TERMS AND CONDITIONS FOR THE METROPOL CRYSTOBOL SERVICE
1. THE AGREEMENT
1.1. This Agreement sets out the complete terms and Conditions (hereinafter called “these Terms and conditions”) which shall be applicable to the Metropol Crystobol Service (as hereinafter defined) opened by you (as hereinafter defined) with Metropol (as hereinafter defined).
1.2. These Terms and conditions and any amendments or variations thereto take effect on their date of publication.
2. DEFINITIONS
2.1. In these Terms and Conditions the following words and expressions (save where the context requires otherwise) bear the following meanings:
2.1.1. “Bank” means any Commercial Bank Limited incorporated in Kenya as a limited liability company under the Companies Act (Chapter 486 of the Laws of Kenya) and duly licensed as a 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;
2.1.2. “Credit Reference Bureau” means a credit reference bureau duly licensed under the Banking Act pursuant to the Banking (Credit Reference Bureau) Regulations, 2013, as amended, revised or promulgated from time to time, to inter alia, collect and facilitate the sharing of customer credit information;
2.1.3.“Credit Report” is a record of a person’s credit history held by a Credit Reference Bureau 2.1.4. “Customer” means the person in whose name the Metropol Crystobol Service with Metropol is existing;
2.1.5. “Customer Care Centre” means any Metropol Customer Care Center or Branch or such other Metropol Agent or Agents as may be notified to the Customer by Metropol from time to time;
2.1.6. “Default” means a credit account that remains due and unpaid for more than 90 consecutive days.
2.1.7. “Metropol Crystobol Account” means the electronic store of equivalent cash value of money paid to Metropol for Metropol Crystobol products and services.
2.1.8. “E-Money” means the electronic monetary value depicted in your Crystobol Account representing an equal amount of cash;
2.1.9.“Equipment” includes your mobile phone handset, SIM Card and/or other equipment which when used together enables you to access the Network;
2.1.10. “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 and its successors;
2.1.11. “Metropol” means Metropol Credit Reference Bureau Limited incorporated in Kenya as a limited liability company under the Companies Act (Chapter 486 of the Laws of Kenya) and duly licensed as a Credit Reference Bureau under the Banking (Credit Reference Bureau) Regulations, 2013, and includes subsidiaries of Metropol as may from time to time be specified by Metropol;
2.1.12. “Metropol Crystobol Service” means a the mobile service that allows the customer to access services from Metropol CRB through their phone and which is opened and operated by the Customer in accordance with the Terms and Conditions herein contained;
2.1.13. “Metropol Crystobol Products” means the Metropol products or services offered to the Customer through the Metropol Crystobol Service;
2.1.14. “METROPOL CRYSTOBOL Menu” means the METROPOL CRYSTOBOL Menu on the USSD session; 2.1.15. “METROPOL CRYSTOBOL PIN” means your personal identification number being the secret code used to access and operate the Metropol Crystobol Service;
2.1.16. “METROPOL CRYSTOBOL Loan Center” means the METROPOL CRYSTOBOL Loan Menu on the Crystobol System;
2.1.17. “M-PESA Account” means your mobile money store of value, being the record maintained by Safaricom of the amount of E-Money from time to time held by you in the M-PESA System;
2.1.18. “M-PESA Service” means the money transfer and payments service provided by Safaricom through the MPESA System;
2.1.19. M-PESA System” means the system operated by Safaricom in Kenya for the provision of the M-PESA Service using the Network;
2.1.20. “M-PESA Subscriber” means any person registered to use the M-PESA System to send or receive money or make payments;
2.1.21. “Network” means the mobile cellular network operated by Safaricom; 2.1.22. “Request” means a request or instruction received by Metropol from you or purportedly from you through the Network and the System and upon which Metropol is authorized to act;
2.1.23. “Safaricom” means Safaricom Limited incorporated in Kenya as a limited liability company under the Companies Act (Cap 486 of the Laws of Kenya);
2.1.24. “Services” shall include any form of financial services or products that Metropol may offer you pursuant to this Agreement and as you may from time to time subscribe to and “Service” shall be construed accordingly;
2.1.25. “SIM Card” means the subscriber identity module which when used with the appropriate mobile phone handset enables you to access the Network and to use the M-PESA and METROPOL CRYSTOBOL System;
2.1.26. “SMS” means a short message service consisting of a text message transmitted from one mobile phone to another;
2.1.27. “System” means Metropol’s electronic communications software enabling the Customer to communicate with Metropol for purposes of the Services. The System and the Services will for the purpose of this Agreement be accessed through the Safaricom Network;
2.1.28. “Transaction Fees” includes the any fees and charges payable for the use of the Services as published by Metropol on Metropol’s website and/or the daily newspapers in Kenya or by such other means as Metropol shall in its sole discretion determine. Transaction Fees are subject to change at any time at Metropol’s sole discretion;
2.1.29. “We,” “our,” and “us,” means Metropol and includes the successors and assigns of Metropol;
2.1.30. “You” or “your” means the Customer and includes the personal representatives of the Customer;
2.1.31. The word “Customer” shall include both the masculine and the feminine gender as well as juristic persons; 2.1.32. Words importing the singular meaning where the context so admits include the plural meaning and vice versa.
3. ACCEPTANCE OF THE TERMS AND CONDITIONS
Before registering to use the Metropol Crystobol Service you should carefully read and understand these Terms
and conditions which will govern the use and operation of the Metropol Crystobol Service.
3.2. You will be deemed to have read, understood and accepted these Terms and Conditions:
3.2.1.by using or continuing to use and operate the Metropol Crystobol Service and/or the Services.
3.3. By registering for the Metropol Crystobol Service with Metropol, you agree to comply with and be bound by these Terms and Conditions for the time being and from time to time in force governing the operation of the Metropol Crystobol Service and you affirm that these Terms and Conditions herein are without prejudice to any right that Metropol may have with respect to the Metropol Crystobol Service in law or otherwise.
3.4. These Terms and Conditions may be amended or varied by Metropol from time to time and the continued use of
your Metropol Crystobol Service and/or the Services constitutes your agreement to be bound by the terms of any
such amendment or variation
4. REGISTRATION
4.1. In order to register for and operating a Metropol Crystobol Service with Metropol, you must be at least 18 years old with a Kenyan National Identity Number and a registered M-PESA Subscriber. Metropol reserves the right to verify with Safaricom the authenticity of your M-PESA Account.
4.2. You may register for the Metropol Crystobol Service solely by way of an electronic application made by you using your Equipment via the METROPOL CRYSTOBOL Menu on the Safaricom System.
4.3. You hereby agree and authorize Metropol to request Safaricom for your personal information held by Safaricom pursuant to the agreement between you and Safaricom for the provision of Safaricom products and services and M-PESA Service including your phone number, name, date of birth, ID or Passport Number and such other information that will enable Metropol to identify you and comply with the regulatory “Know Your Customer” requirements (together the “Personal Information”). You also hereby agree and authorize Metropol to request Safaricom for information relating to your use of the M-PESA Service, M-PESA System and Safaricom Services as Metropol shall require for purposes of providing you the Services (“M-PESA Information”). You hereby consent to the disclosure of the Personal Information and the M-PESA Information by Safaricom to Metropol and to the aforesaid use of the Personal Information and the M-PESA Information by Metropol.
4.4. You hereby agree and authorize Metropol to obtain and procure your Personal Information contained in the IPRS from the Government of Kenya and you further agree and consent to the disclosure and provision of such Personal Information by the Government of Kenya to Metropol.
4.5. You hereby further acknowledge and authorize Metropol to verify your Personal Information received from Safaricom pursuant to Clause
4.3 against the information received from the Government of Kenya in your respect as contained in the IPRS.
4.6. Metropol reserves the right to request for further information from you pertaining to your application for a Metropol Crystobol Service at any time. Failure to provide such information within the time required by Metropol may result in Metropol declining to accept your registration for a Metropol Crystobol Service.
4.7. Acceptance by Metropol of your registration for the Metropol Crystobol Service shall be done via SMS sent to the Safaricom Mobile Phone Number associated with your M-PESA Account. You acknowledge and accept that the acceptance by Metropol of your registration for the Metropol Crystobol Service does not create any contractual relationship between you and Safaricom beyond the terms and conditions that apply to your MPESA Account from time to time.
4.8. Metropol reserves the right to decline your registration for the Metropol Crystobol Service or to revoke the same at any stage at Metropol’s sole discretion and without assigning any reason or giving any notice thereto.
5. YOUR REQUESTS
5.1. You hereby irrevocably authorize Metropol to act on all Requests received by Metropol from you (or purportedly from you) through the System and to hold you liable in respect thereof. Metropol may nevertheless refuse to carry out any Requests which would result in there being an overdraft on your Metropol Crystobol Service Account.
5.2. Metropol shall be entitled to accept and to act upon any Request, even if that Request is otherwise for any reason incomplete or ambiguous if, in its absolute discretion, Metropol believes that it can correct the incomplete or ambiguous information in the Request without any reference to you being necessary.
5.3. Metropol shall be deemed to have acted properly and to have fully performed all the obligations owed to you notwithstanding that the Request may have been initiated, sent or otherwise communicated in error or fraudulently, and you shall be bound by any Requests on which Metropol may act if Metropol has in good faith acted in the belief that such instructions have been sent by you.
5.4. Metropol may, in its absolute discretion, decline to act on or in accordance with the whole or any part of your Request pending further enquiry or further confirmation (whether written or otherwise) from you. Metropol shall not be under any obligation to so decline in any case, and shall in no event or circumstance be liable for not so declining.
5.5. You agree to and shall release from and indemnify Metropol against all claims, losses, damages, costs and expenses howsoever arising in consequence of, or in any way related to Metropol having acted in accordance with the whole or any part of any of your Requests (or failed to exercise) the discretion conferred upon it.
5.6. You acknowledge that to the full extent permitted by law Metropolshall not be liable for any unauthorized drawing, transfer, remittance, disclosure, any activity or any incident on your account by the fact of the knowledge and/or use or manipulation of your METROPOL CRYSTOBOL PIN, password, ID or any means whether or not occasioned by your negligence.
5.7. You can only cancel your Request by calling the Customer Care Centre and Requesting cancellation. Cancellation will however only be allowed where your Request is revocable and has not yet been acted on. If Metropol is able to cancel your instruction you may be charged for such cancellation.
5.8. Metropol may refuse to make a payment if you do not have sufficient funds in your Metropol Crystobol Account. In deciding whether you have sufficient funds, Metropol will take account of any instructions to make payments and regular payments which have not yet been paid from your Metropol Crystobol Account. Metropol will not be obliged to take account of regular credits or any amounts received after it has decided not to make the payment.
5.9. Metropol is authorized to effect such orders in respect of your Metropol Crystobol Service as may be required by any court order or competent authority or agency under the applicable laws.
5.10. In the event of any conflict between any terms of any Request received by Metropol from you and these Terms and conditions, these Terms and conditions shall prevail.
6. OVERDRAWING YOUR METROPOL CRYSTOBOL ACCOUNT
6.1. No Overdraft will be allowed on your Metropol Crystobol Account.
6.2. Metropol is entitled to demand repayment of any money overdrawn from your account together with interest and penalties.
7. CUSTOMER COMPLAINTS
7.1. Complaints may be made in person, in writing, by post, SMS, email or telephone.
7.2. Metropol will take all measures within its means to resolve your complaints within a reasonable time. All complaints will be handled in accordance with the Banking (Credit Reference Bureau) Regulations, 2013, which are available on request from any Branch or the Customer Care Centre. Where a notification regarding your complaint or any other matter is expected from Metropol but not received, the complaint must be made within a reasonable time after non-receipt of such notification.
7.3. Applicable tariffs will be charged by your telephone and internet service provider(s) when communicating with the Customer Care Centre.
8. INOPERATIVE AND DORMANT ACCOUNTS
8.1. Your registration to the Metropol Crystobol Service will automatically be classified as inactive if you do not initiate any transactions on the account for a continuous period of 12 months.
8.2. Metropol shall make reasonable endeavors to inform you of the intended classification of your Metropol Crystobol Service as inactive at least one (1) month before such classification. Metropol shall, no later than seven (7) days from the date of such classification, inform you of such classification by way of SMS alerts addressed to your mobile telephone number.
8.3. Your Metropol Crystobol Service will be classified as Dormant if it remains inactive for a further period of 12 months, in which case the account balances shall be transferred from your Metropol Crystobol Account to a central account for security reasons.
8.4. You will not be allowed to transact on an inactive or dormant account but Metropol shall, upon your written (e.g. letter/email) request, inform you of the procedure to be followed to activate your inactive/dormant account.
8.5. If your Metropol Crystobol Service will not have any transactions initiated by you for a continuous period of five (5) years or if you shall not have communicated with us for a continuous period of five (5) years regarding your Metropol Crystobol Service, such account will be presumed abandoned and transferred to the Unclaimed Financial Assets Authority as such.
9. METROPOL CRYSTOBOL CHARGES
9.1. Metropol may debit your Metropol Crystobol Account with costs and other charges in respect of Metropol’s products and services provided to you. Please visit your nearest branch or Agent for a copy of the complete guide on Metropol’s Tariffs
9.2. Metropol will give you at least seven (7) days’ notice of intention to effect new charges, fees, costs and/or commissions by way of email, SMS, letter and/or notices in the daily newspapers.
10. TAXES
10.1. All payments to be made by you in connection with these terms and conditions are calculated without regard to any taxes payable by you. If any taxes are payable in connection with the payment, you must pay Metropol an additional amount equal to the payment multiplied by the appropriate rate of tax. You must do so at the same time as making the payment.
10.2. Amounts in your Metropol Crystobol Service may be subject to withholding tax in accordance with applicable law.
10.3. You consent and agree that Metropol may withhold amounts in your Metropol Crystobol Account if any tax authority requires Metropol to do so, or Metropol is otherwise required by law or pursuant to agreements with any tax authority to do so, or if Metropol needs to comply with internal policies or with any applicable order or sanction of a tax authority.
11. SPECIFIC METROPOL CRYSTOBOL SERVICES
11.1. Registration is initiated when:
11.1.1. You access the USSD code
11.1.2. You make a payment to the designated MPESA Paybill number for the Metropol Crystobol Service 11.2. You will not be able to receive any services until registration is complete. Your registration will considered to be complete when:
11.2.1. You make the complete registration payment as required by Metropol and as published in the Metropol Crystobol Tariff
11.2.2. Metropol is able to verify your identity
11.2.3. Metropol is able to verify ownership of the SIM card used to access the Service
11.2.4. you receive a registration confirmation message from Metropol.
11.3. Upon registration you will receive your unique member number and PIN number. The PIN number will be used for any future access to the Metropol Crystobol Service on your Equipment.
11.4. Upon registration Metropol Crystobol Service, you will be entitled, subject to these Terms and Conditions, to one free credit report as per the Banking (Credit Reference Bureau) Regulations, 2013 under Regulation 28.
11.5. The products and services purchased through Metropol Crystobol Service shall only be as pertains to the registered member.
11.6. All Metropol Crystobol Services are subject to applicable charges according to the Tariff published by Metropol.
11.7. You can only receive the Certificate of Clearance if you have no current default items in your credit bureau profile
11.8. By using the METROPOL CRYSTOBOL Borrow Money Service you permit Metropol to:
11.8.1. Share your information with prospective lenders including your name, phone number, location and credit score
11.8.2. Share the details of your application including the loan type, amount, duration and other details as Metropol may find appropriate for the purpose of determining the exact loan request and matching with appropriate lenders.
11.8.3. Share your credit report should the prospective lenders who may request it for the purpose of determining eligibility or creditworthiness.
11.8.4. Keep track of the progress of your application and share the outcome of your credit application with other prospective lenders.
11.9. The Credit report and the Certificate of Clearance will be delivered to you through Metropol online portals and will be availed in PDF format. Metropol will not provide proprietary PDF reading software. Metropol will communicate via SMS the link to the online portal where you can download your report.
11.10. Metropol reserves the right to change the download links from time to time as it deems necessary.
11.11. Any download link provided will remain valid for 7 (seven) days after which Metropol cannot guarantee availability of the same.
11.12. As a registered user of Metropol Crystobol Service, you authorize Metropol to send occasional promotional messages to you through the contact details that you provide.
12. DISCLOSURE
12.1. You hereby expressly consent and authorize Metropol to disclose receive, record or utilize your personal information or information or data relating to your Metropol Crystobol Service and any details of your use of the Services:
12.1.1. to and from Metropol’s service providers, dealers, agents or any other company that may be or become Metropol’s subsidiary or holding company for reasonable commercial purposes relating to the Services;
12.1.2. to Metropol’s lawyers, auditors or other professional advisors or to any court or arbitration tribunal in connection with any legal or audit proceedings;
12.1.3. to Safaricom in connection with the M-PESA Service and the Services;
12.1.4. for reasonable commercial purposes connected to your use of the Services, such as marketing and research related activities;
12.1.5. in business practices including but not limited to quality control, training and ensuring effective systems operation.
12.2. You authorize Metropol to disclose any information relating to your Metropol Crystobol Service Account to any local or international law enforcement 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 Metropol may deem necessary.
12.3. In the event of death, your estate administrator will be granted access to your Metropol Crystobol Service upon production of administration letters from a competent authority or confirmed grant of letters of administration or confirmed grant of probate by your legal representatives duly appointed by the Court.
13. YOUR EQUIPMENT AND RESPONSIBILITIES
13.1. You shall at your own expense provide and maintain in safe and efficient operating order your Equipment necessary for the purpose of accessing the System and the Services.
13.2. You shall be responsible for ensuring the proper performance of your Equipment. Metropol shall neither be responsible for any errors or failures caused by any malfunction of your Equipment, and nor shall Metropol be responsible for any computer virus or related problems that may be associated with the use of the System, the Services and the Equipment.
13.3. You shall be responsible for charges due to any service provider providing you with connection to the Network and Metropol shall not be responsible for losses or delays caused by any such service provider.
13.4. You shall follow all instructions, procedures and terms contained in these Terms and Conditions and any document provided by Metropol concerning the use of the System and Services.
13.5. You agree and acknowledge that you shall be solely responsible for the safekeeping and proper use of your Equipment and for keeping your METROPOL CRYSTOBOL PIN secret and secure. You shall ensure that your METROPOL CRYSTOBOL PIN does not become known or come into possession of any unauthorized person. Metropol shall not be liable for any disclosure of your Metropol Crystobol PIN to any third party and you hereby agree to indemnify and hold Metropol harmless from any losses resulting from any METROPOL CRYSTOBOL PIN disclosure.
13.6. You shall take all reasonable precautions to detect any unauthorized use of the System and the Services. To that end, you shall ensure that all communications from Metropol are examined and checked by you or on your behalf as soon as practicable after receipt by you in such a way that any unauthorized use of and access to the System will be detected.
13.7. You shall immediately inform Metropol through the Customer Care Centre in the event that:
13.7.1. You have reason to believe that your METROPOL CRYSTOBOL PIN is or may be known to any person not authorized to know the same and/or has been compromised; and/or
13.7.2. 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.
13.8. You shall at all times follow the security procedures notified to you by Metropol 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 Metropol Crystobol Service’s confidentiality.
13.9. 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 to do so.
13.10. You shall not at any time operate or use the Services in any manner that may be prejudicial to Metropol.
14. EXCLUSION OF LIABILITY
14.1. Metropol shall not be responsible for any loss suffered by you should the Services be interfered with or be unavailable by reason of (a) the failure of any of your Equipment, or (b) any other circumstances whatsoever not within Metropol’s control including, without limitation, force majeure or error, interruption, delay or nonavailability of the System, terrorist or any enemy action equipment failure, loss of power, adverse weather or atmospheric conditions, and failure of any public or private telecommunications system.
14.2. Metropol will not be liable for any losses or damage suffered by you as a result of or in connection with:
14.2.1. unavailability of sufficient funds in your M- PESA Account and/or in your Metropol Crystobol Account; 14.2.2. failure, malfunction, interruption or unavailability of the System, your Equipment, the Network, M-PESA System and/or M- PESA Service;
14.2.3. the money in your Metropol Crystobol Service being subject to legal process or other encumbrance restricting payments or transfers thereof;
14.2.4. your failure to give proper or complete instructions for payments or transfers relating to your Metropol Crystobol Service;
14.2.5. any fraudulent or illegal use of the Services, the System and/or your Equipment; or
14.2.6. Your failure to comply with these Terms and conditions and any document or information provided by Metropol concerning the use of the System and the Services.
14.3. If for any reason other than a reason mentioned in subparagraphs
14.1 or 14.2, the Services are interfered with or unavailable, Metropol’s sole liability under this Agreement in respect thereof shall be to re-establish the Services as soon as reasonably practicable.
14.4. Save as provided in subparagraph
14.3 Metropol shall not be liable to you for any interference with or unavailability of the Services, howsoever caused. 14.5. Under no circumstances shall Metropol be liable to you 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 Services even where the possibility of such loss or damage is notified to Metropol.
14.6. All warranties and obligations implied by law are hereby excluded to the fullest extent permitted by law.
15. REFUND POLICY
15.1. We will refund your transaction amount and fee or your credit balance if:
15.1.1. You close your Crystobol account while you still have E-Money in it.
15.1.2. You have been wrongly charged by Metropol CRB Ltd or where it is established that your account was debited without proper transfer instructions authorized by means of Your PIN.
15.2. In the event that your account is closed as a result of your death, the credit balance in your account shall be paid over to a beneficiary stated in a beneficiary nomination letter or administrator nominated in the letters of administration issued by the Master of the High Court.
15.3. You need to contact the Customer Call Centre to claim your refund through email, telephone or webform. We will endeavor to effect refunds as soon as possible but in any event not later than 5 days from the date on which a claim for refund was made by you.
15.4. You have two options to request for refund:
15.4.1. Direct reversal through M- PESA (Your Crystobol balance must match the refund amount requested).You may be asked to pay for service request already processed.
15.4.2. Refund through cash or M- PESA. You shall receive a notification to collect cash from our offices. You shall be asked to sign relevant documents to confirm receipt of the refund. You may request to have the refund amount sent to you through M- PESA. The amount shall be net of M- PESA transaction charges and shall ONLY be paid to mobile number registered on Crystobol.
15.5. If you have E-money left in your account which has not been accessed for more than 10 years, we will transfer the cash equivalent of that E-Money to Unclaimed Property Assets Registry (UPAR) and/or other relevant authorities.
16. INTELLECTUAL PROPERTY RIGHTS
You acknowledge that the intellectual property rights in the System (and any amendments, upgrades or enhancements thereto from time to time) and all associated documentation that Metropol provides to you through the System or otherwise are vested either in Metropol or in other persons from whom Metropol has a right to use and to sub-license the System and/or the said documentation. You shall not infringe any such intellectual property rights. You shall not duplicate, reproduce or in any way tamper with the System and associated documentation without the prior written consent of Metropol.
17. INDEMNITY
17.1. In consideration of Metropol complying with your instructions or Requests in relation the Metropol Crystobol Service, you undertake to indemnify Metropol and hold it harmless against any loss, charge, damage, expense, fee or claim which Metropol suffers or incurs or sustains thereby and you absolve Metropol from all liability for loss or damage which you may sustain from Metropol acting on your instructions or requests or in accordance with these terms and conditions.
17.2. The indemnity in clause
17.1 shall also cover the following:
17.2.1. All demands, claims, actions, losses and damages of whatever nature which may be brought against Metropol or which it may suffer or incur arising from its 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 Metropol’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 Metropol.
17.2.2. 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 packages or programs.
17.2.3. Any unauthorized access to your Metropol Crystobol Service or any breach of security or any destruction or accessing of your data or any destruction or theft of or damage to any of your Equipment.
17.2.4. Any loss or damage occasioned by the failure by you to adhere to these Terms and Conditions and/or by supplying of incorrect information or 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 any loss which may be incurred by Metropol as a consequence of any breach by these Terms and conditions.
17.2.5. Any damages and costs payable to Metropol in respect of any claims against Metropol for recompense for loss where the particular circumstance is within your control.
18. VARIATION AND TERMINATION OF RELATIONSHIP
18.1. Metropol may at any time, upon notice to you, terminate or vary its business relationship with you and close your Metropol Crystobol Service Account.
18.2. Without prejudice to Metropol rights under clause
18.1, Metropol may at its sole discretion suspend or close your Metropol Crystobol Service Account:
18.2.1. if you use the Metropol Crystobol Service for unauthorized purposes or where Metropol detects any abuse/misuse, breach of content, fraud or attempted fraud relating to your use of the Services;
18.2.2. if your M-PESA Account or agreement with Safaricom is terminated for whatever reason;
18.2.3. if Metropol is required or requested to comply with an order or instruction of or a recommendation from the government, court, regulator or other competent authority;
18.2.4. if Metropol reasonably suspects or believes that you are in breach of these terms and conditions;
18.2.5. where such a suspension or variation is necessary as a consequence of technical problems or for reasons of safety;
18.2.6. to facilitate update or upgrade the contents or functionality of the Services from time to time;
18.2.7. where your account becomes inactive or dormant;
18.2.8. if Metropol decides to suspend or cease the provision of the Services for commercial reasons or for any other reason as it may determine in its absolute discretion.
18.3. You may close your Metropol Crystobol Service at any time at any Customer Care Centre.
18.4. If your Metropol Crystobol Service has any credit balance at the time of its closure, we will return any such balance to you, less any applicable fees.
18.5. Termination shall however not affect any accrued rights and liabilities of either party.
18.6. If Metropol receives notice of your demise, Metropol will not be obliged to allow any operation of your Metropol Crystobol Service by any person except upon production of administration letters from a competent authority or confirmed grant of letters of administration or confirmed grant of probate by your legal representatives duly appointed by the Court.
19. MISCELLANEOUS
19.1. These terms and conditions (as may be amended from time to time) form a legally binding agreement binding on you and your personal successors.
19.2. This Agreement and any rights or liabilities accruing thereunder may not be assigned by you to any other person.
19.3. Metropol may vary or amend these terms and conditions and the Transaction Fees at any time and without notice to you. Any such variations or amendments may be published in posters or pamphlets available at Customer Care Centers, Agents outlets, branches, in the daily newspapers, on Metropol and/or Partners’ websites and/or by any other means as determined by Metropol and any such variations and amendments shall take effect immediately upon publication.
19.4. No failure or delay by either yourself or Metropol 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.
19.5. The rights and remedies herein provided are cumulative and not exclusive of any rights or remedies provided by law.
19.6. 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.
19.7. Any addition or alteration to these Terms and Conditions may be made from time to time by Metropol and of which notice has been given to you by way of publication as provided in subparagraph
19.3 shall be binding upon you as fully as if the same were contained in these terms and conditions.
20.NOTICES
20.1. Metropol may send information concerning the Metropol Crystobol Service via SMS to the Safaricom Mobile Phone number that you initiated registration with or that is associated with your M- PESA Account.
20.2. You acknowledge that you have no claim against Metropol for damages resulting from losses, delays, misunderstandings, mutilations, duplications or any other irregularities due to transmission of any communication pertaining to the Metropol Crystobol Service.
21. DISPUTE RESOLUTION, JURISDICTION AND ARBITRATION
21.1. You may contact the Customer Care Center to report any disputes, claims or Metropol Crystobol Service Account discrepancies.
21.2. Any dispute arising out of or in connection with this Agreement that is not resolved by Customer Care Centre representatives 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, by 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.
21.3. To the extent permissible by Law, the determination of the Arbitrator shall be final, conclusive and binding upon the parties hereto.
21.4. This Agreement shall be governed by and construed in accordance with the laws of the Republic of Kenya.