Buy Simu Terms & Conditions - Kenya

1. DEFINITIONS

• a. "Lease to Own Agreement"Means this Agreement entered into between the Lessee and the Owner for the Lease and eventual purchase of the Goods, incorporating all terms, conditions, schedules, and any amendments thereto.
• b. "Goods"Means the mobile phone specifically described in this Agreement, including any accessories, attachments, or documentation supplied therewith.
• c. "Lease to Own Price"Means the total amount payable by the Lessee to the Owner under the terms of the Lease to Own Agreement, comprising the initial deposit and all periodic instalments required to complete the acquisition of the Goods.

2. DURATION

The Lease period shall commence on the date specified in this Agreement (the 'Effective Date') and shall continue in force until lawfully terminated in accordance with the terms and conditions set out herein.

3. INSTALLMENTS PAYMENT

The Lessee shall pay all instalments promptly and without the need for prior demand, in accordance with the payment schedule set out in this Agreement. Time shall be of the essence in respect of all payments due under this Agreement.

In the event of any late payment, the Lessee shall be liable to pay a penalty interest of 1.5% per day on the overdue amount, calculated from the due date until the date of actual payment. The Owner's rights under this Agreement shall not be prejudiced or waived by any delay, indulgence, or concession granted to the Lessee.

4. DEFAULT

• a. In the event of a default by the Lessee, including but not limited to failure to make any payment on its due date, the Owner shall have the right, at its sole discretion, to terminate this Agreement and immediately retake possession of the Goods. The Lessee shall be liable for all costs and expenses incurred by the Owner in recovering possession of the Goods, including any legal or enforcement costs.
• b. Should the Lessee, upon default, notify the Owner of their intention to terminate the Agreement, the Owner shall inspect the Goods and, after deducting reasonable costs for wear and tear and any evident damages, refund the Lessee any net balance due from amounts previously paid.
• c. If the Lessee defaults and fails to communicate with the Owner, the Owner shall have the right to disable and lock the device, rendering it unusable, until such time the Lessee makes full payment of all outstanding sums and penalties and formally communicates with the Owner. The Owner shall bear no responsibility for any data loss, damage, or inconvenience arising from such deactivation.

5. CROSS DEFAULT AND CROSS COLLATERAL

The Lessee expressly agrees that:

• a. Any default or event of default under this Agreement shall constitute a default or event of default under all other agreements and financing documents entered into between the Lessee (and/or any related parties) and the Owner. Likewise, any default under such other agreements shall constitute a default under this Agreement.
• b. The Goods provided under this Agreement shall serve as collateral for all present and future obligations of the Lessee (and/or any related parties) under any other agreements with the Owner. Similarly, any collateral pledged under such other agreements shall also secure the Lessee’s obligations under this Agreement.

6. FULL OWNERSHIP OF GOODS BY LESSEE

Title to the Goods shall pass to the Lessee only upon the following conditions being fully satisfied:

• a. The Lessee shall have paid the Initial Deposit, all instalment payments, and any other amounts due and payable under this Agreement to the Owner in full;
• b. The Lessee shall not be in breach of any of the terms, conditions, or covenants of this Agreement; and
• c. The Lessee shall have paid the final Purchase Instalment.

Upon fulfilment of all the foregoing, legal ownership of the Goods shall vest in the Lessee.

7. OTHER COVENANTS BY THE LESSEE

OBLIGATIONS AND RESTRICTIONS ON THE LESSEE

a) The Lessee hereby covenants and undertakes as follows:

• i. To keep the Goods in good repair, working order, and condition at all times and to be solely responsible for any loss or damage to the Goods, whether arising from the Lessee's act, omission, negligence, misuse, or otherwise;
• ii. To retain possession and control of the Goods at all times and not to permit the Goods to be used, possessed, or accessed by any third party, nor to remove, transfer, or relocate the Goods without the prior written consent of the Owner;
• iii. To immediately notify the Owner in writing in the event that the Goods are damaged, lost, stolen, or destroyed, and to comply with any further instructions issued by the Owner in response thereto.

b) The Lessee further agrees and undertakes that during the term of this Agreement, he/she shall not:

• i. Do or permit to be done any act or omission that may in any way prejudice, jeopardize, or affect the Owner’s proprietary rights or legal interest in the Goods;
• ii. Abandon, assign, transfer, charge, pledge, sub-Lease, sell, lease, dispose of, or otherwise part with possession of the Goods or any interest therein, nor permit any lien, encumbrance, or claim to arise or be created over the Goods, including for repair or storage charges, without the prior written consent of the Owner;
• iii. Use or permit the use of the Goods for any illegal, unlawful, immoral, or prohibited purpose, or in contravention of any applicable law, regulation, or statutory requirement in force;
• iv. Tamper with, remove, alter, deface, or obscure any serial numbers, trademarks, manufacturer’s labels, or identifying marks on the Goods, nor destroy, dismantle, or damage any original parts of the Goods.

8. INSURANCE

The Lessee shall, at his/her own cost, obtain and maintain the following insurance policies for the full duration of this Agreement, from an insurance underwriter duly approved by the Owner:

i. All Risks Insurance Cover

The Lessee shall procure an all-risks insurance policy in respect of the Goods (the "Device") under Lease to Own, with the following conditions:

• The Owner shall be named as the Financier and the first loss payee under the policy;
• The sum insured shall be equal to the higher of (a) the full purchase price of the Device or (b) its replacement value at the time of policy inception or renewal;
• The policy shall provide coverage for a maximum of two (2) valid claims during the term of this Agreement;
• The coverage shall specifically include, but not be limited to:
  • a. Screen damage or replacement;
  • b. Back cover damage or replacement;
  • c. Water or liquid damage;
  • d. Accidental or material physical damage

ii. Responsibility for Defective Goods

Any defects or malfunctions covered under the merchant’s or manufacturer's warranty shall remain the sole responsibility of the merchant. Such defects shall not be covered under the insurance policies referred to in this clause and shall not relieve the Lessee of any payment or other obligations under this Agreement.

iii. Proof and Maintenance of Coverage

The Lessee shall submit evidence of the above-mentioned insurance covers to the Owner within seven (7) days from the Effective Date of this Agreement, and thereafter upon each renewal. Failure to procure or maintain such coverage shall constitute a material breach of this Agreement, entitling the Owner to take such actions as provided herein, including but not limited to suspension of services, deactivation of the Goods, or termination of the Agreement.

For whatever reason should the Lessee wish to downgrade the leased device, the insurance rates remain as originally agreed upon.

For repairs carried out under the insurance within the contract period or before final payment is made the lessee shall pay an excess fee equal to 10% of the repair costs.

9. TERMINATION BY OWNER

a. Grounds for Termination

In the event that the Lessee:

• breaches any term, covenant, or condition of this Agreement; or
• provides any false, misleading, or materially incorrect information;

The Owner shall have the right to terminate this Agreement upon giving the Lessee written notice specifying the breach and the action required to remedy it. The Lessee shall have nine (9) days from the date of service of such notice to:

• i. remedy the breach to the satisfaction of the Owner; or
• ii. pay any sum stated in the notice as compensation for the breach.

b. Consequences of Termination

Upon termination of the Agreement by the Owner:

• i. The Lessee shall immediately cease to possess the Goods with the Owner’s consent and shall be deemed to be in unlawful possession thereof;
• ii. The Lessee shall be liable to pay:
  • All instalment payments due and payable up to the effective date of termination; and
  • Compensation for any loss or damage to the Goods resulting from the Lessee’s failure to exercise reasonable care, as assessed by the Owner or its appointed agent.

c. Repossession of Goods

In the event that the Lessee fails or refuses to surrender the Goods upon lawful termination or default, the Owner shall be entitled, without further notice, to take all lawful steps necessary to recover possession of the Goods.

To this end, the Lessee hereby irrevocably grants the Owner, its agents, employees, or servants’ full and unrestricted access, authority, leave, and license to enter any premises where the Goods may be located and to repossess the Goods, using reasonable force and legal means as may be necessary.

The Lessee further agrees that the Owner and/or its agents shall not be liable for any claim, loss, damage, or expense arising from or in connection with such entry and repossession, whether to the Lessee or any third party claiming through the Lessee.

Further should the owner in whatever way or form be forced to engage recovery mechanisms to recover a device, a fee of Kshs 15,000 shall be levied upon the lessee as tracking and repossession fees.

10. TERMINATION BY LESSEE

a. Notice of Termination

The Lessee may elect to terminate this Agreement prior to the full completion of the Lease to Own facility by providing the Owner with not less than seven (7) days’ prior written notice of such intention.

b. Financial Consequences of Early Termination

Upon termination of this Agreement by the Lessee:

• i. The Lessee shall forfeit fifty percent (50%) of the initial deposit paid at the commencement of the Agreement;
• ii. The Lessee shall pay all outstanding arrears;
• iii. The Lessee shall remain liable for any damages or loss resulting from failure to exercise reasonable care over the Goods; and
• iv. The Lessee shall immediately cease to possess the Goods with the Owner’s consent.
• v. If cancelation is done within 24 hours of signing the contract, the Lessee shall pay 10% of the amount financed or Min of 2,500 whichever is higher.

c. Return of Goods and Repossession Rights

Upon termination, the Lessee shall immediately return the Goods to the Owner in good condition (fair wear and tear excepted) at a location designated by the Owner.

If the Lessee fails or refuses to return the Goods within a reasonable time, the Lessee hereby irrevocably authorizes the Owner, its agents, employees, or servants to enter any premises where the Goods may be located and to repossess the same without further notice.

The Lessee expressly agrees that the Owner and its agents shall not be liable for any loss, damage, or claim arising from or in connection with such entry or repossession, whether to the Lessee or to any third party claiming through the Lessee.

11. DATA PROTECTION CLAUSE

11.1. Acknowledgement & Consent

By signing this Agreement, the Customer hereby acknowledges, understands, and expressly consents to the collection, processing, use, and storage of their Personal Data by BuySimu Ltd, its affiliates, and authorized third-party service providers, for the purposes outlined in this Clause and in accordance with the Kenyan Data Protection Act, 2019.

11.2 Purposes of Data Processing

BuySimu Ltd will process the Customer's Personal Data for the following legitimate purposes:

• a. To assess eligibility for, administer, and manage the lease-to-own agreement.
• b. To perform credit checks and risk assessments, which may involve sharing data with licensed Credit Reference Bureaus (CRBs).
• c. To communicate regarding account management, customer support, and payment reminders.
• d. To comply with legal and regulatory obligations, including anti-money laundering laws.
• e. For fraud prevention and detection, and to ensure the security of our services.
• f. For marketing and promoting our products and services, subject to the Customer's right to opt-out at any time.

11.3 Types of Personal Data Collected

The categories of Personal Data collected include, but are not limited to:

• a. Full name, date of birth, gender, and copy of National ID/Passport.
• b. Contact information (physical address, postal address, phone number, email address).
• c. Financial information (income details, payment history, bank account details).
• d. Device information (IMEI number, device type).
• e. Credit information and data received from CRBs.
• f. Image and likeness

11.4 Data Sharing & Third Parties

The Customer consents to the disclosure of their Personal Data to:

• a. Licensed Credit Reference Bureaus (CRBs): For the purpose of credit scoring and fraud prevention.
• b. Payment Processing Partners: Banks and payment service providers to process transactions.
• c. Legal and Regulatory Authorities: Where required by law or to protect our legal rights.
• d. Carefully Vetted Third-Party Service Providers: (e.g., cloud storage, CRM systems, SMS providers) who are bound by strict data processing agreements to protect the data.

11.5 Data Security Obligation

BuySimu Ltd shall implement and maintain appropriate technical and organizational security measures designed to protect the Customer's Personal Data against unauthorized access, acquisition, disclosure, destruction, or alteration, in line with industry standards and the requirements of the Data Protection Act.

11.6 Data Subject Rights

The Customer has the right to:

• a. Access their Personal Data held by BuySimu Ltd.
• b. Request correction of inaccurate or incomplete data.
• c. Object to processing for direct marketing purposes.
• d. Request deletion of their data, subject to our legal right to retain it for the duration of this agreement and as required by law (e.g., for tax purposes, dispute resolution).

Requests to exercise these rights must be submitted in writing to our Data Protection Officer.

11.7 Data Retention

BuySimu Ltd will retain the Customer's Personal Data for as long as necessary to fulfil the purposes for which it was collected, including for the duration of this Agreement, and for a period of 6 years thereafter to comply with legal, tax, and regulatory requirements, and to handle any potential disputes.

11.8 Limitation of Liability

Notwithstanding our security measures, the Customer acknowledges that no data transmission over the internet or electronic storage system can be guaranteed to be 100% secure.

To the fullest extent permitted by law, BuySimu Ltd shall not be liable for any loss or damage arising from any security breach, data loss, or unauthorized access to the extent that such event is caused by:

• a. An act or omission of the Customer (e.g., sharing account credentials, falling victim to phishing).
• b. The failure of any third-party service provider (e.g., telecommunications network failure, bank system failure) despite BuySimu Ltd having engaged such provider using reasonable due diligence.
• c. Any event beyond our reasonable control (Force Majeure), including but not limited to, cyber-attacks by sophisticated threat actors (e.g., state-sponsored attacks, advanced persistent threats) that bypass industry-standard security measures.

12. GENERAL

• a. No relaxation, forbearance, indulgence, or delay by the Owner in exercising or enforcing any right, power, or remedy under this Agreement shall operate as a waiver of that or any other right, power, or remedy, nor shall any single or partial exercise thereof preclude any further exercise of the same or any other right. Further, any waiver of any breach shall not be deemed to be a waiver of any subsequent or continuing breach.
• b. Any notice, letter, or document required or permitted to be given to the Lessee under this Agreement shall be deemed to have been validly served if:
  • i. Delivered to the Lessee personally;
  • ii. Sent via email or SMS to the contact details (phone number or email address) provided in this Agreement or subsequently notified in writing to the Owner; or
  • iii. Delivered by post to the address of the Lessee as stated in this Agreement or the last known address notified in writing.
• c. Where notice is sent by post, it shall be conclusively deemed to have been received by the Lessee within forty-eight (48) hours from the date of posting, provided it was correctly addressed and properly stamped.
• d. Where there is more than one Lessee under this Agreement, the liability of each such Lessee shall be joint and several, meaning each Lessee is individually and collectively liable for the full performance of all obligations under this Agreement.
• e. Loss or Irretrievable Damage to Goods: In the event that the Lessee loses the mobile phone, whether by theft, accidental loss, irreparable damage, or otherwise, the Lessee shall be liable to pay the full outstanding value of the phone in one lump sum. The Owner reserves the right to recover such amount through legal proceedings, if necessary.
• f. Upon execution of this Agreement, the Lessee shall be required to take a clear photograph holding both the mobile phone and a signed copy of the Agreement, for purposes of verification and record-keeping.
• g. This Agreement constitutes the entire agreement between the Lessee and the Owner with respect to the subject matter herein and supersedes all prior oral or written representations, negotiations, or agreements. No amendment or modification to this Agreement shall be valid unless made in writing and signed by both parties.
• h. Should the Lessee require the phone to be flushed for whatever reason, the lessee shall be required to pay a flushing fee of Kshs. 5,000.

13. GOVERNING LAW

This Agreement shall be governed by and construed in accordance with the laws of the Republic of Kenya. The parties submit to the exclusive jurisdiction of the courts of Kenya in respect of any matter arising out of or in connection with this Agreement.

14. DISPUTE RESOLUTION

In the event of any dispute arising out of or in connection with this Agreement, the parties shall first attempt;

a. Mediation:

In the event of any dispute or disagreement arising out of or in connection with this Agreement, the parties shall first attempt to resolve the matter amicably through good faith negotiations. Each party shall appoint one representative, and the two representatives shall meet within seven (7) days of notification of the dispute to attempt resolution through mediation. If the dispute is not resolved within twenty-one (21) days of the initial meeting, the matter shall be referred to arbitration as set out below.

b. Arbitration:

If the parties fail to resolve the dispute through mediation within the prescribed period:

• i. The dispute shall be submitted to final and binding arbitration in accordance with the provisions below.
• ii. The arbitration shall be conducted by a sole Arbitrator mutually agreed upon by both parties. If the parties are unable to agree on the Arbitrator within seven (7) days, the Arbitrator shall be appointed by the Chairperson of the Chartered Institute of Arbitrators (Kenya Branch), or its successor body.
• iii. The Arbitrator shall, at their discretion, determine the mode of submission— whether oral hearings or written submissions—and the timelines for such submissions, with the objective of resolving the dispute efficiently.
• iv. The arbitration process shall be conducted in a summary and expeditious manner, with the aim of concluding the proceedings within twenty-one (21) business days from the date the arbitration is formally demanded.
• v. The arbitration shall take place in Nairobi, Kenya, and the language of arbitration shall be English.
• vi. The decision of the Arbitrator shall be final and binding on the parties, and may be enforced by a court of competent jurisdiction.