Terms of Service
Date: 1 December 2020; version: 2.0
GENERAL TERMS OF SERVICE FOR THE M-TIBA SERVICE
The following Terms of Service apply to the M-TIBA Service and by enrolling for or accessing the Service you acknowledge and agree to have read, understood and accepted these Terms of Service.
1. DEFINITIONS AND INTERPRETATION
In these Terms of Service, the following words and expressions bear the following meaning:
1.1. “CAREPAY”: Carepay Limited, a company registered in Kenya.
1.2. “CAREPAY Group”: group of companies of which CAREPAY is a member and CarePay International B.V. is the ultimate parent company.
1.3. “M-TIBA Account”: personal virtual account on the M-TIBA Platform.
1.4. “M-TIBA Customer Support”: customer care and support center available via the telephone number and email address listed on www.mtiba.com.
1.5. “M-TIBA Platform”: mobile platform that is owned, operated and administrated by CAREPAY which facilitates the operation of your M-TIBA Account and the provision of the M-TIBA Service.
1.6. “M-TIBA Service” or “Service”: services provided to you by CAREPAY through the M-TIBA Platform.
1.7. “SPONSOR”: entity funding all or part of the healthcare benefits in your M-TIBA Account. A SPONSOR can be an employer, an insurer, a government entity, a non-governmental organization or any other institution funding your M-TIBA Account.
1.8. “you”: you as a user of the M-TIBA Service, and “your” and “yourself” shall be construed accordingly.
2. DESCRIPTION OF M-TIBA SERVICE; NO SERVICE CHARGE
2.1. The M-TIBA Service provided by CAREPAY aims to give individuals such as yourself access to healthcare through the M-TIBA Platform which enables users to save, receive and use funds and benefits in their M-TIBA Account to get healthcare services at designated healthcare providers using their mobile phones.
2.2 The M-TIBA Service is, unless indicated otherwise, free of charge for you and other individuals that use the M-TIBA Platform to get healthcare services.
3. ELIGIBILITY & ENROLLMENT FOR M-TIBA SERVICE
3.1. To make use of the M-TIBA Service you must be:
3.1.1. a person of minimum of 18 years of age with full legal capacity; and
3.1.2. registered as a user of the M-TIBA Service on the M-TIBA Platform.
3.2. Registration on the M-TIBA Platform and information on the M-TIBA Service will be facilitated by the SPONSOR, CAREPAY and/or selected CAREPAY agents.
3.3. Further information on the M-TIBA Service can be obtained by contacting the M-TIBA Customer Support.
4. ACCESS TO HEALTHCARE
4.1. Funds and benefits in your M-TIBA Account can only be spent at designated healthcare providers as payment for healthcare services offered through the M-TIBA Service. You shall not spend or try to spend the same funds or benefits twice and if you do you shall be liable to pay any excess amount incurred outside the funds or benefits in your M-TIBA Account to the healthcare providers.
4.2. Information on the designated healthcare providers will be available to you through the SPONSOR, the M-TIBA Platform, the CAREPAY agents in your community, the M-TIBA Customer Support and/or www.mtiba.com. Information about the SPONSOR and healthcare program (including any promotions, bonus schemes and benefits) applicable to you can be found in the terms & conditions applicable to the relevant healthcare program as set by the relevant SPONSOR. Information in relation to such terms & conditions on the M-TIBA Platform (including the USSD menu, the mobile application or www.mtiba.com) are not legally binding and only provide a summarized version of the terms & conditions of the relevant program.
4.3. To access healthcare services at the designated healthcare providers you are required to identify yourself as a user of the M-TIBA Service through the designated means of identification determined by CAREPAY or the SPONSOR. The healthcare provider shall check whether the means of identification presented matches with your registration on the M-TIBA Platform.
4.4. If allowed by the relevant SPONSOR and healthcare program, you may, as a primary user of the M-TIBA Service, add dependents of any age to your M-TIBA Account who can access and use the funds and benefits on your M-TIBA Account with your permission. If you add any dependents, these Terms of Service shall also apply to such dependents and you hereby accept and agree to these Terms of Service on their behalf. You shall be responsible for your dependents’ compliance with these Terms of Service. You shall not try to add more dependents than allowed by the relevant SPONSOR and healthcare program.
5. YOUR ACCOUNT
As a registered user of the Service you have an M-TIBA Account. You shall not reveal your M-TIBA Account information to anyone else, except for your dependents. You are solely responsible for maintaining the confidentiality and security of your M-TIBA Account and for all activities that occur on or through your M-TIBA Account, and you agree to immediately notify CAREPAY of any security breach of your M-TIBA Account. You are responsible for the correctness of the data in your M-TIBA Account and shall immediately notify CAREPAY of any relevant changes in your personal information. You shall take all reasonable precautions while sending and receiving data via the M-TIBA Platform.
6. LIMITATION AND EXCLUSION OF LIABILITY
6.1. CAREPAY will take all reasonable precautions to ensure that the information on CAREPAY and the M-TIBA Service provided to you is accurate and that you suffer no loss or damage as a result of the use of the Service. However, by using the Service you agree that your use is entirely at your own risk and responsibility and that CAREPAY, the CAREPAY Group and their affiliates, directors, officers, employees, agents and partners in providing the M-TIBA Service (including Safaricom Ltd.) are not liable for any loss or damage (including without limitation any direct, indirect, special, incidental, consequential or punitive damages) arising from or in connection with your use of or delay in, change to or unavailability of the Service, except in the event of fraud, willful misconduct or gross negligence. We further note that Safaricom Ltd. makes no representations whatsoever concerning any products or services not directly provided by Safaricom Ltd. in direct relation to M-TIBA, including products and services provided by CAREPAY and healthcare providers.
6.2. You hereby acknowledge that you have registered for the M-TIBA Service voluntarily and without any coercion.
6.3. CAREPAY, the CAREPAY Group and their affiliates, directors, officers, employees and agents disclaim and exclude any liability for any loss or damage (including without limitation any direct, indirect, special, incidental, consequential or punitive damages) arising from any circumstance beyond their reasonable control, such as:
6.3.1. any force majeure events, including strikes and industrial disputes;
6.3.2. any security breach or unauthorized use of your M-TIBA Account or unwanted programs or material, malwares, trojans, worms or viruses transmitted when using the Service;
6.3.3. any inaccurate content (for example on benefits, healthcare rates, availability or ratings), loss or unavailability of data or lack of access to, unavailability of or delay in the Service caused by a third party;
6.3.4. any products or services not directly provided by CAREPAY, including all products and services provided by third parties such as partners of CAREPAY (for example Safaricom Ltd. or any (mobile) money platform, payment service provider or gateway operator) or healthcare providers, or the content on a partner or other third-party site or online service;
6.3.5. any mistreatment, malpractices or wrongful actions of any healthcare provider in the line of providing healthcare services accessed via the M-TIBA Platform; or
6.3.6. any other action of any of CAREPAY’s partners, SPONSORS, healthcare providers or other third parties.
7. TERMINATION OF THE M-TIBA SERVICE
7.1. You can terminate these Terms of Service by contacting the M-TIBA Customer Support:
7.1.1. if you are not a member under a SPONSOR healthcare program, at any moment in time; and
7.1.2. if you are a member under a SPONSOR healthcare program, when such program terminates with respect to you or with the consent of the SPONSOR.
Please note that termination of these Terms of Service shall mean that you can no longer use the Service.
7.2. CAREPAY may terminate these Terms of Service and deactivate your M-TIBA Account:
7.2.1. if you are not a member under a SPONSOR healthcare program, at any moment in time; and
7.2.2. if you are a member under a SPONSOR healthcare program, when such program terminates with respect to you or when you breach these Terms of Service.
7.3. If, in case of termination and deactivation of your M-TIBA Account, you have any funds saved by you (unrelated to a SPONSOR healthcare program) remaining in your M-TIBA Account, such funds shall be transferred to you minus any outstanding payments and net of charges.
8. PERSONAL DATA PROCESSING
8.1 When you use the M-TIBA Service, you trust CAREPAY with your personal data, as CAREPAY cannot deliver the Service to you without processing certain of your personal data as set out in these Terms of Service. CAREPAY recognizes the importance of protecting the privacy and confidentiality of such personal data and included this section to inform you how CAREPAY processes your personal data. CAREPAY processes your personal data carefully, securely and confidentially and it is important to us that you have confidence in our organization with regard to the processing of personal data. In relation to the processing of data, references to ‘you’ or ‘your’ shall include your dependents (except where the context otherwise requires).
8.2 Use of data
To provide the M-TIBA Service, CAREPAY processes the following personal data for the following purposes:
Registration data and biometrics
To create an M-TIBA Account we need to process your name, date of birth, gender, mobile number, National ID number and password. If you add dependents on your M-TIBA Account, we will also need to process their names, dates of birth and gender. In addition to creating your M-TIBA Account, this is to ensure that CAREPAY has sufficient information to provide the Service to entitled users only and to fulfil its KYC (know your customer) responsibilities. If required by the relevant SPONSOR we will also collect your biometrics (fingerprint) for identification and fraud prevention purposes. The fingerprint will be collected when you first visit a healthcare provider using the benefits under the relevant healthcare program of the SPONSOR. At subsequent visits you will have to identify yourself using your fingerprint. By agreeing to these Terms of Service and giving your fingerprint you grant CAREPAY your explicit consent to process your biometric data for this purpose.
Treatment (health) data
To enable you to get healthcare treatment from healthcare providers using the Service, CAREPAY needs to process data on treatment requests submitted by you through the M-TIBA Platform. For the same purpose, CAREPAY processes data on the healthcare providers you visit, the funds or benefits available on and accessed via your M-TIBA Account and any savings, funds, loans and financial transactions undertaken through the M-TIBA Platform. This also allows CAREPAY to fulfil its role in the administration of the funds and benefits available on your M-TIBA Account and the financial transactions on the M-TIBA Platform. To enable you to get healthcare treatment from healthcare providers using the Service, CAREPAY further needs to process data on the treatment received by you from the healthcare provider, including any diagnoses entered by healthcare providers and billed items through the M-TIBA Platform. This also allows CAREPAY to fulfil its claims administration role through the M-TIBA Platform. By agreeing to these Terms of Service you grant CAREPAY your explicit consent to process your health data for these purposes.
Data to improve the Service
CAREPAY also processes your M-TIBA Account details to deliver customer communications with information on the Service using SMS, telephone, email and other means and to provide customer support services to improve the Service that you receive. This includes CAREPAY approaching you to enquire whether you want to participate in customer surveys, such as customer satisfaction surveys, for which participation we require your explicit consent. To opt out from being contacted for possible participation in customer surveys, you can call the M-TIBA Customer Support.
Marketing of related services
When sending you communication messages on the Service using SMS, telephone, email and other means CAREPAY may inform you on other products and services offered by CAREPAY and CAREPAY’s partners related to the Service, including but not limited to promotions, vouchers and subscription to healthcare applications. To opt out from CAREPAY’s commercial communication messages, you can call the M-TIBA Customer Support.
If CAREPAY uses automation to process your personal data CAREPAY will ensure that you will not be subject to a decision based solely on automated processing which produces legal effects concerning you or similarly significantly affects you.
8.3 Sharing of data
In order to deliver the Service via the M-TIBA Platform, CAREPAY needs to share your personal data with the relevant SPONSOR and healthcare providers. CAREPAY may also share your personal data with members of the CAREPAY Group that support the delivery of the Service for example by performing platform development activities. The CAREPAY Group applies uniform appropriate data security and protection safeguards throughout and stores all data on a centralized secure server. The trusted third-party data processors which CAREPAY uses to deliver the Service (including the party who stores the data) may process the data outside your country of residence but always subject to appropriate data security and protection safeguards in accordance with applicable law and in pseudonymized or anonymized form where possible. As much as CAREPAY requires CAREPAY Group members and third parties to process data to be able to provide the Service, CAREPAY shall remain responsible for the protection of your personal data and shall take every reasonable step to ensure your privacy. By agreeing to these Terms of Service you consent to the described processing of your personal data outside Kenya as may be required to provide the Service.
CAREPAY shall not share your personal data without your consent to third parties, except (i) as provided in this section 8.3 as necessary to provide the Service, (ii) to act on your behalf or request, or (iii) as required by law. To enable third-party partners to use your personal data CAREPAY would need your prior consent which would be asked for in a separate form and way. Once given, this consent can be revoked at any time.
CAREPAY may share dependent’s information with you as the primary user of the Service only in relation to the costs of healthcare services received, claims paid, and the amount of any benefit or deductible used. CAREPAY will not share any other of dependent’s health data with you unless specifically requested by the dependent or to the extent necessary in relation to the parental responsibility held by you over the dependent in accordance with applicable law.
8.4 Data retention
CAREPAY may retain your personal data for a period of up to seven (7) years or as longer as may be required by any law or regulation. You can call the M-TIBA Customer Support to exercise any of the following rights you have in relation to your personal data:
8.4.1 The right of access: you have the right to see which of your personal data we process;
8.4.2 The right of rectification: if your personal data we process are not correct, you have the right to have them adjusted;
8.4.3 The right of erasure: if we no longer need your personal data for the purpose for which they were provided to us, you have the right to ask us to delete them. There are a number of exceptions to this, such as our obligation to retain certain data, for example for statutory legal or tax retention requirements;
8.4.4 The right of restriction: during the period that we are in the process of determining whether your data should be rectified, determining the unlawfulness of data processing, determining whether data should be deleted or whether you have objected to the processing, you have the right to request a restriction of the processing; and
8.4.5 The right of data portability: at your request, we must transfer any personal data we process about you pursuant to these Terms of Service to you or any organization of your choice.
8.5 The legal basis for the collection, storage and sharing of your personal data are these Terms of Service.
8.6 CAREPAY retains the right to process personal data to pursue legitimate interests and to share irreversibly anonymized (so non-personal) data and results with trusted partners and stakeholders. This includes carrying out statistical data analyses to support CAREPAY in operating the M-TIBA Platform and providing the Service, for the benefit of improving access to healthcare services and insurance, identifying and preventing fraud and to evaluate and improve the quality of healthcare services offered by healthcare providers and the Service. If we process data on grounds of legitimate interest, you can object to such processing following which a balancing of interests will follow.
8.7 In case you have any questions around the processing of your personal data, please contact the M-TIBA Customer Support. In case any questions remain after contacting customer support, you can contact the CAREPAY Data Protection Officer, who supervises compliance with data privacy and protection laws. The Data Protection Officer is an employee of the Privacy Company and can be reached via the following e-mail address: email@example.com. You also have the possibility to file a complaint with the governmental authority supervising the protection of personal data in your country.
9. INTELLECTUAL PROPERTY RIGHTS
The intellectual property rights (including the software and copyrights and the CAREPAY tradename) in relation to the Service and the M-TIBA Platform are owned by CAREPAY and CAREPAY exclusively retains ownership of all rights, title and interest in and to any such rights and you are not entitled to commercialize, publish, copy, reverse engineer, create derivative works or otherwise use any such rights without our express written permission.
10. ELECTRONIC CONTRACTING
Your use of the Service includes the ability to enter into agreements and/or to make transactions electronically. You acknowledge that your electronic submissions constitute your agreement and intent to be bound by and to pay for such agreements and transactions. Your agreement and intent to be bound by electronic submissions applies to all records relating to all transactions you enter into, including notices of cancellation, policies, contracts, and applications.
11. CHANGES TO M-TIBA PLATFORM OR SERVICE
Notwithstanding any other provision of this Agreement, CAREPAY reserves the right to change, suspend, remove, or disable or impose limits on the use or access to any part of the Service at any time and without notice when CAREPAY so deems appropriate to improve or update the Service or the M-TIBA Platform.
12. CHANGES TO TERMS OF SERVICE
CAREPAY reserves the right to at any time modify these Terms of Service and to impose new or additional terms or conditions on your use of the Service. Such modifications and additional terms and conditions will be notified to you upon you accessing the Service for the first time after such modifications were made and your continued use of the Service will be deemed to constitute your acknowledgement and acceptance thereof.
These Terms of Service constitute the entire agreement between you and CAREPAY and governs your use of the Service, superseding any prior agreements between you and CAREPAY. You also may be subject to additional terms and conditions that may apply when you use services of third parties or third-party content. If any part of these Terms of Service is held invalid or unenforceable, the remainder shall remain valid and binding and that invalid part shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intention and shall as such be valid and binding. You cannot assign, transfer or novate any right or obligation under these Terms of Service to another person
14. DISPUTE RESOLUTION AND JURISIDICTION
14.1. You may contact the M-TIBA Customer Support to report any dispute or claim relating to CAREPAY or the M-TIBA Service.
14.2. All disputes arising from the M-TIBA Service or these Terms of Service will be addressed by way of amicable discussions between you and CAREPAY.
14.3. If an amicable resolution of the dispute or claim fails for a period longer that 14 days from the date the dispute or claim first arose, the dispute may be resolved by an arbitrator agreed on by both parties and in default of such agreement by an arbitrator appointed by the Chairman of the Kenya Chapter of the Chartered Institute of Arbitrators on the application of either party. Such arbitration shall be conducted in Nairobi in accordance with the Arbitration Act 1995 or any re-enactment thereof. To the extent permissible by law the determination of the arbitrators shall be final conclusive and binding upon the parties hereto.
14.4. These Terms of Service and the use of the Service shall be governed by the laws of Kenya, where the M-TIBA Service is being delivered.