Data Processing Terms & Conditions

FINCREDIT LIMITED DATA PROCESSING TERMS AND CONDITIONS

These are the Data Processing Terms and Conditions (the “Data Processing Terms”) on which Fincredit Limited (“Fincredit”), provide the Service (as herein defined) to customers (the “Customer”).

WHEREAS:

1) Under an agreement between the Customer and Fincredit (the “Service Agreement”) Fincredit provides to the Customer the Service described in the Service Agreement.
2) The provision of the Service by Fincredit may involve it in processing Personal Data on behalf of the Customer.
3) Under the Data Protection Act 2019 (the “Act”) (Article 28, paragraph 3), the Customer is required to put in place an agreement in writing between the Customer and any organisation which processes personal data on its behalf governing the processing of that data.
4) The Parties have agreed to follow the Data Processing Terms to ensure compliance with the said provisions of the ACT in relation to all processing of the Personal Data by Fincredit for the Customer.
5) The Data Processing Terms are to apply to all processing of Personal Data carried out for the Customer by Fincredit and to all Personal Data held by Fincredit in relation to all such processing.
6) The Data Processing Terms shall form a part of the Service Agreement.

IT IS AGREED as follows:

1. DEFINITIONS AND INTERPRETATION

In the Data Processing Terms, unless the context otherwise requires, the following expressions have the following meanings:

1.1. “Customer”, “Data Processor”, “processing”, and “data subject” shall have the meanings given to the terms in Clause 2 of the ACT;
1.2. “ODPC” means the Office of the Data Protection Commissioner, Kenya;
1.3. “Personal Data” means all such “personal data”, as defined in Article 2 of the ACT for as long as it is directly applicable in Kenya and any successor legislation in Kenya to the ACT, as is, or is to be, processed by Fincredit on behalf of the Customer, as described in the Service Agreement;
1.4. “Service” means those services and/or facilities described in the Service Agreement which are provided by Fincredit to the Customer and which the Customer uses for the purposes described in the Service Agreement;
1.5. “Sub-Processor” means a sub-processor appointed by Fincredit to process the Personal Data; and
1.6. “Sub-Processing Agreement” means an agreement between Fincredit and a Sub-Processor governing the Personal Data processing carried out by the Sub-Processor, as described in Clause 10.
1.7. Unless the context otherwise requires, each reference in the Data Processing Terms to:
1.7.1. “writing”, and any cognate expression, includes a reference to any communication effected by electronic or facsimile transmission or similar means;
1.7.2. a statute or a provision of a statute is a reference to that statute or provision as amended or re-enacted at the relevant time;
1.7.3. the “Service Agreement” is a reference to collectively the Just Cash® Loans Service; the Terms and Conditions; the Data Protection and Privacy Policy; and the Data Processing Terms as amended or supplemented at the relevant time;
1.7.4. a Clause or paragraph is a reference to a Clause of the Data Processing Terms.
1.7.5. a “Party” or the “Parties” refer to the parties to the Service Agreement
1.8. The headings used in the Data Processing Terms are for convenience only and shall have no effect upon the interpretation of the Data Processing Terms.
1.9. Words imparting the singular number shall include the plural and vice versa.
1.10. References to any gender shall include all other genders.
1.11. References to persons shall include legal persons.

2. SCOPE AND APPLICATION OF THE DATA PROCESSING TERMS

2.1. The provisions of the Data Processing Terms shall apply to the processing of the Personal Data described in the Service Agreement, carried out for the Customer by Fincredit, and to all Personal Data held by Fincredit in relation to all such processing whether such Personal Data is held at the date of the Service Agreement or received afterwards.
2.2. The provisions of the Data Processing Terms supersede any other arrangement, understanding, or agreement made between the Parties at any time relating to the Personal Data.
2.3. The Data Processing Terms shall continue in full force and effect for so long as Fincredit is processing Personal Data on behalf of the Customer, and thereafter as provided in Clause 9.

3. PROVISION OF THE SERVICE AND PROCESSING PERSONAL DATA

Fincredit is only to carry out the Service, and only to process the Personal Data received from the Customer:

3.1. for the purposes of the Service and not for any other purpose;
3.2. to the extent and in such a manner as is necessary for those purposes; and
3.3. strictly in accordance with the express written authorisation and instructions of the Customer (which may be specific instructions or instructions of a general nature or as otherwise notified by the Customer to Fincredit).

4. DATA PROTECTION COMPLIANCE

4.1. All instructions given by the Customer to Fincredit shall be made in writing and shall at all times be in compliance with the ACT and other applicable laws. Fincredit shall act only on such written instructions from the Customer unless Fincredit is required by law to do otherwise.
4.2. Both Parties shall comply at all times with the ACT and other applicable laws and shall not perform their obligations under the Data Processing Terms or any other agreement or arrangement between themselves in such way as to cause either Party to breach any of its applicable obligations under the ACT.
4.3. The Customer hereby warrants, represents, and undertakes that the Personal Data shall comply with the ACT in all respects including, but not limited to, its collection, holding, and processing.
4.4. Fincredit shall ensure that its obligations under the Data Processing Terms are satisfactorily performed in accordance with any and all applicable legislation from time to time in force in under the ACT and any best practice guidance issued by the ODPC.
4.5. Fincredit shall provide all reasonable assistance (at the Customer’s cost) to the Customer in complying with its obligations under the ACT with respect to the security of processing, the notification of personal data breaches, the conduct of data protection impact assessments, and in dealings with the ODPC.
4.6. When processing the Personal Data on behalf of the Customer, Fincredit shall:
4.6.1. only transfer the Personal Data to and/or process the Personal Data in a country outside Kenya where the said country complies with the obligations for Data Processors under the provisions applicable to transfers of Personal Data to third countries set out in Chapter 5 of the ACT by providing an adequate level of protection to any Personal Data that is transferred;
4.6.2. only transfer the Personal Data to any third party strictly subject to the terms of a suitable agreement, as set out in the ACT;
4.6.3. process the Personal Data only to the extent, and in such manner, as is necessary in order to comply with its obligations to the Customer or as may be required by law (in which case, Fincredit shall inform the Customer of the legal requirement in question before processing the Personal Data for that purpose unless prohibited from doing so by law);
4.6.4. implement appropriate technical and organisational measures, and take all steps necessary to protect the Personal Data against unauthorised or unlawful processing, accidental loss, destruction, damage, alteration, or disclosure;
4.6.5. if so requested by the Customer (and within the reasonable timescales required by the Customer) supply further details of the technical and organisational systems in place to safeguard the security of the Personal Data held and to prevent unauthorised access;
4.6.6. keep records of all processing activities carried out on the Personal Data in accordance with the requirements of the ACT;
4.6.7. make available to the Customer any and all such information as is reasonably required and necessary to demonstrate Fincredit’s compliance with the ACT;
4.6.8. on reasonable notice provide the Customer with any information reasonably required in order to assess and verify compliance with the provisions of the Data Processing Terms and both Parties’ compliance with the requirements of the ACT; and
4.6.9. inform the Customer immediately if it is asked to do anything that infringes the ACT or any other applicable data protection legislation.

5. DATA SUBJECT ACCESS, COMPLAINTS, AND BREACHES

5.1. Fincredit shall, at the Customer’s cost, assist the Customer in complying with its obligations under the ACT. In particular, the following shall apply to data subject access requests, complaints, and data breaches.
5.2. Fincredit shall notify the Customer without undue delay if it receives:
5.2.1. a subject access request from a data subject; or
5.2.2. any other complaint or request relating to the processing of the Personal Data.
5.3. Fincredit shall, at the Customer’s cost, cooperate fully with the Customer and assist as required in relation to any subject access request, complaint, or other request, including by:
5.3.1. providing the Customer with full details of the complaint or request;
5.3.2. providing the necessary information and assistance in order to comply with a subject access request;
5.3.3. providing the Customer with any Personal Data it holds in relation to a data subject (within thebtimescales required by the Customer); and
5.3.4. providing the Customer with any other information requested by the Customer.
5.4. Fincredit shall notify the Customer immediately if it becomes aware of any form of Personal Data breach, including any unauthorised or unlawful processing, loss of, damage to, or destruction of any of the Personal Data.

6. LIABILITY AND INDEMNITY

6.1. The Customer shall be liable for, and shall indemnify (and keep indemnified) Fincredit in respect of any and all action, proceeding, liability, cost, claim, loss, expense (including reasonable legal fees and payments on a solicitor and client basis), or demand suffered or incurred by, awarded against, or agreed to be paid by, Fincredit and any Sub-Processor arising directly or in connection with:
6.1.1. any non-compliance by the Customer with the ACT or other applicable legislation;
6.1.2. any Personal Data processing carried out by Fincredit or Sub-Processor in accordance with instructions given by the Customer that infringe the ACT or other applicable legislation; or
6.1.3. any breach by the Customer of its obligations under the Data Processing Terms, except to the extent that Fincredit or Sub-Processor is liable under sub-Clause 6.2.
6.2. Subject to the T&C’s Fincredit shall be liable for any and all action, proceeding, liability, cost, claim, loss, expense (including reasonable legal fees and payments on a solicitor and client basis), or demand suffered or incurred by, awarded against the Customer arising directly or in connection with Fincredit’s Personal Data processing activities that are subject to the Data Processing Terms:
6.2.1. only to the extent that the same results from Fincredit’s breach of the Data Processing Terms; and
6.2.2. not to the extent that the same is or are contributed to by any breach of the Data Processing Terms by the Customer.
6.3. The Customer shall not be entitled to claim back from Fincredit or Sub-Processor any sums paid in compensation by the Customer in respect of any damage to the extent that the Customer is liable to indemnify Fincredit or Sub-Processor under sub-Clause 6.1.
6.4. Nothing in the Data Processing Terms (and in particular, this Clause 6) shall relieve either Party of, or otherwise affect, the liability of either Party to any data subject, or for any other breach of that Party’s direct obligations under the ACT.

7. INTELLECTUAL PROPERTY RIGHTS

All copyright, database rights, and other intellectual property rights subsisting in the Personal Data (including but not limited to any updates, amendments, or adaptations to the Personal Data made by either the Customer or Fincredit) shall belong to the Customer or to any other applicable third party from whom the Customer has obtained the Personal Data under licence (including, but not limited to, data subjects, where applicable). Fincredit is licensed to use such Personal Data under such rights only for the term of the Service Agreement, for the purposes of the Service, and in accordance with the Data Processing Terms.

8. CONFIDENTIALITY

8.1. Fincredit shall maintain the Personal Data in confidence, and in particular, unless the Customer has given written consent for Fincredit to do so, Fincredit shall not disclose any Personal Data supplied to Fincredit by, for, or on behalf of, the Customer to any third party. Fincredit shall not process or make any use of any Personal Data supplied to it by the Customer otherwise than in connection with the provision of the Service to the Customer.
8.2. Fincredit shall ensure that all personnel who are to access and/or process any of the Personal Data are contractually obliged to keep the Personal Data confidential.
8.3. The obligations set out in in this Clause 8 shall continue for a period of five (5) years after the cessation of the provision of Service by Fincredit to the Customer.
8.4. Nothing in the Data Processing Terms shall prevent either Party from complying with any requirement to disclose Personal Data where such disclosure is required by law. In such cases, the Party required to disclose shall notify the other Party of the disclosure requirements prior to disclosure, unless such notification is prohibited by law.

9. APPOINTMENT OF SUB-PROCESSORS

9.1. Fincredit shall have the right to sub-contract any of its obligations or rights under the Data Processing Terms without the prior written consent of the Customer.
9.2. In the event that Fincredit appoints a Sub-Processor, Fincredit shall:
9.2.1. enter into a Sub-Processing Agreement with the Sub-Processor which shall impose upon the Sub- Processor the same obligations as are imposed upon Fincredit by the Data Processing Terms and which shall permit both Fincredit and the Customer to enforce those obligations; and
9.2.2. ensure that the Sub-Processor complies fully with its obligations under the Sub-Processing Agreement and the ACT.
9.3. In the event that a Sub-Processor fails to meet its obligations under any Sub-Processing Agreement, Fincredit shall remain fully liable to the Customer for failing to meet its obligations under the Data Processing Terms.

10. DELETION AND/OR DISPOSAL OF PERSONAL DATA

10.1. Fincredit shall, at the written request of the Customer, delete (or otherwise dispose of) the Personal Data or return it to the Customer in the format(s) reasonably requested by the Customer within a reasonable time after the earlier of the following:
10.1.1. the end of the provision of the Service under the Service Agreement; or
10.1.2. the processing of that Personal Data by Fincredit is no longer required for the performance of Fincredit’s obligations under the Service Agreement.
10.2. Following the deletion, disposal, or return of the Personal Data under sub-Clause 11.1, Fincredit shall delete (or otherwise dispose of) all further copies of the Personal Data that it holds, unless retention of such copies is required by law, in which case Fincredit shall inform the Customer of such requirement(s) in writing.

11. CONSIDERATION

Fincredit accepts the obligations in the Data Processing Terms in consideration of the payment of the Fees from the Customer under the Service Agreement.

12. LAW AND JURISDICTION

12.1. The Data Processing Terms (including any non-contractual matters and obligations arising therefrom or associated therewith) shall be governed by, and construed in accordance with, the laws of Kenya.
12.2. Any dispute, controversy, proceedings or claim between the Parties relating to the Data Processing Terms (including any non-contractual matters and obligations arising therefrom or associated therewith) shall fall within the Dispute Resolution procedure pursuant to the General Terms and Conditions of Service forming part of the Service Agreement.