the Repayment Date. Where the Borrower fails to repay Loan and Interest on or before the Repayment Date, Borrower’s agrees to the following implications:
that the Borrower’s Koa account could be disabled from sending payments two (2) days after the default of the repayment obligation;
that the Borrower accepts that his or her Loan will be liable to a daily penalty interest rate fee as indicated on Koa’s loan agreement terms.
be held responsible for any unauthorized Loan request using its Account unless the Borrower notifies the Lender in writing, of imminent fraud by an unauthorized user on the Borrower’s account within 24 hours of such fraud;
repay the Loan and accrued Interest via direct transfer to Koa via its Koa Account, or an electronic debit from its Koa Bank Account. The Borrower shall have the option to repay all outstanding sums or partial sums at any point prior to the Repayment Date, provided that the total Loan and Interest amount is repaid by the end of the Loan Term;
not use the Site and Koa’s services for any act of illegality or criminality and that Koa shall not be legally or criminally liable for any illegality committed by Customers’ actions on the Site.
The Lender’s Obligations
The lender agrees to:
make the Loan available to the Borrower on the Disbursement Date (which shall in no case exceed the Credit Limit) subject to the Lender verifying and approving the Borrower’s Loan request;
conduct adequate checks on the Borrower prior to approving a Loan request;
demand repayment of Loans and Interest from the borrower as and when due; and
to use all reasonable and legitimate means to recover unpaid Loans and Interest. Such means of recovery shall include engaging collection agencies, and initiating court processes for the recovery of debts.
Personal Information
You agree to grant Koa an irrevocable right to collect and use any information you provide us or we collect from you, for the specific purpose of providing you with our services.
You hereby agree and authorize us to verify information provided by you to us against your information held by local banks including but not limited to your phone number, date of birth, National Identification Number (I.D), or Passport Number, and any other information that will enable us identify you and comply with the regulatory “Know Your Customer” (KYC) requirements in your country.
Koa reserves the right to request for further information from you pertaining to your Loan request or the creation of your Account, and Koa Bank Account at any time. Failure to provide such information within the time required by Koa may result in Koa declining to accept your Loan request or delay the creation of your Account, or Koa Bank Account.
You consent that we may disclose and or transfer your information to third parties or any other entity we deem necessary to perform our obligations to you under this Agreement.
All other provisions regarding the use of your personal information are contained in our Privacy Policy.
Intellectual Property
The Site and our services contained therein, original content, features and functionality are and shall remain the exclusive property of Koa. Our trademarks and trade name may not be used in connection with any product or service without our prior written consent.
You shall not use, adapt, modify, prepare derivative works of, distribute, license, sell, transfer, publicly display, publicly perform, transmit, broadcast or otherwise exploit the Site or collective content except as expressly permitted by Koa.
Subject to your compliance with these Terms and Conditions, Koa grants you a limited, non-exclusive, revocable, non-transferable license to access and view any collective content made available on or through the Site and accessible to you.
Representations and Warranties
You make the following representations and warranties to us at the time of agreeing to these Terms and Conditions:
You are over the age of 18 years;
You are of sound mind and have the capacity to use our Site and services;
All information that you provide to us is true and accurate to the best of your knowledge;
That your company has been duly registered as a legal entity at the office of the appropriate companies’ registration agency;
You have carefully read and understood these Terms and Conditions;
That neither the company nor the stakeholders are subject to any bankruptcy claim, and/or pending or threatened criminal proceedings, that may in any way have adverse effect on the financial assets of the company or stakeholders in the opinion of KOA;
If you are accepting these Terms and Conditions on behalf of a legal entity, you are legally authorized to do so and we may request evidence of such legal entitlement; and
That by accepting these Terms and Conditions, neither the company nor the stakeholders are not breaking any laws, regulations or agreements that are applicable to them
Event of default
An Event of Default refers to the following instances:
you fail to pay the Loan and accrued Interest within two days of the agreed Repayment Date;
any representation or information made or given by you in connection with your Account and Loan request is incorrect, inaccurate or misleading;
you carry out or attempt to carry out any act which may prejudice Koa’s rights under this agreement (including effecting or trying to effect any accrued Interest or fees payable on the Loan);
you are declared bankrupt, insolvent or unable to pay your debt according to the appropriate laws in your country during the Loan Term:
Upon the occurrence of an Event of default as mentioned above, we may without prejudice to any other right or remedy granted to us under any law
terminate this agreement in accordance with clause 14;
declare that the Loan and all accrued Interest under this Agreement becomes due and payable and you shall immediately make all necessary payments;
Freeze your Koa Bank Account in regards to assurance of outstanding amounts; and
deduct funds from your Koa Bank Account or any other bank account as permitted by law upon compliance with the relevant legal requirements, as payment for your outstanding repayment obligations.
Koa reserves the right to institute legal proceedings against you to recover the Loan, and accrued Interest, with or without prior notice.
You shall be liable for all legal costs and expenses incurred by Koa for any action taken against you by Koa for the recovery and repayment of the Loan (including any accrued Interest or fees payable on the loan).
You agree that upon the occurrence of an Event of default, Koa or its authorized representatives or collections agent(s) may notify you and any other person who in Koa’s opinion, may assist in the recovery and repayment of the outstanding Loan (including any accrued Interest or fees payable on the Loan).
Upon the occurrence of an Event of default, Koa reserves the right to hold and utilize the personal information (including but not limited to their Identification Number (I.D), phone number and email address) of your directors, shareholders, guarantors, or any other authorized personnel as the case may be, as part of the measures to guarantee recovery and repayment of the Loan (including any accrued Interest or fees payable on the Loan).
Termination
We may terminate or suspend your Account immediately with or without prior notice or liability, for any reason whatsoever, including without limitation to if you breach these Terms and Conditions; or upon the occurrence of an Event of Default as stated in clause 15 above.
Upon termination, your right to use our Site and services will immediately cease, and all outstanding Loans (including any accrued Interest or fees payable on the Loan) shall become payable. If you wish to terminate your Account, you may simply discontinue using the Site and our services.
Indemnity
You agree to indemnify and hold harmless KOA, its affiliates and subsidiaries, its officers, directors, and employees, against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profits, loss of reputation and all interest penalties and legal and other reasonable professional costs and expenses) suffered or incurred by it, its affiliates and subsidiaries, its officers, directors, and employees, as a result of:
your fraudulent or illegal use of our Site or services;
any act of negligence or willful conduct by the stakeholders of the company with respect to fulfilling your obligations in connection with this Agreement;
any inaccurate, incomplete or misleading information that you have provided to us;
any unauthorized access to your Account as a result of your failure to keep your username and password confidential;
any service that you have offered, whether with or without our permission to a third party using the Company’s services or Site; and
any claim made against the company and/or its stakeholders for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with the use of our services or use of the Site.
Force Majeure
Neither Party shall be liable for failure to perform, or for delay in performing its obligations hereunder if such failure or delay shall be due to Acts of God, war, riot, civil commotion, weather, labor disputes, failure of sub-contractors or any other cause beyond its reasonable control.
Limitation of Liability
In no event shall Koa, its directors, employees, partners or affiliates, be liable for any indirect, incidental, special, consequential or punitive damages, including without limitation, loss of profits, data, use, goodwill, or other intangible losses, resulting from your use of the Site or our services or your inability to use the Site or our services.
Severability
If any part of this Agreement is held to be invalid or unenforceable in any jurisdiction, the invalidity and unenforceability of all remaining provisions contained in this Agreement shall not in any way be affected or impaired.
Entire Agreement
This Agreement contains the entire agreement between the Parties with respect to the subject matter and supersedes all prior arrangements and understandings (whether oral or written).
Waiver
In the event Koa does not strictly enforce its rights under this Agreement (including its right to insist on the repayment of all sums due on the Repayment Date), Koa shall not be deemed to have waived or lost those rights and will not be prevented from enforcing such rights at a later date.
Assignment
Koa reserves the right to transfer or assign its rights and obligations under these Terms and Conditions. Koa will only notify you if such an assignment will change the arrangements of its services to you.
Amendment
and Koa may at any time vary revise these Terms and Conditions by updating this document. You agree to be bound by subsequent revisions and agree to review these Terms and Conditions periodically for changes. The most updated version of this document will be available for your review under the “Terms and Conditions” that appears on the Site.
Governing Law and Dispute Resolution
These Terms and Conditions shall be governed by and construed in accordance with the laws of the Republic of Kenya.
In the event of a dispute, we both undertake that we shall make an effort to achieve an amicable settlement. The discussions will be handled by our Authorized Representatives and you or your authorized representatives. Any dispute arising out of this Agreement which cannot be settled, by mutual agreement/negotiation within 1 (one) month from the commencement of the dispute shall be, shall be subject to the jurisdiction of the courts of the Republic of Kenya.
Class Action Waiver
You agree that any claims will be adjudicated on an individual basis, and you waive any rights that you may have to participate in a class, collective, or other joint action with respect to any claims that you may have against us.
Contact usIf you have any questions about these Terms and Conditions, please contact us at:
info@withlotus.com
