1. Definitions and Interpretation
1.1 In these Terms and Conditions (the “Terms And Conditions Governing The Use of I&M Next Generation Banking Facility ”), including any Schedule, unless the context otherwise requires:
(a) “Access Profile” means the information and or documentation held by the Bank in respect of the Customer and/or the Nominated User for purposes of the Customer’s and/or Nominated User’s access to the System and/or use of the Service.
(b) “Application Form” means the Form to be completed for Subscription;
(c) “Associate” means the same as the definition of “associate” under the relevant provisions of the Banking Act, Chapter 488 of the Laws of Kenya.
(d) “Bank” means I&M Bank Limited;
(e) “Banking Day” means a day on which the counters of the Branch and/or the Subsidiary (as applicable) are open for the transaction of ordinary business;
(f) “Branch” means (including the main registered office of the Bank) all places either in or outside the Republic of Kenya where the Bank’s business is operated and conducted;
(g) “Bank Account” means an account held by a Customer with the Bank (including without limitation) any account in relation to any advance, deposit, contract, product, dealing or service established and operated between the Bank and the Customer;
(h) “Card” means the Credit Card and/or Debit Card issued by the Bank to the Customer and/or the Nominated User.
(i) “Customer” means a holder of a Bank Account whose Subscription has been approved by the Bank;
(j) “Deposit Account” means a Bank Account with an amount therein which can be drawn by the Customer without any restriction by the Bank;
(k) “email” means Electronic Mail;
(l) “Electronic Banking Services” means the Bank’s Next Generation Banking Facility;
(m) “General Terms and Conditions” means the General Terms and Conditions in respect of the Bank Account;
(n) “I&M Infomail Service” means (including without limitation) the service extended by the Bank to a Customer whereby the Bank transmits to the Customer an appropriate email message containing information on balances and transactions in the Bank Account;
(o) “I&M Mobile Banking Service” means (including without limitation) the service extended by the Bank to a Customer whereby upon request by a Customer and / or Nominated User to the Bank through a Phone :-
i. the Bank transmits to the Phone information on the balance and / or transactions in the Bank Account;
ii. effects a transfer of an amount from a Deposit Account to another Bank Account and /or a Phone Account, including through I&M Pesa Link Service;
iii. the Customer and / or Nominated User purchases Airtime using funds held in a Deposit Account;
iv. the Customer and / or Nominated User pays Bills from selected services providers (as may be notified by the Bank to the Customer from time to time) using funds held in a Deposit Account;
v. The Customer and/or Nominated User pays a merchant for Goods or Services received using funds held in a Deposit Account;
vi. the Bank acts upon Request including but not limited to Requests to stop a Cheque, issue a Cheque Book, change the Mobile Banking PIN and / or update the contact information held by the Bank in respect of a Customer and / or Nominated User;
vii. the Bank transmits to the Phone an appropriate SMS containing information regarding the Bank Account, including but not limited to information regarding the status of any Banking facilities extended by the Bank to a Customer and / or Nominated User, the Bank’s foreign exchange rates, the Bank’s interest rates, etc;
viii. the Bank transmits to the Phone an appropriate SMS containing information on transactions effected using the Card and / or transactions effected through the Bank Account;
ix. any other service that the Bank offers in future as part of I&M Mobile Banking Service;
(p) “I&M Agency Banking Service” incorporating all the services offered through a phone or Point of Sale Machine at an authorised Agent of the Bank including the services described in clause 1.1(o) and any other service that the bank offers through its Agents.
(q) “I&M Pesa Link Service” incorporating payments from the Bank Account to other Bank accounts, phones or cards through the Kenya Inter-Bank Transaction Switch ( KITS) offered through I&M Mobile Banking Service, I&M Agency Banking Service, the Bank branches, Bank Automated Teller Machines or any other channel.
(r) Mobile Banking PIN means the secret Personal Identification Number that is known only to the Customer and / or the Customer’s Nominated User and which number is the unique link to Access the System and/or make transactions thereon. This could be assigned for use on a recurrent basis or for one time use (OTP);
(s) “Next Generation Banking Facility” means I&M Infomail Service, I&M Mobile Banking Service, I&M Agency Banking Service, I&M Pesa Link Service and such other services as may be notified by the Bank to the Customer from time to time;
(t) “Nominated User/s” means any representative(s) of the Customer authorized by the Customer to operate Customer’s Bank Account and / or Deposit Account and access the System and Service on behalf of the Customer including to hold and change the I&M Mobile Banking PIN.
(u) “Phone” means a Customer’s and / or the Nominated User’s cellular/mobile telephone line which has been duly registered with the Bank as part of the Customer’s and / or Nominated User’s Access profile.
(v) “Phone Account” means Customers and / or Nominated User’s cellular/mobile banking account held through their phone.
(w) “Request” means a request or instruction received by the Bank from (or purportedly from) the Customer and / or the Nominated User through the System in respect of the Service and upon which the Bank is, by virtue of subparagraph 4.1, authorized to act;
(x) “Service” means such of the Bank’s Next Generation Banking Facilities as the Customer may from time to time apply for and the Bank approve and / or agree to provide;
(y) “Subscription” means application for the Service by a Customer;
(z) “Subsidiary” means such subsidiary or subsidiaries of the Bank which may from time to time be specified by the Bank to the Customer
(aa) “System” means the electronic multi-media banking and communications software and / or equipment enabling the Customer to communicate with the Bank for the purposes of the Service. This System may belong to the Bank or to its authorised third party service provider.
1.2 In these Terms and Conditions Governing the Use of I&M Next Generation Banking Facility:
(a) the expression the “Customer” and / or “person” and or “party” shall include any natural person, firm, partnership, incorporate or corporate body, state, state agency, governmental authority in whatever name of style and when there are two or more included in the expression the “Customer” and / or “person” and / or “party” such expression shall include either one severally and / or both or all of them jointly.
(b) references to words denoting the singular number shall include the plural and vice versa and reference to the masculine gender includes a reference to the feminine gender and neuter and vice versa;
(c) any obligation imposed by or resulting from these Terms and Conditions Governing the Use of I&M Next Generation Banking Facility which is undertaken by more than one person shall be a joint and several obligation of each of the persons who has undertaken it whether as principal, guarantor, indemnifier, surety or otherwise.
2. Subscription by Customer
2.1 Upon approval of the Subscription by the Bank as well as payment by the Customer of the fees and charges set out in paragraph 7 below to the Bank, the Bank shall provide to the Customer the Service subject to and in accordance with the Terms and Conditions Governing the Use of I&M Next Generation Banking Facility as well as the General Terms and Conditions.
2.2 Where the Customer subscribes for the I&M Infomail Service, the Customer shall, indicate an email address in the Application Form, which email address shall be registered by the Bank. Only Requests received through the Customer’s said registered email address shall be acted upon by the Bank.
2.3 Where the Customer subscribes for the I&M Mobile Banking Service, the Customer shall, indicate a phone number in the Application Form, which phone number shall be registered by the Bank. Only Requests received through the said phone number shall be acted upon by the Bank. The Customer can only register one Phone number with the Bank.
2.4 Where the Customer subscribes for I&M Pesa Link Service, the Customer will designate the Bank Account/ Card and mobile number during the initial registration process.
2.5 The Customer undertakes to provide accurate information in the Subscription and further undertakes that the customer and / or the Nominated user shall promptly provide accurate information in furtherance of the subscription whenever required to do so by the Bank .The Customer and / or the Nominated user shall be responsible for the correctness and authenticity of any and all information provided by them to the Bank. The Bank shall not be liable to the Customer and / or the Nominated User and or any third party for any loss and / or damage arising out of any inaccurate information provided by the Customer and / or the Nominated user, however so caused. The Customer and / or the Nominated User unconditionally and irrevocably undertake and agree to fully indemnify the Bank against all claims, demands, losses, costs, damages, liabilities or expenses whatsoever which the Bank may at any time incur, sustain or suffer as a result of relying on any inaccurate information provided by the Customer and / or the Nominated User and also agree to reimburse the Bank in full, upon demand, for all payments, losses, costs, damages, liabilities and expense made, suffered or incurred by the Bank as a consequence thereof or arising there from.
2.6 The Bank reserves the right to add, modify, replace or withdraw any Service at any time, for any reason whatsoever, without prior notice to the customer.
3. Customer’s Facilities and Customer Responsibilities
3.1 The Customer shall at their own expense provide and maintain in safe and efficient operating order such hardware, software, phone, and other communication equipment and facilities (including access to any public telecommunications systems) and any communications network (collectively “the Facilities’) necessary for the purpose of accessing the System and the Service.
3.2 The Customer shall be responsible for ensuring proper performance of the Facilities including any losses or delays that may be caused by the Facilities. The Bank shall neither be responsible nor liable for any errors or failures caused by any malfunction of the Facilities nor shall the Bank be responsible or liable for any computer virus or related problems that may be associated with the use of the System, the Service and the Facilities. The Customer shall be responsible for charges due to any service provider providing the Customer with connection to the internet, cellular phone, telephone or any other applicable media services and the Bank shall not be responsible or liable for losses or delays caused by any such service provider.
3.3 The Customer shall obtain all licenses and consents necessary to have access to and use of the System and shall ensure that all persons they allow to have access to the System shall comply with all laws and regulations applicable to the use of the System and shall follow all instructions, procedures and terms contained in the Terms and Conditions Governing The Use of I&M Next Generation Banking Facility and any document provided by the Bank concerning the use of the System and Service.
3.4 The Customer shall prevent any unauthorised access to and / or use of the System and Service by keeping their Mobile Phone handsets, SIM cards and / or Mobile Banking Devices secured and Mobile Banking PIN secret at all times. The Customer shall ensure that their Mobile Banking PIN does not become known or come into possession of any unauthorised person.
3.5 The Customer shall take all reasonable and necessary precautions to detect any unauthorised use of the System and Service. To that end, the Customer shall ensure that all communication from the Bank is examined and checked by or on behalf of the Customer as soon as practicable after receipt by the Customer in such a way that any unauthorised use of and access to the System shall be detected.
3.6 The Customer shall immediately inform the Bank by telephone followed by a written confirmation sent on the same day in the event that:
(a) the Customer has reason to believe that Mobile Banking PIN is or may be known to any unauthorised person and / or has been compromised; and / or
(b) The Customer has reason to believe that unauthorised use of the System and / or the Service has or may have occurred or could occur and / or a transaction in respect of the Service may have been fraudulently inputted or compromised.
(c) The Customer has reason to believe that his / her Phone or email address has been misused in any manner by a third party.
3.7 The Customer and / or the Nominated User shall not send or attempt to send any Request to the Bank through the System if the Customer has reason to believe that for any reason such Request may not be received by the Bank or may not be received accurately and intelligibly.
3.8 The Customer and / or the Nominated User shall at all times follow the security procedures notified to the Customer by the Bank from time to time or such other procedures as may be applicable to the Service from time to time and specifically those that may be contained on the Bank’s internet website or product literature. The Customer acknowledges that any failure on the part of the Customer and / or the Nominated User to follow the recommended security procedures may result in a breach of the Access Profile confidentiality and may lead to unauthorised use of the System and / or Service. In particular, the Customer shall ensure that the Service is not used or Requests are not issued or the relevant functions are not performed by anyone other than a person authorised to do so.
3.9 The Customer and / or the Nominated User shall not at any time operate or use the Service in any manner that may be prejudicial to the Bank.
3.10 The Customer understands and accepts that it may link a Bank Account with multiple signatories to the Customer’s Access Profile and Service only if the Customer has submitted to the Bank an original Application Form executed by all signatories to the said Bank Account confirming that the Bank is authorised to act on all Requests. It shall be the sole responsibility of the Customer to ensure that no unauthorised persons have access to the said Bank Account.
3.11 The Bank shall be entitled and authorised to debit the Customer’s Bank Account with the amounts of the transactions effected via the Service as well as to debit the Customer’s Bank Account with the amount of any fees applicable to the Service from time to time.
4. Irrevocable Authority to the Bank
4.1 The Bank is irrevocably authorised by the Customer to act on all Requests and to hold the Customer liable therefore, notwithstanding that any such Requests are not issued by / and or authorized by the Customer and / or Nominated User or are not in accordance with any existing mandates given by the Customer. If the Customer and / or the Nominated User requests the Bank to cancel any transaction or instruction after a Request has been received by the Bank from the Customer, the Bank may in its sole and absolute discretion cancel such transaction or instruction.
4.2 The Bank shall be entitled to accept and to act upon any Request, even if that Request is for any reason incomplete or ambiguous if, the Bank, in its sole and absolute discretion believes that it can act upon the Request the incompleteness or ambiguity of the Request notwithstanding.
4.3 The Bank shall not be obliged to accept or to act upon any Request if to do so would require access to, action by, or information from the Branch, or any Subsidiary located in any jurisdiction where it is not a Banking Day at the relevant time when such access, action or information is required or would cause a breach of any existing mandate facility limit or agreement between the Bank and the Customer. In the event that the Bank does accept or act upon any such Request, the Customer shall remain liable for and indemnify the Bank against all claims, demands, losses, costs, damages, liabilities or expenses whatsoever which the Bank may at any time incur, sustain or suffer as a result of accepting or acting upon such Request.
4.4 In the event of any conflict between any terms of any Request from the Customer and the Terms and Conditions Governing the Use of I&M Next Generation Banking Facility the Terms and Conditions Governing the Use of I&M Next Generation Banking Facility shall prevail. The Terms and Conditions Governing the Use of I&M Next Generation Banking Facility and all authorizations and other procedures arising here from supplement the General Terms and Conditions and any other mandates, which apply to the Bank Account(s).
5. Limits of Electronic Banking Services transactions
The Customer and / or the Nominated User may transfer or effect a payment for any amount subject to the provisions of paragraph 3.10 of the Terms And Conditions Governing The Use of I&M Next Generation Banking Facility provided that such transaction in respect of the Service does not cause the balance in the Deposit Account to fall below the prescribed minimum balance of the Deposit Account or exceed the limit of any overdraft facility extended and approved by the Bank in respect of a Deposit Account)unless the Customer has a separate term Deposit Account duly pledged with the Bank to cover excesses that may arise in the affected Deposit Account from time to time in which event the said Deposit Accounts must be linked in the System for that purpose and the said transaction cannot cause the excess balance in the affected Deposit Account to exceed the amount pledged in the term Deposit Account.
6. Records of Transactions and a Customer’s Rights to This Information
6.1 All transactions in respect of the Service performed by the Customer and / or the Nominated User once allowed access into the System shall be logged for the period that the Customer and / or the Nominated User has access to the System. The Bank shall maintain copies of all Requests in applicable electronic multi-media form;
6.2 All documents and other electronic multi-media records of whatever nature held and / or issued and / or maintained by the Bank in respect of a Request and / or the Service, shall, in the absence of manifest error, be conclusive evidence of the Request and / or the Service and all transactions relating thereto and shall not be subject to challenge by the Customer and / or the Nominated User on any ground, whatsoever.
6.3 The Customer shall be deemed to have unconditionally accepted and shall not subsequently challenge or object to any of the transactions in respect of a Request and / or Service contained in any statement of account issued by the Bank to the Customer in respect of a Request and / or the Service unless the Customer objects to the Bank in writing in respect of the said transactions as contained in the said statement of account within 15 days from the date the said statement of account is issued or deemed to have been issued by the Bank to the Customer.
7.1 The Customer shall pay to the Bank an initial set up fee and a monthly subscription fee for the Service in addition to transaction charges applicable to various transaction types in respect of the Service as advised by the Bank from time to time. The Bank may in its sole discretion revise these charges and fees after giving the Customer fourteen (14) days notice of such revision. The Bank may also in its sole discretion waive the initial set up fees and / or the monthly subscription fees or a portion thereof.
7.2 The Customer shall pay any tax chargeable upon any sums payable by the Customer to the Bank and also any other charges or duties levied on the Customer or the Bank by any governmental or statutory body relating to the provision of the Service.
7.3 The Bank is hereby irrevocably authorised from time to time to debit any amounts payable by the Customer under the provisions of subparagraphs 7.1 and / or 7.2 to any Bank Account in any currency. In addition to the fees payable under the Terms and Conditions Governing the Use of I&M Next Generation Banking Facility, the charges and fees applicable to the Customer’s Bank Account(s) shall also apply.
8. Exclusion of Liability
8.1 Circumstances Not Within the Bank’s Control
The Bank shall not be responsible or liable for any loss suffered by the Customer and / or the Nominated User should the Service be interfered with or be unavailable by reason of (a) any industrial action, (b) the failure of any of the Customer’s Facilities or (c) any other circumstances whatsoever not reasonably within the Bank’s control including, without limitation, force majeure or error, interruption, delay or non-availability 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.
8.2 Electronic Bill Payments and Transfer of Funds
(a) The Bank shall not be liable for any losses or damage suffered by the Customer and / or the Nominated User as a result of delay, failure and / or refusal by the Bank to act on a Request in time or at all in anyone or more of the following circumstances (as the case may be):-
(i) If the Customer does not have a sufficient amount in the Deposit Account in terms of the provisions of paragraph 5 above;
(ii) If the Customer and / or Nominated User does not authorize a bill payment in good enough time for the payment to be made and properly credited by the payee (the Customer’s counter-party) by the time it is due;
(iii) If the System or the Facilities are not fully functional;
(iv) If circumstances beyond the Bank’s control including those specified in sub paragraph 8.1 above prevent the Bank from making a payment or transfer;
(v) If the amount in the Deposit Account is subject to legal process court order or other encumbrance restricting the payment or transfer;
(vi) If the Customer and / or Nominated User does not give proper or complete instructions for the payment or transfer or the Customer and / or the Nominated User does not follow the procedures in these Terms And Conditions Governing The Use of I&M Next Generation Banking Facility or other applicable agreement with the Bank in respect of a request for a payment or a transfer;
(vii) lf the Bank has reason to believe that the Customer and / or the Nominated User and / or any other party is using the Service for fraudulent or illegal purposes;
(viii) If a payment or a transfer request would be in respect of an amount deposited in a form or by a method that has not yet made the said amount available for withdrawal;
(ix) If the payment or transfer request is in contradiction or conflict with other existing agreements in respect of the Bank Accounts.
(b) If the Bank makes a timely payment or transfer but the payee nevertheless fails to credit the Customer’s payment promptly after receipt, the Bank shall not be liable for any loss or damage suffered by the Customer and / or the Nominated User as a result of such failure on the part of the payee.
(a) The Customer shall indemnify and keep the Bank harmless on a full and unqualified indemnity basis against all and any costs (including legal costs), claims, actions, proceedings, losses, damage, demands, liabilities, and expenses whatsoever suffered sustained or incurred by the Bank in connection with or arising from (a), (b) and / or (c)of subparagraph 8.1 where the particular circumstance is within the Customer’s and / or Nominated User’s control and against all and any costs (including legal costs), claims, actions, proceedings, losses, damage, demands, liabilities, and expenses suffered or incurred by the Bank as a consequence of any breach by the Customer and / or the Nominated User of any term or condition hereof.
(b) The Customer shall indemnify and keep the Bank harmless against any demands, claims, actions, losses, damages, costs or expenses whatsoever which the Bank may at any time incur, sustain or suffer as a result of provision of the Service unless such demands, claims, actions, losses, damages, or costs arose as a direct consequence of the gross negligence or wilful misconduct of the Bank or any of its employees.
(c) The Customer shall indemnify and keep the Bank harmless against the following:-
(i) All demands, claims, actions, losses and damages of whatever nature which may be brought against the Bank or which it may suffer sustain or incur arising from the Bank’s reliance on any incorrect, illegible, incomplete or inaccurate information or data contained in any Request.
(ii) Any loss or damage that may arise from the Customer’s and / or the Nominated User’s 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.
(iii) Any unauthorised access to the Bank Accounts or any breach of security or any destruction or accessing of the Customer’s data or any destruction or theft of or damage to any of the Customer’s Facilities.
(iv) Any loss or damage occasioned by the failure by the Customer and / or the Nominated User to adhere to any terms and conditions applicable to the Service 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.
8.4 If for any reason other than a reason mentioned in subparagraph 8.1 the Service is interfered with or unavailable, the Bank’s sole liability in respect thereof shall be to re-establish the Service as soon as reasonably practicable or, at the Bank’s option, to provide to the Customer alternative banking facilities which need not be electronic facilities.
8.5 Save as provided in subparagraph 8.4, the Bank shall not be liable to the Customer and / or the Nominated User for any interference with or unavailability of the Service, howsoever caused.
8.6 Under no circumstances shall the Bank be liable to the Customer and / or the Nominated User for any loss of profit or anticipated savings or for any indirect or consequential loss of whatever kind, howsoever caused, arising out of or in connection with the Service.
8.7 Except in respect of death or personal injury caused by the gross negligence or wilful misconduct of the Bank, the Bank shall be under no liability for any claim whatsoever in respect of these Terms And Conditions Governing The Use of I&M Next Generation Banking Facility or their performance thereof or any transactions effected by the Bank in response to any Request unless the Bank has received notice in writing of any such claim from the Customer as follows:
a) In the case of any claim relating to a transaction, within thirty (30) days from the date of the alleged transaction on which such claim is based; and
b) In all other cases within ninety (90) days of the date of the alleged action or inaction by the Bank on which such claim is based.
8.8 To the extent permitted by law, the Bank:
(a) Disclaims all warranties with respect to the System and Service, either express or implied, including but not limited to any implied warranties relating to quality, fitness for any particular purpose or ability to achieve a certain result.
(b) Makes no warranty that the System is error free or that its use shall be uninterrupted and the Customer acknowledges and agrees that the existence of such errors shall not constitute a breach of these Terms And Conditions Governing The Use of I&M Next Generation Banking Facility .
The Bank may vary these Terms and Conditions Governing the Use of I&M Next Generation Banking Facility either in whole or in part at any time. Notification of any such variation may be given to the Customer either in writing or by publication thereof by such means as the Bank may decide but any variation whether notified or not shall be binding on the Customer and / or the Nominated User.
10.1 Notwithstanding anything contained in these Terms and Conditions Governing The Use of I&M Next Generation Banking Facility , the Service may be terminated at any time by either the Bank or the Customer giving the other one calendar month’s notice, PROVIDED that in the event of any change in any law or the application thereof, or any other event which, in the judgment of the Bank, would have the effect of prejudicing the Bank should it continue with the rendering of the Service to the Customer, the Bank shall be entitled to terminate the Service at any time without notice to the Customer.
10.2 If the Customer terminates the Service, the Bank may continue to make electronic bill payments, transfer of funds and other transactions that the Customer would have previously authorized until such time as the Bank shall have had a reasonable opportunity to act on the Customer’s notice of termination.
10.3 The termination of the Service shall not, in itself, terminate or affect the relationship of Banker and Customer between the Bank and the Customer.
Paragraphs 8, 11.3, 11.6 and 12 and shall survive termination of the Service.
11. General Provisions
11.1 The Customer shall not assign any benefit or any rights arising hereunder without the prior written consent or confirmation from the Bank.
11.2 No waiver by the Bank of any breach by the Customer and / or the Nominated User of any of these Terms and Conditions Governing the Use of I&M Next Generation Banking Facility shall be effective unless it is an express waiver in writing of such breach. No waiver of any such breach shall waive any subsequent breach by the Customer and / or the Nominated User.
11.3 The Customer acknowledges:
(a) that they have not relied upon any representation, warranty, promise, statement of opinion or other inducement made or given by or on behalf of or purportedly by or on behalf of the Bank in Subscription; and that
(b) no person has or has had authority on behalf of the Bank whether before, on or after Subscription to make or give any such representation, warranty, promise, statement of opinion or other inducement to the Customer or to enter into any collateral or side agreement of any kind with the Customer in connection with the Service.
11.4 These Terms and Conditions Governing The Use of I&M Next Generation Banking Facility hereof supersede all prior agreements, arrangements and understandings between the parties and constitute the entire agreement between the parties relating to the subject matter hereof. For the avoidance of doubt, nothing herein shall vary, discharge or in any other way affect or prejudice any security granted by the Customer or any third party in favour of the Bank in relation to any obligations of the Customer which may arise if any Request from the Customer hereunder is acted upon by the Bank.
11.5 Each of the provisions of these Terms and Conditions Governing the Use of I&M Next Generation Banking Facility is severable and distinct from the others. If at any time any of the Next Generation Terms or Conditions hereof is or becomes illegal, invalid or unenforceable in any respect, neither the legality, validity nor shall enforceability of the remaining Terms and Conditions Governing the Use of I&M Next Generation Banking Facility in any way be affected or impaired thereby.
11.6 Any notice required to be given in writing under these Terms and Conditions Governing the Use of I&M Next Generation Banking Facility shall be sufficiently served if sent by registered post, stamped and properly addressed;
(a) to the Manager of the Branch or of the Bank at the postal address of the Branch or the Bank, if to be served on the Bank; or
(b) to the Customer at the address as recorded with the Bank with respect to the Bank Account, if to be served on the Customer; and shall be deemed to have been served five Banking Days after posting.
12. Confidentiality and Disclosure
12.1 The Customer undertakes to maintain strict confidentiality of their Mobile Banking PIN and any other information and materials of any nature supplied to them by the Bank in relation to the Service. The Customer agrees to notify their agents, employees and / or sub-contractors of the provisions of this paragraph and to impose this confidentiality requirement on their agents, employees and / or sub-contractors by entering into separate agreements, if necessary. The Customer shall be fully liable to the Bank for any breach of the provisions of this paragraph by themselves, their employees, agents and / or sub-contractors.
12.2 The Customer hereby agrees that, if necessary for the provision of the Service, the Bank may disclose information about the Customer to any member of the Bank’s Associates or the Customer’s Associates.
12.3 The Customer further agrees that the Bank may disclose information about the Customer to third parties’ in the following circumstances: –
(a) Where such disclosure is necessary in order for the Bank to act on a Request.
(b) In order to comply with any law regulation, court order and / or contractual obligation of the Bank. If the Bank has to obey an order for information from an authorised government body, the Bank shall, to the extent required by law, notify the Customer before giving out the information.
(c) Disclosure to the Bank’s agents, sub-contractors, auditors, attorneys and other professional service providers to the extent required in the normal course of their duties.
(d) Disclosure to a licensed credit reference agency the services of whom the Bank may have subscribed to.
(e) If it involves a claim by or against the Bank in respect of an item deposited or drawn against the Bank Account.
(f) If the Customer authorises the disclosure.
13. Intellectual Property Rights
13.1 The Customer acknowledges that the intellectual property rights in the System (and any amendments or enhancements thereto from time to time) and all associated documentation that the Bank provides to the Customer through the System or otherwise are vested either in the Bank or in other persons from whom the Bank has a right to use and to sub-license the System and / or the said documentation. The Customer shall not infringe any such intellectual property rights.
13.2 The Customer shall not duplicate, reproduce or in any way tamper with the System and associated documentation without the prior written consent of the Bank.
14. Governing Law and Dispute Resolution Procedure
14.1 These Terms and Conditions shall be governed by and shall be construed according to the Laws of the Republic of Kenya.
14.2 In the event that any claim or dispute arises out of or in connection with this Agreement, the parties shall, following service of written notice by one party on the other, attempt to resolve amicably by way of good faith negotiations and discussions any such dispute or claim as soon as reasonably practicable (and in any event within 14 calendar days after such notice or by such later date as the parties may otherwise agree in writing). Failing this, any dispute arising out of or in connection with this Agreement shall be referred to arbitration by a single arbitrator to be appointed by mutual Agreement between the Parties or in default of such Agreement within fourteen (14) days of the notification of a dispute, upon the application of either Party, by the Chairman for the time being of the Kenya Branch of the Chartered Institute of Arbitrators of the United Kingdom. Such arbitration shall be conducted 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.
14.3 The Bank and the Customer hereby submit to the non-exclusive jurisdiction of the Courts of Kenya and the Bank shall be at liberty to enforce anywhere a judgment in any jurisdiction where the Customer carries on business or has any asset.
15. No partnership or agency
Nothing in this Agreement is intended to, or shall operate to, create a partnership between the parties, or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
If any provision of this Agreement (or part of any provision) is found by any Kenyan court to be invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed not to form part of the Agreement, and the validity and enforceability of the other provisions of the Agreement shall not be affected.