Octagon Business Solutions
P O Box 2640, Halfway House, 1685
Elite Office Park, 748 Richards Drive
Midrand, JOHANNESBURG
Tel: 011 847 9200
Fax: 011 847 9219
Email: [email protected]
www.octagon.co.za
Terms and Conditions
Octagon Business Solutions (“OBS”) (“The Company”) is willing to license the software and access to credit data to you (“The
Subscriber) Please carefully read all of the terms of this agreement prior to installing and using the software, by installing and
using the software, you accept the terms and conditions of this agreement. If you do not agree to all of these terms, the
Company is unwilling to licence the software to you, in which event, you should return the software to the Company.
1.
Definitions
In this agreement, unless inconsistent with or otherwise indicated by the context, "the/this Agreement" means the agreement set out
herein, including the annexure hereto (if any). Words defined elsewhere in this Agreement shall bear the meanings there assigned to
them and the following shall bear the following meanings.
b.
c.
d.
e.
f.
g.
1.
a.
b.
c.
d.
e.
a. "Commencement Date" means the date of signature of this Agreement by the Client.
"Client/client" means members of the public who are provided with the system as provided by Octagon Business Solutions by signing of
this agreement.
"OBS gateway" Octagon Business Solutions gateway to the company's servers. Where access is controlled to all on-line functions of the
programs.
“The Software” or the “Product” means the software application as provided by Octagon Business Solution to the client.
“OBS” is a shortened version of the company name Octagon Business Solutions.
Any reference to the singular shall include the plural and visa versa. Any reference to a gender includes the other genders any reference
to natural person includes legal person and visa versa.
The clause headings in the Agreement have been inserted for convenience only and shall not be taken into account in its interpretation.
Terms of Contract
This agreement sets out the basis upon which the Company licenses the Subscriber to use the Software and the Documentation. Such
use is subject to the Subscriber’s compliance with these terms and conditions and the Agreement as whole. This agreement replaces all
other agreements between the Company and the Subscriber for the use of the Software. This license is not a sale of the original
software or any copy thereof.
Subject to the Subscriber’s compliance with this Agreement, the Subscriber is hereby granted a non-exclusive, non-transferable license to
use the Software and Documentation on multiple Computers, multiple locations for the period of this Agreement subject to the agreed
amount of subscribers.
The Licence to Use includes access to the OBS Gateway from where access to data sources is administered.
The Company shall not be liable for any loss suffered by any person as a result of any action or omission on the part of the company, or
its employees, agents, correspondents, accountants or attorneys in procuring, collecting and communicating or failing to communicate
any information to the Subscriber.
The Subscriber is responsible for the correct use of the Software, including the regular security and integrity of the data. The Company
takes no responsibility for the effects of misuse or the malfunctioning of the Machine or the unsuitability of the Location. The Subscriber
is also responsible for the training of the individual members of staff operating the Software. Use of the Software and Documentation is
restricted to use for the Subscriber’s own internal purposes, except that,
i)
ii)
iii)
iv)
f.
g.
h.
if it cannot be used with the Machine because it is inoperable for any reason then the licence is deemed temporarily extended to
permit use with any alternative suitable compatible CPU which is operated under the Subscriber’s control; any such transfer of
the Software shall be at the risk of the Subscriber and the Company shall not be responsible for any effects on its ability to
maintain the Software;
the Subscriber may use the Software and Documentation on and in conjunction with any permanent replacement compatible
CPU.
the Subscriber may not reverse engineer, disassemble, translate or in any way decode the Software;
the Subscriber may not loan, rent, assign, lease, sub-lease, transfer or otherwise provide electronically or in any other way the
Software or any copy or part thereof to a third party;
the Subscriber undertakes not to modify the whole or any part of The Software or Documentation in any way whatsoever nor to permit
the whole or any part thereof to be combined with or become incorporated in any other programs without the Company's prior written
consent.
If any sum payable under this Agreement is in arrears then in addition to and without prejudice to any of the remedies which may be
available, the Company reserves the right to charge interest at the official prime overdraft rate of SBSA +5 % on any and all such
sums. In addition the company reserves the right to claim all expenses of recovery of such sums including but not limited to legal and/or
Court costs.
The Company warrants that The Software will conform generally in accordance with its specification as set out in the
Documentation. The Company does not guarantee that The Software is fit for any purpose other than its intended application.
2.
Except as expressly provided in this Agreement;
No warranty, condition, undertaking or term, express or implied, statutory or otherwise as to the condition, quality, performance,
merchantability or fitness for purpose of The Software or support service or any part thereof shall be assumed by the Company;
Octagon Business Solutions (Pty) Ltd
P O Box 2640, Halfway House, 1685
Elite Office Park, 748 Richards Drive Midrand
Tel: 011 847 9200
Fax: 011 847 9219
www.octagon.co.za
Except as expressly provided for in this Agreement all such warranties conditions, undertakings and terms are hereby excluded
Notwithstanding any other provision of this Agreement in no event shall the Company be liable to the Subscriber for;
any incidental, special, indirect or consequential loss of whatever nature;
i)
.
a.
b.
.
The Company agrees to support The Software on a reasonable endeavours basis as herein set out for the currency of this Agreement
from the date of acceptance for the duration of this Agreement, subject to the Subscriber complying with all the terms of this Agreement.
The Subscriber shall Endeavour to provide written notification and appropriate examples supporting any error found. As part of the
support service the Company may provide updates and releases from time to time to the Software.
The Company reserves the right not to deal with, or to make additional charges for, errors in The Software which;
are the result of failure of equipment or other software either of which are not covered by this Agreement;
i)
c.
d.
e.
f.
g.
3.
.
a.
b.
c.
d.
e.
f.
g.
h.
1.
a.
including but not limited to loss of use and/or loss of profits and/or loss or spoiling of data, howsoever caused; whether
occurring in contract, tort, negligence or otherwise.
are the result of operator error; are, or could be reasonably construed as a lack of knowledge; are caused by accident, neglect,
misuse or default of the Subscriber or any third party; are due to acts of God, war, acts of violence or any similar occurrence;
results from any attempt by any person, other than the Company, to modify or maintain The Software; are caused by failure of
fixed or removable storage media; caused by cable or connector malfunction or breaks: are caused suspension of access to data
sources:
Time spent by the Company investigating such errors as in 22 above shall be chargeable as an additional cost.
The Company agrees to endeavour to keep The Software up to date with changes in the data sources and their interfaces; government
legislative changes in the South Africa;
The Company hereby indemnifies the Subscriber against any claim that may arise from the normal use or possession of The Software and
Documentation in respect of the infringement of the copyright of any third party provided that; the Company or its licensors are given
immediate and complete control of any such claim.
The Company reserves the right to replace or change all or any part of The Software in order to avoid infringement or alleged
infringement of any third party, but shall however at all times endeavour to ensure that the Subscriber is left with fully operational
equivalent product.
The Subscriber shall indemnify the Company and/or its licensors against any claims of infringement of any intellectual property right of
any third party by The Software to the extent that, such infringement or alleged infringement are the result of misuse by the Subscriber
of The Software contrary to this Agreement including but not limited to the licence to use granted hereunder.
The Subscriber at all times during the period of this Agreement agrees to:
Keep necessary master copies of The Software and the Documentation safe and at the site of installation, select only suitable staff for
operation of the Software; train or get trained by the Company the staff operating The Software ;
Allow the technical staff of the Company or any authorised representative access to the Machine, The Software and the data generated
by The Software at will, on site, but also through fully operational internet connections; institute any new releases or error fixes and
versions of The Software in line with the Company's recommendations; keep the Machine operating software up-to date.
Report all potential malfunctions in writing by facsimile or e-mail to the Company.
This subscription agreement for the services of OBS shall be for an indefinite period.
The Licence is effective until terminated. The Licence is terminated automatically without notice from the Company if the Subscriber fails
to comply with any provision within the Licence. Either party may terminate this Licence Agreement by giving to the other at least 1
months’ notice in writing of its wish to terminate. Termination being effective from the end of the Monthly Period in which such notice
period ends. Upon termination, howsoever caused, the Subscriber shall return The Software and the Documentation to the Company
within 7 days of the date of such termination. The Subscriber must remove all copies of the Software from the Machine and cease all use
of The Software and Documentation. The Subscriber shall if requested by the Company, certify that if has complied with this sub-clause.
This sub-clause shall survive any termination of this Agreement.
In the event that either party is unable to perform any obligation hereunder due to any circumstances beyond its control including the
action, intervention, or decree of any Government, and such circumstances are not caused by fault of a party. Such party shall give
prompt notice thereof to the other party and shall have no liability for any loss, damage, injury or expense (whether direct or
consequential) suffered by the other party due to the affected performance of its obligations. Such party shall use all reasonable efforts
to avoid or overcome the cause affecting performance and shall fulfil all outstanding obligations as soon as it becomes practical to do so.
In the event that any of the terms of this Agreement are found to be invalid, unlawful or unenforceable, such terms will be severable
from the remaining terms, which will continue to be valid and enforceable, if any invalid term is capable of amendment to render it valid,
the parties agree to negotiate an amendment to remove the invalidity.
This Agreement constitutes the entire agreement between the Company and the Subscriber as to the subject matter hereof, and
supersedes all prior communications, representations and agreements.
The laws of South Africa shall govern the construction, validity and performance of this Agreement.
Bureau Data (agency)
You warrant that you are duly authorized by the Subscriber to enter into this subscription agreement you have appointed Octagon
Business Solutions (Pty) Ltd as your agent (a) to request and receive Reports; and (b) to accept the Terms on your behalf.
Octagon Business Solutions (Pty) Ltd
P O Box 2640, Halfway House, 1685
Elite Office Park, 748 Richards Drive Midrand
Tel: 011 847 9200
Fax: 011 847 9219
www.octagon.co.za
b.
All information of whatever nature, whether printed, electronic, typed, written or oral, is supplied by OBS in the strictest confidence and
is for the use of the Subscriber only and shall not be used for any other purpose whatsoever. The information so supplied is strictly
confidential, and shall not be divulged to any third party.
c. OBS shall not be liable for any loss suffered by any person or persons as the result of any action or omission on the part of OBS, its
employees, agents, correspondents, accountants or attorneys in procuring, collecting and communicating or failing to communicate any
information to the Subscriber. Whilst OBS undertakes to use its reasonable endeavours to ensure that the information supplied is
accurate, no liability of whatsoever nature shall attach to OBS, its employees, agents, correspondents, accountants or attorneys for any
mistake, errors or omission of the information supplied, nor does OBS in any way guarantee the correctness of the information supplied.
d. Any information provided shall in no way be construed as OBS's opinion on the solvency, financial standing, integrity or motives of the
parties reported upon but merely reflect information compiled by OBS from various sources, including the records of Transunion,
Compuscan, Experian and MLCB.
e. The Subscriber indemnifies OBS against any loss of whatever nature that the Subscriber may suffer as a result of a breach by the
Subscriber of any of the terms and conditions of this agreement.
f. The Subscriber expressly waives and renounces all its rights of whatever nature that it may have against OBS for any loss suffered by it,
as a result of any information supplied by the BUREAU being incorrect, incomplete or inaccurate.
g. OBS is hereby permitted to reserve itself the right to terminate this subscription agreement at any time, without prior notice and for
whatever reason it may seem fit.
h. The Subscriber acknowledges that the information supplied by OBS is published/made available for information purpose only and that
any action taken by the Subscriber pursuant to that information is taken at the sole risk of the Subscriber.
i.
Should the Subscriber breach or otherwise be in default of any of its obligations under or in terms of this agreement OBS shall be entitled
(but not obliged), in addition to any other rights which it may have, to cancel this agreement with or without claiming damages or to
obtain an order against the Subscriber for specific performance with or without claiming damages.
j.
Whilst OBS undertakes to use its reasonable endeavours to ensure that the Subscriber will have access to the data sources at all
reasonable times, OBS in no way guarantees access times for the data sources.
k. Notwithstanding the amount which may at any time be owing by the Subscriber or OBS, parties do hereby consent in terms of section 45
of the Magistrates Court Act (No 32 of 1994 as amended), to the Jurisdiction of the Magistrates Court having Jurisdiction for the
determination of any action or proceeding otherwise beyond the Jurisdiction of the said court which may be brought by OBS against the
Subscriber arising out of any transaction between the parties, it is recorded that the Subscriber will be held responsible for costs on an
attorney client scale and attorney collection commissions will be paid by the Subscriber.
l.
The Subscriber acknowledges and agrees that the information supplied by OBS shall be utilized by it solely and exclusively for the
purpose of assisting the Subscriber in its bona fide and genuine credit risk decision or other reasons as detailed in the National Credit Bill
in the ordinary course of the Subscriber’s business and for no other purpose whatsoever.
m. The Subscriber may not cede or assign its rights or obligations in terms of this agreement, without obtaining the prior written consent
from OBS, which consent will not be unreasonably withheld.
n. In the event that The Subscriber requires the use of the Services for the purpose of checking a Consumers' record for pre-employment
purposes, unless it is an inherent requirement of the position being applied for, the Consumers' application may not be refused as a
result of a poor credit profile
o. The Subscriber hereby indemnifies OBS, Transunion & Experian against all and any loss in the event of a breach of the provisions in the
Clause above.
p. The Subscriber specifically warrants that it has obtained the necessary written consent from its customers that:
i)
ii)
q.
r.
s.
t.
u.
v.
w.
x.
y.
.
The Subscriber may carry out a credit enquiry in respect of such a customer by accessing any Credit Bureau's database
The Subscriber may transmit details to OBS of how the customer has performed in meeting his/her/its obligations in terms of
any agreement concluded between the subscriber and its customer and share such information with other Credit Grantors for
purposes of making any risk management decisions
If a customer fails to meet his/her/its commitments to the Subscriber, the Subscriber may record the customer's non-performance with
OBS
The Subscriber's customers have consented that any information conveyed by the Subscriber to OBS may be searched by other Credit
Grantors and used in making risk management decisions
The existence of a customer's account with the Subscriber may be recorded by OBS
Any information conveyed to OBS may be utilised by OBS as part of its data base in the ordinary course of its business
Any information submitted by the Subscriber to OBS is factual and accurate.
OBS may, at any time, and at its sole discretion remove any information with immediate effect.
OBS may in its absolute discretion verify the accuracy of any information obtained from the subscriber
Any confidential information shall in no way be construed as an opinion of OBS on the solvency, financial standing, creditworthiness,
integrity or a motive of any party reported upon, but merely reflects a recording of information received from various sources from time
to time.
OBS shall not be liable for any loss, liability, expense or damage of whatsoever nature suffered by the Subscriber or any other person as
a result of or which may be attributable to:
the use by the Subscriber or any other person of any of the confidential information
i)
ii)
iii)
iv)
any mistake, error or omission in any of the confidential information
any delay in delivering or in any manner communicating the confidential information to the Subscriber
any failure to deliver or in any manner communicate the confidential information to the Subscriber
Outstanding accounts are subject to default listings and Octagon reserves the right to provide any national credit bureau with
updated personal information of the account Holder.
Octagon Business Solutions (Pty) Ltd
P O Box 2640, Halfway House, 1685
Elite Office Park, 748 Richards Drive Midrand
Tel: 011 847 9200
Fax: 011 847 9219
www.octagon.co.za
z.
The Subscriber agrees to his/hers credit check and Octagon may use a national credit data base for tracing purposes should the
Subscriber abscond.
aa. The terms and conditions of the subscription agreement are fully set forth in this agreement. Any amendment, alteration, release or
cancellation of any of its provisions shall only be valid if in writing by the Managing Director.
OCTAGON ACCOUNT TERMS AND CONDITIONS
1.
2.
3.
4.
5.
6.
1.
Credit facilities will be available to Subscribers subject to the Company’s credit policy.
For accounting purposes a calendar month will be from the first day of any given month to the last day of the given month.
Invoices will be posted to the subscriber within 5 (five) days of the end of the given month.
The outstanding amount must be settled in full within 15 (fifteen) calendar days from the last day of any given month to avoid
discontinuation of services. Overdue customer accounts will attract interest at the overdraft rate of SBSA +3%.
The debit order will be run on or about the 13th (thirteenth) calendar day of the following month.
Returned Debit Orders will be subject to a handling fee of R96.90 (Ninety Six Rand & Eighty Cents)
CREDIT BUREAU TERMS OF USE
1. DEFINITIONS
1.1 “Confidential Information” means personal information which belongs to a person and is not generally available to or known by
others and any and all information or data which by its nature or content is identifiable as confidential and/or proprietary to TransUnion,
Experian & XDS Credit Bureau or the Customer as the case may be.
1.2 “Consumer Credit Information” shall bear the meaning set out in Section 70 (1) of the NCA.
1.3 “Customer/You” means the person accepting the terms and requesting a Report.
1.4 “Intellectual Property” means all intellectual property of whatever nature owned and/or controlled by TransUnion, Experian &
XDS Credit Bureau including without limiting the generality of the aforegoing, all right, title and interest in and to all trademarks, trade
names, trade secrets, technology, software, applications, web pages, logos, systems, methods, procedures, processes, domain names,
styles, insignias, scoring processes, design, layout, “look and feel” and “get up” of the Reports, compilations, designs, patents, and
copyright whether registered or not.
1.5 “NCA” means the National Credit Act, 34 of 2005 together with the Regulations.
1.6 “Prescribed Information” shall bear the meaning set out in Section 18 (6) of the Regulations being (a) status and history of
outstanding obligations and payments in respect of goods, services or utilities supplied to consumers; (b) information that is relevant for
the purposes of credit fraud detection and prevention; (c) payments made by a consumer in respect of a debt, where the debt has been
ceded or sold by the credit provider; (d) 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.
1.7 “Prescribed Purpose” shall bear the meaning set out in Section 18 (4) and 18(6) of the Regulations being (a) an investigation into
fraud, corruption or theft, provided that the South African Police Service or any other statutory enforcement agency conducts such an
investigation; (b) fraud detection and fraud prevention services; (c) 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; (d) an assessment of the debtors book of a business for the purposes of (i) the sale of the business or debtor’s
book of that business; or (ii) any other transaction that is dependent upon determining the value of the business or the debtors book of
that business (e) setting in respect of the supply of goods, services or utilities provided that the consent of the consumer has been
obtained prior to the report being requested (f) assessing an application for insurance, provided that the consent of the consumer has
been obtained prior to the Report being requested; (g) verifying educational qualifications and employment provided that the consent of
the consumer has been obtained prior to the Report being requested; (h) obtaining consumer information to distribute unclaimed funds,
including pension funds and insurance claims; (i) tracing a consumer by a credit provider in respect of a credit agreement entered into
between the consumer and the credit provider; (j) developing a credit scoring system by a credit provider or credit bureau.
1.8 “Regulations” means the National Credit Regulations, published in Government Gazette No. 8477, Notice 28864 and such other
Regulations promulgated in terms of the NCA from time to time;
1.9 “Report” means a credit report and/or consumer enquiry generated response to a Request.
1.10 “Request” means a request for a Report.
1.11 “Terms”- means the terms and conditions set out herein.
1.12 “TransUnion Credit Bureau” means TransUnion Credit Bureau (Pty) Ltd (Registration Number 2004/007773/07) registered in
terms of the NCA with the National Credit Regulator under registration number NCR CB4.
2. AGENCY
You warrant that you have appointed Octagon Business Solutions (Pty) Ltd as your agent (a) to request and receive Reports; and
(b) to accept the Terms on your behalf.
3. UNDERTAKINGS
3.1 Subject to Section 68 of the NCA as read with Regulations 18(4) and 18(5), you may only request and receive Consumer Credit
Information and Prescribed Information for Prescribed Purposes and for such other purposes that TransUnion, Experian & XDS Credit
Bureau is lawfully entitled to disclose Consumer Credit Information and Prescribed Information held by it.
3.2 You will at all times comply with the requirements for the receipt, compilation and reporting of information (including inter alia,
Prescribed Information and Consumer Credit Information) as prescribed by the NCA and other relevant legislation.
3.3 Where adverse information concerning a consumer (as set out in Section 19(4) of the Regulations) is to be submitted to TransUnion,
Experian & XDS Credit Bureau, such information may not be disclosed to TransUnion Credit Bureau unless and until the Customer has
given the consumer at least 20 business days’ notice of your intention to submit such information to TransUnion Credit Bureau;
Octagon Business Solutions (Pty) Ltd
P O Box 2640, Halfway House, 1685
Elite Office Park, 748 Richards Drive Midrand
Tel: 011 847 9200
Fax: 011 847 9219
www.octagon.co.za
3.4 You shall have obtained all consents required by the NCA prior to requesting consumer credit information or submitting consumer
credit information to TransUnion Credit Bureau.
3.5 You are aware that the NCA imposes civil and criminal penalties, including fines and imprisonment against anyone who knowingly and
willfully reports or obtains confidential information and/or consumer credit information from a credit bureau under false pretences and for
purposes not permitted or prescribed by the NCA.
3.6 You have taken reasonable steps to ensure that the information you report to TransUnion, Experian & XDS Credit Bureau is accurate,
up-to-date, relevant, complete, valid and not duplicated.
3.7 You will not submit Consumer Credit Information in respect of a debt that has prescribed in terms of the Prescription Act 68 or 1969,
to TransUnion, Experian & XDS Credit Bureau.
3.8 You do not and will not (unless lawfully entitled to do so) take an upfront fee to remove or clear a person’s name from the records of
a credit bureau.
3.9 All persons requesting Reports on the Customers behalf have been duly authorized by you to do so. In addition, you shall ensure that
only you or your authorised representatives have access to any PIN and/or password PIN issued for the purposes of requesting a Report.
You shall be liable for transactions, fees and other costs arising out of the use by any person of the TransUnion, Experian & XDS Credit
Bureau Services via the PIN and/or Password whether or not such use is or has been authorised by you.
3.10 Save as specifically set out herein, TransUnion, Experian & XDS Credit Bureau makes no representations and gives no warranties
and/or guarantees of whatever nature, whether express, implied in law, or residual in respect of these Terms.
4. USE OF INFORMATION
The Customer undertakes that 4.1 information requested from or submitted to TransUnion, Experian & XDS Credit Bureau 4.1.1 shall contain the following information in respect of a consumer who is a natural person: (a) initials and surname or full names and
surname; (b) South African identity number or if the consumer does not have an identity number, the passport number and date of birth;
(c) insofar as is possible (i) the residential address and telephone number of the consumer; (ii) the details of the employer and place of
work of the consumer and if self-employed or unemployed, a statement to that effect;
4.1.2 shall contain the following information in respect of a consumer who is a juristic person: (a) registered and trading name; (b)
Registration number; (c) registered address and physical and postal address;
4.2 information submitted to TransUnion, Experian & XDS Credit Bureau may be utilized by TransUnion, Experian & XDS Credit Bureau as
part of its database in the ordinary course of its business as a registered credit bureau; (b) it shall take reasonable steps to ensure that
that the information reported to TransUnion, Experian & XDS Credit Bureau is accurate, up-to-date, relevant, complete, valid and not
duplicated (c) it shall not whether directly or indirectly, sell or use for any commercial purpose the Reports and/or any of the contents
thereof;
4.3 TransUnion Credit , Experian & XDS Bureau may, at any time, and at its sole discretion (a) remove any information from its
database’s with immediate effect save for information which it is obliged to retain in terms of the NCA and any other applicable laws; (b)
verify the accuracy of any statement or information obtained from the Customer;
4.4 Any information released by TransUnion, Experian & XDS Credit Bureau (including but not limited to any information contained in
Reports) shall in no way be construed as an opinion of TransUnion, Experian & XDS Credit Bureau on the solvency, financial standing,
creditworthiness, integrity or motives of any party reported upon but merely reflects a recording of information received by TransUnion,
Experian & XDS Credit Bureau from various sources from time to time. Use of the Reports and any other information as aforesaid
requires the Customer to use its own skill and judgment. The Customer shall be solely liable for all opinions, recommendations, forecasts
or comments made or actions and decisions taken in reliance on the Reports;
4.5 Where the accuracy of any information submitted by the Customer to TransUnion, Experian & XDS Credit Bureau is challenged, and
the Customer is aware of such challenge, the Customer shall not resubmit such challenged information to TransUnion, Experian &
XDS Credit Bureau.
5. REQUEST FOR INFORMATION
5.1 On the reasonable request therefore by TransUnion, Experian & XDS Credit Bureau, the Customer shall furnish TransUnion, Experian
& XDS Credit Bureau, 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 TransUnion, Experian & XDS Credit Bureau ensuring the Customer’s
compliance with these Terms.
5.2 Following receipt of the Items, the Customer shall where the Items furnished as aforesaid are not sufficient to enable TransUnion,
Experian & XDS Credit Bureau to confirm the Customer’s compliance with these Terms, furnish TransUnion, Experian & XDS Credit
Bureau, its representatives or an independent third party, as the case may be, with any additional and specific Information requested by
TransUnion, Experian & XDS Credit Bureau. Thereafter, should such additional information not be sufficient to enable confirmation as
aforesaid, and insofar as (a) any law by which TransUnion Credit Bureau is bound; or (b) any authority who regulates the activities of
TransUnion , Experian & XDS Credit Bureau requires TransUnion, Experian & XDS Credit Bureau to do so, TransUnion, Experian &
XDS Credit Bureau, an independent third party or independent auditor as the case may be, shall be entitled on reasonable notice 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 these Terms.
6. LIABILITY AND INDEMNITIES
6.1 Notwithstanding any other provision of these Terms –
Octagon Business Solutions (Pty) Ltd
P O Box 2640, Halfway House, 1685
Elite Office Park, 748 Richards Drive Midrand
Tel: 011 847 9200
Fax: 011 847 9219
www.octagon.co.za
6.1.1 TransUnion, Experian & XDS Credit Bureau shall not be liable for any loss, liability, damage or expense of whatsoever nature which
may be attributable to or caused by (a) the breach by the Customer of any of its obligations as set out in these Terms, the NCA or any
other applicable legislation; (b) the acts or omissions of the Customer, its employees, agents, representatives (whether or not authorised)
and/or sub-contractors; (c) the use by the Customer or any third person of a Report/s; (d) any mistake, error or omission originating
from information submitted to TransUnion, Experian & XDS Credit Bureau by the Customer; (e) any mistake, error or o mission in Reports
received by the Customer and where such mistake, error or omission is caused by or attributable to the Channel Partner; (f) any delay in
delivering or in any manner communicating the Reports to the Customer; (g) the downtime of any telecommunications line and/or
infrastructure and/or facilities;
6.1.2 neither Party shall under any circumstances be liable for indirect, consequential or punitive damages, howsoever arising.
6.2 Without prejudice to any of the rights of TransUnion, Experian & XDS Credit Bureau at law or in terms of these Terms, the Customer
indemnifies TransUnion Credit Bureau against all loss, liability, damage and expenses of any nature whatsoever which TransUnion,
Experian & XDS Credit Bureau may suffer or incur as a result of or in connection with the acts or omissions of the Customer, its
employees, agents, representatives and/or sub-contractors or a breach by the Customer of these Terms.
7. BREACH
Should either Party breach any provision of these Terms (“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 these Terms or to claim immediate specific performance of all of the
Defaulting Party's obligations whether or not otherwise then due for performance.
8. APPLICABLE LAW
Subject to clause 9, 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 these Terms. This Agreement (including its validity,
existence and implementation, the interpretation and application of its provisions, the respective rights and obligations of the Parties in
terms of and arising out of the conclusion, breach and termination of the provisions of these Terms) shall be interpreted and governed in
all respects by the laws of the Republic of South Africa.
9. ARBITRATION
9.1 In the event of any dispute or difference arising between the Parties relating to or arising out of these Terms, including the
implementation, execution, interpretation, rectification, termination or cancellation of these Terms, (and without detracting from your
right to avail yourself of the complaints and dispute resolution processes provided for in the NCA) the dispute shall in the first instance be
referred to the Parties senior executives for resolution. In the event of the dispute not having been resolved within seven business days
of the date of such referral (or such longer period as the Parties senior executive may agree in writing), 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.
9.2 This clause shall constitute each Party's irrevocable consent to the arbitration proceedings, and no Party shall be entitled to withdraw
from such arbitration proceedings or to claim that it is not bound by this clause.
9.3 Each of the Parties hereby irrevocably agrees that the decision of the arbitrator in the arbitration proceedings (a) shall be final and
binding on each of them; and (b) will be carried into effect; and (c) be made an order of any court to whose jurisdiction the Parties are
subject.
9.4 Notwithstanding the aforegoing, nothing in this clause shall be construed as precluding either Party from applying to court for a
temporary interdict or other relief of an urgent nature, pending the decision or the award of the arbitrator in terms of this clause.
10. GENERAL
10.1 TransUnion, Experian & XDS Credit Bureau may terminate the terms at any time on the giving of thirty days written notice thereof
to the Customer.
10.2 This Agreement constitutes the sole record of these Terms 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. This Agreement
supersedes and overrides any prior commitments, undertakings or representations (whether written or oral) between TransUnion,
Experian & XDS Credit Bureau and the Customer in respect of the subject matter hereof.
10.3 The Customer shall not cede any of its rights or delegate any of its obligations under these Terms or otherwise assign these Terms
to any third party without the prior written approval of TransUnion, Experian & XDS Credit Bureau, which will not be unreasonably
withheld.
10.4 In the event of a conflict between the provisions of these Terms and the NCA, as read with the Regulations, the provisions of the
NCA as read with the Regulations will prevail.
10.5 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.
10.6 Notwithstanding anything to the contrary contained herein, these Terms 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 these
Terms or its termination or cancellation shall devolve upon and bind its legal representatives, successors-in-title and permitted assigns.
Octagon Business Solutions (Pty) Ltd
P O Box 2640, Halfway House, 1685
Elite Office Park, 748 Richards Drive Midrand
Tel: 011 847 9200
Fax: 011 847 9219
www.octagon.co.za
ACCOUNT VERIFICATION SERVICE
1.1 The Account Verification Service is a service whereby banking-related information of bank clients is verified.
1.2 For the purposes of this clause 2 the following definitions shall have the meaning as set forth herein:
1.3 'Commercial Bank' means any bank(s), who is/are registered as such in terms of the Banks Act (94 of 1990);
1.4 'Bank Account' means a bank account(s) held at a Bank or at any other Commercial Bank;
1.5 'Bank Account Data', with respect to a Bank Client and a client of any Commercial Bank, means account number(s), name(s) of Account
holder(s), identity number(s) and/or registration number(s) of accountholder(s), active or inactive status of Bank Account(s), Acceptance of debits
and/or credits into the Bank Account(s), dormancy status of the Bank Account(s) and/or branch number(s). Where the Bank Account(s) is/are
held, the account type and/or the South African Revenue Service reference number relating to the Bank Account; and
1.6 'Bank Client' means any client of the Bank.
1.7 This service entails the electronic account verification of Bank Account Data submitted electronically to Octagon Business Solutions by the
Client, which is verified against Bank Account details held in the current records.
1.8 Octagon Business Solutions will only be obliged to verify the Bank Account Data submitted.
1.9 The Client specifically indemnifies Octagon Business Solutions against and holds it harmless from all demands, claims, actions, losses and
Damage of whatever nature which may be brought against Octagon Business Solutions or which Octagon Business Solutions or their Client may
suffer or incur arising from: any incorrect verification of information by the Bank or a Commercial Bank; and any lack of, or defect in, authority by
the Client or its employees in respect of the authorization required from Octagon Business Solutions Client to request verification of the Bank
Account Data.
Signed:......................................Name:.................................................Date:.......................