- DEFINITIONS AND INTERPRETATION
For the purposes of this Agreement and the preamble above, unless the context requires otherwise:
Agreement means this Agreement;
Equipment includes your mobile phone handset, SIM Card and/or other equipment which when used together enables you to access the Network;
Force Majeure means events, circumstances or causes beyond the reasonable control of Ysell making Ysell’s performance of its obligations inadvisable, commercially impracticable, illegal, or impossible, including but not limited to acts of God, war, pandemic, strikes or labour disputes, embargoes or government orders;
Licence Restrictions has the meaning given to it in clause 4;
Network means a mobile cellular network operated by a Mobile Network Operator;
Services shall include any form of services or products that Ysell may offer you pursuant to this Agreement and which you may from time to time subscribe to; and “Service” shall be construed accordingly;
SMS means a short message service consisting of a text message transmitted from your mobile phone to another;
System means Ysell’s electronic communications software enabling you to communicate with Ysell for purposes of the Services. The System and the Services will for the purpose of this Agreement be accessed through the Electronic Payment System;
Technology has the meaning given to it in clause 3.1.4;
- In addition to the definitions in clause 1.1, unless the context requires otherwise: the singular shall include the plural and vice versa.
- a reference to any one gender, whether masculine, feminine or neuter, includes the other two.
- All the headings and sub-headings in this Agreement are for convenience only and are not to be taken into account for the purposes of interpretation of this Agreement.
- The recitals and schedules shall be deemed to form part of this Agreement
- ACCEPTANCE OF TERMS AND CONDITIONS
- You must carefully read and understand the Terms and Conditions set out in this Agreement as amended from time to time by Ysell (the Terms and Conditions) before downloading the App.
- After downloading the App, you will be deemed to accept the Terms and Conditions upon clicking the “Accept” option on Ysell’s System asking you to confirm that you have read, understood and agreed to abide by the Terms and Conditions. If you do not agree with the Terms and Conditions please click the “Decline” option in Ysell’s Please note that you will not be able to access the Services if you decline the Terms and Conditions. If you do not agree to the Terms and Conditions, we will not license the App to you.
- By downloading the App, you agree to comply with and be bound by the Terms and Conditions governing the use of the App and you affirm that the Terms and Conditions herein are without prejudice to any other right that Ysell may have with respect to the App in law or otherwise.
- These Terms and Conditions may be amended or varied by Ysell from time to time and your continued use of the Services constitutes your agreement to be bound by the terms of any such amendment or variation. Ysell will take all reasonable measures to notify you of any changes.
- From time to time, updates to the App may be issued through the website or through notification on the App. Depending on the update, you may not be able to use the Services until you have downloaded or streamed the latest version of the App and accepted any new terms and conditions.
- By using the App or any of the Services, you consent to us collecting and using technical information about the Equipment and related software, hardware and peripherals for Services that are internet-based or wireless to improve our products and to provide any Services to you. If you use these Services, you consent to us and our affiliates’ and licensees’ transmission, collection, retention, maintenance, processing and use of your data to improve our Services and/or your experience while using the App.
- GRANT AND SCOPE OF LICENCE
- In consideration of you agreeing to abide by the terms of this Agreement, we grant you a non-transferable, non-exclusive licence to use the App on your Equipment, subject to these Terms and Conditions. We reserve all other rights. Except as expressly set out in this Agreement or as required or permitted by any Nigerian law, you agree:
- not to rent, lease, sub-license, loan, translate, merge, adapt, vary or modify the App;
- not to make alterations to, or modifications of, the whole or any part of the App, or permit the App or any part of it to be combined with, or become incorporated in, any other programs;
- not to disassemble, decompile, reverse-engineer or create derivative works based on the whole or any part of the App or attempt to do any such thing except to the extent that such actions cannot be prohibited because they are essential for the purpose of achieving inter-operability of the App with another software program, and provided that:
- the information obtained by you during such activities is not disclosed or communicated without our prior written consent to any third party; and is not used to create any software that is substantially similar to the App;
- you include our copyright notice on all entire and partial copies you make of the App on any medium; and you undertake not to provide or otherwise make available the App in whole or in part (including object and source code), in any form to any person without prior written consent from us; and
- to comply with all technology control or export laws and regulations in your country that apply to the technology used or supported by the App or any Service (the Technology),
- Licence Restrictions.
- You must:
- not use the App or any Service in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with this Agreement, or act fraudulently or maliciously, for example, by hacking into or inserting malicious code, including viruses, or harmful data, into the App, any Service or any operating system;
- not infringe our intellectual property rights or those of any third party in relation to your use of the App or any Service, including the submission of any material (to the extent that such use is not licensed by this Agreement); not transmit any material that is defamatory, offensive or otherwise objectionable in relation to your use of the App or any Service;
- not use the App or any Service in a way that could damage, disable, overburden, impair or compromise our systems or security or interfere with other users; and
- not collect or harvest any information or data from any Service or our systems or attempt to decipher any transmissions to or from the servers running any Service.
- INTELLECTUAL PROPERTY RIGHTS
You acknowledge that all intellectual property rights in the App and the Technology anywhere in the world belong to us or our licensors, that rights in the App are licensed (not sold or assigned) to you, and that you have no rights in, or to, the App or the Technology other than the right to use each of them in accordance with the terms of this Agreement. You acknowledge that you have no right to have access to the App in source-code form.
- REQUESTS MADE BY THE BORROWER
- You hereby irrevocably authorise Ysell to act on all Requests received by Ysell from you (or purportedly from you) through the System and to hold you liable in respect thereof. Ysell may nevertheless refuse to carry out any Requests in its sole and absolute discretion.
- Subject to its discretion, Ysell reserves the right to reject any Request in relation to the App at any point in time.
- Ysell 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 Ysell may act if Ysell has, in good faith, acted in the belief that such instructions have been sent by you.
- Ysell 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.
- You agree to and shall release from and indemnify Ysell against all claims, losses, damages, costs and expenses howsoever arising in consequence of, or in any way related to Ysell having acted in accordance with the whole or any part of any of your Requests (or failed to exercise) the discretion conferred upon it.
- In the event of any conflict between any terms of any Request received by Ysell from you and this Agreement, this Agreement shall prevail.
- All payments to be made by you under this Agreement shall be made in full without any set off or counter claim and save in so far as required by the law to the contrary, free and clear of and without any deduction or withholding whatsoever. If you are at any time required to make any deduction or withholding from any payment to Ysell, you shall immediately pay to Ysell such additional amounts as will result in Ysell receiving the full amount it would have received had no such deduction or withholding been required.
- If you fail to make any payments due to Ysell at the due date for payment, Ysell will be authorised to apply late fees on such amount owed by you at a rate to be communicated to you.
- VARIATION AND TERMINATION
- Ysell may at any time, upon notice to you, terminate or vary its business relationship with you and refuse you access to the App.
- Without prejudice to Ysell’s rights under clause 8.1, Ysell may at its sole discretion suspend or refuse you access to the App:
- if you use the App for unauthorised purposes or where Ysell detects any abuse/misuse, breach of content, fraud or attempted fraud relating to your use of the Services;
- if Ysell is required or requested to comply with an order or instruction of or a recommendation from the government, court, regulator or other competent authority;
- if Ysell reasonably suspects or believes that you are in breach of these Terms and Conditions which you fail to remedy (if remediable) within 14 days after the service of notice by email, SMS or other electronic means requiring you to do so;
- where such a suspension or variation is necessary as a consequence of technical problems or for reasons of safety; to facilitate update or upgrade the contents or functionality of the Services from time to time; or where your account becomes inactive or dormant;
- if Ysell 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; or
- if you breach any of the Licence Restrictions.
- Termination shall however not affect any accrued rights and liabilities of either party.
- EXCLUSION OF LIABILITY
- Ysell shall not be responsible for any loss suffered by you should the Services be interfered with or be unavailable by reason of the failure of any of your Equipment, or any other circumstances whatsoever not within Ysell’s control including , without limitation, Force Majeure or error, interruption, delay or non- availability of the System, terrorist or any enemy action, loss of power, adverse weather or atmospheric conditions, and failure of any public or private telecommunications system.
- You acknowledge that the App has not been developed to meet your individual requirements, and that it is therefore your responsibility to ensure that the facilities and functions of the App as described meet your requirements.
- We only supply the App for domestic and private use. You agree not to use the App and Services for resale purposes, and we have no liability to you for any loss of profit, loss of business, business interruption, or loss of business opportunity as a result of your unauthorised use of the App.
- Ysell will not be liable for any losses or damage suffered by you as a result of or in connection with:
- any defect or fault in the App or any Service resulting from you having altered or modified the App;
- any defect or fault in the App resulting from you having used the App in breach of the terms of this Agreement;
- your breach of any of the Licence Restrictions;
- failure, malfunction, interruption or unavailability of the System, your Equipment, or the Network:
- any fraudulent or illegal use of the Services, the System and/or your Equipment; or
- your failure to comply with the Terms and Conditions and any document or information provided by Ysell concerning the use of the System and the Services.
- If for any reason, the Services are interfered with or unavailable, Ysell’s sole liability under this Agreement in respect thereof shall be to re-establish the Services as soon as reasonably practicable.
- Ysell shall not be liable to you for any interference with or unavailability of the Services, howsoever caused.
- Under no circumstances shall Ysell 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 Ysell.
- All warranties and obligations implied by law are hereby excluded to the fullest extent permitted by law.
- In consideration of Ysell complying with your instructions or Requests in relation to the App, you undertake to indemnify Ysell and hold it harmless against any loss, charge, damage, expense, fee or claim which Ysell suffers or incurs or sustains thereby and you absolve Ysell from all liability for loss or damage which you may sustain from Ysell acting on your instructions or Requests or in accordance with these Terms and Conditions.
- The indemnity in clause 10.1 shall also cover the following:
- All demands, claims, actions, losses and damages of whatever nature which may be brought against Ysell 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 Ysell’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 Ysell.
- 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.
- Any unauthorised access to your account 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.
- 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 Ysell as a consequence of any breach of these Terms and Conditions.
- Any damages and costs payable to Ysell in respect of any claims against Ysell for recompense for loss where the particular circumstance is within your control.
- COMMUNICATION BETWEEN US
11.1 If you wish to contact Ysell in writing, or if any condition in these Terms and Conditions requires you to give notice to Ysell, you can send this to us by e-mail to firstname.lastname@example.org or to such e-mail address that may be communicated to you from time to time. We will confirm receipt of this by contacting you in writing by e-mail.
11.2 If we have to contact you or give you notice in writing, we will do so by posting such notice on our website; or by e-mail or SMS to the mobile phone number or e-mail address you provide to us in your request for the App.
- Remedies Cumulative
- No failure on the part of any party to exercise, or delay on its part in exercising, any right, power or remedy provided by this Agreement or by law shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any further or other exercise of that, or any other, right, power or remedy.
- No failure by Ysell to exercise, and no delay in exercising, any right or remedy in respect of any provision of this Agreement shall operate as a waiver of such right or remedy.
Effect of invalidity
- If any provision or part of a provision of this Agreement shall be, or be found by any court of competent jurisdiction to be, invalid or unenforceable, such invalidity or unenforceability shall not affect the other provisions or parts of such provisions of this Agreement, all of which shall remain in full force and effect.
- ENTIRE AGREEMENT
- You agree with us that neither of us shall have any claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.
- DISPUTE RESOLUTION
- The Parties shall use their good faith efforts to resolve any dispute, controversy or claim of any nature whatsoever arising out of or in relation to or in connection with this Agreement. To this end, the Parties in dispute shall each promptly appoint representatives of appropriate standing who shall meet and attempt to resolve any dispute between them. In the event that an amicable settlement has not been reached within thirty (30) days of the parties’ representatives meeting as aforesaid, the following provisions of this clause 14 shall apply.
- Any dispute, difference or question whatsoever and howsoever arising out of or in connection with this Agreement, save as specifically provided herein, shall be referred for final determination to a single arbitrator to be appointed by agreement between the parties hereto or in default of any such agreement within seven (7) days of the notification of any dispute by either party to the other then, upon application by either party, by the Chief Judge of Lagos State of Nigeria.
- Such arbitration shall take place in Nigeria and shall be conducted in accordance with the applicable rules of arbitration of the Lagos Court of Arbitration.
- To the extent permissible by law the determination of the arbitrator shall be final and binding upon the Parties and shall not be subject to any appeal.
- Nothing in this clause 14.2 shall restrict either Party’s freedom to commence legal proceedings of any nature for the purposes of seeking preliminary injunctive relief or interim or conservatory measures from any court of competent jurisdiction pending the final decision or award of any arbitrator.
- GOVERNING LAW
- This Agreement shall be governed by and construed in accordance with the laws of Nigeria.
Electronic signature of Borrower