1.

DEFINITIONS

1.1

“Agreement”- means this agreement together with all annexures and addenda hereto, all as may be amended in writing by the Parties from time to time;

1.2

“The Company” – EMPS (Pty) Ltd

1.3

“Confidential Information”- means any and all information or data which by its nature or content is identifiable as confidential and/or proprietary to EMPS (Pty) Ltd and/or the Customer as the case may be and which is not lawfully in the public domain, or which is provided or disclosed in confidence but excluding information which: (a) is lawfully in the public domain at the time of disclosure to the Party receiving such information; or (b) subsequently becomes lawfully part of the public domain by publication or otherwise; or (c) subsequently becomes available to either Party from a third party source which is lawfully entitled without restriction on disclosure to disclose such Confidential Information to either Party;

1.4

“Consumer Credit Information” shall bear the meaning set out in Section 70 (1)

1.5

“Consent” means any freely-given, specific and informed expression of will whereby a person agrees to the processing of personal information relating to him/her;

1.6

The customer - the customer as referred to in the schedule;

The effective date - the date upon which the last signatory appends his signature to the schedule or the date upon which the company provides the customer with its personal access code to the                      , whichever event occurs later;

1.7

Enquiry - an enquiry on a single listing as defined by the company.

1.8

”Intellectual Property” means all intellectual property of whatever nature owned and/or controlled by the Company or the Customer, as the case may be, including without limiting the generality of the aforegoing, the Company and the Customer’s right, title and interest in and to all trade marks, trade names, trade secrets, technology, software, applications, web pages, logos, systems, methods, procedures, processes (including scoring processes), domain names, styles, insignias, compilations, designs, patents, and copyright whether registered or not and in the case of the Company, includes the design, layout, “look and feel” and “get up” of the Reports and the Recommendations;

1.9

“NCA” means the National Credit Act, 34 of 2005 together with the Regulations.

1.10

TransUnion Credit Bureau– TransUnion Credit Bureau (Pty) Ltd (Registration Number 2004/007773/07) duly registered in terms of the NCA.

1.11

The TransUnion Credit Bureau Services – access to Consumer enquiry.

1.12

“Prescribed Purpose” shall bear the meaning set out in Section 18 (4) and 18(6) of the Regulations; 

·            an investigation into fraud, corruption or theft, provided that the South African Police Service or any other statutory enforcement agency conducts such an investigation;

·            fraud detection and fraud prevention services;

·            considering a candidate for employment in a position that requires trust and honesty and entails the handling of cash or finances, provided that the consent of the consumer has been obtained prior to the report being requested;

·            an assessment of the debtors book of a business for the purposes of:-

§       the sale of the business or debtor’s book of that business; or

§       any other transaction that is dependent upon determining the value of the business or the debtors book of that business;

·            for setting a limit of service provision in respect of any continuous service provided that the consent of the consumer has been obtained prior to the report being requested;

·            when assessing an application for insurance, provided that the consent of the consumer has been obtained prior to the report being requested;

·            verifying educational qualifications and employment provided that the consent of the consumer has been obtained prior to the report being requested;

·            for obtaining consumer information to distribute unclaimed funds, including pension funds and insurance claims;

·            tracing a consumer by a credit provider in respect of a credit agreement entered into between the consumer and the credit provider;

·            developing a credit scoring system by a credit provider or credit bureau.

·            Status and history of outstaying obligations and payments in respect of goods, services or utilities supplied to consumers;

·            Information that is relevant for the purposes of credit fraud detection and prevention;

·            Payments made by a consumer in respect of a debt , where the debt has been ceded or sold by the credit provider;

·            Information that is not related to and not intended for the purpose of providing consumer credit, provided that the consumer's consent has been obtained to use the information for such purposes and to submit, compile and report such information.

1.13

The parties - the company and the customer;

1.14

The schedule - the schedule to which these terms and conditions are an annexure;

1.15

The Company - an online database containing information on the behaviour, profile and creditworthiness of consumers, as compiled and organised by the Company;

2.

COMMENCEMENT AND DURATION

2.1

This agreement shall commence on the effective date and shall endure for an initial period of 12 (twelve) months whereafter it shall automatically be renewed for successive periods of 12 (twelve) months;

2.2

Subsequent to the initial period, either party may terminate this agreement by giving written notice to the other party of its intention to do so, provided that such notice shall be given at least 30 (thirty) days prior to the expiry of the initial period or of any subsequent period of renewal.

3.

FEES AND PAYMENT

3.1

The Customer shall pay the Company in accordance with the fees and charges set out in Schedule       hereto, free of exchange and without deduction or set-off of any nature, into the Company’s nominated bank account as specified on invoices, within 30 (thirty) days from the date of the Company’s invoice. The Customer shall under no circumstances be entitled to defer or withhold payment of any amounts due in terms of this Agreement, for any reason whatsoever.

3.2

Fees and charges payable under the Agreement may be varied by the Company on the basis set out in Schedule       hereto.

3.3

Should the Customer cancel any of the Services, the Customer shall forthwith on demand pay to the Company all amounts then due in terms of this Agreement in respect of such cancelled Service.

3.4

In the event of the customer not paying any amount due to the company on due date, such overdue amounts shall, without prejudice to the company’s rights, bear interest at the prime overdraft rate as levied by EMPS (Pty) Ltd from time to time;

3.5

The customer shall, if called upon to do so by the company, sign a debit order authorisation in favour of the company in order to effect payment of the amounts due by it in terms of this agreement.

3.6

Should any debit order be returned for any reason whatsoever, the customer shall forthwith reimburse the company for any fees debited to the company’s account by its bankers in connection therewith.

4.

INCREASE IN CHARGES

4.1

The company shall have the right, from time to time, on 14 (fourteen) days’ notice in writing, to increase the fees payable to it by the customer in accordance with objective criteria.

4.2

Currently, the company endeavours, where possible, to limit its increases to an annual increase in November of each year, save for increases of a statutory nature or basis, or increases occasioned by the increase in charges of third party service providers such as TransUnion Credit Bureau.

5.

CONNECTIVITY

5.1

The onus of connecting to the EMPS (Pty) Ltd Network via an internet or dedicated connection rests with the customer and the customer shall bear all costs associated therewith;

5.2

It is the customer’s responsibility to ensure that it possesses, or will possess, the hardware and software necessary to access the Company’s database

6.

SERVICE AVAILABILITY

6.1

Whilst the company shall endeavour to facilitate the ongoing availability of the Company’s database, the company does not, and cannot, guarantee 100% availability on a 24-hour basis, 7 days a week;

6.2

The company shall, where possible, afford the customer prior notice of scheduled maintenance and shall schedule such maintenance for the most convenient time so as to minimise the inconvenience to subscribers in general.

7.

SECURITY

The Customer shall comply with and shall procure that all its employees, representatives, sub-contractors and agents abide by the Company’s policies, processes and standards.

The Company shall have the right to take whatever action and to implement whatever measures it may deem necessary to protect the confidentiality, security and integrity of the Company and the information contained therein.

The Parties shall immediately bring to the attention of the other Party any breach or attempted breach of security of which it becomes aware. Either Party may fully investigate such breach or attempted breach or the other Party shall give its full co-operation with such investigation.  The Parties shall immediately upon detecting a breach or attempted breach, take such steps as are necessary to prevent a recurrence thereof and to mitigate the effects of such breach.

8.

ACCESS CODES

8.1

Subsequent to the signature of this agreement by both parties, the company shall furnish the customer with a personal access code as to enable the customer to access the EMPS (Pty) Ltd

8.2

It is the customer’s responsibility to ensure that only authorised representatives have access to its personal access code;

8.3

Any use of the customer’s personal access code by any person whatsoever (other than by the servants or agents of the company) to gain access to Company’s database shall be deemed to be authorised use and the customer shall be responsible for all fees resulting from such access.

The Customer shall be liable for use by any person of the Services (including the payment of fees and charges arising from such use),) notwithstanding any breach of security as aforesaid.

9.

CONSENT

The customer warrants that it has obtained the requisite consent from its consumer (prospective or otherwise) that:-

9.1

the customer may make enquiries in respect of any such consumer by accessing the EMPS (Pty) Ltd website;

9.2

the customer may provide the company with information concerning the behaviour, profile, payment patterns and creditworthiness of the consumer for inclusion in the Company’s database

9.3

the information as contemplated by 10.2 may be conveyed to, and accessed by, other users of the Company’s database for the Prescribed Purposes;

9.4

any failure by the consumer to meet his obligations to the customer may be recorded with the Company for inclusion in the Company’s database.

10.

USE AND CONTROL OF INFORMATION

10.1

The customer acknowledges and agrees that:-

10.1.1

any information submitted by it may be included in the Company’s database and may be made available to other users of the database

10.1.2

the information obtained by it from the database shall be utilised by it solely and exclusively for the purpose of assisting it in its risk management decisions and for prescribed purposes, in the ordinary course of its business from time to time;

10.1.3

the information obtained by it from the database shall not be disseminated to any third party; only releasing such confidential information as directed by the instructions of the consumer or prospective consumer, as the case may be.

10.1.4

the Company shall have the right, in relation to any information submitted to it, to edit, alter , censor or remove such information, either in whole or in part, in its sole discretion with immediate effect;

10.1.5

the Company shall have the right to verify the accuracy of any information submitted to it by the customer.

10.2

The customer undertakes and warrants in favour of the company that:-

10.2.1

any information submitted by it to the Company’s database shall be accurate, correct and verifiable in every respect;

10.2.2

any information submitted by it shall not be the subject of any dispute between it and; the consumer

Where the accuracy of any information submitted by the Customer to The Company is challenged, the Customer shall not resubmit such challenged information to the Company.

10.2.3

it shall not utilise any of the information obtained by it from the Company in any litigation or civil or criminal dispute without the prior written consent of the Company.

10.3

It is recorded that the information as contained in the Company’s database shall not in any way be construed as an opinion of the Company as to the solvency, financial standing, creditworthiness, integrity or behaviour of the consumer reported on, but rather is a reflection of information received from various sources by the company from time to time and recorded within the Company’s database.

11.

REQUEST FOR INFORMATION

11.1

On the reasonable request therefore by the Company, the Customer shall furnish the Company, its representatives or an independent third party, as the case may be, with such information, data, records and reports (collectively “the Items”) as is necessary for the purposes of the Company ensuring the Customer’s compliance with clauses [10], [11] and [15] of this Agreement. Following receipt of the Items, the Customer shall where the Items furnished as aforesaid are not sufficient to enable the Company to confirm the Customer’s compliance with clauses 10, 11 and 15 of this Agreement, furnish the Company, its representatives or an independent third party, as the case may be, with any additional and specific information requested by the company.  Thereafter, should such additional information not be sufficient to enable confirmation as aforesaid, and insofar as -, that it shall not (and only where same is necessary) without the Consent of the consumer-

any law by which the Company is bound; or

any authority who regulates the activities of TransUnion Credit  Bureau ,

requires the Company to do so, the Company, an independent third party or independent auditor as the case may be, shall be entitled on the giving of prior notice thereof to the Customer, and during business hours, to audit the Customer’s books, records and systems solely for the purpose of ensuring the Customer’s compliance with clauses 9, 10, 11 and 15 of this Agreement.

11.2

The Company undertakes to and shall procure that its representatives or independent third party, as the case may be, agrees to protect the confidentiality of the Customer’s information, and not make any disclosure of the information to any unauthorised third party.

12.

OWNERSHIP OF INFORMATION AND INTELLECTUAL PROPERTY

12.1

Ownership of the Database and the information contained therein, or submitted for inclusion from time to time, shall vest in the company;

12.2

The customer shall keep and maintain as strictly confidential, all the information obtained by it from the Company from time to time.

12.3

The Company and the Customer agree and acknowledge that all right, title and interest in and to the Company’s Intellectual Property vests in the Company and all right, title and interest in and to the Customer’s Intellectual Property vests in the Customer. Nothing in this Agreement transfers ownership of either Party’s Intellectual Property to the other Party;

12.4

Both Parties agree that this Agreement and all Confidential Information of the other Party shall not be used for any purpose other than in the performance of this Agreement.

12.5

The Company and the Customer agree that they shall protect the Confidential Information in the manner and with the endeavour of a reasonable person protecting his or her own confidential information.

13.

WARRANTIES

The Customer warrants that:-

13.1.1

it does not and will not unless lawfully entitled to do so, take an upfront fee in order to remove or clear a person’s name from the blacklist of a credit bureau;

13.1.2

any Consumer Credit Information and/or report containing Consumer Credit Information shall be used by it solely and exclusively for  -

13.1.2.1

undertaking and an affordability assessment in respect of a consumer, as required by Section 79 of the NCA;

13.1.2.2

a credit assessment in respect of a consumer, as required by Section 81 (2) of the NCA;

13.1.2.3

A Prescribed Purpose as defined in Clause 1

14.

LIABILITY AND INDEMNIFICATION

14.1

It is recorded that the company does not guarantee or make any warranty or representation as to the accuracy or correctness of any of the information contained in the database

14.2

Without in any way limiting the generality of 13.1, the Company shall not be liable for any loss, liability, damage or expense of whatsoever nature suffered by the customer as a result of, or which may be attributable to:-

14.2.1

the breach by the Customer of any of its obligations as set out in the Agreement;

14.2.2

the negligent acts or omissions of the Customer, its employees, agents, representatives (whether or not authorised) and/or sub-contractors

14.2.3

the use by the customer or any other person of any of the information comprising the database

14.2.4

any mistake, error or omission in any of the information comprising the database

14.2.5

any delay or failure in delivering, or in any manner communicating, any of the information comprising the database the customer.

14.3

The customer indemnifies the Company against all loss, liability, damage and expense of whatsoever nature which the company may suffer as a result of, or which may be attributable to:-

14.3.1

any breach by the customer of any of its acknowledgements, undertakings or warranties as referred to herein;

14.3.2

any use made by the customer of the database

14.3.3

any use made by the customer of the TransUnion Credit Bureau services.

14.3.4

an event of force majeure; and/or

14.3.5

the downtime of any telecommunications line and/or infrastructure and/or facilities.

14.4

Neither Party shall under any circumstances be liable for indirect, consequential or punitive damages, howsoever arising.

14.5

The total liability of the Company to the Customer from any form or cause of action whatsoever and for the duration of the Agreement shall not exceed an amount in the aggregate of the fees invoiced by the Company to the Customer (as contemplated in 5.1) for the three month period prior to the date on which the cause of action arose..

15.

BREACH

Should either party breach any provision of this Agreement (“Defaulting Party”) and fail to remedy such breach within seven days after receiving written notice requiring such remedy, then the other party (“Aggrieved Party”) shall be entitled, without prejudice to its other rights in law including any right to claim damages, to cancel this Agreement or to claim immediate specific performance of all of the Defaulting Party's obligations whether or not otherwise then due for performance.

16.

ADDRESSES AND NOTICE

16.1

For the purpose of this agreement, including the giving of notices and the serving of legal process, the customer chooses domicilium citandi et executandi (“domicilium”) at its physical address as referred to in the schedule;

16.2

Any notice given by the company to the customer in connection with this agreement may be delivered by hand, for which a written receipt shall be obtained, or be sent by pre-paid registered post to the domicilium chosen by the customer;

16.3

A notice given as set out above shall be construed to have been duly given, if delivered by hand, on the date of delivery;   if sent by post, 7 (seven) days after posting.

17.

GENERAL

17.1

This Agreement constitutes the sole record of the agreement between the Parties in relation to the subject matter hereof. No party shall be bound by any express, tacit or implied term, representation, warranty, promise or the like not recorded herein.

17.2

This Agreement supersedes and overrides any prior commitments, undertakings or representations (whether written or oral) between the Company and the Customer in respect of the subject matter hereof.

17.3

In the event of a conflict between the provisions of the Agreement and the Act, as read with the Regulations, the provisions of the NCA as read with the Regulations will prevail.

17.4

No addition to, variation, or agreed cancellation of any provision of this Agreement shall be of any force or effect unless reduced to writing and signed by or on behalf of the parties.

17.5

No indulgence or extension of time which either party ("the grantor") may grant to the other ("the grantee") shall constitute a waiver of, whether by estoppel or otherwise, limit any of the existing or future rights of the grantor in terms hereof, save in the event and to the extent that the grantor has signed a written document expressly waiving or limiting such right.

17.6

If any provision hereof is held to be illegal, invalid or unenforceable for any reason, such provision shall be deemed to be pro non scripto, but without affecting, impairing or invalidating any of the remaining provisions of this Agreement which shall continue to be of full force and effect.

17.7

All provisions of this Agreement and any schedule or appendix hereto shall be independent of each other and deletion from or the invalidity of any such provision or schedule shall not affect the remainder of this Agreement.

17.8

In the event of any conflict between the terms and conditions of this Agreement and the terms and conditions of any of the schedules hereto, as they may be revised from time to time, the provisions of this Agreement shall prevail.

17.9

Notwithstanding anything to the contrary contained herein, the Agreement shall endure for the benefit of and be binding on the successors-in-title and permitted assigns of the Parties. The rights and obligations of each party arising out of or pursuant to the Agreement or its termination or cancellation shall devolve upon and bind its legal representatives, successors-in-title and permitted assigns.

17.10

Currently, access to the database enables the customer to access the TransUnion Credit Bureau Services. .Save where the contrary appears from the context, a reference to the Company shall accordingly be deemed to include a reference to the TransUnion Credit Bureau Services. .Access to the TransUnion Credit Bureau Services is provided in terms of a separate agreement between the Company and TransUnion Credit Bureau. The Company reserves the right to discontinue access to the TransUnion Credit Bureau Services at any time.

17.11

The Parties hereby consent and submit to the non-exclusive jurisdiction of the High Court of the Republic of South Africa for the purpose of all or any legal proceedings arising from or concerning this Agreement.

17.12

This Agreement shall be interpreted and governed in all respects by the laws of the Republic of South Africa.

17.13

In the event of any dispute or difference arising between the Parties relating to or arising out of this Agreement, the dispute or difference will be referred for arbitration to the Arbitration Foundation of South Africa ("AFSA") in terms of AFSA's arbitration rules for the time being in force.

17.14

The Company shall be entitled to cede any of its rights or delegate any of its obligations under this Agreement without the prior written consent of the Customer.