GAP access agreement
Terms and conditions
1. Parties
1.1 The Parties to this Agreement are:
1.1.1 Nedbank; and
1.1.2 the Merchant.
1.2 The Parties agree as set out below.
2. Interpretation
2.1 In this Agreement, unless the context indicates otherwise:
2.1.1 'Acquirer' means Nedbank Limited, which owns the point-of-sale device and other electronic equipment used to process Client Card Transactions;
2.1.2 'Administration Fee' means R (including VAT), being the fee for the setup, preparation, completion and signing of all relevant documentation;
2.1.3 'this Agreement' means this Agreement for the Sale and Repurchase of Rights to Future Card Receivables and all annexures hereto;
2.1.4 'Applicable Law' means any present or future law (including common or customary law) or statement, practice note, constitution, decree, judgment, treaty, regulation, directive, by-law, order, published practise concession, ruling, assessment, request, notice, announcement, guidelines, or any other legislation measure (whether or not having the force of law) of any government, revenue, supranational, local government, authority, statutory or regulatory body or court;
2.1.5 'Business Day' means any day except a Sunday or statutory public holiday in the Republic of South Africa;
2.1.6 'Card(s)' means all debit, credit and prepaid cards issued under the licence of the following card networks: Visa, MasterCard, American Express, Diners Club International and China Union Pay;
2.1.7 'Card Processing Day' means every Business Day the Merchant sends Client Card Transactions to Nedbank for processing and settlement;
2.1.8 'Client Card Transactions' means card transactions concluded between the Merchant and the client who utilises Cards at the Merchant's business for payment in return for goods or services;
2.1.9 'Debit Order Processing Day' means a Business Day;
2.1.10 'Debit Order System' means the debit order remittance system used by the Merchant to pay the Remittance Amount to Nedbank;
2.1.11 'Default Event' means an event that will entitle Nedbank to terminate the Agreement immediately and enforce the provisions of clauses 10 and 12 hereof;
2.1.12 'Future Card Receivables' means the proceeds of the Merchant's future Card sales;
2.1.13 'Futures Fee' means R (including VAT), being the fee that Nedbank charges the Merchant for the repurchase of the rights to the Future Card Receivables;
2.1.14 'Merchant Agreement' means the Agreement between the Merchant and Nedbank for the provision of acquiring services;
2.1.15 'Nominated Bank Account' means the bank account nominated by the Merchant in this Agreement in Annexure A;
2.1.16 'Parties' means Nedbank and the Merchant and 'Party' means any one of them.
2.1.17 'Payment Date' means a Business Day;
2.1.18 'Purchase Price' means R , being the amount paid by Nedbank for the purchase of the rights to the Future Card Receivables from the Merchant;
2.1.19 'Remittance Amount' means %, being the daily amount the Merchant pays to Nedbank to pay the Repurchase Amount;
2.1.20 'Repurchase Amount' means R , being the total sum of the Administration Fee, Futures Fee and Purchase Price;
2.1.21 'Signature Date' means the date of signature of the Party last signing this Agreement;
2.1.22 'Tax' means any tax, levy, import or other charge of similar nature (including any penalty or interest payable in connection with any failure to pay or delay in paying any of the same); and
2.1.23 'Transfer Date' means the day on which Nedbank pays the Purchase Price into the Nominated Bank Account.
2.2 Words importing the singular include the plural and vice versa, words importing any gender include the other genders, and words importing persons include partnerships and bodies corporate.
2.3 The head notes to the paragraphs of this Agreement are inserted for reference purposes only and will not affect the interpretation of any of the provisions to which they relate.
2.4 If any provision in clause 1 or 2 is a substantive provision conferring rights or imposing obligations on any Party, then, notwithstanding that such provision is contained in such clauses, effect will be given thereto as if such provision were a substantive provision in the body of this Agreement.
2.5 Any term defined in the context of a specific clause in this Agreement will bear the meaning ascribed to it for all purposes of this Agreement, even if that term has not been defined in this interpretative clause, unless it is clear that the term so defined applies to that specific clause only.
2.6 Expressions defined in this Agreement will bear the same meanings in any annexure hereto that does not contain its own definitions.
2.7 Any reference in this Agreement to legislation or subordinate legislation is to such legislation or subordinate legislation at the date of signature hereof and as amended and/or reenacted from time to time.(Can we check the spelling please re-enacted)
2.8 Unless the context requires otherwise, when this Agreement prescribes any number of Business Days, they will include the first and exclude the last Business Day.
2.9 Where the date for the performance of an obligation in terms of this Agreement does not fall on a Business Day, the performance will be rendered on the immediately preceding Business Day.
3. Preamble
3.1 The Merchant is the absolute and sole owner of all Future Card Receivables.
3.2 The Merchant is prepared to sell the rights to a portion of Future Card Receivables to Nedbank, and Nedbank is prepared to purchase such rights on the terms and conditions set out in this Agreement.
4. Sale and repurchase
4.1 The Merchant hereby sells to Nedbank the rights to the Future Card Receivables for the Purchase Price.
4.2 Nedbank accepts such sale of the rights to the Future Card Receivables for the Purchase Price.
4.3 Nedbank will pay the Purchase Price free from any deduction or setoff into the Nominated Bank Account on the Transfer Date.
4.5 Subject to the payment of the Purchase Price to the Merchant, the Merchant will cede the rights to the Future Card Receivables to Nedbank on the Transfer Date, which cession Nedbank will accept subject to the terms and conditions stated in this Agreement.
4.6 The Merchant acknowledges that all its rights, title and interest in and to the Future Card Receivables will be ceded to Nedbank until the Repurchase Amount has been paid in full.
4.7 The rights to the Future Card Receivables will, on the Transfer Date, automatically belong to Nedbank without the need of any act of transfer.
4.8 The Merchant will repurchases the rights to the Future Card Receivables from Nedbank for the Repurchase Amount by means of the Remittance Amount.
4.9 The Merchant authorises Nedbank to deduct the Remittance Amount from the amount of the Future Card Receivables until the Repurchase Amount has been paid.
4. 10 Nedbank will be entitled, at its sole discretion, to decrease or increase the Remittance Amount.
4.11 Once the full Repurchase Amount has been paid by the Merchant, Nedbank will cede the rights, title and interest in and to the Future Card Receivables back to the Merchant.
5. Conditions precedent
5.1 Nedbank will pay the Purchase Price for the Future Card Receivables to the Merchant only if the Merchant has provided the following information to Nedbank:
5.1.1 any and all information required in terms of the Financial Intelligence Centre Act ('FICA');
5.1.2 confirmation that the Merchant has a current account held with Nedbank;
5.1.3 a certified copy of a resolution that the Merchant has passed (if applicable) for entering into this Agreement; and
5.1.4 a signed Merchant Agreement with Nedbank.
6. Remittance of the repurchase amount
6.1 Payment of the full Repurchase Amount, through payments of the Remittance Amount, will be made by the Merchant to Nedbank by utilising the Debit Order System.
6.2 The debit order will be created on the terms specified therein and be:
6.2.1 paid from the Nominated Bank Account; and
6.2.2 paid to Nedbank every Debit Order Processing Day.
6.3 If the Debit Order Processing Day falls on a public holiday, the processing bank will withhold the debit order payment until the next Debit Order Processing Day.
6.4 If a debit order is returned unpaid, Nedbank will be entitled to resubmit any unpaid or unprocessed debit order.
6.4 The Parties agree that the mechanism for payment of the Remittance Amount may be changed in the future as more effective, more efficient or more flexible payment mechanisms become available in the banking infrastructure. It is agreed by the Parties that such a change will only occur in the event that both Parties agree thereto in writing.
7. Ownership, risk and benefit
7.1 Subject to payment of the Purchase Price to the Merchant in accordance with the provisions of clause 4 above, ownership in and benefit in and to the Future Card Receivables will pass to Nedbank on the Transfer Date.
8. Representations
8.1 The Merchant undertakes and warrants to Nedbank that:
8.1.1 on the Transfer Date, the Payment Date and on each day during the period of this Agreement each Client Card Transaction will be free from all charges or other encumbrances and that the rights to the Future Card Receivables pertaining to each Client Card Transactions will be sold by the Merchant to Nedbank with full-title guarantee, and that no other person will have any right or interest in or to it; and
8.1.2 in the event of the Merchant being a juristic entity, the signatory to this Agreement has the legal capacity and has taken all necessary steps and corporate action required to empower and authorise the Merchant to enter into and implement this Agreement on the terms and conditions set out herein.
9. Additional warranties by the merchant
9.1 The Merchant undertakes and warrants that, for the duration of this Agreement, the Merchant will at all times:
9.1.1 conduct its business in a manner consistent with its past business practices, and not voluntarily cease operation of its business;
9.1.2 exclusively use the Nominated Bank Account for the processing and settling of all Client Card Transactions;
9.1.3 not take any action whatsoever to discourage the use of Cards to pay for goods or services by persons buying goods or services from the Merchant;
9.1.4 not permit any event to occur that could have an adverse effect on the use, acceptance or authorisation of debit or credit cards for the purchase of the goods and services;
9.1.5 not amend or terminate the Merchant Agreement with Nedbank, nor take any action that could give Nedbank any right to terminate the Merchant Agreement;
9.1.6 not take any action that may cause Nedbank to be changed as Acquirer, or to add any additional acquirer;
9.1.7 not conduct its business under any name other than the business/trading name stated in this Agreement;
9.1.8 not sell, factor or discount any rights to the Future Card Receivables, except to Nedbank;
9.1.9 not alienate or encumber any rights to the Future Card Receivables;
9.1.10 not sell, dispose, convey or transfer its business or assets to any person, unless that person first agrees with Nedbank in writing to assume all its obligations under this Agreement;
9.1.11 not change the place of business from the business address stated in this Agreement, unless Nedbank is notified;
9.1.12 not make any representation or statement in the Agreement or in any other document provided by the Merchant in connection with this Agreement that is incorrect or misleading in any material respect when made;
9.1.13 not do (or fail to do, as the case may be) anything to avoid complying with any of your obligations contained in this Agreement;
9.1.14 provide Nedbank with such further information regarding its financial condition, business operations required to maintain the accuracy of the information held by Nedbank, or as Nedbank may reasonably request;
9.1.15 not stop or reduce any Client Card Transactions on the Nedbank point-of sale device and not redirect Future Card Receivables to another acquirer; and
9.1.16 promptly notify Nedbank of the happening of any Default Event.
10. Default events
10.1 Each of the events or circumstances in this clause is a 'Default Event':
10.1.1 if the Merchant does not comply with any term or condition of this Agreement or any representation or warranty; or
10.1.2 If the debit order instruction is not completed or is invalidated and Nedbank does not receive the daily payment of the Remittance Amount for more than three consecutive Debit Order Processing Days.
10.2 Notwithstanding the provisions of clause 10.1, Nedbank will have the right to terminate this Agreement if:
10.2.1 the Merchant commits an act of insolvency as contemplated by the Insolvency Act;
10.2.2 an order is made by any court of competent jurisdiction, whether provisional or final, for the winding-up or sequestration of the Merchant or the business (as the case may be);
10.2.3 the Merchant passes a resolution for voluntary winding-up;
10.2.4 the Merchant ceases to carry on business or dispose of the business or change the fundamental nature of the business and/or dispose of the major portion of the assets other than for value;
10.2.5 the Merchant assigns its rights under this Agreement to any third party without Nedbank's prior written consent;
10.2.6 the Merchant compromises generally with the creditors other than in the course of the restructuring of the capital or the Merchant merges with a third party; or
10.2.7 the Merchant applies for or enters into the process of business rescue as contemplated in the Companies Act, 71 of 2008.
10.3 At any time after a Default Event, Nedbank will have the right, in addition to exercising any other right, power or remedy it has in law:
10.3.1 in the case of a Default Event contemplated in clause 10.1 of this Agreement, to demand by written notice that the Merchant rectify its breach within five days of receipt of a written notice; and
10.3.2 in the case of any other Default Event, or if the Merchant fails to rectify its breach of this Agreement after five days of receipt of demand to do so in terms of clause 10.3.1 above, to terminate all or any obligations Nedbank may have to the Merchant under this Agreement by written notice to the Merchant, and to claim as liquidated damages the full amount Nedbank would have received as the amount due had the Merchant not committed the breach or had the Default Event not occurred.
10.4 Notwithstanding any termination by Nedbank of all or any of its obligations to the Merchant under this Agreement or any termination of this Agreement, the Merchant indemnifies Nedbank from and holds it harmless against all liabilities, losses, costs or expenses, including court costs and legal fees, that Nedbank may suffer, incur or sustain arising out of:
10.4.1 the happening of any Default Event or any termination of this Agreement;
10.4.2 a breach by the Merchant of its representations or covenants in, or any of the terms and conditions of, this Agreement or any suretyship; and/or
10.4.3 the protection and enforcement by Nedbank of its rights and remedies under and in respect of this Agreement and any guarantee and indemnity.
11. Data permissions and consents of the merchant
11.1 By entering into this Agreement the Merchant confirms, acknowledges and agrees that Nedbank may use the details of its application to Nedbank in respect of this Agreement or any transaction under it, any accounts with Nedbank or other information held by Nedbank (which may include personal information about the directors, officers, members or other individuals) for the purposes of:
11.1.1 considering the application to Nedbank in respect of this Agreement;
11.1.2 monitoring the operation of the Agreement;
11.1.3 enquiring with (or, where appropriate, doing searches at) vendors, suppliers, landlords/mortgagers, credit reference agencies, card transaction processors, banks and creditors about the Merchant, its directors and officers, members, or any surety or other individuals;
11.1.4 making credit decisions, assessing financial risks and preventing and detecting fraud and crime (including money laundering);
11.1.5 training;
11.1.6 marketing Nedbank's products and services; and
11.1.7 business management and product insight.
12. Acceleration
12.1 If the Merchant breaches any one or more of clauses 10.1 to 10.4 above and if the Merchant fails to rectify its breach within five days of receipt of written notice demanding rectification of its breach, then Nedbank will be entitled to terminate this Agreement and claim from the Merchant as liquidation damages the full amount that Nedbank would have received had the Merchant not committed the breach.
12.2 This amount will be the full Repurchase Amount less any amounts that Nedbank may have received up to the date of breach.
12.3 A certificate issued under the signature of Nedbank or its duly authorised agent that serves to certify the amount due by the Merchant in terms of this Agreement will be accepted as prima facie (face value) proof of the Merchant's indebtedness to Nedbank.
12.4 This certificate will be sufficient for Nedbank to obtain a summary judgement or provisional sentence against the Merchant in any competent court for the amount stated in the certificate.
12.5 The Merchant accepts that, to defend such action, it will need to prove that the amount on the certificate is not the amount it owes Nedbank.
13. Suretyship
13.1 If the Merchant is a juristic entity, the members or directors of the entity will be required to sign a deed of suretyship in their personal capacities.
14. Confidentiality
14.1 Each of the Parties must treat the terms of this Agreement and the transactions contemplated herein as confidential.
14.2 A Party may disclose such confidential information only if and to the extent:
14.2.1 required by applicable law; or
14.2.2 required by a regulatory body to which such Party is subject; or
14.2.3 disclosed to such Party's professional advisors or to Nedbank if such advisors and/or Nedbank are informed of the confidential nature of the information; or
14.2.4 such information has come into the public domain through no fault of that Party; or
14.2.5 the other Party has given prior written approval to the disclosure thereof, which approval may not be unreasonably withheld or delayed.
14.3 Any information that a Party is permitted to disclose in terms of clause 14.2 may only be so disclosed if the Party has been notified in writing thereof.
15. Independent advice
15.1 The Parties acknowledge that they have taken independent expert advice relating to the transaction contemplated by this Agreement, and that they have agreed to sign this Agreement as a result of their own investigations and enquiries, and have not relied on any warranty, representation or assumption.
16. Severability
16.1 The Parties agree that each clause of this Agreement will be severable from the others and if any clause is found to be defective or unenforceable for any reason by a court, the remaining clauses will remain of full force and effect.
17. Jurisdiction
17.1 Each of the Parties will be entitled to institute all or any proceedings against the other party in connection with this Agreement in Johannesburg and such other Party hereby consents and submits to the non-exclusive jurisdiction of that court.
18. Notices and domicilia
18.1 For the purposes of giving notice and serving legal process in terms of this Agreement each of the Parties chooses a domicilium citandi et executandi ('domicilium') as follows:
18.1.1 Nedbank
18.12 The Merchant
18.2 Any Party may at any time, by notice in writing to the other Parties, change its domicilium to any other address in the Republic of South Africa that is not a post office box or poste restante.
18.3 Any notice given in connection with this Agreement must, except where a particular form of notice is stipulated, be:
18.3.1 delivered by hand; or
18.3.2 sent by courier; or
18.3.3 sent by fax (if the domicilium includes a fax number); or
18.3.4 sent by email (if the domicilium includes an email address)
to the domicilium chosen by the Party concerned.
18.4 A notice given as set out above will be deemed to have been duly given (unless the contrary is proved):
18.4.1 if delivered by hand, on the date of delivery; or
18.4.2 if sent by courier, on the date of delivery by the courier service concerned; or
19.4.3 if sent by fax, 24 hours after transmission; or
18.4.4 if sent by email, 24 hours after transmission.
19. No waiver
19.1 No relaxation, indulgence or extension of time granted by Nedbank to the Merchant must be construed as a waiver of any of Nedbank's rights in terms hereof or as a novation of any of the terms of this Agreement or estop Nedbank from enforcing strict and punctual compliance with the terms of this Agreement.
20. No variation
20.1 No variation of, addition to, consensual cancellation of or waiver of any right arising in terms of this Agreement (including this clause 20) will be of any force or effect, unless it is reduced to writing and signed by a duly authorised representative of each of the Parties.
21. Governing law
21.1 Any dispute, question or difference arising at any time between any of the Parties to this Agreement in regard to any matters arising out of this Agreement or the rights and duties of any of the Parties to this Agreement or the interpretation, rectification or termination of this Agreement or any matter arising out of such termination will be determined pursuant to the law of the Republic of South Africa.
22. Costs
22.1 Each Party will bear its own legal costs of all matters incidental to the negotiation, drafting and implementation of this Agreement.
23. Execution
23.1 This Agreement may be executed in separate counterparts, none of which needs to contain the signatures of all the Parties and each of which will be deemed to be an original agreement, together constituting one and the same agreement at the date of signature of the Party last signing one of the counterparts. The Parties undertake to take whatever steps may be necessary to ensure that all counterparts are duly signed by each of them.
23.2 This Agreement will be valid and binding on the Parties hereto, notwithstanding that one or more of the Parties may sign a fax copy and whether or not such fax copy contains the signature of any other Party.
24. Authority
24.1 The Merchant warrants to Nedbank that at all relevant times the Merchant is duly established and existing under the laws of the Republic of South Africa with the power to enter into and exercise its rights and perform its obligations in terms of this Agreement.
25. General
25.1 This Agreement, the debit order instruction and any annexures and appendices attached hereto constitute the whole Agreement between the Parties hereto relating to the matters dealt with in this Agreement and, except to the extent otherwise provided herein, no undertaking, representation, term or condition relating to the subject matter of this Agreement not incorporated in this Agreement will be binding on any of the Parties.
25.2 Except as otherwise herein provided, neither this Agreement nor any part, share or interest herein nor any rights or obligations hereunder may be ceded, assigned or otherwise transferred by the Merchant without the prior written consent of Nedbank. The Merchant further hereby consents to the cession, assignment or other transferral of any of Nedbank's rights or obligations in terms of this Agreement.
25.3 Any consent or approval required to be given by any Party in terms of this Agreement will not be unreasonable withheld, unless specifically otherwise stated.