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1.1. In this Agreement, unless the context otherwise requires:
1.1.1. “Agreement” means this entire agreement;
1.1.2. “Business Day” means any day or other than a Saturday, Sunday or official public holiday in South Africa.
1.1.3. “Card” means a valid credit or debit card issued by a South African bank in your name.
1.1.4. “Customer”/”you”/”your” means the person who makes use of the Payflex Platform to purchase Goods from a Retailer;
1.1.5. “Default Fee” means the fee of R75.00 (including VAT) charged if you miss an Instalment Payment or part thereof is unpaid, and which will be charged weekly for a maximum of 3 (three) charges until your overdue balance is paid in full.
1.1.6 “Default Interest” means the interest charged on an overdue balance (excluding Default Fees) at a rate of 2.00% per month once the Instalment Plan is deemed to be an incidental credit agreement in accordance with the NCA.
1.1.7. “Goods” means the goods or services that you are buying from the Retailer Site.
1.1.8. “Instalment Plan” means the two weekly payment plan for the Purchase Price of your Goods, showing the amounts due by you, including any Default Fees, and the date on which such amounts are due, and described on the Payflex Platform as the instalment schedule.
1.1.9. “Instalment Payment” means a periodic payment detailed in the Instalment Plan.
1.1.10. “NCA” means the National Credit Act 34 of 2005, together with its regulations, as amended from time to time
1.1.11. “Payflex”/”we”/”us”/”our” refers to Payflex Proprietary Limited, a private company with limited liability duly incorporated under the laws of South Africa, with registration number 2017/406318/07;
1.1.12. “Payflex Platform” means the proprietary technology platform developed by Payflex for purposes of providing the Payment Services;
1.1.13. “Pay-Later Service” means the service offered by Payflex that, subject to the approval by Payflex, allows Customers to pay the Purchase Price over an Instalment Plan;
1.1.14. “Payflex Website” means www.payflex.co.za;
1.1.15. “Payment Service” includes the Pay-Now Service and the Pay-Later Service, and any other service that may be offered to Customers by Payflex;
1.1.16. “Pay-Now Service” means the service offered by Payflex that allows Customers to pay the Purchase Price in full in a single payment;
1.1.17. “Personal Information” has the meaning assigned thereto in POPI;
1.1.18. “POPIA” means the Protection of Personal Information Act 4 of 2013;
1.1.20. “Processing” has the meaning assigned thereto in POPIA and “Process” and “Processed” shall have corresponding meaning;
1.1.21. “Purchase Price” means the full purchase price (inclusive of VAT) payable in respect of any Goods purchased by a Customer, including any delivery or other costs included in the price;
1.1.22. “Refund” means a refund of a Purchase Price;
1.1.23. “Retailer” means the retailer who has integrated the Retailer Site with our Payflex Platform in order to provide the Payment Services.
1.1.24. “Retailer Site” means the e-commerce or physical site of the Retailer.
2.THE PAY LATER SERVICE
2.1. Upon our acceptance of your request for the Pay-Later Service on our Platform, we undertake to pay the Retailer the Purchase Price for the Goods you have selected to purchase on your behalf, and you agree to pay us in accordance with the Instalment Plan, subject to the terms and conditions contained in this Agreement.
2.2. The Goods that you have purchased are governed by the relevant terms and conditions and policies of that Retailer. Your agreement in respect of the Goods is with the Retailer. Your agreement in respect of the Instalment Plan is with us.
2.3. Once you have entered into an Instalment Plan, we cannot amend or cancel any such plan without written confirmation from the Retailer in accordance with clause 10 (Refund Arrangements).
3. THE PAY NOW SERVICE
3.1. Upon our acceptance of your request for the Pay-Now Service on our Platform, we undertake to settle the Retailer for the Purchase Price for the Goods you have selected to purchase and paid for, subject to the terms and conditions contained in this Agreement.
3.2. The Goods that you have purchased using the Pay-Now Service are governed by the relevant terms and conditions and policies of that Retailer. Your agreement in respect of these Goods is with the Retailer and the provisions of clause 6 (Retailers) apply to you when using the Pay-Now Service.
4. OUR OBLIGATIONS AND ACKNOWLEDGEMENTS
4.1. If your request for the Pay-Later Service is approved, Payflex shall pay to the Retailer the Purchase Price for the Goods on your behalf.
4.2. Where you have entered into an Instalment Plan, we will continue to fulfil our obligations to you unless the Instalment Plan is terminated in accordance with this Agreement.
4.3. We do not guarantee acceptance to the Pay-Later Service and reserve the right to decline your request for the Pay-Later Service at our sole discretion, even if you have previously used the Pay-Later Service and paid your instalments in full and on time for other transactions.
4.4. Our discretion will be exercised reasonably.
5. YOUR OBLIGATIONS AND UNDERTAKINGS
5.1. In respect of the Pay-Later Service:
5.1.1. in return for us paying the Retailer the Purchase Price on your behalf for the Goods, you agree to pay us in accordance with the Instalment Plan plus any applicable Default Fees charged when an Instalment Payment is not received on time or paid in full, subject to the conditions set out in clause 8 (Missed Payment) below;
5.1.2. you warrant that all of the information that you provide to us is true, complete, accurate and correct, and that you will immediately notify us if any of this information changes; and
5.1.3. if your application is not complete or if you don’t provide us with any required documentation, we may contact you to obtain the required information or documentation, or we may approve or decline your application.
5.1.4. You confirm that you:
220.127.116.11. are a permanent resident of South Africa;
18.104.22.168. are over 18 years of age;
22.214.171.124. lawfully reside in South Africa on a permanent basis;
126.96.36.199. are permanently employed or self-employed in South Africa;
188.8.131.52. are not currently over-indebted;
184.108.40.206. are not going through financial difficulty;
220.127.116.11. have not been declared mentally ill or unfit by a court;
18.104.22.168. have not applied for or are currently under administration, provisional or final sequestration or debt review; and
22.214.171.124. have a valid debit or credit card issued by a South African bank in your name.
5.1.5. You unconditionally and irrevocably agree that we are entitled to debit your Card account in accordance with the Instalment Plan, including any Default Fees.
5.1.6.You agree to have sufficient funds available in your Card account to cover all Instalment Payments when due in full, or alternatively to pay the Instalment Payments in full before the due date.
5.1.7. You agree to pay all amounts due under the Instalment Plan irrespective of any issue or dispute with respect to the Goods or the Retailer, regardless of whether you currently own or have the Goods in your possession or if they were ordered as a result of any unauthorised or fraudulent use of your account.
5.1.8. You agree that each Instalment Plan entered into is a new transaction and that your use of the Payflex Platform and the Payment Services is at our discretion, and that there is no guarantee that the Payflex Platform or the Payment Services will be available for any purchase of Goods.
5.1.9. You agree not to apply any set-off or other deduction from any Instalment Payment for any reason including any dispute or issue you may have with the Retailer, the Retailer Site or in relation to the Goods supplied by the Retailer or if Goods were ordered as a result of any unauthorised or fraudulent use of your account.
5.2. You are liable for any fees or costs that your bank may charge you when payment is made using your Card.
5.3. You accept all risk and liability related to the sale of the Goods by the Retailer and agree that we are not responsible for the delivery, suitability or quality of any Goods you have elected to purchase. You agree to contact and claim against the Retailer in the event of any issue with the Goods or if you wish to return any Goods.
5.4. You agree to keep your account details and password private and confidential, and that you are responsible for any orders placed using your account details including any unauthorised or fraudulent use of your account. Accordingly, you agree to indemnify us and accept all legal responsibility and liability for all specific and related losses arising as a result of any fraudulent activity or unauthorised use of your account.
5.5. You agree to contact us immediately if you reasonably suspect that your account may have been used or will be used by an unauthorised third party or if you suspect fraudulent activity on your account. We will not be responsible if you fail to notify us and will not cover any unauthorised and/or fraudulent transactions which will be your responsibility.
5.6. If there is unauthorised use or fraudulent activity on your account or if we suspect that there may be unauthorised use or fraudulent activity or if we are compelled to do so by law, we may immediately suspend your account without notice and you indemnify us against any losses or harm we may incur as a result.
6.1. We do not guarantee and have no responsibility for:
6.1.1. he suitability, quality or delivery of any Goods purchased by you from the Retailer; or
6.1.2. the availability of any Goods, all of which are the responsibility of the Retailer.
6.2. Any dispute that you have about the Goods (including but not limited to the quality, non-delivery or return of Goods) must be resolved directly with the Retailer.
6.3. We will not be liable to you if any Retailer refuses to accept our Payment Services for any Goods purchased. You will not have the right to claim anything from us or to institute any counterclaim against us or to apply set-off against us on this basis or any other basis whatsoever.
6.4. You cannot withhold any payments on the Instalment Plan as a result of any disputes that you may have with the Retailer.
6.5. If you have a dispute with a Retailer, that dispute will not entitle you to:
6.5.1. instruct us to refuse to pay the Retailer for Goods purchased by you;
6.5.2. refuse to pay us for payments already made to the Retailer, irrespective of whether such payment was made in respect of the Goods that are the subject-matter of a dispute; or
6.5.3. instruct us to reverse a payment already made to the Retailer.
7. INTEREST AND FEES
7.1. No fees or interest will be charged in respect of the Instalment Plan, provided that all Instalment Payments are paid in accordance with the Instalment Plan.
7.2. No fees will be charged to open or use a Payflex account.
7.3. Default Fees and Default Interest will be charged in accordance with clause 8 and 9 below if an Instalment Payment is not paid in full on the due date as detailed in the Instalment Plan.
8. MISSED PAYMENT
8.1. The Instalment Plan provided to you will serve as the account for the payments required under the Instalment Plan and will indicate the due date for each Instalment Payment to be made.
8.2. If we have not received an Instalment Payment on its due date, then we will automatically charge a Default Fee of R75.00 to the Instalment Plan and will continue to charge an additional Default Fee every week thereafter, until either (i) we have received full payment on your outstanding balance (including any Default Fees) or (ii) you have been charged a maximum of three (3) Default Fees on an Instalment Plan.
8.3. In the event that we are unsuccessful in obtaining payment from your Card account on the due date, you irrevocably authorise us to take payment of an Instalment Payment including any Default Fees from your Card account 3 (three) days after the original due date and if that is not successful, 7 (seven) days after the original due date.
8.4. We reserve the right to further try and recoup any Instalment Payment and any Default Fees at any later dates.
8.5. Payflex reserves the right, in its absolute discretion to waive or defer any Default Fees. Any express election we make to temporarily or permanently waive payment by you of a Default Fee or other amount due to us under an Instalment Plan does not imply a waiver of any other amount due and we reserve all rights to make demand for such amounts.
8.6. Total Default Fees charged shall be capped at the lower of R225 (including VAT) or 50% of the Purchase Price (including VAT).
9. OVERDUE AMOUNTS
9.1. If there is an unpaid balance on your Instalment Plan post the final Instalment Payment date then:
9.1.1. we may charge Default Interest on any overdue amount (excluding Default Fees) once the Instalment Plan is deemed to be an incidental credit agreement in accordance with the NCA;
9.1.2. Default Interest will be calculated on a daily basis and added to the outstanding balance (in other words, compounded) on a monthly basis; and
9.1.3. to the extent permissible in law, you may also be charged default administration charges and collections costs incurred.
9.2. We may approach a court to take judgment against you for the debt owed by you to us in terms of this agreement. If we do, a certificate signed by any one of our managers (whose appointment and authority need not be proved) stating the amount that you owe us and the applicable interest rate, shall be accepted as sufficient proof of your indebtedness and shall be deemed correct unless you are able to prove otherwise.
9.3. The address that you gave us when registering for the Payment Service application is the address that you choose where legal documents may be served on you. If we are able to serve documents on you electronically, the e-mail address that we have on record for you will be used. If you wish to change your physical address, e-mail address and/or cellphone number, you must give us notice hereof and any such change will take effect 7 Business Days after we receive such notice.
9.4. If you have a query or complaint, contact our customer services department at firstname.lastname@example.org for a resolution. If you are not satisfied with the outcome of your query or complaint, you have the right to resolve the matter by way of alternative dispute resolution. If this Agreement becomes an incidental credit agreement, you can file any complaints with the National Credit Regulator (contact number 0860 627 627) or make application to the National Credit Tribunal.
10. REFUND ARRANGEMENTS
10.1. Any full or partial return of the Goods is subject to the Retailer’s returns policy and applicable laws and must be settled with that Retailer.
10.2. We will only amend an Instalment Plan and process a Refund once the Retailer has requested us to do so in writing.
10.3. The Instalment Plan is automatically adjusted by the Payflex Platform by applying the refund amount to the last instalment first and working backwards to the other instalments.
10.4. For full refunds, the refund amount will be equal to the sum of instalments paid to date.
10.5. Where you have used a discount Coupon to pay for an order, and you or Payflex later cancels your order (or part thereof) prior to delivery of the relevant product(s), or you log a return of one or more products for a credit in accordance with this Policy, the value of the Coupon will be deducted from the purchase price of the cancelled or returned product(s) (as applicable), and we will credit your account for the balance, if any (or refund you if that is your preference). For any subsequent cancellations or returns arising out of the same order, we will credit your account as normal with the value of the returned product (or refund you if that is your preference).
10.6. For partial refunds, if the refund amount is greater than the instalments still due, then we will refund you the difference and mark the Instalment Plan as paid up; if the refund amount is less than the instalments still due, then we will adjust the Instalment Plan accordingly to reflect the revised amount still due.
10.7. Where a cash refund is due to you, we will credit your Card account, which may take up to 7 (seven) Business Days to reflect on your Card account.
10.8. If a Retailer refunds you directly in cash, vouchers or the like, you will remain responsible for payment of the Instalment Plan, notwithstanding such refund.
10.9.You can view your revised Instalment Plan on the Payflex Customer Portal.
11. PERSONAL INFORMATION
11.2. You undertake to furnish us with all information, including Personal Information, and/or documentation required by us.
11.3. You agree to give honest, accurate and current Personal Information about yourself to us and to maintain and update such information when necessary and you agree to indemnify us against any losses or harm we may incur as a result of our reliance on inaccurate information about you provided to us.
11.4. You agree and consent that we may transmit to registered credit bureau(s) information concerning –
11.4.1. this Agreement and the termination thereof; and
11.4.2. any non-compliance by you with the terms of this Agreement.
11.5. You acknowledge that such credit bureau(s) may provide a credit profile and possibly a credit score on your creditworthiness. You have the right to contact such credit bureau(s), to have the credit record(s) disclosed and to correct any inaccurate information.
11.6. You agree that we may seek information from any credit bureau when assessing your application, and at any time during the existence of this Agreement.
11.7. You acknowledge and expressly consent that we may Process your Personal Information for the following reasons (amongst others):
11.7.1. to verify information that you provided to us and generally make whatever enquiries we may deem necessary from any source whatsoever;
11.7.2. to conclude this Agreement and for purposes of providing the Payment Services to you and complying with your instructions;
11.7.3. to prevent, detect and report fraudulent and criminal activities and to identify the proceeds of unlawful activities and combat money laundering activities and to assist law enforcement agencies in this regard;
11.7.4. to comply with any obligation imposed by applicable laws on us, including statutory and regulatory requirements in respect of the storage and maintenance of documents and information;
11.7.5. to comply with valid requests for information, including subject access requests and requests in terms of the Promotion of Access to Information Act 2 of 2000. Our PAIA Manual can be accessed here;
11.7.6. to comply with information requests by regulators or bodies lawfully requesting the information (e.g. tax authorities);
11.7.7. to assess Customer complaints;
11.7.8. to provide information to you about products or services which may be of interest to you;
11.7.9. to enforce and collect payments when you are in default or breach of this Agreement;
11.7.10. to conduct market and behavioral research including scoring and analysis to determine if you qualify for products and services;
11.7.11. to develop, test and improve products and services for you;
11.7.12. for historical, statistical and research purposes;
11.7.13. to process payment instruments;
11.7.14. to manage and maintain your accounts and relationship with us;
11.7.15. to disclose and obtain information from credit bureaus;
11.7.16. to enable us to communicate and deliver notices or documents to you;
11.7.17. for security, identification and to check the accuracy of your information; and
11.7.18. for internal purposes such as training and monitoring.
11.8. Unless you object, we may share your Personal Information with third parties, including business partners, where it is in our or their legitimate interests to do so, and, if permitted in terms of relevant laws, for purposes of direct marketing.
11.9. We may Process your Personal Information outside of the borders of South Africa, according to the safeguards and requirements of the law. These safeguards may include transferring and storing your Personal Information in a country that has equivalent, or better, data protection legislation than South Africa or with a service provider which is subject to an agreement requiring it to comply with data protection requirements equivalent or better than those applicable in South Africa.
11.10. We may process your information using automated means (without human intervention in the decision making process) to make a decision about you or any application made under this Agreement. You are allowed to request more information and make representations about the process of making such a decision.
11.11. We may use your de-personalized information for product development and research.
11.12. You have the right to access your Personal Information held by us. We shall provide you with such access during office hours within a reasonable time after receiving a written request for access.
11.13. You acknowledge that any Personal Information supplied to us is provided voluntarily and that we may not be able to comply with our obligations under this Agreement or provide you with the Payment Services if you do not provide the requested Personal Information to us.
11.14. By submitting any Personal Information to us in any form you further acknowledge that such conduct constitutes an unconditional, specific and voluntary consent to the Processing, including the storage, of such Personal Information by us under any applicable law in the manner contemplated in clause 11.7 above. This consent is, in the absence of any written objection received from you, indefinite and/or for the period otherwise required in terms of any applicable law.
11.15. Should you believe that we have utilised your Personal Information contrary to applicable law, you agree to first attempt to resolve any concerns with us. If you are not satisfied with such a process, you have the right to lodge a complaint with the Information Regulator.
12. OUR COMMUNICATIONS WITH YOU
If we need to contact you we may call or text your mobile number or contact you through the email or physical address that you have provided.
13. INTELLECTUAL PROPERTY
All intellectual property in our Payflex Platform, including any content, images, logos or graphics are owned by us. You must obtain our written permission if you wish to use any such intellectual property.
14.1. You may not cede your rights or delegate your obligations or otherwise assign, novate or transfer your rights and obligations under this Agreement, the Instalment Plan or any Instalment Payment without our consent, which may be withheld in our absolute discretion.
14.2. We may cede our rights and delegate our obligations or otherwise assign this Agreement, any right in this Agreement, or any Instalment Plan or any Instalment Payment to a third party without your consent.
15. LIMITATION ON LIABILITY
15.1. We will not be liable for anything outside of our reasonable control (for example, a failure of computer systems, or power failures which happen for reasons outside our reasonable control) or any industrial action, or political unrest, war, if this prevents us from providing our usual service.
15.2. To the extent permissible in law, and provided that we did not act fraudulently or with gross negligence, we will not be liable for any loss or damage sustained by you or a third party arising from the use of our Payment Services.
16.1. Nothing in this Agreement shall create, constitute or evidence any partnership, joint venture, agency, trust or employer/employee relationship between us.
16.2. No waiver of any breach of this Agreement shall be deemed to be a waiver of any other, or any subsequent, breach. No failure or delay by any party in exercising any rights, power or privilege under this Agreement shall operate as a waiver, nor shall any single or partial exercise preclude any other or further exercise of any right, power or privilege under this Agreement.
16.3. This Agreement constitutes the entire agreement between us as it relates to a specific purchase of Goods and the relevant Instalment Plan. Each new purchase of Goods by way of the Pay-Later Service and associated Instalment Plan shall form a new Agreement.
16.4. If any provision of this Agreement is held to be invalid, illegal or unenforceable, it will be severed and the remainder of the Agreement will remain in full force and effect.
16.5. This Agreement shall be governed by and interpreted in accordance with the laws of South Africa. The parties irrevocably agree that the courts of South Africa shall have non-exclusive jurisdiction.
16.6. When you use our website or any of our other electronic channels, you do so entirely at your own risk. We cannot be held liable for any damage or loss sustained by you, or a third party, arising out of your access or use of our electronic channels, or reliance on any information contained thereon. You indemnify us accordingly. We do not warrant that the functions provided by these channels will be uninterrupted or error free, or that the website or the server that makes it available are free from viruses or other harmful components. We further do not warrant that the content or information displayed is always accurate, complete and/or current.
16.7. Should you wish to receive copies of documents relating to your account, you must advise us of the manner in which you want these to be delivered to you (provided we have the ability to effect the delivery you choose). In certain instances, we are entitled to charge a fee for such copies.
16.8. We can delay enforcing our rights under this agreement without losing them.
16.9. If we cannot enforce any term under this agreement, it will not affect any of the other terms of this agreement.
16.10. Each and every undertaking and clause as contained herein shall be capable of independent enforcement, thus enabling any court or other competent tribunal to enforce the remainder of this agreement should it adjudge any particular undertaking or portion or clause thereof to be invalid.