Credit Line Terms and Conditions

1. The Agreement

These Credit Line Terms and Conditions (these "Terms and Conditions") set out the terms and conditions under which we agree to provide you with credit facilities. They govern access to a Credit Line (as defined below) and constitute the agreement between the Bank (as defined below) and a Credit Line Holder (as defined below).

2. Definitions and Interpretations

2.1 Definitions

In these Terms and Conditions, unless the context otherwise requires:

"Application Form" means the application form filled and duly signed by a Credit Line holder with respect to a Credit Line and for the establishment of a Credit Line Account.

"Bank" means Diamond Trust Bank.

"Credit Line" means a facility made available to a Credit Line Holder by the Bank, through which a Credit Line Holder is able to access credit and other related facilities from the Bank for purposes of purchasing goods and/or services from a Merchant through the Credit Line Issuing and Acquiring Program.

"Credit Line Account" means an account maintained by the Bank in relation to a Credit Line for purposes of representing all Transactions carried out by a Credit Line Holder under these Terms and Conditions.

"Credit Line Holder" means a small and medium enterprise that utilises a Credit Line through the Credit Line Issuing and Acquiring Program.

"Credit Line Issuing and Acquiring Program" means a credit line program operated by the Bank, and which brings together participating banks' Credit Line Holders, credit line issuing banks, credit line acquiring banks and credit line accepting merchants.

"Charges" means the amount payable by a Credit Line Holder arising from the use of a Credit Line or otherwise under these Terms and Conditions or as notified by the Bank from time to time, including, without limitation, all Transactions, fees, handling charges, additional expenses and disbursements which will be debited to the Credit Line Account and form part of the Debt Amount.

"Change of Control" means an event, transaction or circumstance whereby any single person, or group of persons acting in concert, gains control of the Credit Line Holder, and for this purpose "control" means the direct or indirect ownership of more than 50% of the voting membership rights of the Credit Line Holder or the right or ability to direct management and other policies of the Credit Line Holder (which the Credit Line Holder is obliged to comply) in each case whether by virtue of ownership of the voting membership rights, contract or otherwise.

"Credit Limit" means the maximum debit balance permitted on the Credit Line Account as determined by the Bank in its sole discretion and notified to a Credit Line Holder.

"Debt Amount" means the total amount owed to the Bank by the Credit Line Holder for the Transactions as further detailed in the Statement of Account.

"Due Date" means the date as indicated in the Statement of Account by which date, a Credit Line Holder is required to pay the Debt Amount, or any part thereof.

"Merchant" means any corporate entity that supplies, and which has agreed to supply goods and/or services to a Credit Line Holder through the Credit Line Issuing and Acquiring Program and has also accepted payment for such goods and/or services supplied through the Credit Line Issuing and Acquiring Program.

"Password" means any personal identification number issued to a Credit Line Holder.

"Statement of Account" means the monthly statement sent by the Bank to a Credit Line Holder setting out the particulars of the Debt Amount, the applicable Charges and the Credit Limit.

"Transaction(s)" means any purchase made using the Credit Line or in any manner authorized by a Credit Line Holder for the debit to the Credit Line Account.

"Total Amount Due" means the amount stated as such in the Statement of Account.

2.2 Interpretations

In these Terms and Conditions:

2.2.1 references to "you" and "your" means a Credit Line Holder and "we", "us" and "our" means the Bank;

2.2.2 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;

2.2.3 references to the expression "month" means a calendar month;

2.2.4 reference to "authorisation" or "approval" includes an authorisation, consent, clearance, approval, permission, resolution, license, exemption, filing and registration;

2.2.5 the expression "person" includes a natural person, body corporate, unincorporated body, state agency, governmental authority, or firm;

2.2.6 the headings in these Terms and Conditions are inserted for convenience of reference only and shall not affect the construction or interpretation of these Terms and Conditions;

2.2.7 reference to the words "include" or "including" shall be construed without limitation;

2.2.8 references to any statute or statutory provision shall include any statute or statutory provision which amends or replaces or has amended or replaced it and shall include any subordinate legislation made under the relevant statute; and

2.2.9 In the event of any disagreement or dispute between the Bank and a Credit Line Holder regarding the materiality of any matter including of any event, occurrence, circumstance, change, fact, information, document, authorization, proceeding, act, omission, claims, breach, default or otherwise, the opinion of the Bank as to the materiality of any of the foregoing shall be final and binding on a Credit Line Holder.

3. Usage of the Credit Line

3.1 You shall use the Credit Line for Transactions within the Credit Limit. The Bank reserves the right to refuse to authorize Transactions that would make the combined indebtedness of a Credit Line Holder exceed the Credit Limit.

3.2 No other person other than the Credit Line Holder is permitted to use the Credit Line for Charges and/or Transactions or for any other purpose. A Credit Line Holder shall not use the Credit Line before its activation by the Bank.

3.3 A Credit Line Holder shall be exclusively liable for all fees, Charges and liabilities and any other costs and expenses and it is agreed that the Credit Line may only be used by a Credit Line Holder:

3.3.1 for Transactions authorized by the Bank;

3.3.2 to obtain credit facilities, benefits and services made available by the Bank or any Merchant from time to time; and

3.3.3 within the Credit Limit permitted by the Bank unless the Bank's prior approval is obtained.

3.4 The Credit Line Holder may at any time inform the Bank of its intention to close the Credit Line Account and to terminate the use of the Credit Line(s). The Credit Line Account shall be closed only after full payment to the Bank of all Charges, liabilities, costs and expenses in relation to the Credit Line Account.

3.5 The Credit Line Holder shall notify the Bank of any change in any particulars stated in the Application Form or other information provided to the Bank (including any name change) and respectively agrees to provide any other information or particulars if requested by the Bank at any time.

3.6 The Credit Line shall not be utilized to acquire or purchase goods or services or for activities that are not in compliance with the principles under which the Bank operates. The Bank reserves the right to refuse to authorize Transactions that are unlawful, and which are not in accordance with the principles on which the Bank operates.

3.7 The Bank reserves the right to amend the Credit Limit at any time provided that you shall always be notified of such amendment prior to it being effected by the Bank.

4. The Credit Line Holder's Obligations

4.1 The Credit Line Holder accepts, agrees and undertakes that it shall comply with these Terms and Conditions and shall not be entitled to avoid liability arising from these Terms and Conditions and the Transactions.

4.2 The Bank may, in its own discretion and at any time request a Credit Line Holder to provide a guarantee or other security in a form acceptable to the Bank as security for a Credit Line Holder's indebtedness incurred or to be incurred pursuant to these Terms and Conditions.

4.3 A Credit Line Holder shall notify the Bank immediately by phone and within 24 hours in writing if the Credit Line Holder forgets the Password or the Credit Line Holder suspects that a third party has come to know of the Password.

4.4 The Credit Line Holder shall pay the amount debited to the Credit Line Account as provided under these Terms and Conditions.

4.5 Credit Line Holder shall immediately notify the Bank if it suspects any fraudulent or suspicious activity with regard to the Credit Line Account and the Bank, shall upon receipt of such report be entitled to temporarily suspend the usage of the Credit Line until further notification to a Credit Line Holder.

5. Currency Conversion

5.1 All Transactions which take place in a currency other than Kenya Shillings will be converted from the currency in which the said Transaction took place into Kenya Shillings at the Bank's prevailing rate as at the date of such conversion and shall be debited to the Credit Line Account in Kenya Shillings.

5.2 The Credit Line Holder waives any and all rights to dispute or question any exchange rate so applied by the Bank.

6. Interest

6.1 The Credit Line Holder shall not incur any interest on the Debt Amount for the first 30 days following the disbursement of the credit facility, during which period the balance shall be interest-free. After the initial 30-day interest-free period, a late payment fee of 4.9% is charged on the outstanding balance. Further, a monthly interest rate of 3.5% will be charged on any outstanding balances.

6.2 The Bank reserves the right to vary the interest rate and the method of calculation thereof at any time in line with market conditions within permissible legal limits. The Bank shall give written notice to the Credit Line Holder of such amendment and its effective date.

6.3 Interest payable under these Terms and Conditions will:

i) be calculated on the basis of a three hundred and sixty-five (365) day year irrespective of whether or not the year in question is a leap year;

ii) be calculated on the daily balance owing under the Credit Line Account, notwithstanding that such balance may have been increased by the debiting of interest to such balance;

iii) accrue from day to day;

iv) be debited to the Credit Line Account monthly in arrears and payable each month; and

v) be compounded monthly.

7. Credit Line Account Statements and Payment

7.1 The Bank may levy Charges on a Credit Line Holder from time to time. The Bank shall notify the Credit Line Holder of such Charges through the Statement of Account.

7.2 The charges may include 3.5% credit line access fees and KES 5,000 annual fees.

7.3 The Bank will debit the Credit Line Account with the amounts of all Transactions, Charges and other liabilities of a Credit Line Holder arising from the use of the Credit Line and shall issue a Statement of Account to a Credit Line Holder on a monthly basis.

7.4 All entries in the Statement of Account shall be presumed correct unless a Credit Line Holder disputes such entries within twenty-one (21) days from the date of the Statement of Account and proves such entries to be incorrect. If the disputed Transaction turns out to be genuine, the Credit Line Holder shall pay the amount set out in the relevant Transaction together with any fees incurred by the Bank in the investigation of such disputed Transaction.

7.5 The Statement of Account shall be sufficient proof of your obligations to pay the Bank the Debt Amount. Non-receipt of the Statement of Account shall not discharge a Credit Line Holder from its obligations to settle any amounts due to the Bank.

7.6 The Credit Line Holder shall on the Due Date settle the Debt Amount.

7.7 Payment on the Credit Line Account will take effect when received by the Bank in cleared funds and credited to the Credit Holder's Account.

7.8 The amounts in excess of the Credit Limit, any arrears and any Transactions made in breach of these Terms and Conditions shall be immediately payable in full, whether or not demanded by the Bank.

7.9 The Credit Line Holder expressly accepts that if it fails to pay any amounts under these Terms and Conditions when due or which may be declared due prior to the date on which such amounts would otherwise have become due or otherwise commits any default under these Terms and Conditions, then, the Bank shall, at its sole discretion, without prejudice, exercise all or any or its rights and remedies available to it in these Terms and Conditions and/or under any applicable law.

7.10 The Credit Line Holder accepts that, at the Bank's or the Bank's appointed representatives/agents' sole discretion, the Bank may at any time follow up with the Credit Line Holder for settlement of amounts due on the Credit Line.

8. Default

8.1 You will be in default if:

8.1.1 you exceed the Credit Limit without our approval;

8.1.2 you fail to make any repayment of the Debt Amount or payment of interest or other sum under these Terms and Conditions on the Due Date;

8.1.3 you breach your obligations under these Terms and Conditions;

8.1.4 any information you provide to us is found to be materially false;

8.1.5 there are adverse changes in your financial or trading position or prospects which in our reasonable opinion is material;

8.1.6 insolvency proceedings are initiated against you;

8.1.7 a Change of Control occurs, or any person or group of persons acting in concert becoming entitled to effect a Change of Control (whether effected or not), without the prior consent of the Bank;

8.1.8 you participate or be deemed to participate in illegal activities, money laundering, cheque kiting or corrupt activities or being charged or convicted of such activities by any court of competent jurisdiction; and/or

8.1.9 a distress, execution or other legal process is levied, enforced against any of your assets and not being discharges or paid within seven (7) days.

8.2 If you fail to pay the Debt Amount on the Due Date, you undertake (without prejudice to the Bank exercising any other right or remedy) to pay the Bank an amount calculated at the rate of 3.5% on the Debt Amount ("Default Interest") from (and including) the Due Date until actual payment in full of the Debt Amount together with the Default Interest.

9. Exclusion of Liability

9.1 The Bank shall not be liable for acting in good faith upon your instructions.

9.2 The Bank shall neither be liable for any loss or damage you suffer as a result of a refusal by the Bank to allow a Transaction, nor shall the Bank be responsible in any way for the goods and/or services supplied to you, including the failure to deliver such goods and/or services.

9.3 Any complaint by a Credit Line Holder with respect to the goods and/or services supplied or to be supplied by a Merchant must be resolved by the Credit Line Holder with the Merchant and the Bank shall bear no liability in this respect.

9.4 No claim by a Credit Line Holder against a Merchant may be the subject of a claim against the Bank.

9.5 The Bank shall credit the Credit Line Account with the amount of any refund only upon receipt of a properly issued credit voucher from the Merchant.

9.6 The Bank shall not be liable if it is unable to perform its obligation under these Terms and Conditions due (directly or indirectly) to the failure of any machine, data processing system or transmissions link or to industrial dispute, strikes, lock outs, acts of any public enemy, wars, blockades, insurrections, riots, epidemics, landslides, lightning, earthquakes, fires, storms, flood, civil disturbances, terrorism, governmental regulations and directions and anything outside the direct control of the Bank, its agents or sub-contractors.

10. Data Protection

10.1 The Bank will always ensure that your personal data is at all times processed in accordance with the right to privacy and in strict adherence to the principles and obligations outlined in the Data Protection Act (Chapter 411C, Laws of Kenya) and the regulations thereunder.

10.2 Except as permitted by law, the Bank may not, without the Credit Line Holder's prior consent, disclose to any third-party personal data or information relating to the Credit Line Holder.

10.3 The Credit Line Holder hereby unequivocally consents to the disclosure of its personal data/information under the following circumstances:

i) To the Bank's agents or associates for purposes of developing new products and improving services and benefits to the Credit Line Holder with an understanding that the information will be kept confidential.

ii) Where the Bank is under a legal or contractual obligation to do so (including but not limited to the Bank's legal and/or contractual obligations to prevent money laundering and related offences) or in public interest.

10.4 The Credit Line Holder consents to processing of its personal data provided to the Bank in furtherance of the contract entered between it and the Bank.

10.5 The Credit Line Holder agrees to notify its agents, employees and/or subcontractors of the provisions of this clause and indemnifies the Bank against any breach thereof.

11. Ownership or Cancellation of Credit Line

A Credit Line may be cancelled, and its privileges revoked at any time by the Bank or its agents at its sole discretion.

12. Returned Payments

12.1 In case a cheque, or any other payment instrument or instruction given by a Credit Line Holder, towards payment of its Credit Line dues, is not honoured, or must be returned to the Credit Line Holder because it cannot be processed, the Bank reserves the right to initiate legal proceedings against the Credit Line Holder and will levy a fee at its sole discretion and/or temporarily or permanently cancel the Credit Line.

12.2 The Credit Line Holder will also be liable to pay the cheque or other payment instrument return charges and late payment charges, or any other charges as may decided by the Bank.

13. Representations and Warranties

13.1 The Credit Line Holder represents and warrants to the Bank that:

i) it is validly incorporated and existing under the laws of Kenya;

ii) these Terms and Conditions constitute the legal, valid and binding obligations of the Credit Line Holder;

iii) every consent, authorization or approval of governmental or public bodies or authorities required in connection with the enforceability of these Terms and Conditions or the performance by the Credit Line Holder of its obligations hereunder has, where applicable, been obtained and is in full force and effect;

iv) the Credit Line Holder is not in violation of any statute or regulation of any competent authority in Kenya and no judgment or order has been issued which has or is likely to have any material adverse effect on its business prospects or financial condition or make it improbable that the Credit Line Holder will be able to observe or perform its obligations under these Terms and Conditions;

v) the Credit Line Holder or any of its employee has not and will not influence the action of, solicit, receive from, collude with, offer or give any payments to any person holding a public office or a director, official or employee of a public authority to obtain, retain or secure any improper benefit or advantage and upon becoming aware of any fact or information suggestive of the commission of any such act, the Credit Line Holder shall inform the Bank; and

vi) there are no material facts or circumstances in respect of the Credit Line Holder, its affairs and operations which have not been fully disclosed which would be likely to adversely affect the decision of the Bank to advance the Debt Amount.

14. Notices and Communication

14.1 All notices, statements, letters and other communications from the Bank may be sent to the last address (registered post or e-mail) given by the Credit Line Holder, and the date on the Bank's copy of any such communication is taken to be the date of such dispatch in the absence of proof to the contrary.

14.2 Any written communication from the Bank to the Credit Line Holder including but not limited to any notices given pursuant to these Terms and Conditions shall be deemed to have been received by the Credit Line Holder; if delivered, on the day of delivery if delivered personally or by e-mail and if sent by post, it shall be sufficient to prove that the letter containing the communication was properly stamped and addressed.

15. Variation of Terms

Any variations or modifications to these Terms and Conditions shall be communicated to a Credit Line Holder at least thirty (30) days before the implementation of the same through such channels as the Bank deems appropriate, including but not limited to the Bank's website. Any variations or modifications made hereafter shall form an integral part of these Terms and Conditions.

16. Termination

The Credit Line Holder may at any time terminate the use of a Credit Line by giving the Bank thirty (30) days' notice in writing. In such event, the Credit Line Holder shall continue to remain liable to the Bank for all Charges, liabilities and other costs and expenses in relation to the Credit Line in accordance with these Terms and Conditions.

17. Governing Law

17.1 These Terms and Conditions shall be governed by and construed in accordance with the laws of Kenya.

17.2 The Bank and the Credit Line Holder hereby submit to the non-exclusive jurisdictions of Kenyan courts and the Bank shall be at liberty to enforce a judgment in any jurisdiction where a Credit Line Holder carries on business or has any asset.

18. General

18.1 You agree to sign and deliver any such documents as we may require from time to time.

18.2 We may appoint an agent to collect any sums due from you under these Terms and Conditions.

18.3 You may not assign your rights and obligations under these Terms and Conditions.

18.4 Any delay or omission by the Bank in exercising or enforcing in whole or in part any right or remedy under these Terms and Conditions shall not be construed as a waiver of such right or remedy.

18.5 If any one or more provisions contained in these Terms and Conditions become invalid, illegal or unenforceable, the other provisions herein contained shall remain in full force and effect.

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