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Terms Of Service


Last updated: 12th June, 2020


The Agreement

  1. This agreement (“Terms and Conditions”) sets out the terms and conditions governing the operation and use of the Digiduka Service (“the Service”). These terms and conditions are available on https://digiduka.com/terms.
  2. You should carefully read and understand these Terms and Conditions which govern the provision and use of the Service.
  3. These Terms and Conditions shall take effect on the date you shall register for the Service and accept these Terms and Conditions.
  4. These Terms and Conditions may be amended or varied by Digiduka, Inc. from time to time and the continued use of the Service constitutes your agreement to be bound by the terms of any such amendment or variation.

Definitions

  1. In these Terms and Conditions, the following words and expressions (save where the context requires otherwise) bear the following meanings:
    “Bank”: means a duly licensed bank under the Banking Act (Chapter 488 of the Laws of Kenya) and includes subsidiaries of the Bank as may from time to time be specified by the Bank to you;
    “Digiduka App”: means the software application as published, updated and upgraded by Duka Technologies Limited from time to time upon which the Services are offered;
    “Customer”: means a person who has registered to use the Service and has accepted these Terms and Conditions;
    “E-Value”: means the electronic monetary value depicted in your Digiduka Account representing an equal amount of cash;
    “Equipment”: includes your mobile phone handset, data enabled SIM Card and/or other equipment which when used together enables you to access the Digiduka App, Network and System.
    “Fees”: means the fees applicable for the Services as communicated by us from time to time in accordance with this Agreement and includes any charges, and applicable taxes thereon under the laws of Kenya
    “IPRS”: means the Integrated Population Registration System set up and maintained by the Government of Kenya under the Ministry of State for Immigration and Registration of Persons;
    “Digiduka Account”: means your digital store of value, being the record maintained by Duka Technologies Limited of the amount of E-value from time to time held by you in the Digiduka System;
    “Digiduka Service”: means the money transfer and payments service provided by Duka Technologies through the Digiduka System;
    “Digiduka System”: means the system operated by Duka Technologies Limited in Kenya for the provision of the Digiduka Service using the Network;
    "Digiduka PIN": means your personal identification number being the secret code used to access and operate the Digiduka System and your Digiduka Account;
    “Digiduka Subscriber”: means any person registered to use the Digiduka System to send or receive money or make payments;
    “MSISDN”: Mobile Subscriber Integrated Services Digital Network Number (Mobile Number);
    “Network”: means the mobile cellular network operated by Duka Technologies Limited in Kenya;
    “Request”: means a request or instruction received by us from you or purportedly from you through the Network and the System and upon which we are authorized to act;
    “Duka Tech”: means Duka Technologies Limited, a duly licensed converged telecommunications service provider incorporated in Kenya as a limited liability company under the Companies Act (No. 17 of 2015) and includes its successors and assigns;
    “Service” means the services as described in Clause 4 below;
    “SMS”: means a short message service consisting of a text message transmitted from one mobile phone to another;
    “System”: means the Digiduka System software enabling the Customer to interact with the Digiduka App. The Digiduka App and the Services will for the purpose of this Agreement be accessed through the Digiduka System;
    "Wallet": means an Digiduka Subscriber’s mobile money store of value, being the record maintained by Duka Tech of the amount of E-Money from time to time held by an Digiduka Subscribers in the Digiduka System.
    “We”, “our”, and “us,”: means Duka Tech and includes the successors and assigns of Duka Technologies Limited or such other parties as Duka Technologies Limited may partner with for purposes of the discharging its obligations under this Agreement;
    "You" or "your": means the Customer and includes the personal representatives of the Customer;
  2. Words importing the singular meaning where the context so admits include the plural meaning and vice versa.
  3. Headings in these Terms and Conditions are for convenience purposes only and they do not affect the interpretation of this Agreement.

Access to the Service

  1. To access the Service download the Service by going to the Google Playstore or Apple Store and searching for “Digiduka.”
  2. Install Digiduka on your handset or tablet. Data charges will apply for the installation and use thereafter of Digiduka.
  3. Once you have installed Digiduka, launch Digiduka by entering your MSISDN for authentication.
  4. Once you have launched Digiduka, a text message will be sent to your handset or tablet with the One Time PIN (“OTP”). DO NOT SHARE THE OTP WITH ANY THIRD PARTY.
  5. If you have an Android enabled handset or tablet the OTP is automatically read by your phone and then you select the “Login” option.
  6. Once you signup, it means you have accepted the Terms and Conditions, and Digiduka will launch the home screen or page.

Fees

  1. You are responsible for the payment of all applicable Fees for the use of the Service as per the Digiduka Customer Terms and Conditions. The Fees payable under this Service will be published in information pamphlets, the Digiduka app, Digiduka kiosks and on the Digduka website. Duka Tech Customer Care will be on hand to assist you with the Fee schedule if you are uncertain about the applicable Fee.
  2. All Fees are deducted at source and are subject to change at any time at our sole discretion.
  3. Fees payable under the Service will be deducted from your Digiduka Account. You shall pay to us and hereby accept that we entitled deduct from your Digiduka Account without reference to you:
    i. any Fees payable in respect of the Services;
    ii. any legal charges including advocate and client costs incurred by us in obtaining legal advice in connection with the Service and your dealings with us or incurred by us in any legal, arbitration or other proceedings arising out of any dealings in respect the Service; and
    iii. all other Fees, expenses and taxes, duties, impositions and expenses incurred in complying with your Requests.
  4. Except as may otherwise be notified, fees are inclusive of all applicable taxes including Value Added Tax at the prevailing rate.

Your Request

  1. You hereby irrevocably authorize us to act on all Requests received by us using your Digiduka PIN and to hold you liable in respect thereof. We may nevertheless refuse to carry out any requests beyond the scope of the Service as offered from time to time.
  2. We shall be deemed to have acted properly and to have fully performed all our obligations upon our compliance with the Request. We may ask for further information or confirmation (whether written or otherwise) from you before complying with a Request but shall not be obliged to comply with a Request in the absence of such further information or confirmation.
  3. We shall decline any Request if you exhaust your Digiduka transactional limit (as communicated by Duka Tech) and reserve the right to partly decline your Request if fully complying with the same would cause you to exceed the Digiduka transactional limit. In deciding whether to fulfil the Request, we shall take account of any outstanding Fees on your Digiduka Account in accordance with these Terms and Conditions or the terms and conditions relating to the Digiduka Service. We shall not be obliged to take account of regular credits or any amounts received after declining such Request.
  4. You can only cancel a Request by Requesting cancellation through the Digiduka App. If you request us to cancel any transaction or instruction after a Request has been received by us from you, we may at our absolute discretion cancel such transaction or instruction but shall have no obligation to do so.
  5. You hereby authorize us to effect such orders and act on such instructions in respect of your Digiduka Account as may be required by the Government or any court order or by a competent authority or agency under the applicable laws.

Information and Data

  1. Duka Technologies shall take all reasonable precautions to preserve the integrity and prevent any corruption or loss, damage or destruction of personal information, Digiduka information and all other information and data provided by you.
  2. All personal information, Digiduka information and all other information acquired by Duka Tech shall be used for the purposes of the Service and as provided in these Terms and Conditions and shall not be further processed and disclosed without your consent unless it is expressly authorized in this Agreement.
  3. You hereby expressly consent and authorize Duka Tech to disclose, receive, record or utilize your personal information or information or data relating to your use of the Service:
    i. To and from any local or international law enforcement or competent regulatory or governmental agencies so as to assist in the prevention, detection, investigation or prosecution of criminal activities or fraud or to any other institution or third party as required by the laws of any country and as we may deem necessary;
    ii. To and from Duka Tech’s service providers, dealers, agents or any other company that may be or become Duka Tech’s subsidiary or holding company for reasonable commercial purposes relating to the Services;
    iii. To Duka Tech’s lawyers, auditors or other professional advisors or to any court or arbitration tribunal in connection with any legal or audit proceedings;
    iv. To Duka Tech in connection with the Services;
    v. For reasonable commercial purposes connected to your use of the Services, such as marketing and research related activities; and/or
    vi. in business practices including but not limited to quality control, training and ensuring effective systems operations.
  4. You authorize us to disclose, respond, advise, exchange and communicate the details or information pertaining to your Digiduka Account and or your use of the Services to third parties involved in the administration of your Digiduka Account, updating of databases, or provision of user support.

Customer’s Equipment and Customer’s Responsibilities

  1. You shall at your own expense provide and maintain in safe and efficient operating order such Equipment necessary for the purpose of accessing the Services. You shall be responsible for ensuring the proper performance of your Equipment. We shall neither be responsible for any errors or failures caused by any malfunction of your Equipment, and nor shall we be responsible for any computer virus or related problems that may be associated with your access and use of the Services and Equipment. You shall be responsible for charges due to any service provider providing you with connection to the Network and we shall not be responsible for losses or delays caused by any such service provider.
  2. You shall follow all instructions, procedures and these Terms and Conditions and any other documents we may provide you concerning access and use of the Services and Equipment.
  3. You agree and acknowledge that you shall be solely responsible for the safekeeping and proper use of your Equipment and for keeping your Digiduka PIN secret and secure. You shall ensure that your Digiduka PIN does not become known or come into possession of any unauthorized person. We shall not be liable for any disclosure of your Digiduka PIN to any third party and you hereby agree to indemnify and hold us harmless from any loss and damage we may incur as a result of your intentional, negligent or reckless disclosure of the Digiduka PIN.
  4. You shall take all reasonable precautions to detect any unauthorized use of your Equipment, Digiduka PIN and or the Services and immediately notify us and Duka Tech to enable us to take steps to protect your Digiduka Account and Digiduka Account respectively.
  5. You shall immediately inform us through the Duka Tech customer care in the event that:
    i. You have reason to believe that your Digiduka PIN is or may be known to any person not authorized to know the same and/or has been compromised; and/or
    ii. You have reason to believe that unauthorized use of the Services has or may have occurred or could occur and a transaction may have been fraudulently input or compromised.
  6. You shall at all times follow the security procedures we notify you from time to time or such other procedures as may be applicable to the Services from time to time. You acknowledge that any failure on your part to follow the recommended security procedures may result in a breach of your responsibility to keep personal information confidential. In particular, you shall ensure that the Services are not used or Requests are not issued or the relevant functions are not performed by anyone other than a person authorized by you.
  7. You shall not at any time operate or use the Services in any manner that may be prejudicial to Technologies.

Indemnity and Exclusion of Liability

  1. In consideration of us providing the Service you undertake to indemnify us and Duka Technologies for any loss, charge damage, expense, fee or claim which we or Duka Tech incur or sustain thereby and you indemnify us and Duka Tech from all liability for loss or damage which we or Duka Tech may sustain from us or Duka Tech acting on your instructions in accordance with these Terms and Conditions.
  2. The indemnity shall also cover: i. all demands, claims, actions, losses and damages of whatever nature which may be brought against us or Duka Tech or which we or Duka Tech may suffer or incur arising from acting or not acting on any Request or arising from the malfunction or failure or unavailability of any hardware, software, or equipment, the loss or destruction of any data, power failures, corruption of storage media, natural phenomena, riots, acts of vandalism, sabotage, terrorism, any other event beyond the our or Duka Technologies’s control, interruption or distortion of communication links or arising from reliance on any person or any incorrect, illegible, incomplete or inaccurate information or data contained in any Request received by us. ii. any loss or damage that may arise from your use, misuse abuse or possession of any third-party software including without limitation any operating system, browser software or any other software package or program. iii. any unauthorized access to the Service or your Digiduka Account; iv. any breach of security or any destruction or accessing of your data; v. any destruction or theft of or damage to any of your Equipment; vi. Any loss that may arise as a result of any negligence on your part including revealing your OTP or Digiduka PIN to any third party; vii. any loss or damage occasioned by your failure to adhere to these Terms and Conditions and/or by supplying of incorrect/ incomplete instructions when using the Service; viii. loss or damage occasioned by the failure or unavailability of third-party facilities or systems or the inability of a third party to process a transaction; or ix. any loss which may be incurred by us or Duka Technologies as a consequence of any breach by these Terms and Conditions by you.
  3. Neither do we or Duka Technologies make any representation or warranty as to continuous, uninterrupted or secure access to the Service.
  4. Duka Technologies will not be responsible for any loss of profit or anticipated savings or for any indirect or consequential loss or damage of whatever kind, howsoever caused, arising out of or in connection with the Service even where the possibility of such loss or damage is notified to us.
  5. You may not assign any rights or obligations that may arise under these Terms and Conditions without our consent.

Variation and Termination

  1. We may at any time, upon notice to you, terminate or vary our business relationship with you and suspend or discontinue your registration and or access to the Service:
    i. if you use the Service for unauthorized purposes or where we detect any abuse/misuse, breach of content, fraud or attempted fraud relating to your use of the Services;
    ii. if your Digiduka Account or agreement with Duka Technologies is terminated for whatever reason;
    iii. if we are required or requested to comply with an order or instruction of or a recommendation from the government, court, regulator or other competent authority to that effect or necessitating it;
    iv. if we reasonably suspect or believe that you are in breach of these terms and conditions;
    v. where such a suspension or variation is necessary as a consequence of technical problems or for reasons of your safety or public access fees;
    vi. to facilitate update or upgrade the contents or functionality of the Services from time to time;
    vii. where your Digiduka Account becomes inactive or dormant or is deemed abandoned in line with the Unclaimed Financial Assets Act;
    viii. if we decide to suspend or cease provision of the Services for commercial reasons or for any other reason as we may determine.
  2. Termination shall not affect any accrued rights and liabilities of either party and, in particular, shall not affect your obligations to meet any liabilities incurred prior to such termination.

Breach of Terms and Conditions

In the event of any breach of these Terms and Conditions, then we may in circumstances where you fail to comply or fail procure compliance with the terms of a notice consequently served on you, forthwith terminate the contractual relationship with you and terminate your use of the Service without any consequential liability to you or any other person.

Intellectual Property Rights

You acknowledge that the intellectual property rights in the Service (and any amendments, upgrades or enhancements thereto from time to time) and all associated documentation that we provide to you are vested in Duka Technologies. You shall not infringe any such intellectual property rights. You shall not duplicate, reproduce or in any way tamper with any documentation or functionality on the Equipment, Service or Digiduka App without Duka Technologies’s prior written consent.

Notices

  1. We may communicate information concerning the Service to you via SMS, text message notification, social media platforms including twitter, Facebook and Instagram or the talk to us feature on the Service or in such other publicly available medium including the Website or in the local dailies.
  2. You agree not to bring any claim against Duka Technologies for any damages resulting from losses, delays, misunderstandings, mutilations, duplications or any other irregularities due to transmission of any communication pertaining to the Service.

Dispute Resolution

  1. Any dispute arising out of or in connection with this Agreement that is not resolved by Duka Technologies shall be referred to arbitration by a single arbitrator to be appointed by agreement between the parties or in default of such agreement within 60 days of the notification of a dispute, upon the application of either party to the Chairman for the time being of the Chartered Institute of Arbitrators (Kenya Branch). Such arbitration shall be conducted in the English language in Nairobi in accordance with the Rules of Arbitration of the said Institute and subject to and in accordance with the provisions of the Arbitration Act 1995.
  2. To the extent permissible by Law, the determination of the Arbitrator shall be final, conclusive and binding upon the parties hereto.
  3. This Agreement shall be governed by and construed in accordance with the laws of the Republic of Kenya.

Customer Support

To report any disputes, claims or discrepancies in the Service please use the help button within the digiduka app or send us an email to hello@digiduka.com

Miscellaneous

  1. These Terms and Conditions (as may be amended from time to time) form a legally binding agreement binding on you and your personal representatives and successors.
  2. This Agreement and any rights or liabilities accruing thereunder may not be assigned by you to any other person.
  3. We may vary or amend these Terms and Conditions, Commissions, Charges and Fees at any time and without prior notice to you. You will be notified of any such variations or amendments within 30 days in advance of their intended commencement date and such notice and particulars of the variations including the amended version of these terms and conditions shall be published on Duka Technologies websites and may, additionally, be published in posters or pamphlets and availed at Duka Technologies’s agent outlets or by any other means as we may determine.
  4. No failure or delay by either yourself or on our part in exercising any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy prevent any further or other exercise thereof or the exercise of any other right or remedy.
  5. The rights and remedies herein provided are cumulative and not exclusive of any rights or remedies provided by law.
  6. If any provision of these Terms and Conditions shall be found by any duly appointed arbitrator, court or administrative body of competent jurisdiction to be invalid or unenforceable the invalidity or unenforceability of such provision shall not affect the other provisions herein.
  7. Any variations or amendments to these Terms and Conditions shall be binding upon you as fully as if the same were contained in these Terms and Conditions.
  8. Your contractual relationship with us is governed in all respects by the Laws of Kenya and the parties submit to the exclusive jurisdiction of the Kenya courts.