Last updated on: 1st November 2023
These Terms and Conditions together with the terms set out in the Account Application Form govern your (“you” or “your”) use and access of the Cloudpay Service described below made available by Cloudpay Limited (hereinafter referred to as Cloudpay) (“we”, “us”, “our”)a company duly incorporated under the applicable laws which access is by downloading, installing and using the Application, accessing the platform, together with the website; either singularly referred to as ‘Party’ and collectively referred to as “parties”.
YOU ARE REQUIRED TO READ CAREFULLY AND ACCEPT THESE TERMS BEFORE USING CLOUDPAY SERVICES. IF YOU DO NOT AGREE WITH THE TERMS, PLEASE DISCONTINUE THE ACCOUNT OPENING PROCESS.
By clicking to accept the Terms and Conditions when prompted on the Application or Website, you are deemed to agree to be bound by these terms and any future modifications posted on the Application or Website effective on the date you register your Account or click to accept the Terms of Service or continued use of the services for updated terms. Your acceptance establishes a contractual relationship between you and Cloudpay. These terms constitute the Sasapay Terms and Conditions, Cloudpay Terms of Service and Privacy Notice as part of the binding contract between you and Cloudpay Limited.
“Account” means the means with which you access our services that make it simple for your business to accept, make and manage digital payments and other business tools referred to as services and defined under clause 3 of these Terms. An account is held by a business under the name of the
company, sole proprietor or other registered entity.
“Account Information” means identifying, transactional and financial information collected, generated, and retained in relation to your use of the services.
“Account Application Form” means the form you are required to fill and execute to request to open an account and which you provide all the information regarding your business that is necessary for the account opening and operation.
“Future Transactions” means any future payments made to the account.
“Merchant” means a business or company that has registered and operates a merchant through Cloudpay; has registered and operates an account with Cloudpay for pay and card services; and has registered to access other services offered by Cloudpay. It may be a sole proprietor, a registered company, partnership, limited liability partnership or any other registered entity.
“Merchant Account” means the Account opened in your name or that of your business. “Service” means the services specified under clause 3 in these Terms and Conditions.
3.1 The Service is a payment and data management service software that allows Merchants to open electronic payment accounts, process payments, track and analyze these payments.
3.2 To enable you to operate an account and enable us to offer all the additional services, we have entered into agreements with mobile money networks (“Networks”) and other relevant authorized business partners. To access the service, we require you to complete an application form and provide all the required documents during account creation. Please note that once the account is created an automatic legal binding contract exists between Cloudpay and the Merchant.
3.3 We are not a bank, an e-money issuer, or a money services business.
For purposes of this Agreement and solely to provide the Service, you grant Cloudpay a limited power of attorney to set up and manage your digital payment accounts including Mobile money accounts, visa/master card accounts and to hold funds on your behalf until you give Cloudpay instructions on the management of the funds. Cloudpay undertakes that all funds held on behalf of merchants and customers will be held in CBK-regulated financial institutions or payment system providers.
5.1 You may submit information about one or more mobile payment accounts that you may have with a Network (“Account Information”). This Account Information will only be used for the sole purpose of capturing transaction data and other relevant information that can beread and interpreted by Cloudpay for purposes of offering you the services.
5.2 When submitting Account Information, you agree that: –
1. You are authorized to access the account and otherwise have the necessary authority to provide Cloudpay with access to any Account Information.
2. You have given Cloudpay the authority to access and use the account information for the purpose stated above.
3. You have read and understood the terms and conditions governing the operation of the account and access to services.
a. To use most aspects of the Cloudpay service, you must register for a Cloudpay account(“Account”).
b. You must be at least 18 years of age to obtain or operate an Account.
c. Account registration requires you to submit to Cloudpay certain information on your business and includes;
i. Full names of sole proprietor, partners, or directors of the business
ii. Physical address of the business
iii. Postal address of the business, sole proprietor, partners, or directors.
iv. Mobile phone number of the sole proprietor, partners, or directors.
v. Registration certificate of the business and/or the latest business permit
vi. ID /Passport of the sole proprietor, partners, or directors.
vii. Valid CR12 or equivalent document.
viii. Business permit.
ix. Bank account information.
x. KRA PIN for sole proprietor, company, partnership, or other entity. In addition, we may request for individual KRA PINS for directors, partners, and people you authorize to operate or have access to the account.
xi. Licenses for businesses that are regulated by special authorities, e.g. pharmacies,
d. If there is a suspicious transaction, or a transaction exceeding a certain threshold as may be fixed from time to time, we may ask for additional information to verify the transaction.
e. You must only register for the services using your information or that of the registered business.
f. You certify that you are authorized on behalf of the Company whose name and details you have provided to sign up for the services.
g. You agree to maintain accurate, complete, and up-to-date registration information stated under Clause 5 in your Account. Your failure to maintain accurate, complete, and up-to-date
h. Account information may result in your inability to access and use the Services or Cloudpay’s termination of these Terms with you.
h. You are responsible for all activities that occur under your Account, and you agree to maintain the security and secrecy of your Account username, password pin or phone that is setup for receiving security notifications including OTP at all times. You agree that you and your company or business shall be liable for any actions performed through your account by anyone you allow access to your username and password, and you indemnify Cloudpay of any liability arising from
disclosure of your account access information.
i. You agree to comply with all applicable laws when using the Services, and you may only use the Services for lawful purposes.
j. You will not use the service for any fraudulent or unlawful activity. By providing us with your e-mail address or other contact information, such as a mobile number, you agree that we may communicate with you electronically to that e-mail address or mobile number as part of the Service and that any communications sent to those addresses that you have provided will serve as a formal notice under this Agreement.
7.1 As the owner of the information, you provide to us through the Service (Your “User Account Information” and along with Account Information, “Your User Information”), You are licensing the User Information to Cloudpay for the purpose of providing the Service. Cloudpay may use such User Information to display, distribute, and create new material incorporating such User Information. Further and as owner of the User Information you undertake to indemnify Cloudpay for any liability arising from the User Information you provide whether as to its ownership or otherwise howsoever.
7.2 By using the Service, you expressly authorize Cloudpay to access Your User Information maintained by identified third parties and to directly connect to the Cloudpay System for the third party you have identified, on your behalf. Cloudpay will submit User Information that you provide to log you into the site and retrieve Your User Information. You hereby authorize and permit Cloudpay to use User Information submitted by you to the Service to accomplish the foregoing and to configure the Service so that it is compatible with the third-party sites for which you submit your information.
7.3 You consent to Cloudpay using your information for; enquiries with vendors, law enforcement agencies, government agencies, credit reference bureaus, payment services providers, banks and creditors about you, your directors, officers, beneficial owners or members; fraud prevention and detecting crime; credit decisions and assessing financial risk; marketing products and services; reporting to regulatory bodies and law enforcement agencies; for purposes of offering you the services; fulfilling its obligations and enforcing its rights under this Agreement.
7.4 You hereby agree to indemnify Cloudpay and its service providers from any claims arising out of the use of Your User Information contemplated herein.
8.1 We shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality, and integrity of your data. We shall not (a) modify your data, (b) disclose your data except for commercial purposes relating to the Service or as permitted by law, or (c) access your data except to provide the Service and prevent or address service or technical problems, or at your request in connection with customer support matters.
8.2 Our collection and use of personal information in connection with the Services and Products is as provided in our Privacy Notice here (https://cloudpay.finance/privacy-policy). This Privacy Notice forms part of this Agreement and by accepting these terms and conditions you acknowledge that you have read, understood and accepted our Privacy Notice.
(i) be responsible for Users’ compliance with this Agreement,
(ii) be responsible for the accuracy, quality and legality of your data and of the means by which you acquired your Data,
(iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Service, and notify us promptly of any such unauthorized access or use, and
(iv) use the Service only in accordance with the applicable laws and government regulations. You shall not (a) make the Service available to anyone other than users you have added to your account, (b) sell, resell, rent or lease the Service, (c)use the Service to store or transmit infringing, libelous, or otherwise unlawful or tortuous material, or to store or transmit material in violation of third-party privacy rights, (d) use the Service to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Service or third-party data contained therein, or (f) attempt to gain unauthorized access to the Service or their related systems or networks.
10.1 Cloudpay allows you to add additional users to your account. You understand that the users you add are authorized to perform all the actions that you authorize them to perform based on the account parameters and designation including requesting adding users, initiating funds transfer and authorizing payments.
10.2 You agree that a person designated as ‘Administrator’ of your Cloudpay account has unlimited rights to perform any transactions in your account including authorizing paymentsand managing users.
10.3 You shall be personally liable for any activities performed by your users under this account. Your company or business shall be liable as well for any liability accruing to Cloudpay as a result of activities performed by users you add to your account, and you agree to indemnify Cloudpay of any such liability. You acknowledge that it is your sole responsibility to update and change authorization mandates where any authorized persons are no longer authorized to act on your
10.4 You warrant that the contact information provided in your application and account belongs to officers of the company or business, is up to date, and you agree to immediately update Cloudpay whenever such information changes. All communications in this regard shall be communicated to Cloudpay through the official contact details provided at https://cloudpay.finance/contact/
10.5 You warrant that you are responsible for any liability arising out of your failure to update contact information and you fully indemnify Cloudpay of any such liability.
11.1 You agree to pay the applicable fees listed on the Merchant Fee Schedule (“Fees”) whenever you use a Service that is listed as chargeable. Fees are based on services purchased and not actual usage. Payment obligations are non-cancellable, and fees are non-refundable.
11.2 Subject to the terms of this Agreement, we reserve the right to change our Fees. If we change our Fees, we will give you thirty (30) days’ notice of any change.
12.1 Account services and agreements: We shall make the Merchant Account Services available to you pursuant to this Agreement and the relevant account opening forms under other agreements stated under clause 1. You agree that the services specified herein are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by us regarding future functionality or features.
12.2 Mobile money Providers’ Terms: We currently accept transactions for Mobile Money Payments Operators in Kenya and you will be required to execute the terms of payment by your preferred Mobile Money Payment operator such as but not limited to Sasapay’s terms which shall form part of this Agreement.
12.3 Access To funds: We will deposit to your Cloudpay account the amounts actually received by us for transactions submitted through the Merchant Account Service (less any applicable Fees in the Cloudpay Merchant Agreement Fee Schedule). Once your settlement account is verified, Cloudpay will deposit your money in your designated account upon your request.
12.4 Funds for any given transaction will not be deposited until the transaction is deemed complete. Transactions will be deemed complete when we have received the funds and when the designated mobile money systems have accepted the transactions. You are responsible for monitoring your transactions and ensuring that our payments to you are correct.
12.5 Pay-outs: You have the option of automating your pay-outs to your settlement account or logging into the Cloudpay system at your convenience to initiate a transfer request. If you choose to automate transfers, we will transfer to your settlement account on a daily, weekly or monthly basis as you may instruct us. You may choose to self-initiate a transfer request at any time on a business day and you may only request one transfer per business day.
12.6 Customer Service: You are solely responsible for all customer service issues related to your goods or services, including pricing, taxes, issue of receipts, order fulfilment, order cancellation by you or your customer, returns, refunds and adjustments, rebates, functionality and warranty, technical support, and feedback concerning experiences with your personnel, policies or processes. We are solely responsible for customer service issues relating to any Cloudpay account or payment processing.
12.7 Receipts: Subject to applicable laws and regulations, you must provide a written receipt available to your customers for any transaction. You may also offer Cloudpay electronic receipts through SMS or email to your customers but not in lieu of a written receipt where legally required.
12.8 Reversals: You must notify us or provide feedback of reversals requested by you or your customers within 24 hours of the error first appearing on your electronic transaction history. Failure to notify of such an error will be deemed a waiver of any rights to amounts owed to you. If we do not hear from you regarding a reversal request within 24 hours, the transaction in question may be automatically reversed. You may request for additional time within the first 24 hours of up to 72 hours in total before the automatic reversal is effected. Legitimate reversals not processed within 7 days may result in suspension of the Merchant Account Service until such a time that the reversal request is resolved.
12.9 Excessive reversals: If we determine that you are experiencing an excessive amount of reversals, we may establish controls or conditions governing your Cloudpay account, including without limitation, by (a) delaying pay-outs, and (b) terminating or suspending the Merchant Account Service.
12.10 Processing Errors: We value your business and will attempt to rectify any processing errors we discover. If the error resulted in your receipt of less than the correct amount to which you were entitled, Cloudpay will credit your account the difference. If the error resulted in your receipt of more than the correct amount to which you were entitled, Cloudpay will debit the extra funds from your account. Cloudpay will only correct transactions that you process incorrectly if and when you notify us of such a processing error. Your failure to notify us of a processing error within thirty (30) days of when it first appears on your electronic statement will be deemed a waiver of any right to amounts owed to you.
12.11 Pay service: You must have an Account to use the Pay service. You authorize Cloudpay to debit your Account in the amounts necessary to, (i) pay any fees or charges associated with the Service, (ii) pay any debit, correction or reversing entry initiated pursuant to this Agreement, and (iii) pay any other amount that is owing under this Agreement, including for Services provided by us to you unrelated to Pay. You will maintain a sufficient balance in your Account to pay disbursements, fees, or any other amounts due under this Agreement at the time required. Pay-outs to your recipients’ bank will take approximately one hour, Till number to Pay Bill will take approximately 30 minutes and mobile money account (M-pesa number) will reflect instantly.
12.12 If you have insufficient funds in your Account to pay amounts due under this Agreement at the time required, or if you refuse to pay, we may (i) debit amounts from your Account or from any other funding source associated with your Account, including but not limited to any funds deposited by you, due to you under this Agreement, or other payment instrument registered with us, (ii) discontinue the Services (entirely or only with respect to Pay, in our sole discretion), and/or (iii) immediately terminate this Agreement.
12.13 Unauthorized or illegal use: We may decide not to settle any transaction that you submit to us if we believe that the transaction is in violation of any Cloudpay agreement, or exposes you, other Cloudpay users, or Cloudpay to harm. Harm includes fraud, anti-money laundering or other criminal acts. If we reasonably suspect your account has been used for an unauthorized, illegal, or criminal purpose, you give us express authorization to share information about you, your account, and any of your transactions with law enforcement.
You may not transfer your Account or your Agreement to another company or person.
Taxes may apply to the payments made and received into your account. It is your obligation to declare and pay to the relevant authorities and you agree to indemnify Cloudpay of any tax obligations that may arise out of such payments.
Electronic notices will be sent to the email address or mobile number you have provided as your primary email address or mobile number or to the Account Admin or Managers as provided in the account. If any contact details changes you are responsible for informing us of that change as soon as reasonably possible.
16.1 Use of third parties
16.2 Identity, Authentication and verification of information
Cloudpay will at the time of your registration for an account or any time as necessary authenticate your identity and for business accounts, the company through a third party with the capability to authenticate identity and any other information you may provide including Mobile Network Operators and other third-party databases. You hereby agree and consent to Cloudpay verifying your information and using it with regard to your account.
The Services and all rights therein are and shall remain Cloudpay property or the property of its licensors. Neither these Terms nor your use of the Services convey or grant to you any rights: (i) in or related to the Services except for the limited license granted above; or (ii) to use or reference in any manner Cloudpay’s company names, logos, product and service names, trademarks or services marks or those of Cloudpay’s licensors.
Subject to your compliance with these Terms, Cloudpay grants you a limited, non-exclusive, non-sub licensable, revocable, non-transferable license to: (i) access and use the Applications on your personal device solely in connection with your use of the Services; and (ii) access and use any content, information and related materials that may be made available through the Services, in each case solely for your personal, non-commercial use. Any rights not expressly granted herein are reserved by Cloudpay and Cloudpay licensors.
The service is provided on an ‘as is’ and ‘as available’ basis. Use of the service is at your own risk. To the maximum extent permitted by applicable law, we make no representations or warranties of any kind, express or implied, statutory or otherwise, and each party specifically disclaims any warranties of non-infringement or fitness for a particular purpose.
Cloudpay shall in no event be responsible or liable to you or to any third party, whether in contract, warranty, tort (including negligence) or otherwise, for any indirect, special, incidental, consequential, exemplary, liquidated or punitive damages, including but not limited to loss of profit, revenue or business, arising in whole or in part from your use of the service or this agreement, even if Cloudpay has been advised of the possibility of such damages.
Notwithstanding anything to the contrary in this agreement, Cloudpay’s liability to you for any cause whatever and regardless of the form of the action, will at all times be limited to amount paid by you hereunder in the 12 months preceding the incident.
You shall defend, indemnify and hold harmless Cloudpay and its officers, directors, shareholders, and employees, from and against all claims and expenses, including but not limited to attorney’s fees, in whole or in part arising out of or attributable to any breach of this Agreement by you.
Cloudpay does not condone any form of bribery or corruption and you undertake that you will always comply with applicable anti-bribery and anti-corruption legislation and policies. Cloudpay may terminate your account and this Agreement with immediate effect in the event it concludes, in its absolute discretion, that you or any of your representatives have been involved in any form of bribery or corrupt practices.
This Agreement will continue to apply until terminated by either you or Cloudpay as set out below. If you want to terminate your legal agreement with Cloudpay, you may do so immediately upon notice to firstname.lastname@example.org. Cloudpay may terminate this Agreement immediately upon notice to the email address or mobile number that comprises your Registration Information.
Cloudpay may modify this Agreement from time to time by updating the site and/or providing written notice to you. You are deemed to accept and agree to be bound by any changes to the Agreement when you use the Service after those changes are posted.
You understand that without prejudice to Cloudpay’s other rights under these Terms, if you breach these Terms, Cloudpay may take such action it deems appropriate to deal with the breach, including suspending or blocking your access to the Service or Software.
Any dispute, conflict, claim or controversy arising out of or broadly in connection with or relating to the Services or these Terms, including those relating to its validity, its construction or its enforceability (any “Dispute”) shall be dealt with in the Courts of Law in Kenya.
Cloudpay may give notice by means of a general notice on the Services by electronic mail to your email address in your Account, by written communication sent to your address as set forth in your Account or posting on the website or the platform. You may give notice to Cloudpay by written communication to Cloudpay’s email address at email@example.com. Email notices shall be considered to have been received upon being dispatched from the sender’s mailbox provided a return notice is not received.
This Agreement represents the entire understanding and agreement between you and Cloudpay regarding the subject matter of the same and supersedes all other previous agreements.
No waiver of any of the terms and conditions of this Agreement will be binding or effectual f or any purpose unless in writing and signed by or on behalf of the Party giving the same.
Any such waiver will be effective only in the specific instance and for the purpose given. No failure or delay on the part of either Party hereto in exercising any right, power or privilege here under will constitute or be deemed to be a waiver thereof, nor will any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege. If any provision of these Terms is held to be illegal, invalid or unenforceable, in whole or in part, under any law, such provision or part thereof shall to that extent be deemed not to form part of these Terms but the legality, validity and enforceability of the other provisions in these Terms shall not be affected. In that event, the parties shall replace the illegal, invalid or unenforceable provision or part thereof with a provision or part thereof that is legal, valid and enforceable and that has, to the greatest extent possible, a similar effect as the illegal, invalid or unenforceable provision or part thereof, given the contents and purpose of these Terms.