HOW OWNER WILL USE INFORMATION
In order to complete the application process Owner will require Hirer to provide Owner with certain information which is considered personal data under applicable data protection and privacy laws and regulations. For the purposes of applicable data protection and privacy laws and regulations, Owner shall be considered a responsible party or data controller in relation to this personal data or information. Owner will process personal data or information for the following purposes to: (i) process this Agreement; (ii) assess applications for credit and other products and services that Hirer requires; (iii) manage Hirer’s account and provide services to Hirer; (iv) conduct, monitor and analyse Owner’s business; (v) contact Hirer (unless Hirer tells Owner that Hirer prefers not to be contacted) about products and services including those of carefully selected third parties which may interest Hirer; (vi) recover debts and prevent fraud; and (vii) comply with applicable law and regulations. Owner may sometimes use a credit scoring or other automated decision-making system when processing the information, including personal data or information, provided.
Owner may disclose and transfer personal data or information to other companies within Owner’s group, other persons who provide a service to Owner, or to Owner’s employees, agents, associated companies, insurers or anyone to whom Owner proposes to transfer any of its rights and/or responsibilities under this Agreement, each of whom may also use the personal data in the ways described in this Agreement and may be located outside the Republic of South Africa. Owner may also disclose any information, including personal data or information that Hirer provides to: (i) anyone to whom Hirer authorises Owner to give such information; and (ii) comply with any legal or regulatory requirements imposed on Owner or any company within Owner’s group (located outside the Republic of South Africa). Hirer hereby authorises Owner to disclose such data to its appointed Aquirer, (as detailed in clause 2 of the General Terms and Conditions of Rental) and/or other merchant services provider selected by Hirer and consents to receiving email communications or phone calls from the Owner’s Acquirer or such other merchant services provider or its agent.
In order to use and disclose personal data for the purposes set out above Owner may transfer the personal data or information to its affiliated companies outside the Republic of South Africa, including the United States of America, which may not have laws comparable to those in the Republic of South Africa which protect such personal data or information.
Owner or its agents may monitor or record telephone calls or other forms of communication from Hirer or Hirer’s employees or agents to ensure instructions are carried out correctly and to help improve the quality of the service.
Credit Reference and Fraud Prevention
Owner shall be entitled to conduct any searches it deems necessary with any credit reference or fraud prevention agency in order to: (i) manage Hirer’s account; (ii) verify Hirer’s credit history and take decisions about credit; and (iii) protect against money laundering. This authorization will remain in place during the term of this Agreement.
Owner may keep any information provided by Hirer or about this Agreement in its records and may disclose this information and information relating to Hirer and held by other companies within Owner’s group to credit reference and fraud prevention agencies. A credit reference or fraud prevention agency contacted by Owner in connection with this Agreement may keep a record of Owner’s inquiry, which will be available to later inquirers. The credit reference and fraud prevention agencies will share the search details with the Owner and with other organisations so that Owner and they might: (i) assess applications for credit and related services and manage accounts; (ii) check Hirer’s identity to prevent money laundering; (iii) prevent, detect or prosecute fraud or other crimes; (iv) recover and trace debts; and (v) undertake statistical analysis. Please write to Owner at the address specified on page one of this Agreement to the attention of The Data Protection Officer if you would like the details of the credit reference and fraud prevention agencies.
Personal data or information of other persons
By including personal data or information about other persons in this Agreement Hirer confirms that Hirer has the consent of and is entitled to disclose such information and that each such person has consented to Owner’s use and disclosure of his, her or its personal data or information for the purposes and in the ways described in this Agreement. Where information about other persons is provided in or in connection with this Agreement, Hirer and each such person understands that an “association” will be created at the credit reference agencies, which will link their financial records.
Rights to personal data or information
Individuals have a right to a copy of the personal data or information, which Owner holds about them, and to have any inaccuracies corrected. If Hirer or other persons wish to exercise this right they should apply in writing to Owner at the address specified on page one of this Agreement to the attention of The Data Protection Officer. A fee will be payable in respect of any request for a copy of the personal data or information which Owner holds about them and to have any inaccuracies corrected, however, no fee will be charged in respect of a request for Owner to confirm that Owner holds personal data or information relating to the person making the request.
Owner may use Hirer’s information to contact Hirer from time to time about Owner’s services or products and/or services or products from companies within Owner’s group and/or from other carefully selected third parties. If Hirer DOES NOT want Owner to contact Hirer for these purposes by the following means then tick the relevant box:
By telephone ☐
By post ☐
By email ☐
Hirer has the right to subsequently decide that he, she or it no longer wishes to receive marketed information by writing to Owner at the address specified on page one of this Agreement to the attention of The Data Protection Officer.
Consent to use personal data
By signing this Agreement you consent to Owner’s use and disclosure of your personal data or information and the personal data of any other persons specified above in the ways described in this Agreement and confirm the information given is true and complete.
GENERAL TERMS AND CONDITIONS OF RENTAL
- Equipment: Owner agrees to let and Hirer agrees to rent the equipment identified on page one of this Agreement (the ‘Equipment” and which expression shall include all accessories and also any additions or replacements made to the Equipment) pursuant to these General Terms and Conditions of Rental (this “Agreement”). Owner retains ownership of all Equipment and may supply Equipment of a different model than that stated as long as specification is at least equal.
- Hirer Declaration and Acknowledgement. Hirer acknowledges and agrees that it has selected the Equipment from an approved range made available by Owner solely on the basis of its own judgment and that the Equipment shall only be used for the purpose of a business carried on by Hirer. Hirer is satisfied that the Equipment chosen is suitable for all its requirements and conforms with any conditions and/or requirements stipulated by Hirer’s merchant services provider. Therefore, Owner does not make or give any representation, stipulation or undertaking express or implied by the law as to the state, quality or performance of the Equipment for present and future use, or its correspondence with description or sample or its fitness for any or particular purpose, all of which are hereby expressly excluded.
Hirer acknowledges that Owner is an introduction agent for its appointed Acquirer and other merchant services providers but has no authority or ability to negotiate or vary the Acquirer’s or other merchant services provider’s services or the terms on which their services will be delivered to you (including financial terms) or to enter into any contract on their behalf.
Hirer acknowledges that the Equipment will be configured to work with its chosen merchant services provider at the time the Equipment is supplied to Hirer, and therefore, it may not be compatible with the systems of other processors. Subject to any law, Owner has no expertise or obligation to (i) conform the Equipment with that of any other merchant services provider; or (ii) modify or replace the Equipment to ensure its compliance with industry or security standards. In the event that Hirer moves to an alternative merchant service provider (whether it be at Hirer’s own will or as a result of Hirer’s merchant services provider withdrawing its facilities and closing Hirer’s account), Hirer will continue to be bound by this Agreement irrespective of whether the equipment can be transferred to the new merchant service provider’s system.
- Commencement and Term of Agreement. (a) This Agreement becomes effective on the date of signature. Hirer must inspect and select the Equipment on delivery and must inform Owner within 48 hours of delivery if the Equipment is defective or is unsuitable for the Purpose for which it is acquired. If Hirer gives no notice Hirer will be deemed to have accepted the Equipment and to have acknowledged that it is in good working order, is fit for purpose and is satisfactory in every way. This Agreement remains in effect until all of Hirer’s obligations (including but not limited to payment obligations) and all of the Owner’s obligations under it have been satisfied. (b) Owner agrees to let the Equipment to Hirer for the Rental Term detailed on page one of this Agreement and the rental shall continue until terminated as provided in this Agreement. Upon expiry of the Rental Term, this Agreement shall be automatically extended for successive calendar months until terminated on 30 days written notice given by one party to the other, to expire at the end of any calendar month. For each calendar month that the Rental Term is extended, Hirer shall pay the Owner an amount equal to the Monthly Payment in effect immediately prior to such extension and all other provisions of this Agreement shall continue to apply.
- Manufacturer. The Manufacturer(s) of the Equipment listed on page one of this Agreement is not Owner’s agent and neither Manufacturer(s) nor any person on his behalf has any authority to make or give any representation or warranty on Owner’s behalf in relation to the Equipment or to vary the terms or conditions set out in this Agreement. Subject to any law, Owner makes no representations whatsoever in respect of the design, condition, operation, suitability, compliance or compatibility with other systems, of the Equipment.
- Site Preparation. (a) At the request of Hirer, Owner shall arrange for a sub-contractor of the Owner to deliver, install and commission the Equipment at the business or Installation Address identified on page three of this Agreement. (b) Hirer shall (i) prepare the installation site(s) for the Equipment in conformance with the specifications provided by the Owner, and (ii) install the Equipment in accordance with the Owner’s instruction. (c) If Owner agrees to arrange installation, Hirer shall make the site(s) available for installation on the confirmed installation date and pay the On-Site Installation Fee.
- Condition Precedent. The obligations of Owner to arrange delivery of the Equipment shall be subject to the completion of credit and fraud searches in respect of Hirer (“Searches) to Owner’s reasonable satisfaction. In the event that Searches are in the Owner’s view found to be unsatisfactory, Owner shall be under no obligation to arrange delivery of the Equipment to Hirer and this Agreement shall be terminated without any further action of either party. Upon such termination neither Owner nor Hirer shall have any further obligations under this Agreement.
- Obligations of Hirer: Hirer shall (i) cause the Equipment to be operated by competent and qualified personnel in accordance with all relevant operating instructions; (ii) maintain the Equipment in good operating condition (normal wear and tear accepted); (iii) not permit any physical alteration or modification of the Equipment, or change the installation site of the Equipment, without Owner’s prior written consent; (iv) not create, incur, assume or allow to exist any consensually or judicially imposed liens or encumbrances on, or part with possession of, or sublease the Equipment without Owner’s prior written consent and will inform any landlord of the premises where the Equipment is used, including the business or Installation Address identified on page three, in writing that the Equipment belongs to Owner; (v) obtain all permits and comply with all laws, rules and regulations relating to the use of the Equipment; (vi) maintain the Equipment at the Installation Address indicated above; (vii) permit Owner or its representatives to enter Hirer’s premises during normal business hours or otherwise for purposes of inspecting, testing or repairing the Equipment; and (viii) not tamper with labels or stencils on the Equipment evidencing Owner’s ownership.
- Maintenance. Subject to any law, Hirer is solely responsible for the operation and maintenance of the Equipment. If the Equipment fails due to a manufacturing, mechanical or electronic defect that is covered by a warranty or guarantee that Owner holds from the Manufacturer, provided that Hirer duly performs his obligations under this Agreement, Owner will on reasonable notice and request from Hirer, and free of charge to Hirer, arrange for the relevant Manufacturer to carry out necessary repairs and adjustments to the Equipment and supply such replacement parts as provided for under the terms of the Manufacture’s warranty or guarantee. If the Equipment breaks down and cannot be repaired Hirer shall accept an equivalent replacement from Manufacturer and at all times continue paying the Monthly Payments under this Agreement.
- Insurance. Hirer is responsible for insuring the Equipment under an acceptable insurance policy endorsed with Owner’s interest for an amount of R6,000 per terminal and shall provide satisfactory proof of such insurance policy upon request to Owner. Any loss of or damage to the Equipment shall not affect the continuance of this Agreement of Hirer’s liability for Rental Payments under this Agreement. If in the event that Hirer’s insurance policy lapses and Hirer fails to renew such insurance policy or if Hirer’s policy fails to pay out in the event of for loss damage of theft of the Equipment, Hirer remains liable for the Equipment.
- Payment of Amounts Due: (a) The Rental Payments due under this Agreement shall begin to accrue on the Rental Commencement Date and shall be payable as specified on page one of this Agreement. (b) Each Rental Payment shall be collected, together with any other costs, fees and expenses as they fall due under this Agreement, by means of direct debit to the account specified by Hirer unless the parties have otherwise agreed to an alternative method of payment. Any payments made other than by direct debit may be subject to an administration charge (as advised at the relevant time) to cover Owner’s processing costs. Any sums shall be deemed paid when credited to Owner’s account. (c) Hirer’s direct debit instruction shall remain in full force and effect during the term of this Agreement and may not be cancelled by Hirer for as long as this Agreement remains in effect. (d) Hirer agrees to give Owner at least 30 (thirty) days’ prior notice if the account from which the direct debit payment is made is to be changed. (e) Punctual payment shall be of the essence of this Agreement. If any Rental Payment is not paid in full when due, Hirer shall pay Owner the default charges specified on page one of this Agreement. (f) Owner shall be entitled to charge interest on any Rental Payment or other sum due to Owner under this Agreement but unpaid at a rate of 2% (two per cent) per month from its due date to the date of payment, such interest to run from day to day and after as well as before judgment. Such interest shall be compounded monthly. (g) Owner may charge Hirer an administration fee (as advised at the relevant time) for; (i) any copies of this Agreement, invoices, settlement quotes or VAT schedules Hirer requests; and/or (ii) providing any statement of account, assignment or change of contract documentation, other than those to which Hirer is entitled free of charge, by law. (h) Owner reserves the right to arrange for the Equipment to be disconnected in the event monies are overdue and outstanding by Hirer. Once the overdue amounts have been paid, Owner may arrange for the Equipment to be reconnected and a reconnection fee may be payable by Hirer. This would include disconnection of a terminal on an alternative Agreement (which may or may not be delinquent) under the same entity. (i) Owner may charge Hirer an administration fee of R50 where a direct debit payment is rejected by the Hirer’s bank. In such circumstances Owner may re-submit the debit payment request on the 15th day of the month following the initial rejection (or the first business day thereafter if the 15th falls on a weekend or public holiday).(j) Where Hirer disputes any debit payment with its bank and it is subsequently found that the payment was due, Hirer shall reimburse Owner with any charges levied by Owner’s bank (at the date of printing R680, but subject to change). It is therefore advised that any dispute regarding debit payments are raised first with the Owner.(k) Rental payments may be increased as from 1st September each year by no more than the Consumer Price Index (CPI) plus 1%. Note: All fees and payments under this agreement are exclusive of VAT which shall be payable in addition.
- Change in/of Equipment. Owner may, if it considers it necessary to do so, and for such period or periods as it may deem expedient, replace the Equipment with other equipment of the same or similar type as the Equipment. The equipment so substituted shall then be subject to the terms and conditions of this Agreement. The Equipment has been supplied to Hirer in conjunction with the Equipment configuration requested by Hirer. If Hirer requests changes to the Equipment in order for the provision of additional facilities and Owner incurs any related costs from the Manufacturer or other third party, Owner will pass such costs to Hirer and collect them by direct debit.
- Software License. Owner and Manufacturer, as the case may be, retain all ownership and copyright interest in and to all computer software, related documentation, technology, know-how and processes embodied in or provided in connection with the Equipment (collectively “Software”), and Hirer shall have only a nonexclusive licence to use the Software in Hirer’s operation of the Equipment.
- Warranties and Limits of Liability. (a) Owner warrants to Hirer that it will perform its obligations under this Agreement with reasonable skill and care. (b) Hirer warrants that it has used its own skill and judgment in choosing the Equipment and not that of Owner, to the extent necessary it has taken advise from an independent source and not from Owner, and it is satisfied that the Equipment is suitable for all of its requirements. (c) Except as expressly provided in this Agreement and subject to any applicable law, all conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into this Agreement or any collateral contract, whether by statute, common law or otherwise, are hereby excluded. (d) Subject to mandatory provisions of law, the total liability of the Owner, whether in negligence, contract or otherwise and whether in connection with this Agreement or any collateral contract, shall in no circumstance exceed a sum equal to the aggregate amounts payable by Hirer under this Agreement. Subject to mandatory provisions of law, neither party shall be liable to the other (whether in negligence, contract or otherwise) for the following types of loss even if it has been advised of the possibility of such loss: (i) special damage, even though the party was aware of the circumstances in which such special damage could arise; (ii) loss of profits or anticipated savings: (iii) loss of, or damage to, data; or (iv) indirect or consequential loss.
- Indemnification. Hirer shall fully indemnify and hold Owner harmless from and against any and all losses, liabilities, damages and expenses, (including legal fees) resulting from (i) the operation, use, condition, liens against, or return of the Equipment; (ii) any breach by Hirer of any Hirer’s obligations under this Agreement, except to the extent any losses, liabilities, damages or expenses result from Owner’s negligence or willful misconduct; (iii) the enforcement of any provision of this Agreement or recovery of any payment due under this Agreement by Owner; (iv) Owner’s collection or recovery of the Equipment or (v) loss, theft or destruction of the Equipment.
- Early Termination. Hirer may terminate this Agreement prior to the expiration of the Rental Term by giving 1 (one) months’ notice and making the payment specified in clause 17 and returning the Equipment in accordance with clause 19 of this Agreement.
- Termination on Default. Owner may terminate the rental of the Equipment and/or this Agreement, if any of the following events occur: (i) if any debit of Hirer’s bank account initiated by Owner is rejected when due or if Hirer otherwise fails to pay Owner any amounts due under this Agreement within 10 (ten) days of it becoming due; (ii) if Hirer defaults in any material respect in the performance or observance of any obligation or provision of this Agreement or any other agreement between (a) Hirer and Owner or (b) Hirer and any holding company, subsidiary company or associated company of the Owner; (iii) an insolvency order is made against Hirer or Hirer petitions for his own insolvency or; (iv) Hirer makes any composition, scheme or arrangement with his creditors or calls a meeting of his creditors or is otherwise unable to pay its debts when due; (v) (where Hirer is a limited company) an application is made for the appointment of an administrator, liquidator, business-rescue practitioner or examiner or if a receiver is appointed in respect of Hirer’s assets or any part thereof or if Hirer enters into liquidation except a voluntary liquidation for the purpose of amalgamation or reconstruction on terms previously approved in writing by Owner or if Hirer becomes unable to pay its debts as they fall due; or (vi) (if Hirer is a partnership) any of the parties die or a petition is presented for an insolvency order against one of the partners or the partnership is dissolved. Any termination of this Agreement shall be without prejudice to any right of Owner in respect of any breach of this Agreement by Hirer committed prior to the date of return or repossession of the Equipment.
- Payments on Termination. Upon the termination of this Agreement, Hirer shall immediately pay to Owner all the arrears of Rental Payments, charges and fees due and unpaid at the date of termination. If this Agreement shall terminate in accordance with clauses 15 or 16 above or upon a repudiation or termination by Hirer accepted by owner, Hirer shall in addition pay to Owner (i) the cost of replacing or putting the Equipment into good order, repair and working condition (fair wear and tear only accepted); and (ii) an amount equal to all the Monthly Payments due for the remainder of the Rental Term less a discount of 3% (three per cent).
- Set-Off. Owner’s rights in and to the Rental Payments and any other amounts due under this Agreement are to the extent permitted by law absolute and unconditional and are not subject to any abatement, reduction, set-off, defence, counterclaim or recoupment due or alleged to be due, to or by reason of, any past, present or future claims which Hirer may have against Owner, Manufacturer or seller of the Equipment, or against any person for any reason whatsoever. If Hirer is required by tax authorities or by law to make any withholding or deduction, then the Monthly Payments shall be increased to the extent necessary to ensure that Hirer retains a net sum equal to the sum it would have received but for such withholding or deduction. Punctual Payments of the Monthly Payments and all other sums due under this Agreement is of the essence of this Agreement.
Owner may at any time (without notice to Hirer) set off and apply any or all sums due and payable by Owner to Hirer under this Agreement or any other agreement or procure the set off and application of all sums due and payable by Owner to Hirer under any agreement between Owner and Hirer against all sums due and payable by, and any liability incurred by, Hirer to Owner under this Agreement.
- Return of Equipment. When this Agreement or rental of the Equipment expires or is terminated, Hirer shall: (i) at its own expense, ensure the Equipment and peripherals are safely and properly stored until they are collected by Owner in accordance with (iv) below; (ii) not use the Equipment; (iii) ensure the Equipment and peripherals are returned to Owner clean with all markings removed in good condition (fair wear and tear excepted) and operating order and free from cracks, dents, scratches and stains; (iv) make the Equipment available for collection by Owner or its agent. If Hirer fails to make the Equipment and peripherals available for collection in accordance with this clause 12, Owner will charge to Hirer an amount equal to the cost of any repairs or improvements to the Equipment to restore it to good working condition or the full replacement value of each item of Equipment, as appropriate.
- Assignment. Hirer may not assign or transfer this Agreement without Owner’s prior written consent. Owner reserves the right to charge an administration fee for processing Hirer’s assignment request. For purposes of this Agreement, any transfer of voting control of Hirer or Hirer’s parent, and the merger of Hirer into another entity, shall be considered an assignment or transfer of this Agreement. Owner may assign and/or transfer this Agreement and Owner’s rights and obligations under this Agreement, in whole or in part, to any third party without the necessity of obtaining Hirer’s consent.
- Waiver. If Owner fails to exercise a right or remedy which arises from any breach of the terms of this Agreement by Hirer, either immediately or at all, such failure shall not prevent Owner from exercising that right or remedy subsequently in respect of that or any other breach. Any waiver of a breach of any term of this Agreement shall not be deemed a waiver of any subsequent breach and shall not affect the enforceability of any other term of this Agreement.
- Miscellaneous. Hirer must not claim capital allowances on the Equipment at any time and Hirer must give Owner when asked such information as is required concerning the Equipment, its location and the use of it.
If Hirer is 2 (two) or more persons, each is separately and jointly liable under this Agreement.
Notwithstanding termination or expiry of this Agreement any of Hirer’s liabilities capable of surviving termination or expiry, including the indemnity under clause 14, shall survive.
Any consent given by Owner will be conditional on no breach of this Agreement occurring while the consent is in force. If a breach occurs such consent shall be automatically withdrawn.
- Governing Law Jurisdiction. This Agreement and any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of the Republic of South Africa and the parties irrevocably agree that the courts of the Republic of South Africa shall have non-exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).
- Notices. All notices must be in writing, and shall be given (a) if sent by mail, when received, and (b) if sent by courier, when delivered; if to Hirer at the address identified on page one of this Agreement, and if to Owner at the address specified on page one of this Agreement to the attention of Owner’s Leasing Department.
- Entire Agreement Invalidity. This Agreement constitutes the entire Agreement between the parties with respect to its subject matter, and supersedes any previous agreements and understandings with respect to its subject matter and can be varied only by written agreement signed by all parties. Notwithstanding any other term of this Agreement, the consent of any person who is not a party to this Agreement is not required to vary this Agreement at any time. If at any time the whole or any part of any provision of this Agreement is or becomes invalid, illegal or unenforceable, the remaining parts and/or provisions shall continue in full force and effect.