The credit provider and the consumer hereby conclude a credit facility agreement subject to the terms and conditions of this agreement, read with the schedule to the agreement.
1. THE AGREEMENT
1.1 The consumer hereby agrees to borrow from the credit provider the loan amount set out in the schedule to this agreement and to pay to the credit provider the amounts set out in the schedule to this agreement, subject to the terms and conditions set out herein.
1.2 The parties record that this agreement is a credit facility as defined in the National Credit Act No.34 of 2005 as amended (NCA) and that the NCA is applicable to this agreement.
1.3 The schedule to this agreement, ("the Schedule") setting out information regarding the loan amount borrowed and the payment terms, forms part of this agreement and must be read as such
1.4 The consumer acknowledges that he/she has received a Quotation and Pre-Agreement Statement (which includes a Summary of Rights, Obligations and Security) in terms of the NCA.
1.5 The credit provider is not the supplier or merchant of the goods or services purchased on the credit facility:
1.5.1 the credit provider will have the right to pay the suppliers the amount appearing on the voucher and debit the consumer’s account
facility with such amount;
1.5.2 the credit provider will not be liable for any costs, damages, expenses or losses which arise as result of a dispute with the supplier
1.5.3 the credit provider will not be party to any dispute with the supplier or merchant and the consumer should resolve such dispute with
the supplier or merchant directly subject to section 5(2)(d) of the Consumer Protection Act as amended.
1.6 It is recorded that the consumer may elect and instruct the credit provider to either:
1.6.1 pay the whole amount to the consumer, by paying the loan amount to the account nominated by the consumer for purposes of the payment
of monthly installments by way of a monthly debit order, or where offered
1.6.2 pay the whole of the loan amount to a third party nominated by the consumer in the schedule to this agreement, or where offered
1.6.3 pay a portion of the loan amount to the consumer into the account mentioned in paragraph 1.6.1 and the remainder of the loan amount to
a third party nominated by the consumer in the schedule to the agreement.
1.6.4 A reference to legislation is a reference to legislation as at the date of enactment of the legislation or as it is amended or re-
enacted from time to time, and includes all regulations issued under that legislation.
2. THE PRINCIPAL DEBT & COST OF CREDIT
2.1 The principal debt applicable to this agreement is the credit advanced by the credit provider to the consumer, being the loan amount advanced plus the additional charges permitted by section 102 of the NCA.
2.2 The quotation sets out the cost of credit of the credit facility and the credit limit reflected in the quotation is the maximum amount the consumer qualifies for as at time of application;
2.3 The installment reflected is the minimum installment due by the consumer, using the assumption that the facility is utilised on the 1st day of the Agreement or the fixed installment.
3. INITIATION FEE
3.1 The credit provider shall be entitled to charge the consumer the maximum initiation fee permitted in terms of the NCA and the regulations thereto.
3.2 It fee reflected in the schedule upfront. is recorded that the consumer has the option of paying the initiation
4. SERVICE FEE
4.1 The consumer will be charged a pro rata service fee in the first month of billing which is subject to the conclusion of this agreement.
4.2 The credit provider shall be entitled to charge the consumer the maximum monthly service fee permitted in terms of the NCA and the regulations thereto.
4.3 Any reduction of the service fee granted to the consumer (including the charging of a discounted service fee at the commencement of the agreement) shall be entirely within the credit provider’s discretion and may at any time be increased to the maximum permissible amount, subject to such notice as may be required by the NCA, if any, being given to the consumer.
5.1 The consumer shall be obliged to pay interest on the balance of the principal debt from time to time at the rate specified in the Schedule, calculated daily and compounded monthly in arrears on the date the monthly installments are payable in terms of the schedule.
5.2 In the event that the consumer fails to pay any installment or any other amount due on the due date, such overdue amounts shall bear interest at the maximum interest rate applicable to an agreement of this nature, as prescribed by the National Credit Act and any Regulations thereto, at the specific time of default.
5.3 Subject to the provisions of the NCA and the Regulations thereto, the interest rate shall be calculated at a variable rate which is linked to the SA Reserve Bank Repurchase Rate (“Repo Rate”).
5.4 The calculation of interest shall be in accordance with the NCA and the Regulations thereto.
5.5 The credit provider will communicate changes to the interest rate to the consumer.
6.1 The consumer shall enter into a credit life insurance agreement with an insurer of his/her choice, in terms of which he/she is insured against death and disability for an insured amount not exceeding the consumer’s outstanding obligations in terms of this agreement.
6.2 The credit provider may offer to the consumer further optional insurance in relation to his/her obligations in terms of this agreement.
6.3 The consumer hereby authorises the credit provider to pay the insurance premiums in respect of the aforesaid policies, as set out in the schedule to this agreement, on behalf of the consumer to the insurer(s), and to recover such amount(s) as paid on behalf of the consumer.
6.4 The consumer shall have the right to reject any particular insurance policy proposed by the credit provider and to substitute a policy of his or her own choice, provided that such policy complies with the terms of this agreement.
6.5 The consumer hereby admits that he/she has exercised a free choice in respect of the insurer with which the aforementioned insurance policy/ies is concluded. Further, the consumer confirms that he/she had an unqualified unrestricted free choice as to:
6.5.1 whether a new policy(ies) is taken out or whether an existing policy(ies) is used for the purpose of clause 6.1;
6.5.2 which insurer issues the policy(ies) and which institution or person will act as intermediary; and
6.5.3 that such free choice was exercised freely without any coercion or inducement as to the manner in which he/she exercised such free
6.6 The consumer confirms that he/she understands his/her freedom of choice as explained and that such freedom of choice was explained to him/her before any decision was made as to what policy(ies) to utilise for the purposes of clause 6.1 and 6.2.Should the consumer choose to substitute a policy of his or her own choice the consumer undertakes to give written proof to the satisfaction of the credit provider of the policy so substituted in terms of this agreement before the receipt of the loan amount advanced in terms of this agreement.
6.7 The consumer hereby cedes the aforementioned credit life insurance policy/policies (whether proposed by the credit provider or substituted by the consumer) to the credit provider to secure the consumer’s indebtedness in of this agreement.
6.8 The consumer shall notify the credit provider immediately of any potential claim in terms of the abovementioned insurance policy or policies and shall fully comply with all the terms of such insurance policies.
7. PAYMENT OF INSTALMENT
7.1 The consumer shall pay to the credit provider the instalments specified in the schedule to this agreement.
7.2 Any instalment due in terms of this agreement, is due and payable on or before the last day of each calendar month unless prior alternative written arrangement is made with the credit provider.
7.3 Should the consumer prepay any amount, the outstanding balance will reduce, however the consumer will not be entitled to skip any payment. The consumer is entitled to make a payment before the stipulated payment date in terms of the agreement but may not withhold payment in any given month as long as there is an outstanding balance.
7.4 Subject to the consumer’s rights in terms of the common law, he/she shall not be entitled to withhold payment of any instalments or other amounts owing to the credit provider. The consumer will not be entitled to set off against any instalments or other amounts payable in terms hereof, any present or future claim, which the consumer may have against the credit provider, from whatever cause arising.
7.5 All instalments shall be paid by way of a standard or an early debit order (the choice of which will be at the credit provider’s election), and the consumer authorises the credit provider to instruct the consumer’s bank to deduct a variable amount directly from the consumer’s bank account and to pay the amount due to the credit provider. The variable amount is the monthly instalment, as well as any other amounts that may be due, from time to time, by the consumer in terms of this agreement.
7.6 The debit order authorisation and mandate in terms of this agreement may be ceded or assigned to a third party if the credit provider cedes or assigns the consumer’s indebtedness to it in terms of this agreement to that party.
7.7 Subject to clause 21, the credit provider may allow the consumer to make payment at the address of the credit provider, as detailed in the schedule or by such other method as the credit provider may deem fit.
7.8 The consumer may at any time, without notice or penalty, prepay any amount due to the credit provider under this agreement. The credit provider will credit each payment made under the agreement to the consumer as of the date of receipt by the credit provider of that payment, and will do so as follows:
7.8.1. firstly to satisfy any due or unpaid interest;
7.8.2. secondly to satisfy any due or unpaid fees or charges; and
7.8.3. thirdly to reduce the amount of the principal debt.
8. CREDIT LIMIT
8.1 The credit provider may increase or decrease the credit limit upon the consumer’s instructions and in accordance with the NCA
9. STATEMENTS OF ACCOUNT
9.1 The credit provider shall deliver to the consumer a statement of account in the form prescribed by the NCA.
9.2 Such statements shall be delivered at regular intervals, not exceeding three months
9.3 The statements shall be delivered to the consumer as per the consumer’s preferred method of delivery reflected on the schedule.
9.4 The consumer shall be entitled to dispute all or part of any incorrect credit or debit in a statement of account by delivering a written notice to the credit provider.
9.5 The fact that a consumer did not receive a statement in a particular month does not release the consumer’s liability to pay any amount due under this agreement.
9.6 Should the consumer not receive a statement, the consumer is to bring this to the credit provider’s attention and may obtain a balance telephonically.
10. EARLY SETTLEMENT
10.1 The consumer is entitled to terminate this agreement at any time either with or without notice to the credit provider, by paying the settlement amount.
10.2 The amount, which is required to settle this agreement (“settlement amount”), is the total of the unpaid balance of the principal debt at the time and the unpaid interest charges and all other fees and charges payable by the consumer to the credit provider up to the settlement date.
10.3. The credit provider shall provide a settlement letter which sets out the settlement amount upon the request of the consumer and such statement letter shall be valid for seven business days after delivery to the consumer.
11. BREACH, DEBT COLLECTION AND COLLECTION CHARGES
11.1. In the event of the consumer failing to pay any amount due in terms of this agreement, the credit provider shall be entitled to either:
11.1.1. suspend or close the credit facility by giving the consumer written notice at least 10 days before the facility is closed;
11.1.2. mediately submit an early debit order instruction to the consumer’s bank to collect the outstanding amount, notwithstanding that
such instruction is presented to the consumer’s bank in the same month as the consumer failed to pay;
11.1.3. deduct such arrear amount from the consumer’s bank account through an additional debit order, which deduction made through an
additional debit order will be without prejudice to the credit provider’s rights in terms of this agreement;
11.1.4 track the consumer’s bank account and the amount owed by the consumer will be deducted and paid to the credit provider as soon as
there are sufficient funds in the account, in which event payment may occur on a date that is not the consumer’s usual debit order deduction
11.1.5. instruct a firm of debt collectors registered in terms of the Debt Collectors Act, Act 114 of 1998 or a firm of attorneys to
collect payment of the amount due in terms of the agreement on behalf of the credit provider
11.2 Subject to the provision of the Debt Collectors Act and the Regulations thereto, any debt collector collecting the debt due to the credit provider shall be entitled to make contact with and demand payment from the consumer by way of personal or telephonic consultations, send or deliver letters of demand to the consumer, or to take any other lawful step to collect the amount due.
11.3 In the event of the credit provider instructing a firm of debt collectors or attorneys to collect the debt from the consumer, the credit provider shall be entitled to charge the consumer collection costs as provided for in clause 12 hereunder.
12. BREACH AND LEGAL PROCEEDINGS FOR THE ENFORCEMENT OF THE AGREEMENT
12.1 In the event of the following facts occurring-
12.1.1 the consumer failing to pay any amount due to the credit provider on the due date for such payment or breaching of any of the terms of this agreement; or
12.1.2 the consumer being placed under provisional or final sequestration; or
12.1.3 the consumer committing an act of insolvency as defined in the Insolvency Act, 1936; or
12.1.4 a judgment being granted against the consumer in respect of any debt which remains unsatisfied for a period of seven days after the
granting of such judgment; or
12.1.5 any property of the consumer being attached in execution of any debt;
12.1.6 then and in any such event, the credit provider shall, without prejudice to any other rights which it may have in law, be entitled
to claim immediate payment of the full balance owing by the consumer in terms of this agreement then owing by the consumer to the credit
provider, including default
12.2. If the consumer is in default in terms of this agreement, the credit provider may draw the default to the notice of the consumer in writing and propose that the consumer refer the credit agreement to a debt counsellor, alternative dispute resolution agent, consumer court or ombuds with jurisdiction, with the intent that the parties resolve any dispute under the agreement or develop and agree on a plan to bring the payments under the agreement up to date.
12.3. Before instituting legal action for the enforcement of the agreement, the credit provider shall comply with the provisions of the NCA
13. DEFAULT ADMINISTRATION COSTS AND COLLECTION COSTS
13.1 If the consumer defaults in any payment obligation under this agreement, the credit provider may levy and the consumer will be obliged to pay such default administration charges as is permitted by the NCA and the regulations thereto. Such charges will be equal to the charges payable in respect of a registered letter of demand in an undefended action in terms of the Magistrates Court Act together with necessary expenses incurred in delivering the letter
13.2 The credit provider will be entitled to charge the consumer collection costs in respect of the enforcement by the credit provider of the consumer's payment obligations under this agreement. These collection costs will not exceed the costs incurred by the credit provider in collecting the debt
13.2.1 to the extent limited by Part C of Chapter 6 of the NCA; and
13.2.2 in terms of:
supreme Court Act, 1959 and the rules of the Court;
ii. the Magistrates Courts Act, 1944 and the rules of the Court;
iii. the Attorneys Act, 1979; and
iv. the Debt Collectors Act 1998, whichever is applicable to the enforcement of the credit agreement.
13.3. Subject to the Magistrates Courts Act and the Supreme Court Act (including the rules thereto) any legal costs payable by the consumer referred to in the previous paragraph shall be on the attorney and client scale.
14. CERTIFICATE OF BALANCE
A certificate purporting to be signed by any manager of the credit provider, whose appointment and position need not be proved, shall constitute sufficient evidence of the amount due to the credit provider by the consumer, as well as any other fact mentioned therein, unless the amount of the indebtedness or such other fact is rebutted by the consumer on a preponderance of probability. As such, the certificate shall constitute prima facie evidence.
15. USE OF THE CREDIT FACILITY
15.1. The consumer will be issued with a card, which remains the property of the credit provider and upon demand must be returned.
15.2. The card may be used to make purchases at Associated stores/stores displayed on the card and the card needs to be produced on each purchase.
15.3. The consumer is required to sign a sales voucher (slip)
15.4. The consumer is responsible for the safekeeping of the card and lost / stolen cards may be reported to 010 211 1120.
15.5. In the event that the consumer fails to notify the credit provider of loss of the card, the consumer will be liable for all purchases charged to the account until such time the consumer reports the card as lost.
16. CESSION AND ASSIGNMENT
16.1. The consumer shall not cede, assign or transfer any of the rights or obligations in terms of this agreement without prior written consent of the credit provider.
16.2. The credit provider shall be entitled, subject to the NCA, to cede, assign and/or transfer its rights and obligations under this agreement.
17. ADDRESSES FOR RECEIVING OF DOCUMENTS
17.1. All process (including summonses), documents, pleadings and notices relating to this agreement shall be served or given to the credit provider at 6 Eastern Service Road, Eastgate, Sandton, 2090 (and no other address) unless such address has been changed in writing as provided hereunder.
17.2. All process (including summonses), documents, pleadings and notices relating to this agreement may be served or given to the consumer at the address mentioned in the schedule to agreement,unless such address has been changed in writing as provided hereunder
17.3. As such, the parties choose the aforesaid addresses as their respective domicilia citandi (an address where service of the aforesaid documents may be effected).
17.4. Either party to this agreement may change their address by delivering to the other party a written notice of the new address by hand, registered mail or electronic mail.
The consumer may resolve a complaint by way of alternative dispute resolution, file a complaint with the National Credit Regulator, or make an application to the National Consumer Tribunal.
19. DEBT COUNSELLING
In terms of section 86 of the NCA the consumer may apply to a debt counsellor, in the prescribed manner and form, to be declared over-indebted.
20. CREDIT INFORMATION
20.1 In terms of Section 81 of the NCA the credit provider is obligated to take all reasonable steps to prevent the extension of reckless credit. The consumer therefore authorises the credit provider, as follows, with regard to the consumer's personal credit information, notwithstanding the confidentiality of such information: -
20.1.1 to enquire regarding the consumer's credit profile and repayment behaviour from any credit bureau, credit register or other credit provider;
20.1.2 to supply or submit information regarding the consumer's credit profile or repayment behaviour to any credit bureau, credit register or other credit provider;
20.1.3 to disclose the above information as required in law;
20.1.4 to retain records of the consumer's personal and credit information in any data base in accordance with the provisions of the NCA.
20.2 The consumer has the right to contact the credit bureau, to have his or her credit record disclosed and to have inaccurate information corrected.
The following contact details are hereby disclosed:
Customer Care: 010 211 1120
National Credit Regulator: 086 062 7627
Credit Ombudsman: 086 166 2837
Credit Bureau: 086 1128 364
22. PERSONAL INFORMATION AND PROTECTION
22.1. The consumer gives the credit provider consent to collect and/or process the consumer’s personal information insofar as it is necessary for the credit provider to fulfil its obligations under this agreement.
22.2. The credit provider shall, at all times, take reasonable steps to ensure that appropriate security measures are in place for the protection of the integrity and confidentiality of the consumer’s personal information collected and/or processed by the credit provider.
No relaxation or indulgence granted by the credit provider to the consumer will be deemed to be a waiver of any of the credit provider’s rights in terms hereof, and such relaxation and indulgence will not be deemed a novation of any of the terms and conditions of this agreement, or create any estoppel against the credit provider. Any such indulgence, leniency or extension granted will not amount to a breach of any of the terms of this agreement by the credit provider.
24.1 The consumer confirms and acknowledges that the terms and conditions of this agreement, including the Schedule and his/her obligations there under, have been explained to him/her and that he/she understands them in full and agrees to them.
24.2 References in this agreement to the singular shall include the plural and vice versa and references to the masculine gender shall include the feminine and neuter genders and vice versa.
24.3 Each clause of this agreement shall be severable from the remainder of the agreement and should any clause in this agreement be found to be invalid, such invalidity shall not affect the validity of the remainder of the agreement.
24.4 This agreement, including and consisting of the schedule, the terms and conditions of the agreement, the declaration of income, expenses and financial obligations by the consumer, the affordability assessment and the credit application, constitutes the entire agreement between the parties and no amendment, alteration, consensual cancellation or waiver shall be valid or binding on the parties unless reduced to writing and signed by the consumer and an authorised representative of the credit provider.
24.5 The consumer hereby warrants that the information supplied in the application for credit regarding his/her marital status is correct.
24.6 In the event of the consumer being married in community of property, he/she warrants that his/her spouse has consented to the conclusion of this agreement in writing and that his/her signature has been attested to by two witnesses.
24.7 This contract complies with the Commissioner’s direction under section 20(7) of the Value Added Tax Act 89 of 1991.