In this Annexure, unless the context indicates a contrary intention, the following words and expressions bear the meanings assigned to them and cognate expressions bear corresponding meanings:
1.1 Commencement Date – shall mean the date of accepting this Agreement;
1.2 Channel Partner – shall mean BMG Marketing Cc (in this contract as I-Check Data Solutions);
1.3 Consumer Credit Information – shall bear the meaning ascribed to it, in Section 70 (1) of the National Credit Act;
1.4 The Customer – shall mean the subscriber requesting access to the service;
1.5 Prescribed Purpose – shall bear the meaning ascribed to it, in Section 18 (4) of the National Credit Regulations (published in Notice Number 28864, of Government Gazette Number 8477);
1.6 The Act – shall mean the National Credit Act 34 of 2005
In this Agreement clause headings are for convenience and shall not be used in its interpretation, and unless the context indicates the contrary intention:
2.1 words importing natural persons shall include a reference to bodies corporate and other legal personae and vice versa;
2.2 words importing the masculine shall include a reference to the feminine and other genders;
2.3 words importing the singular shall include a reference to the plural and vice versa;
2.4 annexes to this Agreement shall be deemed to have been incorporated herein and shall form an integral part hereof;
2.5 a reference to a party in a document includes that party’s successors and permitted assigns;
2.6 any reference to an enactment is to that enactment as at the date of signature hereof and as amended or reenacted from time to time;
2.7 where the day on or by which anything is to be done is not a business day, it shall be done on or by the first business day thereafter;
2.8 when any number of days is prescribed in this Agreement, same shall be reckoned exclusively of the first and inclusively of the last day, unless the last day falls on a Thursday, Friday or Public Holiday, in which case, the last day shall be the next succeeding day which is not a Thursday, Friday or Public Holiday;
2.9 a reference to a document includes an amendment or supplement to, or replacement or notation of that document;
2.10 the captions appearing in this Agreement are for reference purposes only and shall not affect the interpretation hereof;
2.11 if any provision is a definition (or under this heading “Interpretation” and/or any other heading in this Agreement) and is a substantive provision conferring rights or imposing obligations on any party, notwithstanding that it is only in the definition (or such other clause) effect shall be given to it as if it were a substantive provision in the body of the agreement;
2.12 where figures are referred to in numerals and words, if there is any conflict between the two, the words shall prevail.
3.1 where figures are referred to in numerals and words, if there is any conflict between the two, the words shall prevail.
3.2 The Channel Partner hereby accepts such appointment.
4.1 “Charges” means the connection charges, subscription charges, usage charges and any other charges pertaining to the provision of I-Check services, and other services howsoever described, by I-Check to the Subscriber as detailed in the price list from time to time;
5. ORDERING PROCEDURES
The Customer will from time to time during the subsistence of this Agreement, place orders with the Channel Partner for delivery to the Customer of the Compuscan Credit Bureau Services, which orders shall:
5.1 be in electronic medium;
5.2 specify the product option;
5.3 include the mandatory information required, to process the order; and
5.4 identify, with specificity, the Prescribed Purpose for requesting the Compuscan Credit Bureau Information.
The Channel Partner will deliver the Compuscan Credit Bureau Services set out in each order, exclusively, to the Customer.
7. THE RIGHTS AND OBLIGATIONS OF CHANNEL PARTNER
7.1 Notwithstanding anything to the contrary contained elsewhere in this Agreement and without derogating from the provisions thereof, the Channel Partner shall have the rights and shall discharge the obligations set out hereunder.
7.2 The Channel Partner shall:
7.2.1 not be entitled to process orders with Compuscan Credit Bureau, on behalf of the Customer, without the express consent and/or request of the Customer; Unless the channel partner suspects suspicious/fraudulent activity on the part of the customer. The customer agrees that in such instances, consent will be automatically granted for the purposes of transparency.
7.2.2 not release any information, received in respect of an order processed for the Customer (for the Compuscan Credit bureau Services), to any third party;
7.2.3 not alter, process or in any way tamper with the information, received in respect of the Compuscan Credit Bureau Services, other than as may be agreed with the Customer, from time to time;
7.2.4 maintain an accurate and up-to-date record of all orders processed, on behalf of the Customer, in respect of the Compuscan Credit Bureau Services;
7.2.5 notify the Customer promptly of any complaint or claim made or brought against the Channel Partner with respect to the Compuscan Credit Bureau Services;
7.2.6 make no representations regarding the Compuscan Credit Bureau Services other than those made by product descriptions, issued directly by Compuscan Credit Bureau;
7.2.7 not cede or assign or transfer the rights herein granted to any third party without the prior written consent of the Customer;
8. RELATIONSHIP BETWEEN PARTIES
Nothing in this Agreement shall constitute or be deemed to constitute a partnership between the parties hereto or constitute the Channel Partner as an agent or representative of the Customer for any other purpose whatsoever. The Channel Partner shall be entitled to describe itself as an authorised agent of the Customer, exclusively for and in respect of the Compuscan Credit Bureau Services.
9. APPOINTMENT OF SUB-AGENTS OR SUB-CHANNEL PARTNERS
The Channel Partner shall not appoint any sub-agent or sub-Channel Partner, save with the prior written consent of the Customer.
10. LIMITATION OF LIABILITY
The Channel Partner shall not be liable for any loss, liability, expense or damage of whatsoever nature (whether direct, indirect, consequential or otherwise and including but not limited to loss of data, goodwill or profits) suffered by the Customer as a result of or which may be attributable to, inter alia:
10.1 the use by the Customer or any other person of any of the Information and/or the Compuscan Credit Bureau Services;
10.2 any mistake, error or omission in any of the Information and/or the Compuscan Credit Bureau Services;
10.3 any delay or failure for any reason whatsoever in delivering or in any manner communicating the Information to the Customer;
10.4 the use of the Information, by the Customer, for a purpose other than a Prescribed Purpose or any unauthorised use of the Information;
10.5 an event of force majeure;
10.6 any Telkom infrastructure and communication line faults; whether or not such loss, liability, expense and/or damage is caused as a result of the negligence of the Channel Partner, its employees, agents and/or sub-contractors.
11.1 Should any party breach any of its obligations in terms hereof and persist in such breach for a period of 7 (seven) 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:
11.1.1 specific performance and damages; or
11.1.2 cancel this Agreement and claim damages.
11.2 Any amount falling due for payment by any party 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.
12. ADDRESSES AND NOTICES
12.1 For the purpose of this Agreement, including the giving of notices in terms hereof and the serving of legal process, the parties choose domicilium citandi et executandi (“domicilium”) as follows:
12.1.1 the Customer at: as per subscriber address submitted in online application.
12.1.2 the Channel Partner at: 30 Pine Creek Estate, Somerset West 7130 Cape Town
12.2 A party may at any time change its domicilium by notice in writing. Provided that the new domicilium consists of, or includes, a physical address at which process can be served.
12.3 Any notice given in connection with this Agreement may be delivered by hand; or be sent by prepaid registered post; or be sent by prepaid telegram or cablegram; or be sent by telex or telefax if the domicilium includes a telex or telefax number, to the domicilium chosen by the party concerned. Any notice or process delivered on any party in connection with any matter or subject arising ou t of this Agreement or any notice shall be deemed to have been delivered if handed to any responsible person at the domicilium chosen by any party and it shall not be necessary to hand such process or notice to any party personally.
12.4 A notice given as set out above shall be presumed to have been duly delivered:
12.4.1 on the date of delivery if delivered by hand, telex or telefax;
12.4.2 on the 4th (fourth) day from the date of posting including the date of posting if posted by pre-paid registered post from within the Republic of South Africa; and
12.4.3 on the 14th (fourteenth) day from the date of posting including the date of posting if posted from outside the Republic of South Africa.
If any term or provision or part thereof (in this clause called “the offending provision”) contained in this Agreement shall for any reason whatsoever be declared or become unenforceable, invalid, or illegal including but without derogating from the generality of the a foregoing, a decision by any court, an Act of Parliament or any statutory or other by laws or regulations or any other requirements having the force of law, the other terms and provisions of this Agreement shall remain in full force and effect as if this Agreement had been executed without the offending provision appearing therein.
14. ENTIRE AGREEMENT
This agreement constitutes the entire agreement between the parties with regard to the matters dealt with herein and no representations, terms, conditions or warranties express or implied not contained in this Agreement shall be binding on the parties.
15. VARIATION AND CANCELLATION
No agreement varying, adding to, deleting from or cancelling this Agreement, shall be effective unless reduced to writing and signed by or on behalf of the parties. It is recorded that there exists no collateral and/or other agreements and that this is the sole agreement entered into by and between the parties.
No indulgence granted by a party shall constitute a waiver of any of that party’s rights under this Agreement, accordingly, that party shall not be precluded as a consequence of having granted such indulgence, from exercising any rights against the other which may have arisen in the past or which may arise in the future.