1. GOVERNING LAW
The relationship between SBM Bank (Kenya) Limited and the customer is governed by the Laws of Kenya, except where the following general terms and conditions apply and subject to any further agreement in writing.
2. CUSTOMER'S INSTRUCTIONS
The Customer requests the Bank to honor and to debit his accounts all the cheques, drafts, bills, promissory notes, acceptances, negotiable instruments and orders drawn, accepted or made out to him, and carry out any instructions he may give in connection with his account notwithstanding that any such debiting or carrying out may cause his account to be overdrawn or an overdraft to be increased. Where no overdraft has been agreed or the limit of overdraft agreed has been reached, the Bank may nevertheless refuse to carry out any instructions which would result to there being an overdraft or any overdraft greater than that agreed, as the case may be.
The Customer shall provide all information and documentation required by the Bank for purposes of effecting the Customer instructions.
3. AUTHORISED SIGNATORIES
The Customer shall provide the Bank with the specimen signature(s) of each of the person(s) authorized to operate the Customers account. Unless otherwise agreed, the said signatory(ies) shall be entitled to operate the account fully and to withdraw all or any of the Customer's funds, property and/ or securities held by the Bank from time to time and to open any further account(s) in the Customer's name.
4. BANK'S RIGHT TO SET-OFF
(a) The Bank may, without notice, set off against any account or indebtedness of the Customer;
(i). Any other account whether current, loan, savings, or any other type;
(ii). Any time or other deposit
(b) The Bank may, upon notice to the Customer, set off his account against any other account or indebtedness in respect of which the Customer is liable notwithstanding that some other person may also be liable in respect thereof. In such circumstances upon receipt of an indemnity satisfactory to the Bank against costs and the Customer's expense, the Bank will give the Customer any assistance necessary in obtaining a refund.
5. SIMULTANEOUS ORDERS IN EXCESS OF FUNDS
Where the Bank receives several orders at approximately the same time the total amount of which exceeds the available assets of or the credit granted to the Customer, the Bank may honor the orders in whatever manner it sees fit within the limit of the funds available.
6. BANK CHARGES, INTEREST, COMMISSION, LEGAL CHARGES & OTHER EXPENSES
The bank is entitled to be paid by or receive from the Customer and may debit any of the Customer's accounts for:
(a) Unless otherwise agreed in writing, interest on loan accounts or any other facility granted by the Bank, at any rate not exceeding that prescribed by law, which rate may be different for different accounts.
Interest is calculated as prescribed by the Governing Law. The Bank need not notify the Customer of the change in the rate of interest applicable. Where a higher rate of interest has been agreed between the Bank and the Customer in any security given by the Customer to the Bank, the Bank may apply the higher rate.
(b) Advocate and Client charges incurred by the Bank on behalf of the Customer or incurred in obtaining legal advice in connection with the Customer's dealings with the Bank or incurred by the Bank in the course of the recovery (including but not limited to all debt collections, auction, arbitration, and any other such proceedings) of all or any other Customer's indebtedness to the Bank.
(c) Commissions at such rate or rates and at such time or times, as the Bank shall decide, with full power to charge different rates for different accounts.
(d) In addition to the foregoing, all other proper expenses and the charges of the Bank which include but are not limited to ledger fees, statement printing, disbursements for cheque books, postage cables and telexes, telephone calls, faxes courier mail charges, taxes and duties, impositions and the expenses incurred in complying with the Customer's requests.
7. ACCOUNTING PERIODS
Accounting periods are made up at the Bank's sole discretion at the end of each monthly, quarterly, half-yearly, or yearly period.
8. DELAY BY CUSTOMERS IN LODGING COMPLAINTS
The Bank is not responsible for any matters unless the Customer has made a complaint to the Bank as soon as reasonably possible after receipt by him of the notification of the matter. Where the notification from the Bank is expected but not received, the complaint must be made within a reasonable time after non-receipt.
9. PAYMENT BY THIRD PARTIES
The Bank may credit the Customer with amounts paid by third parties.
10. DEPOSIT OF CHEQUES
(a) Proceeds of Cheques or other instruments deposited are not available for withdrawal until collected by the Bank.
(b) Where any cheque or order is unpaid for any reason whatsoever (including but not limited to physical loss), the Bank may debit the Customer with the amount previously credited (taking into account an exchange fluctuation where relevant) in respect of that cheque or order, together with interest since the date of crediting if the account is thereby overdrawn.
11. REPAYMENT OF OVERDRAWN ACCOUNT
The Bank is entitled on to demand the repayment with interest of any account that is overdrawn.
(a) When the Customer is indebted to the Bank, the Bank has a general lien over all property of the Customer in the Bank's possession including, but not limited to cash, goods, securities or valuables deposited for safe custody or as security, cheques presented for payment, bills and any other property movable or immovable charged to secure repayment of any money whether or not that money has been repaid; and also all property over which by the general law the bank has a lien.
(b) Where the customer is indebted in circumstances giving the Bank a right to set off, all securities as set out in paragraph (a) hereof are held as securities of the debt.
(c) The Bank may at any time give the Customer notice in writing that if an accrued debt is not paid within a specified period after receipt of the Customer of the notice then the Bank may without any
further notice realize sufficient of the Customer's assets to discharge the debt.
(d) If the debt is not discharged within the time allowed, the Bank may realize sufficient of the Customer's assets to discharge the debt, and the Customer irrevocably appoints the Bank as his attorney for the purpose of conducting the sale, giving title to the assets sold and all other necessary matters. Any sum remaining after such transaction will be held for the Customer subject to these General terms and Conditions.
(e) The Bank is under no obligation in respect of any sale under sub-clause (d) other than for good faith.
(f ) Funds in foreign currencies which are subject to the Bank's lien may be set off against debts or realized at the rate of exchange current at the date set off or realization. The Bank accepts no liability for any loss caused by exchange fluctuations.
(g) Deposits for a given period of time may be off set against debts notwithstanding that the period of the deposits has not expired.
13. VARIATION AND TERMINATION OF RELATIONSHIP
The Bank may at any time, upon notice to the Customer, terminate or vary its business relationship with the Customer and in particular but without prejudice to the generality of the foregoing the Bank may cancel credits which it has granted and require the repayment of outstanding debts resulting therefrom within such time as the Bank may determine at its sole discretion.
14. CHEQUE BOOKS
Cheque books are issued subject to the following condition:-
(a) The Customer agrees to look after and use any cheque book and any cheque form with utmost care.
(b) The Customer further agrees to ensure:-
(i). That all uncompleted cheque forms are kept in safe custody at all times.
(ii). That the Bank is informed immediately upon discovery by the Customer that any cheque book or any cheque form has been stolen lost or mislaid;
(iii). That any person preparing a cheque is authorized to do so;
(iv). That any cheque is prepared and signed in ink or other eligible writing material;
(v). That the amount of any cheque is written as near as possible to the left side of the form to prevent any unauthorized addition of letters or figures;
(vi). That the amount of any alteration is signed by an authorized signatory.
15. DRAWING OF CASH
(a) The Bank will pay cash to the Customer where the cheque is signed in the presence of the teller by an authorized signatory or by authorized signatories.
(b) Where a cash cheque is presented not by a Customer or by a third party, the Bank will require confirmation by telephone from the Customer or from a representative of the Customer known to the Bank before it makes payment.
(c) Where cash cheques are presented by employees or other known agents of the Customer the following steps will be taken:-
(i). The employees or agent will be identified before hand in a manner acceptable to the Bank;
(ii). A limit of such drawings will be agreed in writing with the Bank, and until such a limit is agreed, no drawings will be allowed under this paragraph.
(d) Where the Customer requests the payments be made under paragraph (c) the Customer indemnifies the Bank in respect of all payments made to such employee or known agent whether or not the money was received by the Customer and whether or not the order for payment presented was in fact the order of the Customer.
(e) Where either employee or agent is not known to the Bank, or if the cheque exceeds the agreed limit the provisions of paragraph (b) apply.
16. The Bank shall not be liable in any way to the Customer for having honored even negligently any cheque the signature or content for which has been forged if;
(a) The Customer has facilitated such forgery either by failure to comply with or any of the conditions contained in clause 14 hereof or by negligence in any other way; or
(b) There has been a previous forgery of any cheque of the Customer without the Customer having objected to the first statement of accounts which debited such cheques as provided by condition 10 hereof; or
(c) The forgery has been perpetuated by an employee, agent, contractor or subcontractor of the Customer.
17. VALIDITY OF DOCUMENTS
The Bank is not responsible for the authenticity, validity, regularity, or value of documents including but not limited to bills of lading, delivery orders, consignment documents, receipts, warrants and insurance policies.
The Bank is no liable for funds returned of not applied to the Customer account as a result of an error or omission in the instructions given to the Bank in regard to the said funds.
Any correction or amendments to the instructions or documents shall be at the cost of the Customer.
18. FREEZING OF ACCOUNTS
The Bank may at any time freeze any account of the Customer if and so long as there is any dispute or the Bank has doubt for any other reason (whether or not well founded) as to the person or persons entitled to operate the same, without any obligation to institute interpleader proceedings or to take any step of its own initiative for the determination of such dispute or doubt.
19. STATEMENTS DEEMED APPROVED IF NOT OBJECTED WITHIN 14 DAYS.
The contents of any statement of account or statement of any other nature which has been sent by the Bank to the Customer, and to which the Customer has not objected within four teen days of receipt thereof, shall be deemed approved by the Customer. If however, the Customer has any query about any transaction on his account statement, they should notify the Bank immediately using the instructions outlined below;
(a) If the Customer is enquiring by mail or fax, they should send the Bank a copy of the statement of account in question, as well as details of the nature of enquiry.
(b) Whenever possible, the Customer should direct the inquiry to the specific area or department responsible for the transaction.
20. JOINT ACCOUNTS
In the event of two or more customers holding a joint account the following provisions apply:-
(a) The holders of a joint account authorize the Bank to pay or deliver, or to the order of, the survivors or survivor or the executors or administrators of such survivor any moneys standing to the credit of joint account;
(b) All liability on a joint account is joint and several;
(c) Any mandate intimation, notice, request or letter varying the original instruction regarding the operation on the account, issue of mandate for or annulling the stop payment of cheques, debit to the joint accounts etc., affecting the operations on the joint account will be acted upon by the Bank only if these are signed by minimum number of such people who are authorized to operate on the Joint Account. This applies with equal force to authenticating material alteration(s) in the cheque(s) or other mandate(s) instructing the Bank to debit such accounts.
21. PARTNERSHIP ACCOUNTS
In the event of the Customer being a partnership the following additional provisions apply:-
(a) The partners authorize the bank to carry out instructions countermanding payment of cheques, bills of exchange, promissory notes or other orders for payment when such instructions are given by any person who is authorized to sign the mandate whether or not that person has signed the original payment instruction.
(b) The partners authorize the Bank to make advances with or without security by way of overdraft, loan or any other manner on the request of partners for the time being made in accordance with the mandate, and to discount bills or promissory notes on the request of the partners for the time being made in accordance with the mandate.
(c) The partners authorize the Bank to accept by way of pledge or deposit as security or for safe custody anything belonging to the partnership on the instructions on the partners for the time being made in accordance with the mandate, and to deliver upon the said instructions anything as accepted or held on account of the partnership.
(d) All liability of the partners to the Bank is joint and several.
(e) Upon any change in the constitution of the partnership, the partners will sign a new mandate.
(f ) A mandate remains in force and may be acted upon by the Bank until it has either been revoked in writing by all or any of the signatories or until it has been replaced by a new mandate and such revocation or new mandate has reached the Bank and not until that event has happened, the Bank will be responsible for acting according to the original mandate.
22. NO DUTY OF THE BANK TO PROTEST
The Bank is not liable for any loss or damages suffered by any party if any dishonored bill is not noted and protested. The Bank will nevertheless endeavor to cause dishonored bills to be noted and/or protested provided that it receives instructions to do so within reasonable time.
23. ACCOUNTS IN FOREIGN CURRENCY
Subject to all laws and Governmental regulations, where an account is in foreign currency any demand on the Bank for payment from such account is properly met by the Bank issuing a draft or effecting a transfer or making payment in any other manner in foreign currency at the discretion of the Bank.
24. CUSTOMER INFORMATION
The Customer agrees to the use of his information by the Bank in the conduct of its business or any of its affiliates/ advisers/regulator/credit reference bureau/any actual or potential participant(s) in, or assignee, or transferee of , any of the Bank's rights and/or obligations in relation to the Customer.
All notices, statements, letters and other communication from the Bank may be sent to the last address given by the Customer 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.
Any written communication from the Bank to the Customer including but not limited to any notice given pursuant to these General Terms and Conditions shall be deemed to have been received by the Customer, if delivered then at the date and time of delivery, and if sent by post then four days after posting if sent to a Kenyan address and five days after posting if sent to an address outside Kenya; and in proving such a dispatch by post it shall be sufficient to prove that the letter containing the communication was properly stamped and addressed out into the Post Office.
The Customer has no claims on the Bank for damage resulting from losses, delays, misunderstanding, mutilations, duplications or any other irregularities due to transmission of any communication whether to or from the Customer, the Bank or any other means of communication.
26. FAX / E MAIL INDEMNITY AND STATEMENTS
The bank is authorized to act on instructions sent by me/us in relation to these accounts by fax or e mail unless otherwise stated by me/us. The Customer hereby expressly authorizes the bank to send statements and/or advices in relation to the Customer accounts to the contact address provided by the customer by way of e mail and / or fax.
All documents or information regarding the customer account or transaction with the Bank will be binding if they are in form of data message or accessible in a form which they may be read, stored and retrieved whether electronically or as a computer print out for subsequent reference.
In consideration of the bank so doing , the Customer hereby releases, indemnifies and holds the Bank harmless from and against all actions ,suits, proceedings, costs ( including legal costs) , claims , demand, charges, expenses, losses and/or liabilities arising there from provided the Bank has not been negligent , has acted in good faith and in accordance with the Customer's instructions. The bank has no obligation, duty or liability to the customer on contract, tort or whatsoever for breach of statutory duty or otherwise in respect of statements or balances advised via e-statements.
In these General Terms and Conditions the expression the “Customer” shall include any person(s), firm or corporate body
Any addition or alteration of these Terms and Conditions made from time to time by the Bank of which notice has been to the Customer shall be binding upon the Customer as fully as if the same were contained in these Terms and Conditions.