Terms of Service
Last Updated: June 23, 2018
Welcome to RetailPay.africa, a wholly owned website and online payment and transactional portal of RetailPay Limited and/or its affiliates ('RetailPay').
RetailPay is a platform and system comprising this website, custom Android and iOS Applications designed for effecting transactions or receiving data on the proprietary RetailPay Limited retail value chain platform and system including any licensed or permitted third party Applications which may be admitted to the platform and system, points of sales, scanners, readers and integrated retail value chain support services and related features, equipment and other products and services which we offer to you when you visit or shop at Retail Pay or any RetailPay Limited compliant, powered or supported website, shop, outlet or registered merchant; use RetailPay products or services, use RetailPay applications for mobile or custom-made gadgets, or use software provided by RetailPay in connection with any of the foregoing (collectively, 'RetailPay Services').
The RetailPay Platform or System is a web and mobile based system that leverages RetailPay and RetailPay’s affiliates intellectual properties to restructure the Retail supply and value chains by connecting manufacturers and suppliers directly to their consumers or customers and structuring any valuable service providers along the chain intelligently and optimally while assuring each party of real-time or near real-time settlement upon any sale in order to promote and attain retail supply chain price transparency, financial management integrity, efficiency thereby increasing market liquidity, competitiveness, innovation, competition, lower consumer prices and profitability.
RetailPay provides the RetailPay retail value or supply chain and RetailPay Services subject to the following terms and conditions.
By using or continuing to use RetailPay retail value chain platform and system or RetailPay Services, you agree to be bound and abide by these terms and conditions. Please read them carefully.
RetailPay offers a wide range of retail value chain services, and sometimes additional terms may apply. When you use, consume or benefit from a RetailPay Service and related or supporting services (for example, RetailPay platform or application, Value Insurance Brokers, Value Capital, Value Retail, Gift Cards, RetailPay devices, or RetailPay Applications) you also will be subject to the guidelines, terms and agreements applicable to that RetailPay Service ('Service Terms'). If these Terms and Conditions of Use are inconsistent with the Service Terms, those Service Terms shall prevail or take precedence.
Privacy in General
As a general rule, RetailPay processes, analyses, and manages Data to: (a) provide RetailPay Services to you, other RetailPay users, and Customers; (b) mitigate fraud, financial loss, or other harm to users, Customers and RetailPay; and (c) analyse, develop and improve our products, systems, and tools. RetailPay provides Data to third-party service providers, including Financial Services Providers and their affiliates, as well as RetailPay’s global affiliates, to allow us to provide RetailPay Services to you and other users. We do not provide Personal Data to unaffiliated parties for marketing their products to you. You understand and consent to RetailPay’s use of Data for the purposes and in a manner consistent with this stipulation.
Data Protection and Privacy
RetailPay will only use User Data as permitted by this Agreement, by other agreements between you and us, or as otherwise directed by you. You will protect all Data you receive through the RetailPay Services, and you may not disclose or distribute any such Data, and you will only use such Data in conjunction with the Services and as permitted by this Agreement or by other agreements between you and us. While neither you nor us may use any Personal Data to market to Customers unless either party has received the express consent from the other, you understand and agree that as part of our business or through any of our affiliates, RetailPay may part with any useful data or information in generic terms without disclosing your details or exposing your personal information on normal commercial terms or for purposes of market research or related studies. RetailPay will, however, not disclose Payment Data to others except in connection with processing Transactions requested by you or your authorized agents and consistent with applicable laws or the logical operation and provision of the RetailPay Services or functioning of the RetailPay platform or System.
You affirm that you are now and will continue to be compliant with all applicable laws governing the privacy, protection and use of Data that you provide to us or access through your use of the RetailPay Services. You also affirm that you have obtained all necessary rights and consents under applicable laws to disclose to RetailPay — or allow RetailPay to collect, use, retain, and disclose — any Personal Data that you provide to us or authorise us to collect, including Data that we may collect directly from customers and other users using cookies or other similar means.
As may be required by law and in connection with this Agreement, you are solely responsible for disclosing to your customers, suppliers or partners as the case may be that RetailPay processes transactions (including payment transactions), structures all players and service providers along the retail supply chain for you and on your behalf and that accordingly, RetailPay may receive Personal Data from you or them. Additionally, where required by law or rules relating to the operation or consumption of any of the services provided by any of RetailPay’s partners or affiliates, we may delete or disconnect a customer’s Personal Data from your RetailPay Account when requested to do so by the affected customer or user.
If we become aware of an unauthorized acquisition, disclosure or loss of customer or user Personal Data on our systems, we will notify you consistent with our obligations under applicable law. We will also notify you and provide you sufficient information regarding the unauthorized acquisition, disclosure or loss to help you mitigate any negative impact on you, your business or your customer.
You are the data controller and we are the data processor in relation to Personal Data processed on your behalf under this Agreement, except that we will be a data controller in relation to Personal Data where we determine the purposes and manner in which the Personal Data is processed (including, for example, in complying with any regulations or laws imposed upon us through rules governing access to regulated Financial Services Providers). We will, to the extent that we are a data processor, process Personal Data in accordance with the terms of this Agreement and lawful instructions reasonably given by you to us from time to time, and we will employ appropriate technical and organisational measures to protect such Personal Data. We will not be liable for any claim brought by a data subject arising from any action or omission by us, to the extent that such action or omission resulted from your instructions. In this section, 'data controller', 'data processor', and 'data subject' have the meanings given them in the laws relating to data and privacy in the Republic of Kenya.
Security and Fraud Controls
a. RetailPay’s Security: RetailPay is responsible for protecting the security of Data in our possession. We will maintain commercially reasonable administrative, technical, and physical procedures to protect User Data and Personal Data stored in our servers, the RetailPay platform and systems from unauthorised access, accidental loss, modification, or breach, and we will comply with applicable laws, rules and regulations when we handle User and Personal Data. However, no security system is impenetrable and we cannot guarantee that unauthorised parties will never be able to defeat our security measures or misuse any Data in our possession. You provide User Data and Personal Data to RetailPay on the understanding that any security measures we provide may not be appropriate or adequate for your business, and you agree to implement the security controls and any additional controls that meet your specific requirements. In our sole discretion, we may take any action, including suspension of your RetailPay Account, to maintain the integrity and security of the RetailPay Services or Data, or to prevent harm to you, us, customers, RetailPay users or others. You waive any right to make a claim against us for losses you incur that may result from such actions.
b. Your Security: You are solely responsible for the security of any Data on your website, your servers, in your possession, or that you are otherwise authorised to access or handle. You will comply with applicable laws, rules and regulations when handling or maintaining Data, and will provide evidence of your compliance to us upon our request. If you do not provide evidence of such compliance to our satisfaction, we may suspend transactions on your account or terminate this Agreement.
c. Security and Fraud Controls: We may provide or suggest Security Controls to you, but we cannot guarantee that you or your customers, partners or affiliates Customers will never become victims of fraud. Any Security Controls we provide or suggest may include processes or applications developed by RetailPay, its affiliates, or other companies.
You agree to review all the Security Controls we suggest and choose those that are appropriate for you or your business to protect against unauthorised transactions and, if appropriate for you or your business, independently implement other security procedures and controls not provided by us. If you disable or fail to properly use security controls, you will increase the likelihood of unauthorised transactions, disputes, fraud, losses, and other similar occurrences.
You are solely responsible for losses you incur from the use of lost or stolen payment credentials, passwords or accounts by fraudsters who engage in fraudulent transactions with you, and your failure to implement security controls will only increase the risk of fraud. We may assist you with recovering lost funds, but you are solely responsible for losses due to lost or stolen passwords, credentials or accounts, compromise of your username or password, changes to your RetailPay Account, and any other unauthorised use or modification of your RetailPay Account.
RetailPay is not liable or responsible to you and you waive any right to bring a claim against us for any losses that result from the use of lost or stolen passwords, credentials or accounts to engage in fraudulent transactions, unless such losses result from RetailPay’s willful or intentional actions or defaults. Further, you will fully reimburse us for any losses we incur that result from the use of lost or stolen passwords, credentials or accounts.
We may provide you with subjective data regarding the possibility or likelihood that a transaction may be fraudulent that require action or review by you. We may incorporate action or inaction by you into any such subjective scoring when identifying future potential fraud. You understand that we provide this data to you for your consideration, but that you are ultimately responsible for any actions you choose to take or not take in relation to such data, and for providing inaccurate or incorrect information to us. You are solely responsible for any action or inaction you take based on such data.
When you use RetailPay Services, key in or receive data, or send e-mails, text messages, and other communications from your desktop, point of sale, RetailPay or mobile device to us, you may be communicating with us electronically. You consent to receive communications from us electronically, such as e-mails, texts, mobile push notices, or notices and messages on this site or through the other RetailPay Services, such as our Message Center or via any designated RetailPay device, and you can retain copies of these communications for your records. You agree that all agreements, notices, disclosures, and other communications (including these terms and condition of use of RetailPay Services) that we provide to you electronically satisfy any legal requirement that such communications be in writing and proof of the same having been dispatched to you in the ordinary course of business shall be sufficient proof of delivery of the same to you.
Intellectual Property Generally
RetailPay and/or its licensors exclusively own all rights, title, and interest in the patents, copyrights (including rights in derivative works), moral rights, rights of publicity, trademarks or service marks, logos and designs, trade secrets, and other intellectual property embodied by, or contained in the API, Services, Dashboard, and Documentation (collectively, 'RetailPay IP') or any copies thereof. RetailPay IP is protected by copyright, trade secret, patent, and other intellectual property Laws, and RetailPay reserves all rights in RetailPay IP not expressly granted to you in this Agreement.
You may choose to or we may invite you to submit comments or ideas about improvements to the RetailPay Services, our API, our platform, or any other component of our products or services ('Ideas'). If you submit an Idea to us, we will presume that your submission was voluntary, unsolicited by us, and delivered to us without any restrictions on our use of the Idea. You also agree that RetailPay has no fiduciary or any other obligation to you in connection with any Idea you submit to us, and that we are free to use your Ideas without any attribution or compensation to you.
You are granted a non-exclusive and non-transferable license to electronically access and use the RetailPay IP only in the manner described in this Agreement. RetailPay does not sell to you, and you do not have the right to sub-license the RetailPay IP. We may make updates to the RetailPay IP or new Services available to you automatically as electronically published by RetailPay, but we may require action on your part before you may use the RetailPay IP or new Services (including activation through the Dashboard, Two-Step or similar validation process or acceptance of new or additional terms). RetailPay may revoke or terminate this license at any time if you use RetailPay IP in a manner prohibited by this Agreement.
You may not: (i) claim or register ownership of RetailPay IP on your behalf or on behalf of others; (ii) sub-license any rights in RetailPay IP granted by RetailPay; (iii) import or export any RetailPay IP to a person or country in violation of any country’s export control Laws; (iv) use RetailPay IP in a manner that violates this Agreement or laws; or (v) attempt to do any of the foregoing.
RetailPay Marks: References to Our Relationship
RetailPay may make RetailPay marks available for use by you and other users to allow you to identify RetailPay as a service provider. To use RetailPay Marks, you must first agree to the RetailPay Marks Usage Agreement or any relevant or applicable terms and conditions of such use. RetailPay may limit or revoke your ability to use RetailPay Marks at any time. You may never use any RetailPay Marks or RetailPay IP consisting of trademarks or service marks without our express permission, or in a manner that may lead people to confuse the origin of your products or services with ours.
During the term of this Agreement, you may publicly identify RetailPay as the provider of the Services to you and RetailPay may publicly identify you as a RetailPay user. If you do not want RetailPay to identify you as a user, please communicate to it via email, in writing or our contacts page. Neither you nor we will imply any untrue sponsorship, endorsement, or affiliation between you and RetailPay. Upon termination of your RetailPay Account, both you and RetailPay will remove any public references to our relationship from our respective websites and other commercial material.
You may use the RetailPay Services to upload or publish content to your RetailPay Account and to third-party sites or applications but only if you agree to obtain the appropriate permissions and, if required, license to upload or publish any such Content using the RetailPay Services. You agree to fully reimburse RetailPay for all fees, fines, losses, claims, and any other costs we may incur that arise from publishing illegal Content through the RetailPay Services, or claims that Content you published infringes the intellectual property, privacy, or other proprietary rights of others.
You are liable for all losses you incur when lost or stolen payment credentials, passwords or accounts are used to purchase or order products or services from you. RetailPay does not and will not insure you against losses caused by fraud under any such circumstances and where you have received compensation or payment arising from such cases, RetailPay or its insurers reserve the right of subrogation and may pursue you personally or directly for reimbursement, restitution or amends. For example, if someone pretends to be a legitimate buyer but is a fraudster, you will be responsible for any resulting costs, including Disputes, even if you do not recover the fraudulently purchased product to RetailPay or its Insurers where such loss has been compensated or made good by the RetailPay Platform.
Even if we work with you to assist you the police or other law enforcement agency in recovering lost funds or goods, RetailPay is not liable to you, or responsible for your financial losses or any other consequences of such fraud except as has been expressly stipulated in the insurance cover or performance bond the details of which have been provided to you upon your signing up to the RetailPay platform or made available herein.
RetailPay provides comprehensive Security Controls to help you mitigate the risk of fraud losses on your RetailPay Account. These will normally be made available to you and we strongly encourage you to review and use the Security Controls appropriate for your business.
Accuracy of Information Relating to Goods, Services and Payments
The information required for a settlement will depend on the Bank or financial services provider holding the Trust or Pay-out Account or Recipient Account. Please make sure that any information about such Accounts that you provide to us is correct and accurate. If you provide us with incorrect information (i) you understand that settlements or payments may be sent to the wrong account and we may not be able to recover the funds from such incorrect transfers and (ii) you agree that you are solely responsible for any losses you or third parties incur, you will not make any claims against us related to such erroneous transfers, and you will fully reimburse us for any losses we incur, including Advocates’ costs.
All content included in or made available through any RetailPay service, device or gadget, such as text, graphics, logos, button icons, images, audio or video clips, digital downloads, data compilations, and software is the property of RetailPay or its content suppliers and protected by Kenyan and international copyright laws. The compilation of all content included in or made available through any RetailPay service, device or gadget is the exclusive property of RetailPay and protected by Kenyan and international copyright laws.
Upon request, we may provide you with non-exhaustive list of RetailPay trademarks. Notwithstanding any such request and our response thereto, graphics, logos, page headers, tag lines, button icons, scripts, and service names included in or made available through any RetailPay Service, device or gadget are trademarks or trade names of RetailPay in Kenya and other countries. RetailPay's trademarks and trade names may not be used in connection with any product or service that is not RetailPay's, in furtherance of any criminal activity or in any manner that is likely to cause confusion among customers, or in any manner that disparages or discredits RetailPay. All other trademarks not owned by RetailPay that appear in any RetailPay Service, device or gadget are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by RetailPay.
One or more patents owned by RetailPay apply to the RetailPay Services and to the features and services accessible via the RetailPay Services. Portions of the RetailPay Services operate under license of one or more patents. RetailPay reserves all rights in relation to and expects that you will respect the said patents.
License and Access
Subject to your compliance with these Terms and Conditions of Use and any Service Terms, and your payment of any applicable fees and charges as may from time to time be required, RetailPay and/or its content providers grant you a limited, non-exclusive, non-transferable, non-sublicensable license to access and make personal and non-commercial (except commercial uses in relation to your transaction) use of the RetailPay Services. This license does not include any resale or commercial use of any RetailPay service, or its contents; any collection and use of any product listings, descriptions, or prices; any derivative use of any RetailPay service, the data contained herein or its contents; any downloading, copying, or other use of account information or data for the benefit of any third party; or any use of data mining, robots, or similar data gathering and extraction tools.
All rights not expressly granted to you in these Terms and Conditions of Use or any Service Terms are reserved and retained by RetailPay or its licensors, suppliers, publishers, rights holders, or other content providers. No RetailPay service, nor any part of any RetailPay service, may be reproduced, duplicated, copied, sold, resold, visited, or otherwise exploited for any commercial purpose without express written consent of RetailPay and its affiliates, their subsidiaries and/or permitted assigns. You may not frame or utilize framing techniques to enclose any trademark, logo, or other proprietary information (including images, text, page layout, or form) of RetailPay without express written consent. You may not use any meta tags or any other 'hidden text' utilizing RetailPay's name or trademarks without the express written consent of RetailPay. You may not misuse the RetailPay Services. You may use the RetailPay Services only as permitted by law. The licenses granted by RetailPay terminate if you do not comply with these Conditions of Use or any Service Terms.
Your RetailPay Account
You may need your own RetailPay account to use certain RetailPay Services, and you may be required to be logged in to the account and have a valid payment method or receiving account or eWallet associated with it. You are responsible for maintaining the confidentiality of your account and password and for restricting access to your account or eWallet, and you agree to accept responsibility for all activities that occur under your account, eWallet or password.
RetailPay does sell products for or on behalf of children, but it sells them for or on behalf of adults or duly registered business entities, who, or from whom one, can purchase with a credit card or other permitted payment method. If you are under 18 years old, you may use the RetailPay Services only with involvement of an adult parent or guardian. Parents and guardians may create profiles or accounts for teenagers in or through their RetailPay accounts. Alcohol, Tobacco and Cigarettes listings on RetailPay are intended for adults. You must be at least 18 years of age to purchase alcohol, cigarettes or other tobacco products, or use any site, platform or device functionality related to such products. RetailPay reserves the right to refuse service, terminate accounts, terminate your rights to use RetailPay Services, remove or edit content, or cancel orders in its sole discretion for breach of these stipulations.
Consent to Electronic Disclosures and Notices
The information required for a settlement will depend on the Bank or financial services provider
By registering for a RetailPay Account, you agree that such registration constitutes your electronic signature, and you consent to electronic provision of all disclosures and notices from RetailPay ('Notices'), including those required by Law. You also agree that your electronic consent will have the same legal effect as a physical signature.
Methods of Delivery: You agree that RetailPay can provide Notices regarding the RetailPay Services to you through our website or through the Dashboard, or by mailing Notices to the email or physical addresses identified in your RetailPay Account. Notices may include notifications about your RetailPay Account, changes to the RetailPay Services, or other information we are required to provide to you. You also agree that electronic delivery of a Notice has the same legal effect as if we provided you with a physical copy. We will consider a Notice to have been received by you within 24 hours of the time a Notice is either posted to our website or emailed to you.
SMS and Text Messages
You authorise us to provide Notices to you via text message to allow us to verify your or your Representative’s control over your RetailPay Account (such as through two-step verification), and to provide you with other critical information about your RetailPay Account. Standard text or data charges may apply to such Notices, including, where applicable, charges relating to premium rate services. Where offered, you may disable text message notifications in the Dashboard by responding to any such message with “STOP”, or by following instructions provided in the message. However, by disabling text messaging, you may be disabling important Security Controls on your RetailPay Account and may increase the risk of loss to your business.
If you are having problems viewing or accessing any Notices, please contact us and we can find another means of delivery.
Due to the nature of the RetailPay Services, you will not be able to begin using the RetailPay Services without agreeing to electronic delivery of Notices or agreeing to be bound by these terms and conditions. However, you may choose to withdraw your consent to receive Notices electronically or to be so bound by terminating your RetailPay Account and returning all of RetailPay’s equipment, assets and Intellectual Property including ceasing to use any of its related marks, logos or branding.
RetailPay has developed and may provide you with access to an online portal, platform, mobile Application or API (or a combination of some or all) that may be used to access the RetailPay Services. Such access may be used solely for purposes of effecting or processing RetailPay related or supported transactions or for use of the RetailPay services on websites and through the applications identified in your RetailPay account. You may manage your RetailPay Account, connect with other service providers, and enable additional features through the Dashboard. RetailPay will use the Dashboard to provide you with information about your RetailPay Account. RetailPay will also provide you with access to monthly summary reports which will include all your RetailPay Account activity, grouped by month, up to the most recent full day. The information will be provided in English. Additional or more specialised information such market and product analytics may be provided to you through the Dashboard at an additional fee, where such is available and applicable, you will be notified and applicable charges communicated to you before your commitment is requested.
You may use RetailPay’s online portal, platform, mobile Application or API (or a combination of some or all) to utilize the RetailPay Services on your website or inside your mobile applications upon access being granted to you by RetailPay and/or its affiliates. You may not use such access for any purpose, function, or feature not prescribed by RetailPay or otherwise communicated to you by RetailPay. Due to the nature of the RetailPay Services, RetailPay will update the online portal, platform, mobile Applications or API (or a combination of some or all) from time to time, and may add or remove functionality. RetailPay will as well provide you with notice if it changes, deprecates, or removes functionality from the online portal, platform, mobile Application or API (or a combination of some or all) so that you may continue using the RetailPay Services with minimal interruption.
RetailPay may give you secret passwords for live and test transactions available through the Dashboard. The secret passwords permit access to your RetailPay Account. You are responsible for securing your secret passwords and for changing them to combinations known only to yourself — do not publish or share them with any unauthorised persons. Failure to secure your secret passwords will increase the likelihood of fraud on your RetailPay Account and potential losses to you or your Customers. You should contact us immediately if you become aware of any unauthorized use of your secret password, key or any other breach of security regarding the RetailPay Services.
Reviews, Comments, Communications and Other Content
You may post reviews, comments, photos, videos, and other content; send e-cards and other communications; and submit suggestions, ideas, comments, questions, or other information, so long as the content is not illegal, obscene, threatening, defamatory, invasive of privacy, infringing of intellectual property rights (including publicity rights), or otherwise injurious to third parties or objectionable, and does not consist of or contain software viruses, political campaigning, commercial solicitation, chain letters, mass mailings, or any form of "spam" or unsolicited commercial electronic messages. You may not use a false e-mail address, impersonate any person or entity, or otherwise mislead as to the origin of a card or other content. RetailPay reserves the right (but not the obligation) to remove or edit such content, but does not regularly review posted content.
If you do post content or submit material, and unless we indicate otherwise, you grant RetailPay a non-exclusive, royalty-free, perpetual, irrevocable, and fully sublicensable right to use, reproduce, modify, adapt, publish, perform, translate, create derivative works from, distribute, and display such content throughout the world in any media. You grant RetailPay and sub licensees the right to use the name that you submit in connection with such content, if they choose. You represent and warrant that you own or otherwise control all of the rights to the content that you post; that the content is accurate; that use of the content you supply does not violate this policy and will not cause injury to any person or entity; and that you will indemnify RetailPay for all claims resulting from content you supply. RetailPay has the right but not the obligation to monitor and edit or remove any activity or content. RetailPay takes no responsibility and assumes no liability for any content posted by you or any third party.
Risk of Loss
All goods and services traded on the RetailPay platform or system are made on a consignment basis pursuant to a shipment contract and are the subject of a platform wide performance bond and insurance cover. This means that the risk of loss for and title to such items are insured in favour of the registered manufacturer or supplier within the RetailPay system and title thereto passes only upon purchase such that at all times before sale, all such goods and services belong to the said manufacturer or supplier, as the case may be, and property only passes upon a sale to a consumer.
Returns, Refunds and Title
Returns and Refunds are only permissible where so required by clear rules of law and regulations relating to consumer rights and may differ from outlet to outlet or nature of the subject item of sale. RetailPay does not take title to returned items but may facilitate such returns back to the original supplier or manufacturer. Where this happens, RetailPay may require the affected manufacturer or supplier to meet the costs of such returns and any platform fees or charges, including the logistical and transportation charges, that may have been levied upon the product or which are required for the return. RetailPay is entitled to deduct and withhold, at source, any sums due or payable to the manufacturer or supplier within the platform irrespective of the nature or source of such funds, including, but not limited to, amounts due from unrelated sales for purposes of effecting the manufacturers’ or suppliers’ obligation hereunder. In certain cases, title to such returned goods or services may vest in insurance, exercising subrogation rights, where any claim may have been made or paid by the relevant insurance company but such vesting will not affect RetailPay’s right to be paid or to retain any platform fee or charge that may have been levied or charged in respect of the affected goods or services.
RetailPay attempts to be as accurate as possible. However, RetailPay does not warrant that product descriptions or other content of any RetailPay Service is accurate, complete, reliable, current, or error-free. If a product offered within the RetailPay platform or system is not as described, the consumer or person affected’s sole remedy is to return it in unused condition.
Pricing & Charges
RetailPay charges a standard Platform or System fee computed as a percentage of the retail price of any good or service flowing along the supply chain using the system which is payable upon a sale. As a value add, convenience and IP access compensation, the fee or is passed on to the ultimate consumer or buyer of such goods and services. The current rate is two per cent (2%) exclusive of Value Added Tax (VAT) or any taxes or applicable (county or national) governmental charges but this is subject to variation, from time to time, at the sole discretion of RetailPay to reflect changes in economic realities and cost of business.
In exceptional cases, a manufacturer or supplier may be required or called upon to meet a platform fee, on a pro rata basis, in relation to any goods or services that may be the subject of a return, charge back or rejection where such fee or charges have been refunded but not paid for, or reimbursed, by insurance.
When you use web based or mobile Applications created by RetailPay(for example, Applications developed for use in logistics, by merchants (POS) and customers or consumers), you may, or be required to, grant certain permissions to RetailPay for your device in the form of an ‘End User Permission’ or similar protocol. Most mobile devices provide you with information about these permissions and where applicable, similar protocols may be available online.
Sanctions and Export Policy
You may not use any RetailPay service, Application or gadget if you are the subject of Kenyan sanctions or of sanctions consistent with Kenyan law imposed by the governments of the country where you are using RetailPay Services. You must comply with all Kenyan or other export and re-export restrictions that may apply to goods, software (including RetailPay Software), technology, and services.
Parties other than RetailPay operate shops, stores, provide transportation, warehousing and other services or software, or sell product lines through the RetailPay Services. In addition, we provide links and connectivity to, or to the sites of, affiliated companies and certain other businesses who have joined or registered the RetailPay platform or system. While RetailPay takes great precaution in vetting and registering such third parties, RetailPay as a marketplace operator shall not responsible for examining or evaluating, and does not warrant, the offerings of any of these businesses or individuals (including the contents of their Web sites, where applicable). RetailPay does not assume any responsibility or liability for the actions or omissions, products, and contents of all these and any other third parties. You should therefore take such additional precautions as is expected of any reasonably prudent merchant to protect yourself or business and carefully review such parties’ statements and other conditions of use or engagement.
Site Policies, Modification, Severability
RetailPay reserves the right to make changes to its web site, policies, Service Terms, and these Terms and Conditions of Use including those relating to its Applications at any time. If any of these terms and conditions shall be deemed invalid, void, or for any reason unenforceable, that term or condition shall be deemed severable and shall not affect the validity and enforceability of any remaining terms and conditions.
Additional RetailPay Software Terms and Conditions
The following general terms ('Software Terms') apply to any software or Application (including any updates or upgrades thereto) and any related documentation we make available to you in connection with RetailPay Services (the 'RetailPay Software').
Use of the RetailPay Software
You may use RetailPay Software or Applications (and any accompanying gadget) solely for purposes of enabling you to use the Retail Pay Services as provided by RetailPay and its affiliates, and as permitted by these Terms and Conditions of Use and any RetailPay Service Terms. You may not incorporate any portion of the RetailPay Software or Applications into other programs or compile any portion of it in combination with other programs, or otherwise copy (except to exercise rights granted in this section), modify, create derivative works of, distribute, assign any rights to, or license the RetailPay Software and Applications in whole or in part. All software, Applications and gadgets used in any RetailPay Service is the property of RetailPay or its hardware and software suppliers and is protected by Kenyan and international copyright and related laws.
Use of Third Party Services
When you use the RetailPay Software, you may also be using the services of one or more third parties, such as a wireless carrier or a mobile software or telecommunications provider. Your use of these third-party services may be subject to the separate policies, terms and conditions of use, and fees of these third parties.
No Reverse Engineering
You may not reverse engineer, decompile or disassemble, tamper with, or bypass any security associated with the RetailPay Software, Applications or gadgets whether in whole or in part.
We may offer automatic or manual updates to the RetailPay Software, Applications and gadgets at any time and without notice to you.
Government End Users
If you are a Kenyan (National or County) Government end user, we are licensing the RetailPay Software, Applications and gadgets to you in the ordinary course of commerce and the rights we grant you to the RetailPay Software, Applications and gadgets or the Platform or System are the same as the rights we grant to all others under these Conditions of Use.
In the event of any conflict between these Terms and Conditions of Use and any other RetailPay or third-party terms applicable to any portion of RetailPay Software, Applications, gadgets or the Platform or System, such as open-source license terms, such other terms will control so much of that portion of the RetailPay Software, Applications, gadgets or the Platform or System as is applicable and to the extent of the conflict.
Right to Amend
We have the right to amend, change or add to the terms of this Agreement at any time, and to change, delete, discontinue, or impose conditions on use of the RetailPay Services by posting such changes on our website or any other website we maintain or own. We may provide you with notice of any such changes through the Dashboard, via email, or through other means. Your use of the RetailPay Services, membership or use of the Platform or System, API, or data after a change or amendment has taken effect, constitutes your acceptance of the terms of the modified Agreement. You can access a copy of the current terms of this Agreement on our website at any time. You can find out when this Agreement was last changed by checking the link or section marked “Last Updated”. If you do not accept a change to this Agreement, you must terminate the Agreement by closing your RetailPay Account before the change takes effect.
You may not assign this Agreement, any rights or licenses granted in this Agreement, or operation of your RetailPay Account to others without our prior written consent. If you wish to make such an assignment, please contact us. If we consent to the assignment, the assignee agrees to assume all of your rights and obligations owed by you related to the assignment, and must agree to comply with the terms of this Agreement. RetailPay may assign this Agreement without your consent or any other restriction. If we make an assignment, we will provide reasonable Notice to you.
Right to Audit
If we believe that a security breach, leak, loss, or compromise of data has occurred the RetailPay Platform or System, on your systems, website, or Application affecting your compliance with this Agreement or of the Platform or System, we may require you to permit us or a third-party auditor approved by us to conduct a security audit of your systems and facilities. The auditor will issue a report to us, our Financial Services Providers and/or any relevant person authority for further action or advice.
Except as expressly stated in these Terms and Conditions of Use, nothing stated herein serves to establish a partnership, joint venture, or other agency relationship between you and us, or with any Financial Services Provider. Each party to this Agreement, and each Merchant, Retail Value or Supply Chain member or supplier, Financial Services Provider, is an independent contractor. Unless a Financial Services Provider expressly agrees, neither you nor we have the ability to bind a Financial Services Provider to any contract or obligation, and neither party will represent that you or we have such an ability.
Neither party will be liable for any delays in processing or other non-performance caused by telecommunications, internet, utility, failures, or equipment failures; labour strife, riots, war, or terrorist attacks; non-performance of our vendors or suppliers, fires or acts of nature; or any other event over which the respective party has no reasonable control. However, nothing in this section will affect or excuse your liabilities or your obligation to pay any Fees, Fines, Disputes, Refunds, Reversals, or Returns which are payable by you under this Agreement.
Your Liability for Third-Party Claims Against Us
You agree to defend RetailPay, RetailPay Platform or System essential service providers such as the Financial Service Providers and Insurance Companies, our affiliates, and their respective employees, agents, and service providers (each a “RetailPay Entity”) against any claim, suit, demand, loss, liability, damage, action, or proceeding (each, a “Claim”) brought by a third party against a RetailPay Entity and/or the said essential service providers, and you agree to fully reimburse the RetailPay Entities for any Claims that result from: (i) your breach of any provision of this Agreement; (ii) any Fees, Fines, Disputes, Refunds, Reversals, Returns, or any other liability we incur that results from your use of the RetailPay Platform or System or of any of the RetailPay Services; (iii) negligent or wilful misconduct of your employees, contractors, or agents; or (iv) contractual or other relationships between you and Customers.
Important Note for Individual Traders
If you are using RetailPay Services as a sole proprietor, please keep in mind that the law and the terms of this Agreement consider you and your business to be legally one and the same. You are personally responsible and liable for your use of the RetailPay Services, payment of Fees, Refunds, Reversals, Fines, losses based on Disputes or fraud, or for any other amounts you owe under this Agreement for your failure to or effectively use security controls, and for all other obligations to us and to your customers. You risk personal financial loss if you fail to pay any amounts owed.
Representations and Warranties
By accepting the these Terms and Conditions of Use, you represent and warrant that: (a) you are eligible to register and use the RetailPay Services and have the authority to execute and perform the obligations required by this Agreement; (b) any information you provide to us about your business, products, or services is accurate and complete; (c) any Charges or prices represent a transaction for permitted products, goods, services, or donations, and any related information accurately describes the transaction; (d) you will fulfil all of your obligations to customers and will resolve all disputes with them; (e) you will comply with all laws applicable to your business and use of the RetailPay Services; (f) you will not use RetailPay Services for household purposes or peer-to-peer money transmission, or (except in the normal course of business or permissible transfers from your eWallet where applicable or available) intercompany Transactions; and (g) you will not use the RetailPay Services, directly or indirectly, for any fraudulent or illegal undertaking, terrorism or the support and facilitation thereof, or to interfere in any manner with the normal operation of the RetailPay Service.
We provide the RetailPay Services and RetailPayPlatform or System “as is” and “as available”, without any express, implied, or statutory warranties of title, merchantability, fitness for a particular purpose, non-infringement, or any other type of warranty or guarantee. No data, documentation or any other information provided by RetailPay or obtained by you from or through the RetailPay Services (Platform, System, Applications or gadgets) — whether from RetailPay, its affiliates or another RetailPay entity, and whether or not oral or written — creates or implies any warranty from a RetailPay entity to you.
You affirm that no RetailPay entity controls the products or services that you offer or sell or that your customers purchase using the RetailPay Platform or System. You understand that we cannot guarantee and we disclaim any knowledge that your customers or suppliers, as the case may be, possess the authority to, or will complete any transaction.
The RetailPay entities disclaim any knowledge of, and do not guarantee: (a) the accuracy, reliability, or correctness of any data provided through the RetailPay Services as such information will normally be provided by or obtained from the relevant service provider or merchant or supplier; (b) that the services will meet your specific business needs or requirements; (c) that the services will be available at any particular time or location, or will function in an uninterrupted manner or be secure; (d) that RetailPay will correct any defects or errors in the service, API, documentation, or data; or (e) that the services are free of viruses, malware, Trojans or other harmful code. Use of data you access or download through the services is done at your own risk — you are solely responsible for any damage to your property, loss of data, or any other loss that results from such access or download. You understand that the RetailPay entities make no guarantees to you regarding transaction processing times or pay-out schedules.
Nothing in these Terms and Conditions operate to exclude, restrict or modify the application of any implied term, condition, warranty or guarantee, or the exercise of any right or remedy, or the imposition of any liability under law where to do so would: (a) contravene that law; or (b) cause any term of this agreement to be void.
Limitation of Liability
Without prejudice to your right, where applicable, to compensation, payment or reimbursement from insurance or the performance guarantee underlying the RetailPay Platform or System:
- under no circumstances will RetailPay or any RetailPay Entity be responsible or liable to you for any indirect, punitive, incidental, special, consequential, or exemplary damages resulting from your use or inability to use the RetailPay Services or for the unavailability of the Services, for lost profits, personal injury, or property damage, or for any other damages arising out of, in connection with, or relating to these Terms and Conditions of Use or your use of the RetailPay Services, even if such damages are foreseeable, and whether or not you, RetailPay or the RetailPay Entities have been advised of the possibility of such damages.
- RetailPay and RetailPay Entities are not liable, and deny responsibility for any damages, harm, or losses to you arising from or relating to hacking, tampering, or other unauthorised access or use of the RetailPay Services, your RetailPay Account, or Data, or your failure to use or implement anti-fraud measures, the Security Controls, or any other data security measure.
- RetailPay andRetailPay Entities further deny responsibility for all liability and damages to you or others caused by (a) your access or use of the RetailPay Services (Platform, System, Applications or gadgets)inconsistent with these Terms and Conditions of Use and of any relevant or applicable terms and conditions or protocol; (b) any unauthorised access of servers, infrastructure, or data used in connection with the RetailPay Services; (c) interruptions or cessation of the RetailPay Services;
- any bugs, malware, Trojans, viruses, or other harmful code that may be transmitted to or through the RetailPay Services;
- any errors, inaccuracies, omissions, or losses in or to any data provided to us; (f) third-party content provided by you; or
- the defamatory, offensive, or illegal conduct of others.
You agree to limit any additional liability not disclaimed or denied by RetailPay or the RetailPay Entities under this Agreement to your direct and documented damages; and you further agree that under no circumstances will any such liability exceed in the aggregate the maximum sum covered or guaranteed to RetailPay Platform or System in relation to your claim by the current insurance or performance guarantee provider.
These limitations on our liability to you will apply regardless of the cause of action or legal theory upon which your claim is based, including contract, tort (including negligence), strict liability, or any other theory or basis.
Responding to Legal Process
Dispute Resolution & Agreement to Arbitrate
Governing Law shall be the laws of Kenya including statutes, regulations, regulatory guidelines and judicial or administrative interpretations rules.
Any dispute, controversy or claim arising out of or relating to these Terms and Conditions, including the formation, interpretation, breach or termination thereof, including whether the claims asserted are arbitral, will be referred to and finally determined by arbitration by a single arbitrator. The place of the arbitration will be Nairobi Kenya in accordance to the provision of the Arbitration Act (No.5 of 1995) or such other statutory modification or enactment in place thereof. If the Parties cannot agree on an arbitrator within seven (7) days of either Party indicating in writing to the other the need to have an arbitrator appointed, the arbitrator shall be appointed at the request of either Party by the Chairman for the time being of the Kenya Branch of the Chartered Institute of Arbitrators. The language to be used in the arbitral proceedings will be English. The judgement of the arbitrator will be final and binding upon the parties.
Each party will advance one-half of the fees and expenses of the arbitrator, the costs of the attendance of any court reporter at the arbitration hearing, and the costs of the arbitration facility. In any arbitration arising out of or related to these Terms and Conditions of Use, the arbitrator will award to the prevailing party, if any, the costs and Advocates’ fees reasonably incurred by the prevailing party in connection with those aspects of its claims or defenses on which it prevails, and any opposing awards of costs and Advocates’ fees awards will be offset.
The parties will maintain the confidential nature of the arbitration proceeding, the hearing and the Award, except as may be necessary to prepare for or conduct the arbitration hearing on the merits.
No Representative or Class Action
You agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. You further agree that RetailPay or its affiliates may bring suit or file an action (s) in court to enjoin infringement or other misuse of its or its affiliate’s intellectual property rights.
These Terms and Conditions of Use and all policies and procedures that are incorporated by reference constitute the entire agreement between you and RetailPay or its affiliates for provision and use of the RetailPay Services. Except where expressly stated otherwise in a specific instrument communicated to you by RetailPay or its affiliates, these Terms and Conditions of Use will prevail over any conflicting policy or agreement for the provision or use of the RetailPay Services. If any provision or portion of these Terms and Conditions of Use is held to be invalid or unenforceable under Law, then it will be reformed and interpreted to accomplish the objectives of such provision to the greatest extent possible, and all remaining provisions will continue in full force and effect.
You shall indemnify, defend and hold RetailPay and its affiliates blameless from and against all claims, actions, suits or other proceedings, and any and all losses, judgments, Decrees, Orders, damages, expenses or other costs (including reasonable Advocates’ fees and disbursements), arising from or in any way relating and not limited to:
- Any actual or alleged violation or inaccuracy of any representation or warranty of you provided herein;
- Any products, goods or services offered;
- Any actual or alleged infringement of any trademark, copyright, trade name or other proprietary ownership interest resulting from the use by RetailPay of your copyrights and marks as contemplated by this Agreement;
- Any negligent act or omission or wilful misconduct of You or its directors, officers, employees, agents or assigns in connection with the entry into or performance of this Agreement; or
- Any use or disclosure by you of the shared customer data or information in a manner not in accordance with the Applicable Law.
All provisions of these Terms and Conditions that give rise to a party’s ongoing obligation will survive termination of your membership of or use of the RetailPay Services (Platform, System or gadgets).