LCM CREDIT RISK (PTY) LTD (REGISTRATION NO: 2003/028768/07) (hereinafter referred to as CREDITRISK ) STANDARD TERMS AND CONDITIONS

Transcription

1 LCM CREDIT RISK (PTY) LTD (REGISTRATION NO: 2003/028768/07) (hereinafter referred to as CREDITRISK ) STANDARD TERMS AND CONDITIONS 1 All business is undertaken by the Client, strictly and exclusively subject to Creditrisk s Standard Terms and Conditions as detailed hereunder. 2 DEFINITIONS 2.1 Agreement means this agreement together with any annexures thereto. 2.2 Breytenbach Mostert Skosana Incorporated means a firm of attorneys practising as such from Unit 4, 39 Empire Road, Parktown. 2.3 The Client means the party on whose behalf Credit Risk provides the services and products. 2.4 Commencement date means the date from which the Client shall have access to the Services and Products provided by Creditrisk; 2.5 The Credit Bureau means Transunion Credit Bureau (Pty) Ltd or any other credit bureau to which the Client is afforded access by Creditrisk through the issuing of a Password.

2 2.6 Creditrisk means LCM (Pty) Limited t/a Credit Risk, a company with limited liability duly incorporated in accordance with the laws of the Republic of South Africa having its registered offices situated at 139 Everfair Avenue, Randjesfontein, Midrand. 2.7 The Creditrisk website means the website address identified as The Debtor of Defaulter means any party handed over by the client to Creditrisk for debt recovery. 2.9 Parties means Credit Risk and the client together and party means either one of them as the context dictates Password (s) means a personal identification number which is a secret number issued by Creditrisk to the Client, which enables the Client to access the services and product; 2.11 A recovery" means any reduction in the capital amount handed over after the date of handover by the Client to Creditrisk for collection whether this is achieved by means of a direct payment by the Debtor to Creditrisk or to the Client, the passing of a credit by the client in favour of the Debtor or by the return of the goods or otherwise A Prescribed Purpose shall bear the meaning ascribed to it in Section 18(4) of the National Credit Regulations (published in Notice Number of Government Gazette Number 8477) The Price List means the schedule of charges published by Creditrisk from time to time in respect of the services and products offered to the client.

3 2.14 The Services and Products means the services and products as offered from time to time on the Creditrisk Home Page of the Website The Transunion Credit Bureau Services means the services rendered and Products offered by Transunion Credit Bureau from time to time which include, amongst other things, the supply of consumer and commercial related credit information and the listing of defaulters on their data base. 3. APPOINTMENT 3.1 The Client hereby appoints Creditrisk as its sole and exclusive agent to: Facilitate the requesting, receiving, compiling and subsequent reporting of information from Transunion Credit Bureau and / or the Transunion Credit Bureau Services by the Client Provides the Client access to the Services and Products of Creditrisk Creditrisk hereby accepts such appointment. 4. DURATION 4.1 This Agreement shall Commence on the commencement date and shall continue for a period of 6 (six) months after the Commencement date, or unless terminated by either Party at its sole discretion as stipulated in clause 17.1 hereunder. 4.2 In the event of the termination of this Agreement the Client shall still remain liable to Creditrisk for any fees, costs and disbursements owed by the Client to Creditrisk in terms of this Agreement.

4 5. PRICING 5.1 The Client acknowledges and agrees that it shall be liable to Creditrisk for the following charges: a monthly subscription fee to enable the Client to gain access to the Services and Products through the Creditrisk website or as reflected in any Price List (s) made available to the Client from time to time; the charges relating to the Transunion Credit Bureau Services as offered by the Credit Bureau(s) in accordance with the prices as stipulated in the attached Price List; the agreed collection commission charge in respect of any Recovery effected by Creditrisk; any other charges or processing fees as stipulated on the Creditrisk website or as reflected in any Price List(s) made available to the Client from time to time. 6. PAYMENT 6.1 The Client shall make payment to Creditrisk of all the amounts as reflected in Creditrisk s monthly invoices without deduction or set-off of any nature on the first working day of the second month after the invoice date. For example, if the invoice is dated 25 June 2015, the invoice will be paid on 3 August 2015.

5 6.2 Should the Client not forward a written query regarding the accuracy of an invoice within 7 (seven) days of the date of receipt of the invoice, the invoice shall be deemed to be correct. 6.3 The Client shall in no circumstances be entitled to defer or withhold payment of any amounts due in terms of this Agreement. 6.4 Should the client fail to pay any amount due in terms of this agreement on due date, such overdue amount shall bear interest at the rate of prevailing prime rate plus 2% calculated and compounded monthly on the amount in arrears. 6.5 Creditrisk may from time to time, and at any time, vary any of the charges as referred to in clause 5 above in whole or in part by giving to the Client written notice of such change. Any such change will be effective from the date specified in such notice. If any such change is not acceptable to the Client the Client shall have the right to cancel this Agreement forthwith, 6.6 Should payment not be made by the Client to Creditrisk, the relevant details of such a default may be recorded by Creditrisk with the Credit Bureau. 6.7 Such recorded information pertaining to any defaults in payment by the Client to Creditrisk, may be used by other interested parties in assessing any applications for credit by the Client and for occasional debt tracing and fraud prevention purposes. 6.8 Creditrisk may set-off any amounts owing to Creditrisk in terms of this Agreement against any monies recovered by Creditrisk for and on behalf of the Client from a Debtor.

6 7. VALUE-ADDED TAX 7.1 All prices and charges set out in this Agreement are exclusive of Value- Added Tax. Creditrisk shall therefore be entitled to add Value-Added Tax at the applicable rate, to any price or charges levied by it in terms of this Agreement. 8. ORDERING PROCEDURES 8.1 The Client will from time to time, amongst other things, during the subsistence of this Agreement, place orders through the Creditrisk website to allow the Client access to the Transunion Credit Bureau Services, which orders shall: be in writing and / or electronic medium; specify the product option required; include the mandatory information required to process the order; and identify, with specificity, the prescribed purpose for requesting the Transunion Credit Bureau information. 9. USE OF PASSWORD 9.1 The Client acknowledges and agrees that it shall: Take proper care of the Password (s) and do everything that is necessary to prevent the Password (s) from being lost, stolen or used wrongfully;

7 9.1.2 Ensure that the Password (s) is / are kept in a safe place; Not allow any unauthorised person to obtain knowledge of the Password (s); 9.2 The Client furthermore acknowledges and agrees that: If the Password (s) is / are lost, stolen or used wrongfully, or is / are used by any other person than the prescribed user, due to the negligence of the Client, the Client shall still be liable for any transactions concluded through the usage of the Password; Creditrisk does not take responsibility for the security of the Client's Password; the security of the given password is solely the Client s responsibility; if it believes that the security of any Password (s) used to access Creditrisk s Services and Products has been compromised in any way, it shall immediately notify Creditrisk in writing; 10. LIABILITY The Client acknowledges and accepts that: Creditrisk does not make any representation nor give any warranties or guarantees of any nature whatsoever in relation to the Products and Services or as to the accuracy or correctness of any of the data supplied or any other aspect thereof or in respect of any other written or oral communication transmitted to or made available to the Client.

8 10.2 Without derogating from the generality of the provisions of this clause, Creditrisk shall not be liable for any loss, liability, expense or damage of whatsoever nature (whether direct, indirect, consequential or otherwise) suffered by the Client or any other person as a result of or which may be attributable to the use by the Client or any other person of any of the Services and Products; any mistake, error or omission in any of the Services and Products; any delay in delivering or in any manner communicating the data, Services and Products to the Client; any failure to deliver or in any manner communicate the data, Services and Products to the Client; any breach by Creditrisk of any of its obligations under this Agreement or out of any other cause whatsoever; whether or not such loss, liability, expense and/or damage is caused as a result of the negligence of Creditrisk, its employees, agents or representatives, or otherwise Any person gaining unauthorised access to any information or data secured by the Client through the usage of the Services and Products and processed and stored by the Client The submission of default data via the Creditrisk Website for publication by the Credit Bureau. 11. INDEMNIFICATION 11.1 The Parties indemnify each other against any loss, liability, damages (whether direct or consequential) or expense of any nature whatsoever suffered by the other Party as a result of or which may be attributable to the breach by the defaulting Party or any of its employees, agents, associates or representatives or any of the provisions of this Agreement Any such loss, liability, damage or expense shall be payable by the defaulting Party to the other Party.

9 12. NOTIFICATION BY THE CLIENT OF REDUCTION OF AMOUNTS HANDED OVER FOR RECOVERY 12.1 The Client acknowledges and agrees that: it shall inform Creditrisk in writing within 30 (thirty) days after a Recovery has been achieved by means of a direct payment by the Debtor to the Client, the passing of a credit by the Client in favour of the Debtor or by the return to the Client of the goods supplied by the Client to the Debtor It shall inform Creditrisk within 72 (Seventy Two) hours from the date on which a settlement agreement has been entered into and between the Client and the Debtor handed over to Creditrisk; 13. THE RIGHTS AND OBLIGATIONS OF CREDITRISK 13.1 Creditrisk shall: maintain an accurate and up to date record of all orders processed by the Client in respect of the Transunion Credit Bureau Services provided to the Client; Make no representations regarding the Transunion Credit Bureau Services, other than those made by product descriptions, issued directly by Transunion Credit Bureau.

10 Not cede or assign or transfer the rights herein granted to any third party without the prior written content of the Client Creditrisk undertakes and agrees that it shall not instruct tracing agents, proceed with legal action or reach a settlement agreement with a Debtor without the written consent of the Client All monies recovered on behalf of the client: Shall be paid into the Trust Account of Breytenbach Mostert Skosana Incorporated; Shall be forwarded (subject to the provisions of (clause 6.8 above) to the Client within 7 (seven) days after receipt of conclusive proof that such a payment has been identified and honoured Creditrisk shall furnish the client with written monthly reports regarding the progress made with each and every matter handed over for Recovery Creditrisk shall discontinue all further recovery proceedings in respect of any matters handed over for Recovery within a period of 2 (two) months after the date of hand-over if: no Recovery has been made; if no repayment schedule has been arranged with the Debtor; if, at Creditrisk s sole discretion, it is not deemed to be viable to pursue the matter any further;

11 14. USAGE OF DATA The Client guarantees and warrants that: 14.1 Creditrisk may utilise any of the data secured, processed and stored by the Client pursuant to the usage of any of Creditrisk s Services and Products (including any of the data contained in any of the Credit Bureau reports ordered by the Client), for any prescribed purpose and / or part of its intellectual property The Client hereby specifically warrants and guarantees that: It has obtained the necessary consent from its credit applicant(s), client(s) and/or principal(s) of the client(s) / credit applicant(s) (as the case may be) to perform any credit profile search in respect of such a credit applicant(s), client(s) and/or principal(s) for credit vetting purposes All the default data submitted for publication by the Credit Bureau are true and correct in every aspect It has verified the accuracy and correctness of the default data submitted for publication by the Credit Bureau It has obtained the consent from the Defaulter(s) that its/their default may be submitted for publication by a Credit Bureau All defaults submitted for publication to the Credit Bureau relate to a debt for services rendered and disbursements incurred for and/or on behalf of the Defaulter by the Client and/or to goods sold and delivered by the Client to the Defaulter at the Defaulter s special instance and request and to no other cause of action The default submitted for publication to the Credit Bureau has not prescribed in terms of the provisions of the Prescription Act : 68 of 1969.

12 It shall immediately notify the Credit Bureau in writing, should it, after the publication of the default, transpire that the Defaulter has a valid dispute The default submitted for publication is not subject to any valid dispute It has provided the Defaulter(s) with the appropriate and proper written notification in terms of Regulation 19(4) of the National Credit Act: 34 of 2005 of its intention to submit adverse information concerning that person to a Credit Bureau The Defaulter(s) is/are still in default after expiry of the 20(twenty) day period as stipulated in the Notice given to the Defaulter in terms of Regulation 19(4) of the National Credit Act: 34 of In the event of a surety being submitted for publication as a Defaulter based on the default of the Principal Debtor, the suretyship relied upon is a valid contract of suretyship and complies with the provisions of the General Law Amendment Act 50 of Creditrisk shall not be liable for any loss, liability, expense or damage of whatsoever nature (whether direct, indirect, consequential or otherwise) suffered by the Client or any other person which may be attributable to the submission of default data via the Creditrisk website for publication by the Credit Bureau it has indemnified Creditrisk against any claim of any third party in respect of any aspect relating to the submission of any default data by the Client via the Creditrisk website for publication by a Credit Bureau It shall use its best endeavours to notify the Credit Bureau in writing within a reasonable period of time once the debt, which resulted in the publication of the default by the Credit Bureau, has been paid in full. 15. CERTIFICATE OF INDEBTEDNESS 15.1 If anyone of Creditrisk s directors, whose status need not be proved, signs a certificate stating that:-

13 the Client is indebted to Creditrisk, as well as the amount of the debt, which includes the capital and interest and any other amounts or charges; The fact that the amount of this debt is owed and must be paid by the Client to Creditrisk; Any other matter or thing about the Client s account with Creditrisk; 15.2 Such a certificate will be prima facie proof (in other words, sufficient) that the content of the certificate is correct. This certificate may be used for any purposes which include, but are not limited to, obtaining a judgment, provisional sentence or any other order or relief against the Client. 16. LEGAL ACTION In the event of Creditrisk being forced to institute legal action against the Client for the recovery of any outstanding amount in terms of this Agreement, then in that event the Client shall be responsible for all legal costs incurred by Creditrisk on the scale as between attorney and own client, which legal costs shall include, where appropriate, collection commission and tracing charges. 17. BREACH 17.1 Should any of the Parties breach any of its obligations in terms hereof and persist in such breach for a period of 10 (ten) days after written notice will have been received from the other Party, then the aggrieved Party shall be entitled without prejudice to any rights which it may have in terms hereof or at law, to: specific performance and damages; or cancel this Agreement and claim damages.

14 17.2 Any amount falling due for payment by anyparty in terms of this Agreement and remaining unpaid after due date, shall bear interest thereon at the prime rate between the due date for payment thereof and the date of payment thereof. 18. TERMINATION 18.1 Creditrisk shall have the right to, at any time and at its sole discretion, terminate the Agreement and to close the Client s account, cancel the credit facility, deny access to any of its Services and Products and demand that the Client pays Creditrisk the entire outstanding balance immediately The full amount owed by the Client to Creditrisk shall immediately become due and payable if: Creditrisk closes the Client s account; and/or Creditrisk cancels the client s credit facility; and/or denies it any access to its Services and Products; The Client breaches any of these terms and conditions of use; and/or The Client is provisionally or finally liquidated (as the case may be); 18.3 The Client hereby agrees that Creditrisk may inform any third party that Creditrisk has closed the Client s account and/or has cancelled the Client s credit facility. The Client acknowledges that, in such event, it will not have any claim against Creditrisk The Client hereby also agrees and accepts that Creditrisk may submit any default in respect of its failure to pay any amounts which are due, owing and payable by the Client to Creditrisk for publication to the Credit Bureau. 19. DOMICILIUM For the purpose of this Agreement that each Party hereby chooses as its chosen domicilium citandit et executandi its respective registered office address as reflected by Companies and Intellectual Properties Commission.

15 20. GENERAL 20.1 If either Party allows the other Party any latitude or extension of time, this is not and must not be understood as a novation or waiver of the granting Party s rights in respect of these general terms and conditions, and it will also not be, or be the cause of an estoppel against the other Party Every provision of these terms and conditions is deemed to be separate and severable, and should any provision be found to be defective or unenforceable for any reason, that provision will be severed from the remaining provisions and the validity of the remaining provisions shall continue to be of full force and effect No amendment, alteration, addition, variation or consensual cancellation shall be of any force or effect unless reduced to writing and signed by the Parties hereto This Agreement constitutes the sole record of the agreement between the Parties in regard to the subject matter thereof Neither Party shall be bound by any representation, express or implied term, warranty, promise or the like not recorded herein or reduced to writing and signed by the Parties or their representatives. **********************************************************************************************