TendePay Terms of Service

Introduction

This Merchant Terms of Service (the “Agreement”) constitute a legal agreement between you and TendePay Limited (“Tende”). By signing up for an Account on this website (www.tendepay.com), the Tende Mobile App for Android and IOS, any of our websites and/or Services, you are deemed a Merchant and agree to this Agreement. Please review this Agreement carefully before signing up on Tende. If you do not agree to any part or all of the Agreement, do not use this site, the Tende Mobile App or any of our Services.

About Us

Tende (“we”, “us” or “our”) is an integrated payment and transactions processing company that provides technology integration, digital products and services, and transaction processing and payment infrastructure to individuals, business, government and corporate organizations across various sectors. Tende has developed and owns an online payment service that authorizes and processes payments for Merchants, allowing them to accept digital payments (mobile money, wallet, bank & card payments) online from Users or customers, as well to make payments to third parties. We are an independent contractor. We provide this Website and our Services on an independent service provider basis. We do not endorse, have control or assume the liability or legality for the products or Services that are paid for with our Services. We do not guarantee any User’s identity and cannot ensure that a buyer or seller will complete a transaction.

Agreement

This Agreement, between you and Tende, details Tende’s obligations to you. It also highlights certain risks on using the Services and you must consider such risks carefully as you will be bound by the provisions of this Agreement through your use of this Website, the APPs or any of our Services.

Registration and Activation

To use Tende, you have to create an Account by registering, either on this site, or on the Tende Mobile App for Android and IOS. To register, you will provide us with certain information such as your mobile phone number, email address, first name, last name, business name, business location and business; we may seek to verify your information (by ourselves or through third parties) through a KYC vetting process, after which we will approve Account unless deemed risky. You give us permission to collect this information and verify it as may be necessary. If you fail to produce the necessary KYC documents, or fail to satisfy the minimum KYC requirements, we will not activate your Account (in which case this Agreement shall be null and void). For the avoidance of doubt, our refusal to activate your Account shall neither confer to you any right to contest our decision nor give rise to any legal claim against Tende under this Agreement.

Once your Account has been activated, you will be granted the right:
1. to use the Services through your Account;
2. to allow other Users to access the Services through your Account; and
3. to add and give any/all rights to any of the Users that you decide to give access to through your Account.

You (and any person that you allow as a User) may use the Services only if you (and such person that you allow as a User) agree to form a binding contract with Tende.

Change of Information

In the event that you change any information provided to us at registration, including your business name, address, financial institution, mode of payments or the products and services that you offer, or where a corporate restructuring occurs, you agree to notify us within 14 days of such change.

Representation and Warranties

You represent and warrant to Tende that:
1. you have full power and authority to enter into, execute, deliver and perform this Agreement;
2. you are duly organised, authorised and in good standing under the laws of Kenya and you are duly authorised to do business in regions or countries in which your business operates;
3. all licenses and registrations required by the Client are in full force and effect to enable the Client to carry on the business of provision of its services. The Client assures and guarantees to the Company that it shall comply with all rules, bylaws and standards set by the statutory bodies;
4. you have never had an agreement with a payment scheme provider which was terminated upon request and/or demand by the payment scheme provider or any regulatory authority;
5. you shall not submit any transaction that you know is illegal, fraudulent or restricted for authorization, or not authorized by the cardholder;
6. you will conduct appropriate due diligence on all your customers;
7. you shall fully cooperate where any forensic investigation is being conducted on the you until such time the investigation is completed;
8. you will use the Services in good faith, in accordance with the terms of this Agreement and in accordance with all Applicable Law and Payment Scheme Rules. In particular, you will not use the Services in a manner that that could result in a violation of anti-money laundering, counter terrorist financing and similar legal and regulatory obligations; and
9. you have not been subject to the following criminal conviction (except minor traffic offenses and other petty offenses) in Kenya or in any other foreign country: Tax lien, or any foreign tax lien; administrative or enforcement proceedings commenced by the Nairobi Securities Exchange, any Regulatory Authority, in Kenya, or in any other country; or restraining order, decree, injunction, or judgment in any proceeding or lawsuit, alleging fraud or deceptive practice on the part of the Merchant.

Age Restriction

In the event that you change any information provided to us at registration, including your business name, address, financial institution, mode of payments or the products and services that you offer, or where a corporate restructuring occurs, you agree to notify us within 14 days of such change.

Account Usage

Upon the opening and activation of your Account, you will be able to initiate the following features and functionalities:
1. load e-money by transferring cash to designated Tende Bank Accounts, Tende Paybil or Tende Till, provided that you understand that Tende is not a deposit-taking institution, and therefore such e-money shall be loaded for the sole purpose of being used to pay for utilities and other payments that may be made through the Tende platform;
2. access your bank accounts and Mobile Money Paybill Account/Merchant Account & B2C Account balances, provided you have linked these accounts on Tende;
3. manage your accounts
4. buy airtime, buy bundles, pay utility bills or make one-off or periodic payments or remittances to utility providers, financial institutions or other organisations;
5. pay for goods and services to mobile money merchants and paybills;
6. view and track payments made to your accounts, paybills, tills;
7. send money to Bank, pesalink and Mobile Money Wallets;
8. Bulk Payments to Bank, pesalink and Mobile Money wallets;
9. Bulk Airtime Purchase;
10. initiate, approve payments or perform straight-through payments; and
11. any other transactions as may be introduced by Tende or financial institution partners from time to time.

Tende does not warrant that all functionalities shall be available at all times and may withdraw any functionality or the Service in general as a direct result of new or amended legislation, statutory instrument, government regulations or policy or any other compelling reason.

Tende may provide additional functionality following integration with platforms of financial institutions, merchants and other entities providing you with specified services. Such functionality may give you limited access to platforms of the financial institutions or other entities. By using such functionality to gain access to other platforms, you hereby agree to indemnify Tende against, and hold Tende harmless from any losses arising from your access to such external platforms.

Account Security

Access to the Services is PIN protected. Additionally, for some services, in addition to your PIN, you will required to enter a One Time Password (OTP), which is a verification code sent to you via SMS for authentication purposes. You hereby agree to guard your PIN and the OTPs sent to you and not to disclose the PIN and OTPs to any third party or any person purporting to have authority to ask for it.

You acknowledge that you shall be solely responsible for the security of your PIN and any OTPs sent to you for authentication purposes. Tende shall not be liable for any disclosure of your PIN or OTPs to any third party and you hereby agree to hold Tende harmless from any losses that result from any PIN or OTP disclosure. You are responsible for all instructions given to us through your Account. Tende shall deem each correct PIN entry as being performed by the legitimate owner of the Account and shall regard all subsequent transactions as validly performed by you.

You will also take all reasonable steps to protect the security of the personal electronic device through which you access the Services (including, without limitation, using PIN and/or password protected personally configured device functionality to access the Services and not sharing your device with other people).

Data Compliance

You agree to comply with all data privacy and security requirements of the Payment Card Industry Data Security Standard (PCI DSS Requirements) and under any applicable law or regulation that may be in force, enacted or adopted regarding confidentiality, your access, use, storage and disclosure of User information. Information on the PCI DSS can be found on the PCI Council’s website. It is your responsibility to comply with these standards.

We are responsible for the security and protection of Card Holder Data (CHD) we collect and store. Accordingly, we implement access control measures, security protocols and standards including the use of encryption and firewall technologies to ensure that CHD is kept safe and secure on our servers, in compliance with the PCI DSS Requirement. We also implement periodical security updates to ensure that our security infrastructures are in compliance with reasonable industry standards.

We acknowledge that you own all your customers’ data. You hereby grant Tende a perpetual, irrevocable, sub-licensable, assignable, worldwide, royalty-free license to use, reproduce, electronically distribute, and display your customers’ data for the following purposes:
1. providing and improving our Services;
2. internal usage, including but not limited to, data analytics and metrics so long as individual customer data has been anonymized and aggregated with other customer data;
3. complying with applicable legal requirements and assisting law enforcement agencies by responding to requests for the disclosure of information in accordance with local laws; and
4. any other purpose for which consent has been provided by your customer.

Software Licence

We hereby grant you a revocable, non-exclusive, non-transferable license to use Tende’s APIs, developer’s toolkit, and other software applications (the “Software”) in accordance with the documentation accompanying the Software, and in the manner permitted by this Agreement. This license grant includes all updates, upgrades, new versions and replacement software for your use in connection with the Services.

If you do not comply with the documentation and any other requirements provided by Tende, then you will be liable for all resulting damages suffered by you, Tende and third parties. Unless otherwise provided by applicable law, you agree not to alter, reproduce, adapt, distribute, display, publish, reverse engineer, translate, disassemble, decompile or otherwise attempt to create any source code that is derived from the Software. Upon expiration or termination of this Agreement, you will immediately cease all use of any Software.

Any feedback, comments, or suggestions you may provide to us and our Services is entirely voluntary and we will be free to use such feedback, comments or suggestion as we see fit without any obligation to you.

Our Services are protected by copyright, trademark and other laws of both Kenya and foreign countries. Nothing in this Agreement gives you a right to use the Tende name or any of Tende’s trademarks, logos, domain names, and other distinctive brand features. All rights, titles and interests in and to the Services are and will remain the exclusive property of Tende and its licensors.

Intellectual Property

Tende and/or its licensors own the intellectual property rights in or related to the Services, the Tende Mobile App and the Website (“IPR”). Tende does not grant you any right, license, title or interest to any of the IPR which you may or may not have access to by accessing the Services. You agree to take such actions, including any legal or official document or other documents that may be needed, to further affirm Tende’s IPR.

For emphasis, nothing set forth in this Agreement shall constitute a transfer or assignment by Tende to you of any IPR owned or otherwise controlled by Tende and/or its licensors. All IPR in or related to the Services is and will remain the exclusive property of Tende, whether or not specifically recognized or perfected under the laws of the jurisdiction in which the Services are used or licensed. You shall not take any action that jeopardizes Tende’s proprietary IPR or acquire any IPR in the Services. Unless otherwise agreed on a case-by-case basis, Kocela will own all rights in any copy, translation, modification, adaptation or derivation of the Services, including any improvement or development thereof.

Publicity

You hereby grant Tende permissions to use your name and logo in our marketing materials including, but not limited to use on our Website, in customer listings, in interviews and in press releases. Such Publicity does not imply an endorsement for your products and services.

Confidentiality

The parties acknowledge that in the performance of their duties under this Agreement, either party may communicate to the other (or its designees) certain confidential and proprietary information, including without limitation information concerning each party’s services, know how, technology, techniques, or business or marketing plans (collectively, the “Confidential Information”) all of which are confidential and proprietary to, and trade secrets of, the disclosing party. Confidential Information does not include information that:
(i) is public knowledge at the time of disclosure by the disclosing party;
(ii) becomes public knowledge or known to the receiving party after disclosure by the disclosing party other than by breach of the receiving party’s obligations under this section or by breach of a third party’s confidentiality obligations;
(iii) was known by the receiving party prior to disclosure by the disclosing party other than by breach of a third party’s confidentiality obligations; or
(iv) is independently developed by the receiving party.

Both Parties agree that all Confidential Information is and shall remain the property of the Party providing the information and the Party receiving or gaining access to the information shall use all reasonable and prudent means to safeguard such Confidential Information, including all means required by law. Furthermore, neither Party shall copy, publish, disclose to others, or use such Confidential Information for any purpose other than the fulfilment of its obligations under this Agreement or where required by law.

Each of the Parties on behalf of itself and its employees, officers, directors, Affiliates, and agents, hereby agrees that Confidential Information made available to it will not be disclosed or made available to any third party, agent or employee for any reason whatsoever, other than with respect to:
(a) its employees on a “need to know” basis,
(b) Affiliates on a “need to know” basis, provided that they are subject to a confidentiality agreement which shall be no less restrictive than the provisions of this Section (Confidentiality); and
(c) as required by Applicable Law or as otherwise permitted by this Agreement, either during the term of this Agreement or after the termination of this Agreement, provided that prior to any disclosure of any party’s Confidential Information as required by law, the party subject to the requirement shall
(d) notify the other parties of all, if any, actual or threatened legal compulsion of disclosure, and any actual legal obligation of disclosure immediately upon becoming so obligated and (e) cooperate with the other parties’ reasonable, lawful efforts to resist, limit, or delay disclosure.

Know Your Customer

You agree that you are solely responsible for verifying the identities of your customers, ensuring that they are authorised to carry out the transactions on your platform, and determining their eligibility to purchase your products and services.
You are also required to maintain information and proof of service or product delivery to your customer. Where a dispute occurs needing resolution, you may be required to provide Tende with these.

Card Network Rules

Each card network has its own rules, regulations and guidelines. You are required to comply with all applicable Network Rules that are applicable to merchants. You can review portions of the Network Rules at Mastercard, Visa, Verve and other payment cards. The Card Networks reserve the right to amend the Network Rules.

Customer Payments

You may only process payments when authorised to do so by your customer. We will only process transactions that have been authorised by the applicable Card Network or card issuer.

We do not guarantee or assume any liability for transactions authorised and completed that are later reversed or charged back. You are solely responsible for all reversed or charged back transactions, regardless of the reason for, or timing of, the reversal or chargeback. Tende may add or remove one or more payment types or networks at any time. If we do so we will use reasonable efforts to give you prior notice of the removal.

Transaction and Access Fees

You agree to pay us for the Services we render to you.

The Transaction and Access Fees payable to Tende under this Agreement are structured in Annexure 1. Tende may increase/reduce/waive its Transaction and Access Fees provided in Annexure 1 from time to time without recourse to the Merchant but shall notify the Merchant of such increase/reduction/waiver immediately upon its implementation.

Tende is entitled to recover and withhold any Refunds; any Chargebacks and any Fines Visa, MasterCard, American Express; and any Affiliates thereof or any other card payment network.

Taxes

You undertake to declare all income resulting from or in consequence of using our Services to the relevant tax authority and to pay all taxes levies and fees due on such income. We shall not be liable to you for any failure by you to comply with your obligations under this Section (Taxes) and you shall indemnify us from any loss or damage arising from any failure to comply with your obligations under this Section (Taxes).

Security and Fraud Controls

Tende is responsible for protecting the security of Payment Data including CHD in our possession and will maintain commercially reasonable administrative, technical, and physical procedures to protect all the Personal Information regarding you and your customers that is stored in our servers from unauthorised access and accidental loss or modification. Although, we cannot guarantee that unauthorised third parties will never be able to defeat those measures or use such Personal Information for improper purposes. We will however take all reasonable and commercially achievable measures to address any security breach as soon as we become aware.

You agree to use the procedures and controls provided by us and other measures that are appropriate for your business to reduce the risk of fraud.

In the event that you suspect any fraudulent activity by a customer, you agree to notify Tende immediately and quit the delivery of the service. In addition, where we suspect that there have been frequent fraudulent transactions on your Account, we reserve the right to cancel our service to you and/or your Account.

Fraudulent transactions shall include but not be limited to:
(1) any purchase of goods and services and/or transaction arising from the use of a card by a person other than the authorized cardholder;
(2) use of a card that is not authorised in terms of the rules governing the issuance and use of cards;
(3) any purchase of goods and services, and/ or transaction arising from the use of a mobile money wallet by a person other than the authorized mobile money wallet owner;
(4) any purchase of goods and services, and/ or transaction arising from the use of a Bank Account by a person other than the authorized Bank Account owner.

Reversals and Errors

You agree to notify us immediately any error is detected while reconciling transactions that have occurred using Tende. We will investigate and rectify the errors where verified.

In the event that we notice any errors, we will also investigate and rectify such errors. Where we owe you money as a result of such errors, we will refund the amounts owed to you.

A transaction once completed is final and irrevocable. As such, Tende shall not be under any compulsion to reverse any transaction. If a transaction is erroneously processed through your platform, report to us immediately. We will investigate any such reports and attempt to rectify the errors.

Failure to notify us within 30 (thirty) days of the occurrence of an error will be deemed a waiver of your rights to amounts that are owed to you due to an error.

Chargebacks

Where your customer files directly with or disputes through his or her credit or debit card issuer a payment on their bill, it may result in the reversal of a transaction (a “Chargeback”). Chargebacks may arise from customer disputes; unauthorised or improperly authorised transactions; transactions that do not comply with Card Network Rules or the terms of this Agreement or are allegedly unlawful or suspicious; or any reversals for any reason by the Card Network, our processor, or the acquiring or issuing banks. Where a Chargeback occurs, you are immediately liable for all claims, expenses, fines and liability we incur arising out of that Chargeback and agree that we may recover these amounts by debiting your Account. Where these amounts are not recoverable through your Account, you agree to pay all such amounts through any other means.

Refunds

You agree that you are solely responsible for accepting and processing returns of your products and services. We are under no obligation to process returns of your products and services, or to respond to your customers’ inquiries about returns of your products and services. You agree to submit all refunds for returns of your products and services that were paid for through Tende to your customers in accordance with this Agreement and relevant Card Network Rules.

Termination

You may terminate this Agreement by closing your Account. We may suspend your Account and your access to the Services and any funds, or terminate this Agreement, if;
1. you do not comply with any of the provisions of this Agreement;
2. we are required to do so by a Law;
3. we are directed by a Card Network or issuing financial institution;
4. where you are identified as the source of a suspicious or fraudulent transaction; and/or
5. you cause damage to Tende’s brand.

Upon termination of this Agreement your right to use our Services shall automatically be revoked, and the your Account shall be deactivated. Tende shall retain the merchant records for a period of seven (7) years after such termination.

Acceptable Use Policy

You are independently responsible for complying with all applicable laws related to your use of our Services. However, by accessing or using Tende, you agree to comply with the terms and conditions set out below:

1. Restricted Activities

You may not use Tende in connection with any product, service, transaction or activity that:
(a) violates any law or government regulation, or promotes or facilitates such by third parties;
(b) infringes any intellectual property rights;
(c) violates any rule or regulation of Visa, MasterCard, Verve or any other electronic funds transfer network (each, a “Card Network”);
(d) is fraudulent, deceptive, unfair or predatory;
(e) causes or threatens reputational damage to us, our service providers, partners or any Card Network;
(f) collects or stores personal data about other Users without their express authority; and/or
(g) involves any of the business categories listed in Certain Business Categories section below;
(h) results in or creates a significant risk of chargebacks, penalties, damages or other harm or liability;
(i) impersonate any person or entity, including, or falsely utter or otherwise misrepresent your affiliation with a person or entity;
(j) makes available 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.

2. Certain Business Categories

You may not use Tende in connection with any product, service, transaction or activity that:
(a) falls within the Prohibition List of the International AML lists or falls within the definition of money laundering or proceeds of crime under the Proceeds of Crime and Anti-Money Laundering Act (Act No. 9 of 2009, Laws of Kenya); and
(b) relates to the sale and/or purchase of:
(i) banned narcotics, steroids, certain controlled substances or other products that present a risk a consumer's safety;
(ii) blood, bodily fluids or body parts;
(iii) burglary tools;
(iv) counterfeit items;
(v) illegal drugs and drug paraphernalia;
(vi) fireworks, destructive devices and explosives;
(vii) identity documents, government documents, personal financial records or Personal Information (in any form, including mailing lists);
(viii) lottery tickets, sweepstakes entries or slot machines without the required license;
(ix) offensive material or hate speech or items that promote hate, violence, racial intolerance, or the financial exploitation of a crime;
(x) police badges or uniforms;
(xi) chemicals;
(xii) recalled items;
(xiii) prohibited services;
(xiv) unlicensed financial services, stocks or other securities;
(xv) stolen property;
(xvi) items that infringe or violate any copyright, trademark, right of publicity or privacy or any other proprietary right under the laws of any jurisdiction;
(xvii) sales of currency without a license from the CBK, certain cryptocurrency operators;
(xviii) obscene material or pornography;
(xix) certain sexually oriented materials or services;
(xx) certain firearms, firearm parts or accessories, ammunition, weapons or knives;
(xxi) any product or service that is illegal or marketed or sold in such a way as to create liability to Tende; or
(xxii) relate to transactions that show the Personal Information of third parties in violation of applicable law; support pyramid or ponzi schemes, matrix programs, other "get rich quick" schemes or certain multi-level marketing programs; are associated with purchases of annuities or lottery contracts, lay-away systems, off-shore banking or transactions to finance or refinance debts funded by a credit card; pertain to ammunitions and arms; and involve gambling, gaming and/or any other activity with an entry fee and a prize, including, but not limited to casino games, sports betting, horse or greyhound racing, lottery tickets, other ventures that facilitate gambling, games of skill (whether or not it is legally defined as a lottery) and sweepstakes unless the operator has obtained prior approval from Tende and the operator and customers are located exclusively in jurisdictions where such activities are permitted by law.

3. Actions by Tende

If, in our sole discretion, we believe that you may have engaged in any violation of this Acceptable Use Policy part, we may (with or without notice to you) take such actions as we deem appropriate to mitigate risk to Tende and any impacted third parties and to ensure compliance. Such actions may include, without limitation:
(a) blocking the settlement or completion of one or more payments;
(b) suspending, restricting or terminating your access to and use of the Services;
(c) terminating our business relationship with you, including termination without liability to Tende of this Agreement between you and Tende;
(d) taking legal action against you;
(e) contacting and disclosing information related to such violations to: (i) persons who have sold/purchased goods or services from you; (ii) any banks or Card Networks involved with your business or transactions; (iii) law enforcement or regulatory agencies; and (iv) other third parties that may have been impacted by such violations; or
(f) assessing against you any fees, penalties, assessments or expenses (including reasonable attorneys’ fees) that we may incur as a result of such violations, which you agree to pay promptly upon notice.

Privacy Policy

Tende is committed to managing your Personal Information in line with global industry best practices. You can read our Privacy Policy here to understand how we use your information and the steps we take to protect your information.

Cookies

In line with the industry practice, Tende uses Cookies to identify you as a User and to customize and improve the Services. A cookie is a small data file that is transferred to your Equipment. It enables us to remember your Account log-in information, IP addresses, web traffic, number of times you visit, date and time of visits.
Some browsers may automatically accept Cookies while some can be modified to decline Cookies or alert you when a website wants to place a cookie on your computer. If you do choose to disable Cookies, it may limit your ability to use the Website or the Services.

Warranty Disclaimer

You will be solely responsible for any damage to Tende, yourself and to any other person that results from breach of your access to your Account or to your computer or mobile phone (“Equipment”) from use of our Services. We will try to keep Tende available at all times and bug free and safe. However, it is used at your own risk.

Our Website and Services are provided “AS IS” with no warranty, express or implied, of any kind. Tende expressly disclaims any and all warranties and conditions, including any implied warranty or condition of merchantability, fitness for a particular purpose, availability, security, title and non-infringement of IPR. Without limiting the generality of the foregoing, Tende makes no warranty that the Website and the Services will meet your requirements or that the Website and the Services will remain free from any interruption, bugs, inaccuracies and will be error free.

Your use of the Services is at your own risk and you alone will be responsible for any damage that results in loss of data or damage to your Equipment’s system. No advice or information, whether oral or written obtained by you from our Website or the Services will create any warranty or condition not expressly stated.

Limitation of Liability

You agree to this limitation of liability section to the maximum extent permitted by the applicable law. Tende will in no way be liable for any direct, indirect, incidental, punitive, consequential, special or exemplary damages or any damages including damages resulting from revenue loss, profit loss, use, data, goodwill, business interruption or any other intangible losses (whether Tende has been advised of the possibility of such damages or not) arising out of the Website or Services (including, without limitation to inability to use, or arising as a result of the use of the Website or Services) whether such damages are based on warranty, tort, contract, statute or any other legal theory.
Tende shall use all reasonable efforts to ensure that all transaction requests are processed in a timely manner. However, Tende makes no representations or warranties as to continuous, uninterrupted or secure access to the Website and the Services, which may be affected by factors outside Tende’s control, or may be subject to periodic testing, repair, maintenance or upgrades. Tende will not be responsible for any claim unless caused by wilful default attributable to Tende. Tende specifically disclaims all liability for any damages or losses, including, without limitation, direct, indirect, consequential, special, incidental or punitive damages deemed or alleged to have resulted from or caused by but not limited to:
(a) transactions made to unintended recipients or payments made in incorrect amounts due to the input of incorrect information by you;
(b) transactions made from your Account by an unauthorised third party who passes all identity and verification checks;
(c) any fraud, deception or misrepresentations by User, whether or not the User has been verified;
(d) any damages resulting from a recipient’s decision not to accept or record a transaction made by you through the Tende platform;
(e) failure of any other telecommunications or data transmission system other than the Tende platform;
(f) failure caused by third party systems and service providers required to complete any transaction
(g) any result of any acts of government or authority, any act of God or force majeure.

The limit of Tende’s liability: Tende's liability shall not exceed KES 1M. You agree to indemnify and hold Tende harmless against any claim brought against Tende by a third party resulting from your breach of this Agreement.Indemnification

You hereby indemnify Tende and undertake to keep Tende, it’s officers, directors, employees, agents, licensors, and suppliers indemnified against any losses, damages, costs, liabilities and expenses (including without limitation to reasonable legal fees) arising out of any breach by you, your employees or agents of any provision of this Agreement, or arising out of any claim that you have breached any provision of this Agreement. You shall indemnify and hold Tende harmless from and against any damage, loss or liability that Tende may incur as a result of any claim by your customers. This section shall not be construed to limit or exclude any other claims or remedies to which Tende may be entitled hereunder or in law or equity.

Breach of this Agreement

Without prejudice to Tende’s other rights under this Agreement, if you breach this Agreement in any way, Tende may take such action as Tende deems appropriate to deal with the breach, including suspending your Account, prohibiting you from accessing the Services, blocking Equipment using your Account from accessing the Services, blocking computer and devices using your IP address from accessing the Services, contacting your internet service provider to request that they block your access to the Services, and/or bringing court proceedings against you.

Disclosure and Data Retention

You hereby expressly consent and authorize Tende to disclose any transaction data or information pertaining to your Account to any law enforcement, investigative or regulatory authority for the purposes of any genuine enquiry or investigation or to any third party to which you have separately, either in writing or electronically or otherwise, authorised Tende to disclose transaction data or information pertaining to you or your usage of the Services provided that any consent given to Tende to disclose information to any third party (not being a law enforcement, investigative or regulatory authority) pursuant to this Section (Disclosure and Data Retention) may be withdrawn at any time.

You acknowledge that where your Account is determined by a competent judicial authority as containing proceeds of any criminal or money laundering activities, Tende may be required by law to surrender your Account to any statutory body created for the purpose of recovering the proceeds of crime.

You acknowledge that Tende may retain your transaction data for a period of up to seven (7) years or as may be required by any law or regulation.

Governing Law and Dispute Resolution

Governing Law: This Agreement and any non-contractual obligations arising out of or in relation to it will be governed by, and construed in accordance with the laws of Kenya, without regard to its choice of laws principles.

Tende shall not be involved in any disputes between you and any of your customers.

Where any dispute arising out of or in connection with this Agreement cannot be settled within twenty (20) days,, it may be referred by any party to and finally resolved by arbitration under the following terms: The parties shall jointly appoint an arbitrator within twenty (20) days, or such longer period as may be agreed by the parties; if the parties fail to agree on an arbitrator, any party may apply to the Chairman for the time being of the Kenyan Chapter of the Chartered Institute of Arbitrators to appoint an arbitrator requesting that the appointment be made within twenty (20) days of the date of receipt of the application; the arbitration proceedings shall be conducted in Nairobi, Kenya and shall be conducted in accordance with the provisions of the Arbitration Act (No. 4 of 1995, Laws of Kenya) and the rules of the Kenyan branch of the Chartered Institute of Arbitrators; the seat of arbitration shall be in Nairobi; the language of arbitration shall be English; and the cost of arbitration shall be borne equally by the parties.

The award of the arbitrator shall be final and binding upon the parties and any party may apply to a court of competent jurisdiction for enforcement of such award. No award of punitive damages by the arbitrator may be enforced. Notwithstanding the foregoing, a party is entitled to seek preliminary injunctive relief or interim or conservatory measures from any court of competent jurisdiction pending the final decision or award of the arbitrator.

Assignment

Assigning or sub-contracting any of your rights or obligations under this Agreement to any third party is prohibited. We reserve the right to transfer, assign or sub-contract the benefit of the whole or part of any rights or obligations under this Agreement to any third party.

Notices

All notices, requests and consents under this Agreement shall be in writing and shall be deemed to have delivered (a) on the date personally delivered, (b) on the date mailed, postage prepaid by certified mail with return receipt requested, or (c) when sent via facsimile and confirmed to the addresses provided by the parties.

No Waiver

Any waiver in relation to any part of this Agreement shall be in writing and effective only in that instance and will not be construed as a bar to or waiver of any right on any other occasion. Any failure to exercise or any delay in exercising any of such rights shall not operate as a waiver or variation of that or any other such right, any defective or partial exercise of any of such right shall not preclude any other or further exercise of that or any other such right and no act or course of conduct or negotiation on the part of either Party shall preclude them from exercising any such right or constitute a suspension or variation of such right.

Severability

If any provision of this Agreement is declared by any applicable law, judicial or other competent authority to be void, voidable, illegal or otherwise unenforceable or irrelevant, the remaining provisions of this Agreement shall be unimpaired and shall remain in full force and effect, and the invalid, illegal or unenforceable provision shall be replaced by a valid, legal and enforceable provision that comes closest to the intent of the parties underlying the invalid, illegal or unenforceable provision.

Whole Agreement

This Agreement constitutes the entire agreement between the Parties hereto concerning the subject matter hereof and supersedes any prior or contemporaneous written or oral agreements and understandings concerning the subject matter hereof. The Parties confirm that they have not entered into this Agreement upon the basis of any representation that are not expressly incorporated in this Agreement.

Force Majeure

Neither party shall be liable to the other party for any delay or failure to perform its obligations under these Terms as a result of revolution or other civil disorders; belligerent aggression by an enemy; strikes; lack of available resources from persons other than parties to these Terms; labour disputes; electrical equipment or system availability delay or failure; fires; floods; acts of God; government or regulatory intervention; or, without limiting the foregoing, any other causes not within its control, and which by the exercise of reasonable diligence it is unable to prevent, whether of the class of causes hereinbefore enumerated or not. If such delay or failure continues for at least thirty (30) days then either party may terminate their engagement by notice in writing to the other.

General

The Parties shall comply with all legal requirements applicable to their role in effecting Transactions. This Agreement may be accepted electronically in accordance with the provisions of the Kenya Information and Communications Act or any other applicable law.

You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.