TERMS AND CONDITIONS: CREDIT FACILITY AGREEMENT
1. DEFINITIONS AND INTERPRETATION
1.1 In this Agreement, unless the context indicates otherwise, a reference to any gender shall include the remaining genders, the singular shall
include the plural and the following words and expressions shall have the meanings respectively assigned to them in this clause:
1.1.1 "Agreement" means these terms and conditions, including the Quotation and all notices that we send to you;
1.1.2 "Business Day" means any day which is not a Saturday, Sunday or a public holiday;
1.1.3 "Due Date" means the date on which an instalment or payment is due, as set in the Quotation or Debit Order Authorisation, except
where such day falls on a Sunday or public holiday, in which event, the Due Date shall be the first Business Day immediately BEFORE that date;
1.1.4 "Goods" means the asset(s) that you bought from the Supplier;
1.1.5 "NCA" means the National Credit Act 34 of 2005;
1.1.6 “ECTA” means the Electronic Communication & Transaction Act 25 of 2002;
1.1.7 “Advanced Electronic Signature” means an electronic signature which results from a process which has been accredited by the
Authority as provided for in section
1.1.8 "Personal Information" means personal information as defined in POPI Act;
1.1.9 "Principal Debt" means the amount of the principal debt referred to in in Part A of the Quotation;
1.1.10 "POPIA" means the Protection of Personal Information Act 4 of 2013;
1.1.11 "Process/Processing" has the same meaning assigned thereto in POPIA;
1.1.12 "Quotation" means the pre-agreement statement and quotation to which you have agreed and which is attached to this Agreement.
1.1.13 "Supplier" means the person from whom you procured the Goods;
1.1.14 "VAT" means value-added tax chargeable under the Value-Added Tax Act 89 of 1991;
1.1.15 "we"/"us"/"our" means JD Consumer Electronics & Appliances (Pty) Ltd, a private company duly registered and incorporated under the
laws of the Republic of South Africa with registration number 1963/002315/07;
1.1.16 "you"/"your" means the person who has agreed to enter into this Agreement and whose details are recorded in the Quotation.
1.2 The headings in this Agreement are included for reference purposes only and shall not in any way affect or govern the interpretation or
construction of this Agreement.
1.3 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. CREDIT FACILITY AGREEMENT
2.1.1 You agree 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.
2.1.2 The parties record that this agreement is a credit facility as defined in the NCA and that the NCA is applicable to this agreement.
2.1.3 The schedule to this agreement, ("the Schedule") sets out information regarding the loan amount borrowed and the payment terms, forms part
of this agreement and must be read as such.
2.1.4 You acknowledge that you have received a Quotation and Pre-Agreement Statement (which includes a Summary of Rights, Obligations and
Security) in terms of the NCA.
2.1.5 The credit provider is not the supplier or merchant of the goods or services purchased on the credit facility:
2.1.6 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;
2.1.6.1 the credit provider will not be liable for any costs, damages, expenses or losses which arise as a result of a dispute with the
supplier or merchant.
2.1.7 You may elect and instruct the credit provider to either:
2.1.7.1 pay the whole amount to you, by paying the loan amount to the account nominated by you for purposes of the payment of monthly
installments by way of a monthly debit order, or where offered;
2.1.7.2 pay the whole of the loan amount to a third party nominated by you in the schedule to this agreement; or where offered
2.1.7.3 pay a portion of the loan amount into the account mentioned in paragraph 2.1.6.1 and the remainder of the loan amount to a third
party nominated by you in the schedule to the agreement.
2.1.8 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.
3. PAYMENTS AND REPAYMENTS
3.1 You must pay all amounts due in terms of this Agreement on the Due Date.
3.2 You may at any time prepay any amount under this Agreement, without penalty. Your payments will be used to reduce your obligations in the
following order:
3.2.1 firstly, against due or unpaid interest;
3.2.2 secondly, against due or unpaid fees or charges; and
3.2.3 thirdly, against the outstanding amount of the Principal Debt.
3.2.4 You shall pay to the credit provider the installments specified in the agreement.
3.2.5 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.
3.2.6 You are not entitled to skip any payment. You are entitled to make a payment before the stipulated payment date in terms of the
agreement but you may not withhold payment in any given month as long as there is an outstanding balance.
3.2.7 Subject to the consumer’s rights in terms of the common law, he/she shall not be entitled to withhold payment of any installments or
other amounts owing to the credit provider. You will not be entitled to set off against any installments or other amounts payable in terms
hereof, any present or future claim, which you may have against the credit provider, from whatever cause arising.
3.2.8 All installments 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 you authorise the credit provider to instruct your bank to deduct a variable amount directly from your 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 you in terms of this agreement.
3.2.9 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. 3.2.10 The credit provider may allow you
to make payment at the address of the credit provider, as detailed in the agreement or by such other method as the credit provider may deem fit.
4. DISPUTES WITH THE SUPPLIER
4.1 You hereby acknowledge that this is a credit facility/ revolving loan agreement between you and the credit provider. The credit provider is
not a party to any legal relationship that may exist between you and any third party referred to in paragraph 2.1.7 above.
4.2 The credit provider will not be liable to you for any dispute which arise for the Goods purchased from the Supplier or merchant with the
amount of the credit advanced to you i.e. costs, damages, expenses or losses, and you will not have the right to claim any amount from the
credit provider us or to institute any counterclaim against or to apply set-off against credit provider us on this basis.
4.3 No dispute between you and the Supplier regarding the Goods will give you the right to be exempted from any of your obligations to the
credit provider.
4.4 You should resolve such disputes with the supplier or merchant directly, subject to section 5(2)(d) of Consumer Protection Act as Amended.
5. CREDIT LIMIT
5.1 The credit provider may increase or decrease the credit limit upon the consumer’s instructions and in accordance with the NCA;
5.2 Before the credit provider increases the credit limit, the credit provider will conduct a fresh assessment as required by NCA.
5.3 The credit provider will notify you in writing or orally should the credit limit decrease or increase from the existing credit facility
limit.
6. USE OF THE CREDIT FACILITY
6.1 The consumer will be issued with a card, which remains the property of the credit provider and upon demand must be returned.
6.2 The card may be used to make purchases at associated stores/stores displayed on the card for account lookup purposes. The authorisation
however to purchase on your credit facility will however happen via biometric identification to confirm that the purchaser is the authorised
account holder.
6.3 The consumer is required to sign a sales voucher (slip).
7. STATEMENTS OF ACCOUNT
7.1 The credit provider will deliver statements of account to you in the manner chosen by you. Such statements shall be delivered at regular
intervals, not exceeding three months.
7.2 You are entitled to dispute all or part of any incorrect credit or debit in a statement of account by delivering a written notice to us.
7.3 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.
7.4 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.
8. CREDIT LIFE INSURANCE
8.1 You shall enter into a credit life insurance agreement with an insurer of your choice, in terms of which you are insured against death and
disability for an insured amount not exceeding your outstanding obligations in terms of this agreement.
8.2 The credit provider may offer you further optional insurance in relation to your obligations in terms of this agreement.
8.3 You hereby authorise the credit provider to pay the insurance premiums in respect of the aforesaid policies, as set out in the schedule to
this agreement, on your behalf to the insurer(s), and to recover such amount(s) as paid on your behalf.
8.4 You shall have the right to reject any particular insurance policy proposed by the credit provider and to substitute with a policy of your
choice, provided that such policy complies with the terms of this agreement.
8.5 You hereby admit that you have exercised a free choice in respect of the insurer with which the aforementioned insurance policy/ies is
concluded. Furthermore, you confirm that you had an unqualified unrestricted free choice as to:
8.5.1.1 whether a new policy(ies) is taken out or whether an existing policy(ies) is used for the purpose of clause 8.1;
8.5.1.2 which insurer issues the policy(ies) and which institution or person will act as intermediary; and
8.5.1.3 that such free choice was exercised freely without any coercion or inducement as to the manner in which you exercised such free
choice.
8.6 You confirm that you understand your freedom of choice as explained and that such freedom of choice was explained or displayed to you before
any decision was made as to what policy(ies) to utilise for the purposes of clause 7.1 and 7.2. Should you choose to substitute with a policy of
your choice, you undertake 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 credit limit in terms of this agreement.
8.7 You hereby cede the aforementioned credit life insurance
policy/policies (whether proposed by the credit provider or substituted by you) to the credit provider to secure the consumer’s indebtedness in
this agreement.
8.8 You 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.
9. EARLY SETTLEMENT AND TERMINATION OF THE AGREEMENT
9.1 You may terminate this Agreement at any time on the conditions set out below.
9.1.1 Terminate this Agreement early;
9.1.2 On a date which this Agreement ends;
9.2 If you terminate this Agreement early as mentioned above, you must pay the credit provider the settlement value on the settlement date specified. The settlement value will include all of the following amounts as at the settlement date specified:
9.2.1 the unpaid balance of the Principal Debt; and
9.2.2 the unpaid interest and all other fees and charges you owe.
10. DEBT COUNSELLING
10.1 If you are in financial difficulty, consider yourself over-indebted or you have reason to believe that credit was recklessly granted to you, you are encouraged to talk to us and we will endeavour to help you.
10.2 If you are an individual you have the right to apply to a debt counsellor who will consider your application to determine whether you are over-indebted or if you were granted credit recklessly.
10.3 An application for debt review in terms of the NCA will not apply to this Agreement if the credit provider has already proceeded to take legal steps to enforce the Agreement.
10.4 If your application is rejected by the debt counsellor, you have 20 (twenty) Business Days from the date of such rejection, to apply to a Magistrates' Court for an appropriate order.
10.5 If you are in default of your obligations and you have a pending application for debt review with a debt counsellor, we may give notice to terminate such review after 60 (sixty) Business Days. We will not terminate an application for debt review if such application for review has already been filed in a court or in the Tribunal.
11. PERSONAL INFORMATION
11.1 You agree and consent thereto that we may transmit to a registered credit bureau(x) information concerning –
11.1.1 your application, this Agreement and the termination thereof as well as the information about your Account;
11.1.2 any non-compliance by you with the terms of this Agreement.
11.2 You acknowledge that such a credit bureau will provide a credit profile and possibly a credit score on your credit worthiness. You have the right to contact such a credit bureau(s), to have the credit record(s) disclosed and to correct any inaccurate information.
11.3 You agree that we may–
11.3.1 make enquiries to confirm and verify any information provided by you in the application form;
11.3.2 seek information from any credit bureau(s) when assessing your application and at any time during the existence of your account.
11.4 You acknowledge and expressly consent thereto that we may –
11.4.1 Process your Personal Information to conclude this Agreement and for purposes of maintaining the Account, providing services to you, including any benefits attached to the your account and complying with your instructions; and
11.4.2 Process your Personal Information for purposes of the prevention and detection of fraud and criminal activities, the identification of the proceeds of unlawful activities and the combating of money laundering activities.
11.5 You have the right to access your Personal Information held by us. We will grant you such access during office hours within a reasonable time after receiving a written request for access.
12. CREDIT PROVIDER DETAILS
NAME: JD Consumer Electronics Appliances (Pty) Ltd
REGISTRATION NR: 1963/002315/07
ADDRESS: 6 Eastern Service Road, Eastgate, Sandton, 2090
NCR REGISTRATION NR: NCRCP 13549
THIS INFORMATION IS ALSO AVAILABLE ON OUR WEBSITE FOR EASE OF REFERENCE.
13. DEFAULT ADMINISTRATION FEE FOR LETTERS OF DEMAND
We will charge you a fee each time you miss one or more payments and we have to write a letter to you to advise you of your default. This fee is called a default administration fee. It is the same amount as the fee that must be paid for a registered letter of demand for an undefended action under the Magistrates' Courts Act. It also includes the costs we incur in delivering the letter to you.
14. WHEN YOU WILL BE IN DEFAULT UNDER THIS AGREEMENT
14.1 You will be in default under this agreement if:
14.1.1 you do not pay any amount payable to us under this Agreement on the Due Date; or
14.1.2 you breach any of the terms and conditions of this Agreement and you do not remedy the breach within 10 (ten) days of receiving written notice to do so; or
14.1.3 Any representation or warranty made in connection with this Agreement or any other documents supplied by you is materially incorrect or false;
14.1.4 you –
14.1.4.1 being an individual -
14.1.4.1.1 publish notice of the voluntary surrender of your estate or die;
14.1.4.1.2 are placed under administration or commit an act of insolvency as defined in the Insolvency Act 24 of 1936;
14.1.4.1.3 have any application or other proceedings brought against or to respect of you in terms of which a third party seeks to have you sequestrated or placed under curatorship, in any event whether in a manner which is provisional or final, voluntary or compulsory;
14.1.4.2 not being an individual:
14.1.4.2.1 are wound up, liquidated, dissolved, deregistered or placed under judicial management, in any event in a manner which is provisional or final, voluntary or compulsory, or you pass a resolution providing for any such event;
14.1.4.2.2 are treated as being unable to pay your debts;
14.1.4.2.3 resolve that you voluntarily begin business rescue proceedings or have any business rescue proceedings commenced against you, as contemplated in section 132(1) of the Companies Act 71 of 2008;
14.1.5 you compromise or attempt to compromise with your creditors generally or defer payment of debts owing by you to your creditors
15. OUR RIGHTS IF YOU ARE IN DEFAULT
15.1 If you are in default, we may:
15.1.1 In the event of you failing to pay any amount due in terms of this agreement, we shall be entitled to instruct a firm of debt collectors registered in terms of the Debt Collectors Act, Act 114 of 1998 or a registered firm of attorneys to collect payment of the amount due in terms of the agreement on behalf of us.Subject to this 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 you by way of personal or telephonic consultations.
15.1.2 give you written notice of such default and propose that you refer this Agreement to a debt counsellor, alternative dispute resolution agent, consumer court or ombud with jurisdiction, with the intention that the parties resolve any dispute under this Agreement or develop and agree on a plan to bring repayments up to date;
15.1.3 commence legal proceedings to enforce and exercise our rights in terms recovering collection costs and default administration charges if-
15.1.3.1 we have given you notice as referred to in 12 above or we have given notice to end any debt review process under section 86 of the NCA which may then be underway in respect of this agreement; you have been in default under this agreement for at least 20 (twenty) Business Days; and
15.1.3.2 at least 10 (ten) Business Days have passed since we delivered the notice contemplated in 12.1.2.1; and
15.1.3.3 in the case of a notice in terms of 12.1.1, you have:
15.1.3.3.1 not responded to that notice;
15.1.3.3.2 responded to the notice by rejecting our proposal;
16. COLLECTION COSTS
16.1 If we bring legal proceedings against you to enforce payment of amounts you owe us, you are liable to pay all costs we incur in collecting the payment. The costs are determined by various laws, including:
16.1.1 the Superior Courts Act, 1959 and rules of the Court;
16.1.2 the Magistrates' Courts Act, 1944 and the rules of the Court;
16.1.3 the Attorneys Act, 1979; and
16.1.4 the Debt Collector's Act 1998
16.2 The collection costs exclude the default administration fee.
17. CESSION AND ASSIGNMENT
17.1 Unless otherwise agreed, you may not transfer any of your rights and/or obligations.
17.2 We may, without notice to you, transfer any of our rights and/or obligations and you agree that you will recognise the transferee's rights.
18. COST FEES AND INTEREST
18.1 You agree –
18.1.1 to pay an initiation fee, which is a fee charged for the preparation costs of this Agreement;
18.1.2 that you were given the option to either pay the initiation fee upfront or not wherein it will be included in the Principal Debt and interest will be charged thereon.
18.2 You agree to pay the monthly service fee, which is a monthly fee charged on the Due Date, for the routine monthly administration of your Account. If you do not pay this fee on time, it will be added to the outstanding balance and interest will be charged thereon.
18.3 The interest rate payable will be the interest rate set out in the Quotation.
18.4 Interest is calculated daily. We are entitled to add any unpaid interest to the outstanding balance of the Principal Debt which at that stage is still payable in terms of this Agreement.
18.5 We may change the amount of the service fees or of the other fees and charges stated in the Quotation by giving you at least five Business Days' notice in writing of the change, on condition that the service fees and other fees and charges may not exceed the maximum amount which is set under the NCA at the time of the change.
18.6 Insurance premiums may change from time to time in accordance with the terms of the relevant policy.
18.7 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”).
18.8 The calculation of interest shall be in accordance with the NCA and the Regulations thereto.
19. ADDRESSES
19.1 You agree that the postal/email address that you have provided on the Quotation is the address where we must send all post and other communication to you and that such communications will be binding on you.
19.2 You have in writing indicated that the notice contemplated in clause 12 must be delivered by registered mail to the address specified by you or to any adult person at the physical address or location specified by you.
19.3 You agree that the physical address that you have provided on the Quotation is the address that you have selected as the address where we must send all legal notices to you (your "domicile address").
19.4 You must let us know, in writing, by hand or registered mail, of any change to either of your addresses or your email address, telephone or cellular phone numbers. If you fail to give notice of a change of address, we may use the last address we have for you.
19.5 You accept that you will be deemed to have received a notice or letter five (5) Business Days after we have posted it to either of the addresses you have given to us.
20. YOUR ACKNOWLEDGEMENTS, REPRESENTATIONS AND WARRANTIES
20.1 By signing this Agreement either physically, digitally or electronically you acknowledge and agree that-
20.1.1 you have the full capacity to effect and carry out your obligations in terms of this Agreement and that the terms of this Agreement do not conflict with and do not constitute a breach of the terms of any other agreement or undertaking that is binding on you;
20.1.2 all information that you provided to us in connection with this Agreement is in all aspects true, complete, current and accurate, and you are not aware of any material facts or circumstances not disclosed to us, which if disclosed, would adversely affect our decision to grant credit to you;
20.1.3 you are not subject to an administration order or under debt review;
20.1.4 this Agreement has been either verbally explained, given access to or electronically displayed to you and you understand and appreciate the costs, risks and obligations associated herewith;
20.1.5 as at the date of your application for credit, you have not taken up any additional credit.
20.2 If you are married in community of property, you warrant that your spouse has consented to the conclusion of this Agreement in writing and that his/her signature has been attested to by two witnesses.<20.4.1>
20.3 You have the right to resolve any dispute that may arise between us by way of alternative dispute resolution, or to file a complaint with the National Credit Regulator, or to make an application to the Tribunal.
20.4 In terms of s44 of ECTA, you can cancel without reason and without penalty any transaction and any related credit agreement for the supply of-
20.4.1 Of goods within seven days after the date of the receipt of the goods; or
20.4.2 Of services within seven days after the date of the conclusion of the agreement.
20.4.3 The only charge that may be levied on the consumer is the direct cost of the goods.
21. CONTACT DETAILS
21.1 The following contact details are hereby disclosed:
Contact Centre: 010 211 1120
Credit Ombudsman: 086 1662 837
National Credit Regulator: 086 062 7627
Credit Bureau: 086 1128 364
22. GENERAL
22.1 If we have not strictly enforced the terms and conditions of this Agreement at any time, you may not assume that the terms and conditions have been waived or altered by us. These terms and conditions will still apply and we will have the right to enforce the terms and conditions at any time.
22.2 We may provide a certificate from any of our managers, whose position it will not be necessary to prove, showing the amount that you owe to us. You agree that we may take any judgment or order that we are entitled to in law based on the amount contained in the certificate, unless you disagree with such an amount and are able to satisfy the court that the amount in the certificate is incorrect.
22.3 This is the whole Agreement and no changes or cancellations will be valid unless it is in writing and signed by both parties or is voice-logged by us and subsequently reduced to writing.
22.4 This Agreement is governed by South African law.
22.5 In terms of Section 45 of the Magistrate's Court Act 32 of 1944 and at our option, any claim that may arise may be recovered in any magistrate's court having jurisdiction and you hereby consent to the jurisdiction of the Magistrates' Court.
22.6 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 his/her signature has been attested to by two witnesses.
22.7 This contract complies with the Commission’s direction under section 20(7) of the Value Added Tax Act 89 of 1991.
If, after reading the Agreement and after we have explained it to you, you are still uncertain of your rights and your financial risk and obligations, we recommend that you obtain independent advice.
By signing this Agreement you acknowledge and agree that you understand this Agreement, your rights, financial risk and obligations, and that you are aware of and have paid special attention to all the terms printed in bold.