Safaricom Bambanet (PrePay) T’s and C’s
Terms and Conditions of the Safaricom BAMBANET Service
Definitions and Interpretation
1.1 These terms and conditions are in addition to and supplemental to Safaricom’s pre paid terms and conditions.
1.2 In these terms and conditions:
(a) “Charges” means the charge payable by you for the use of the Services as specified in the Tariff Guide and excludes charges incurred on additional value added services, voice calls, SMSs and international roaming;
(b) “Agreement” means this agreement for the provision of the Services together with the Application;
(c) “Connection” means the activation of the SIM Card for use on the Network;
(d) “Content” means information, communications, images and sounds, software or any other material transmitted or communicated through the Services;
(e) “Intellectual Property Rights” means all intellectual property rights including without limitation, copyright, patents, trade marks, registered designs, design rights, know how and all other rights;
(f) “MSISDN” means the Mobile Subscriber Integration Services Digital Number, which is your telephone number or in this case the telephone number assigned to your data enabled SIM;
(g) “Network” means the cellular network operated by Safaricom;
(h) “Offending Material” means any Content that is:
(i) in breach of any law, regulation or code of practice invoked by Safaricom or industry regulator or any policy adopted by Safaricom with regard to the acceptable use of the Services, or
(ii) abusive, indecent, defamatory, obscene, offensive or menacing, or
(iii) in breach of confidence, intellectual property rights, privacy or any right of a third party.
(i) “Product” means the plug and play USB modem into which the data enabled SIM Card is inserted to facilitate access to the Network and the Services;
(j) “Services” means the mobile data solution provided by Safaricom under the brand name BambaNet or such other brand name as may be adopted by Safaricom from time to time;
(k) “SIM” means the subscriber identity module which is programmed with your MSISDN and that enables you to use the Services when inserted in the Product and used with Your Equipment;
(l) “Tariff Guide” means the list of Charges for the Services as published and varied by Safaricom from time to time;
(m) “You” means you as the subscriber and includes any person who Safaricom believes is acting with your authority. “Your” shall have a corresponding meaning;
(n) “Your Equipment” means the necessary compatible computer systems to which the Product is connected to facilitate access to the Services.
1.3 In this Agreement, unless the context otherwise requires, any reference to:
(a) the singular includes the plural and vice versa;
a person includes reference to a body corporate or other legal entity;
any written law includes that law as amended or re-enacted from time to time;
any agreement or other document includes that agreement or other document as varied or replaced by the Parties in writing from time to time;
a clause is to the relevant clause of this Agreement;
any Party includes that Party’s successors and assigns.
1.4 Clause headings are inserted for convenience only and shall be ignored in construing this Agreement.
By using and accessing the Services you will be deemed to have read, understood and accepted these terms and conditions.
SAFARICOM’S GENERAL OBLIGATIONS
3.1 Supply of the Product
3.1.1 Safaricom shall use reasonable endeavours to meet any agreed delivery dates for the supply of the Product and related accessories to you, time will however not be of the essence with regard to such supply and Safaricom will not be liable for any costs and expenses incurred by you as a consequence of such delay.
3.1.2 Title to the Product and related accessories shall pass to you on payment in full of any monies outstanding on the purchase and risk in the same will pass to you upon delivery.
3.2 Supply of the Services
Although Safaricom will take all reasonable steps to ensure that the Services are available to you at all times, it cannot guarantee a continuous fault free service. The quality and availability of Services may be affected by factors including (but not limited to) acts of God, geographical topography, weather conditions, proximity of base transceiver stations, planned maintenance or rectification work on the Network.
The availability or quality of connection to the Services may also depend on Your Equipment, and Safaricom makes no representation or warranty in respect of the suitability or quality of Your Equipment.
3.2.2 Suspension and variation of the Services
188.8.131.52 Safaricom may in its sole discretion suspend, terminate or vary the Services without liability to compensate you for any period during which:
Safaricom is required or requested to comply with an order or instruction of or a recommendation from the government, court, regulator or other competent authority;
Safaricom reasonably suspects or believes that you are in breach of clause 4.1 or you are in breach of clause 5;
Such a suspension or variation is necessary as a consequence of technical problems or for reasons of safety;
Safaricom suspends the provision of the Services for its commercial reasons.
3.2.2 You shall reimburse Safaricom for all reasonable costs and expenses incurred as a result of the suspension or variation of the Services where the suspension or variation is implemented by Safaricom as a result of any act or omission by you.
You will be liable for any applicable standing Charges during any period of suspension.
Storage and transmission
Safaricom may establish limits concerning the use of the Services for example the maximum size of an email message that may be sent or received, the maximum capacity allocated to you for storage and/or transmission of Content on/through the Network which you access via the Services.
Safaricom has no responsibility for the deletion, corruption or failure to store any Content maintained or transmitted by the Network.
Safaricom reserves the right to vary the Charges applicable to a particular MSISDN if in its reasonable opinion the usage applicable to such MSISDN exceeds any reasonable use limits communicated by Safaricom from time to time.
Use of the Network, The Product and Software
4.1.1 You shall not utilise and shall ensure that no other person utilising your access to the Services uses the Services:
(a) for storing, reproducing, transmitting, communicating or receiving any Offending Material; or
fraudulently or for any criminal purpose or in a manner that is contrary to any regulatory or legal requirement; or
to cause annoyance, inconvenience or needless anxiety to any person; or
contrary to any other instructions that may be communicated by Safaricom to you from time to time; or
in a manner which is inconsistent with a reasonable users good faith use of the Services or the Network.
4.1.2 You undertake that you will use the Product in accordance with any user guide or other reasonable instruction of any manufacturer or supplier of the same or reasonable instruction of Safaricom.
4.1.3 You shall not reverse engineer, disassemble or decompile the Product, SIM or related accessories.
4.2 Access to Information
4.2.1 You will provide Safaricom with all the information Safaricom needs and allow Safaricom to use that information for credit checking, debt collection and for the purposes set out in clause 4.2.2 below.
4.2.2 Safaricom may hold and use information provided by you for a number of purposes, which may include:
(a) Carrying out any activity in connection with a legal, governmental or regulatory requirement on Safaricom in connection with legal proceedings or in respect of crime or fraud prevention, detection or prosecution.
(b) Monitoring or recording of your calls, emails or text messages for Safaricom’s business purposes such as quality control and training, prevention of unauthorised use of Safaricom’s telecommunications system and ensuring effective systems operation.
You acknowledge that you have not relied upon any statement, representation or warranty made by Safaricom or any of its employees, servants or agents other than as set out in this Agreement.
You shall pay the Charges (including charges incurred on voice usage in the event your SIM is activated with voice) whether the same have been incurred by you or as a result of the unauthorised use (including following a theft of the Product). The amount due from you will be calculated using the details logged by Safaricom and not details recorded by you.
6.1 If you find that the Product is faulty or defective then you should immediately return it to Safaricom or its authorised agent together with the receipt for the purchase, within ten (10) days of purchase. Safaricom shall only be responsible for the replacement of the Product in the case of manufacturer’s defects and only if you can show that it has used the same in accordance with any documentation or reasonable instructions provided by Safaricom.
6.2 Safaricom shall use reasonable endeavours to extend to you the benefit of any warranty on the Product purchased from Safaricom as given to Safaricom (subject to any limitations and restrictions thereof) by the manufacturer provided that any expense reasonably incurred by Safaricom in extending such benefit shall be held to your account. This warranty is the only warranty given by Safaricom and specifies its entire liability including liability for negligence and in particular but without limitation all statutory or other express, implied or collateral terms. Conditions or warranties are excluded to the fullest extent provided by law including but not limited to any warranties and conditions expressed or implied by the Sale of Goods Act (Chapter 31 of the Laws of Kenya).
LIMItATION and exclusion OF LIABILITY
You agree that the following exclusions of liability are reasonable.
Safaricom, its officers, employees, agents and partners will not be liable to you or any party for:
(a) any direct, indirect, anticipated savings, goodwill, consequential, incidental or special loss, corruption of data or other costs arising out of or in connection with this Agreement in contract or tort or otherwise for any loss including as a consequence of a failure or delay in availability of the Network notwithstanding Safaricom’s awareness of the possibility of you incurring the same;
(b) any losses arising in connection with (i) force majeure events or other circumstances outside our control or outside our knowledge including industrial disputes, terrorist or enemy action, or (ii) any unforeseeable acts or omissions or negligent acts on the part the Product supplier or any other of Safaricom’s service providers, contractors, agents or employees.
(c) the, loss, late receipt or non-readability of any download, transmission, or other communications.
(d) for any damage to or loss of information on the Product or Your Equipment in the event that unwanted programs or material, Trojan horses, worms or viruses are downloaded through the Product or Your Equipment as a consequence of receiving emails or other downloads or accessing the internet using the Product. You will be required to take reasonable precautions while accessing websites, downloading music or other data and while sending or receiving emails using the Services and you will in addition be required to adopt such appropriate security measures against unauthorised access to and interference with Your Equipment, associated software, hardware and data as you deem necessary.
(e) Any losses caused as a result or while you is roaming resulting from a failure of the network of the foreign operator.
(f) Any charges or losses incurred as a result of or unauthorised use of the Product including following a theft of the same.
Except as provided in this Agreement, Safaricom provides no warranties, conditions or guarantees as to the description or quality of the Services or the Product and all warranties, conditions or guaranties implied by or expressly incorporated as a result of custom and practice, statute, common law or otherwise are hereby expressly excluded so far as is permitted by law.
8 INTELLECTUAL PROPERTY RIGHTS and MSISDN
8.1 All intellectual property rights to the subject matter of this Agreement shall remain vested in Safaricom and the ownership of the SIMs and the Network shall remain with Safaricom or its licensors, as appropriate. You acknowledges that you shall have no licence, right, title or interest in or to any intellectual property rights of Safaricom or its licensors (as the case may be) except as expressly set out in this Agreement.
8.2 The MSISDN and any other numbers made available in connection with the use of the Services remain the property of Safaricom.
8.3 In the event that Safaricom may need to change your MSISDN Safaricom will notify you of the same.
8.4 Transfer of a MSISDN may be made upon your request and subject to the consent of Safaricom. You shall, prior to Safaricom transferring MSISDN, pay all outstanding charges relating to the Services used up to the transfer date and administration charges in relation to the transfer provided that following the transfer of the MSISDN, Safaricom may deduct the charges from the deposit and refund the balance of the deposit to you (without interest).
8.5 If any MSISDN allocated to you remains unconnected to or is disconnected from the Network for any reason for such period as may be communicated by Safaricom then Safaricom may withdraw and re-allocate the MSISDN to a third party without any liability to you.
No terms or conditions endorsed upon, delivered with or contained in your documentation will form a part of this Agreement and you waive any right which You might otherwise have to rely on such terms and conditions.
Any notice required to be given to Safaricom shall be deemed to have been given if it is posted by registered mail or delivered by hand or courier service to: Safaricom Limited, P.O Box 46350-00100, Nairobi, Safaricom House, Waiyaki Way and marked for the Attention of: The Head of Sales.
Any notice required to be given to you shall be deemed to be so given if it is addressed to you at your last known address and posted by registered mail or delivered by hand or courier service to you or emailed to you or delivered by way of short message service (sms).
Such notice shall be deemed to have been received five (5) business days after posting or if delivered by hand or courier upon receipt by the duly authorised officer or if sent by e-mail or sms it shall be deemed to have been served at the time of transmission.
Any failure to exercise or delay in exercising a right or remedy provided by this Agreement or by law does not constitute a waiver of the right or remedy or a waiver of other rights or remedies. No single or partial exercise of a right or remedy provided by this Agreement or by law prevents further exercise of the right or remedy or the exercise of another right or remedy.
If any of the words or provisions of this Agreement shall be construed to be illegal, void or invalid, that shall not affect the legality and validity of the other words or provisions. If any restriction is held not to be valid but would be valid if part of the wording were deleted or its extent reduced or modified then such restriction shall apply with such deletion, reduction or modification as may be necessary to make it enforceable
Termination by Safaricom
Safaricom may terminate this Agreement at any time by giving written notice to you and without any ensuing liability to you if:
(a) Safaricom has reason to believe that the Services are being used in an unauthorised way or for criminal activities;
(b) You Equipment is found to emit signals, which may interfere with the quality of the Services or the Network;
(c) Safaricom has good reason for believing that any information given by you to Safaricom is false or misleading;
(d) You commit any material breach of any of the provisions of this Agreement and such breach is not rectified within thirty (30) days from receipt of a written notice giving particulars of the breach;
(e) It is found that you are no longer a subscriber to the Safaricom Network;
(g) The licence under which Safaricom provides the Services is terminated or modified preventing Safaricom from providing the Services or for any other reason Safaricom is unable to provide the Service.
11 CONSEQUENCES OF TERMINATION
11.1 Termination shall not affect any provision of this Agreement expressed to have effect after termination, or any other rights either Party may have against the other Party subsisting at the time of termination.
11.2 Safaricom shall use all reasonable endeavours to disconnect the MSISDN from the Network immediately upon notice to do so.
12.1 Safaricom reserves the right to vary the terms and conditions of this Agreement at any time by placing the revised terms and conditions on its website http://www.safaricom.co.ke and you will be deemed to have been bound by such variation by continuing to use the Services.
12.2 You should periodically check the website http://www.safaricom.co.ke to make itself aware of any variations.
13 Force Majeure
The obligation of each Party under this Agreement shall be suspended during the period to the extent that such Party is prevented or hindered from complying therewith by any cause beyond its reasonable control including but not limited to acts of god, war, civil commotion, industrial dispute, inability to secure materials, act or omission of carriers or suppliers, or regulatory intervention. If such delay or failure continues for at least thirty (30) days then either Party may terminate this Agreement, upon expiry of the thirty (30) days, by notice in writing to the other. Upon such termination all amounts due to Safaricom by you shall immediately become due and payable.
14 dispute resolution
14.1 Amicable Settlement
The parties shall use their best efforts to settle amicably any dispute arising from or in connection with this Agreement or the interpretation thereof.
14.2.1 Save as may otherwise be provided herein, all questions in dispute arising between the Parties and all claims or matters in such dispute not otherwise mutually settled between the Parties shall in the first instance be referred to the Communications Commission of Kenya.
14.2.2 In the event that the Communications Commission of Kenya fails to settle the dispute within fourteen (14) days of the dispute being referred to it, then the matter shall be referred to Arbitration by a single Arbitrator to be appointed by agreement between the Parties or in default of such agreement within fourteen (14) days of such notification of such dispute by either Party to the other, upon application by either Party to the Chairman for the time being of Kenya Branch of Chartered Institute of Arbitrators of the United Kingdom and any Arbitration proceeding shall take place in Nairobi.
14.2.3 Every award made under this clause shall be made in accordance with the provisions of the Arbitration Act 1995 (Act No. 4 of 1995) or other Act or Acts for the time being in force in Kenya in relation to Arbitration. To the extent permissible by law the determination of the Arbitrator shall be final and binding upon the Parties.
14.2.4 Notwithstanding these Arbitration provisions, the Parties shall not be precluded from seeking urgent injunctory relief, in which case the Parties submit to the exclusive jurisdiction of the High Court of Kenya.
15 Governing Law