1. Interpretation

In this Agreement, unless inconsistent with or otherwise indicated by the context:

1.1 “the Act” means the Consumer protection Act 68 of 2008;
1.2 “Agreement “means the Terms, the Application and the Delivery Note to be read as one document;
1.3 “Debit Order” means where applicable, the Debit Order Authorisation completed by You for payment of the Purchase Price;
1.4 “Delivery” means the handing of the Goods to You after You have signed the Delivery Note acknowledging the date and fact of receipt of the Goods;
1.5 “Delivery Note” means the delivery note which is to be signed on Delivery;
1.6 “Goods” means the goods ordered by you and described in the Application and Delivery Note;
1.7 “Loss” means loss, liability, claims, costs, charges, damages and outgoings of every description (including legal costs and expenses), compensation payable under contracts, tracing and collection charges;
1.8 “Purchase Price” means the purchase price payable for the Goods as set out in the Application;
1.9 “supplier” means the manufacturer, distributor or importer of the goods as specified on the packaging of the goods;
1.10 “We/Our or Us” means Le Morgan Direct Marketing (Pty) Limited ( Registration Number 2005/007988/07), its successors-in-title or assignees;
1.11 “Working Day” means a day of the week other than a Saturday, Sunday or any other public holiday recognised as such by the government of the Republic of South Africa;
1.12 “You/Your or Yourself” means the person or persons named in the Application being the purchaser of the Goods including the executor of Your estate on Your death and the liquidator on Your sequestration;
1.13 Please note that certain clauses have been bolded so that You understand and that it is clearly bought to Your attention in terms of the Act that You will not have a claim against Us in those circumstances highlighted.

2. Sale

2.1 We hereby sell the Goods to You and You hereby purchase the goods from Us upon the terms and conditions set out in this Agreement.
2.2 You may also agree to purchase the Goods telephonically and then verbal confirmation of the Terms , monthly payments, due period, total commitment and the date of the first and final payment will be recorded and stored and will be deemed to be Your acceptance of this agreement.
2.3 The verbal recording is legal proof of Your acceptance of this Agreement.
2.4 The Terms will be delivered to You after your verbal acceptance of the Sale as part of the Delivery Note.

3. Purchase Price and Payment

3.1 The purchase price for the Goods is set out in the Application and the Delivery Note.
3.2 No interest, fee or charge is payable on any monthly payments of the Purchase Price.
3.3 You understand and agree that the purchase price will still be due and payable in full in the event of the Goods being damaged, destroyed, lost, stolen or no longer of any use other than as a result of bad workmanship, a fault in quality or a “defect” as described in the Act.
3.4 To the extent that payments are by way of Debit Order, then deduction will be made in terms of the Debit Order Authorisation. Where a debit order is unsuccessful a fee of R120 will be payable to Us to cover the cost of having to re administer that payment.
3.5 Subject to any law to the contrary, You will not have the right to set-off, deduct, defer, adjust or withhold any payment due to Us in terms of or arising out of the Agreement.
3.6 All payments to be made to Us shall be made without deduction and no amount may be deferred or withheld by reason of any alleged claim or counterclaim.
3.7 Amounts shall be paid on the date/dates as stipulated in the Application and The Delivery Note, via debit order from the bank account recorded by You in the Application.
3.8 We may in Our sole discretion appropriate any amounts received from or on behalf of You to current or arrears debts, costs, interest or any other amount due by You to Us howsoever arising.
3.9 Failure to make Your monthly payments on the due date for payment thereof is a breach of the Agreement and will entitle Us to collect the full amount owing until the account has been paid in full by way of a debit order on Your bank account.

4. Delivery

4.1 The Goods will be delivered by as soon as reasonably possible after 5 days from receipt by Us of the first payment to the address chosen for delivery in the Application.
4.2 Upon delivery, the Delivery Note must be signed by You, a copy of Your identity document must be attached as proof of receipt and only the intended customer may receive the Goods. Accordingly, signature of the Delivery Note and attachment of the required identification shall be deemed to be proof of proper delivery in terms of this Agreement.

5. Ownership and Risk

5.1 All risk in and to the Goods shall pass to You upon delivery to You in terms of clause 4.
5.2 Ownership of the Goods shall remain vested in Us until You have paid all amounts and complied with all other obligations in terms of this Agreement at which time ownership shall pass to You.

6. Quality of goods

6.1 It is Our intention to at all times supply safe and good quality Goods which are in good working order and free of defects. We are not the manufacturer of the Goods.
6.2 If You find the Goods to be defective, unsafe or of a bad quality, then You have to notify us in writing within 1 (one) month after the delivery date.
6.3 Please note that the rights referred to in this paragraph will not apply in the following situations:
6.3.1 where the Goods have been altered contrary to the instructions, tampered with, misused or abused or used for a purpose for which they were not intended;
6.3.2 the instructions (as contained in the instruction manual accompanying the Goods) the Goods have not been followed ; or
6.3.3 where the Goods are in a particular condition on the delivery date and You have been expressly informed of the condition and You have expressly agreed to accept the Goods in that condition or acted in such a way that it is accepting the Goods in that condition.
6.4 Accordingly, We shall have no liability or obligation to You with respect to any Goods which have been subjected to abuse, misuse, improper use, improper testing, negligence, accident, alteration, tampering or faulty repair, or as a result of ordinary wear and tear at Your and You hereby indemnify Us accordingly.

7. Statements of Account

7.1 We will provide You, with a statement of Your payments by way of sms, email or delivery to Your address (whichever You elected in the Application) every three months.
7.2 You will be required to pay the monthly purchase price payments reflected in the statement must be paid by You to Us by the dates indicated on the statement as the due date to avoid the Purchase Price being in arrears and a breach of the Agreement.
7.3 Non receipt of a statement by You will not be cause to withhold any payment due.

8. Early Termination

8.1 This is a fixed term agreement for the sale of Goods .
8.2 In line with Your rights in terms of the Act, You are entitled to terminate this Agreement at any time during the fixed term.
8.3 If You choose to terminate Agreement, please note that the full amount due and owing for the purchase price of the Goods will become due and payable as at the termination date.
8.4 There is no fee or penalty will be payable for early termination.

9. Cooling Off Right

9.1 Where this Agreement was entered into by direct marketing, You will have 5 (five) working days from the delivery date to cancel this agreement subject to:
9.2 Notwithstanding the provision of 9.1, Goods may be returned on the following conditions:
9.2.1 the Goods must still be in their original condition and packaging;
9.2.2 You may not have used the Goods.
9.3 In the event of this Agreement being cancelled in terms of 9.1, We will refund any
money paid in terms of the Agreement by You within 7 (seven) days from the date of cancellation notice being received and We may require payment from You for the reasonable costs of having the Goods returned to Us should they already have been delivered and restored to a saleable condition;

10. Debit Order Authorisation/DebiCheck Mandate

10.1 I hereby authorize Le Morgan Direct Marketing (Pty) Limited (Le Morgan), its successors in title or assignees, or any collection agents appointed by Le Morgan to withdraw funds from my bank account as set out in the application form, in respect of all amounts which are now or may from time to time in the future be due and payable by me to Le Morgan arising from my obligations in terms of all agreements already entered into or still to be entered into by me with Le Morgan.
10.2 I hereby authorize my bank to accept all debits levied by Le Morgan in terms of this authorization and to debit the bank account and to regard such debits as if given and signed by me personally and any such withdrawals shall have the same effect as if I personally made them.
10.3 I hereby authorize Le Morgan to give notice to the bank described in my application of the agreement(s) referred to above, on my behalf, which notice is to be regarded as if having been given by me personally.
10.4 I undertake to pay any costs, including bank charges, which may result from this debit order authorization.
10.5 Payment in terms hereof will only stop, provided that my indebtedness to Le Morgan in terms of the agreements has been repaid in full.
10.6 I understand that I will not be entitled to any refund of amounts which Le Morgan has withdrawn while this debit order authorization is in force or there exists an outstanding balance owed by myself to Le Morgan. I hereby consent that I shall not be entitled to repayment of any amount withdrawn while this authorization was valid. I hereby consent that the onus to prove that any amount withdrawn in terms hereof, was not due to Le Morgan, shall rest on me.
10.7 I hereby hold Le Morgan harmless against all costs, charges, expenses, losses and damages which Le Morgan may suffer as a result of my bank acting in accordance with this debit order authorization and against any claim by any party arising from the performance or non-performance, as the case may be, in terms of this debit order authorization.
10.8 I hereby authorize Le Morgan to issue and deliver payment instructions to the bank for collections against my abovementioned account on condition that the sum of such payment instructions will never exceed my obligations as agreed to in this agreement, and commencing on the commencement date and continuing until this authority and mandate is terminated by me by giving you notice in writing of no less than 20 ordinary working days, and sent by prepaid registered post or delivered to your address indicated above.
10.9 I understand that although this authority and mandate may be cancelled by me, such cancellation will not cancel the agreement or absolve me from outstanding debts.
10.10 I acknowledge that this authority/mandate may be assigned to a third party if this agreement is also assigned to a third party.

11. Default

11.1 You are in default of this Agreement if You:
11.1.1 do something You have agreed not to do or do not do something You have agreed to do, under the Agreement;
11.1.2 give us incorrect, misleading or deceptive information in connection with this Agreement;
11.1.3 have acted fraudulently or dishonestly in connection with this Agreement; or
11.1.4 commit a breach of any of the declarations provided by You to Us;
11.1.5 You commit any act of insolvency contemplated in the Insolvency Act, 1936
or are sequestrated [whether provisionally or finally] or are placed under administration in terms of section 74 of the Magistrates’ Courts Act, 1944 or become subject to debt review, or
11.1.6 fail to make payment of any amount due in terms of this Agreement.
11.2 If You are in default, We will give You a written notice advising You of the default and you will have 10 days to rectify the default, if You do not, We may at our election and without prejudice to any other remedy we have in terms of this Agreement or otherwise;
11.2.1 Claim specific performance by requiring payment of all outstanding amounts ; or
11.2.2 Cancel this agreement, In either case without prejudice to Our right to claim damages.
11.3 We may submit an adverse report of Your default to a credit bureau, setting out particulars thereof.

12. Disputes or Complaints

12.1 In the event of a dispute or a complaint, You should first refer the matter to Us. A dispute can be lodged with Us via any of the below options:
12.1.1 in writing: Le Morgan, PO Box 890, Bromhof, 2154 Email to [email protected] or [email protected];
12.1.2 telephonically, or by contacting the Call Centre on 011 011-5500.
12.1.3 You must please ensure that You receive a reference number for complaint Law. as well as a formal acknowledgment notification.
12.2 In the unlikely event that We cannot resolve your complaint within 20 (twenty) Law. Working Days, You will receive a letter of resolution/conclusion on Our position or an indication when We expect to reach such a resolution.
12.3 If We are not able to resolve Your dispute or complaint, the matter may be referred to the The Consumer Goods and Services Ombud of which we are a member of.

13. Certificate of Indebtedness

A certificate signed by one of Our duly authorised managers, whose authority need not be proved, as to the amount owing by You to Us at any time, as to the fact that such amount is due and payable, the amount of interest accrued and payable thereon and as to any other fact, matter or thing relating to Your indebtedness to us shall be proof (on the face of it), and unless disputed by You, of the facts therein stated and of the amount of Your indebtedness for the purpose of provisional sentence or summary judgment or any other proceedings against You in any competent court, and shall be valid as a liquid document for such purposes. Such certificate shall be deemed to be of sufficient particularity for purposes of pleading or trial in any action or other proceeding instituted by Us against You.

14. Marketing Option

You have elected the marketing options set out in the Application and agree We are entitled to rely on such election.

15. Change in Circumstances

You must notify Us as soon as possible in writing of any changes to Your personal details or financial circumstances in light of the information provided by You in the Application. A failure to do this will be a material breach of this Agreement.

16. Information/Confidentiality & Information Exchange with the Credit Bureaux

16.1 In applying for to purchase Goods You need to be aware of and You agree that We are entitled to supply Your personal information, insofar as it relates to the way; Agreement, (regarding Your Application therefore, Your conduct thereunder, the enforcement, collection, settlement and termination thereof) to credit bureau.
16.2 We supply information to credit bureaux regarding the Application, opening, operation and termination of an account/s.
16.3 You hereby agree that we may obtain any information of any nature whatsoever which relates to You that may have an effect on this Agreement.
16.4 We may obtain from and disclose to any credit bureau, South African Fraud Prevention Services or any other third party with whom You have had financial relations, any information relating to Your credit profit and credit history.
16.5 In the event of Your non-compliance with any of the terms and conditions of the Agreement, You are aware of and acknowledge that such information will be submitted to credit bureau, although We will advise You in writing of this action as required by the relevant legislation. Upon receipt of the above information or any other similar information by a credit bureau, the credit bureau will be able to construct a credit profile in relation to You and a credit score based on Your credit worthiness.
16.6 It is Your right, should You so wish, to make contact with the credit bureau in order to have Your credit record disclosed, and to have any inaccurate information held by the credit bureau corrected. This is however Your responsibility, not ours.

17. Use of Personal Information

17.1 You understand and agree that We are in possession of information that identifies You (Your “Personal Information”) to :
17.1.1 verify Your identity and accuracy and completeness of the information You provide to Us;
17.1.2 open, administer and service this Agreement;
17.1.3 statistical analysis;
17.1.4 to develop and improve Our products;
17.1.5 update Your records;
17.1.6 to identify which of Our, or others’ products might interest You. 17.2 You hereby agree that We may use Your Personal Information to:
17.2.1 carry out the functions referred to in 18.1 above;
17.2.2 assess lending risks;
17.2.3 identify, prevent, detect or tackle fraud, money laundering and other crime;
17.2.4 carry out regulatory checks;
17.2.5 keep You informed about Our Goods and conduct market research. Unless You opt out, by emailing Us accordingly or in the “opt out” box contained in the Application, We may also use Your Personal Information to contact You by mail, telephone, email, SMS or other method permitted by Law in relation to offers We may feel might interest You and/or in terms of Our Privacy Policy;
17.2.6 any other purpose agreed to by You in the Application.
17.3 We will keep your Personal Information confidential and only give it to others for the above purposes, including:
17.3.1 to our agents and subcontractors, acting for us, to use for the purpose of operating our business and obtaining payment in terms of this Agreement or any other agreement You have with Us;
17.3.2 to share information via organisation/s which provides a centralised application matching service which it collects from and about applications, for the purpose of preventing and detecting fraud;
17.3.3 to financial institutions or payment distribution agencies for purposes of payment processing;
17.3.4 unless You opt out by emailing Us or in the opt out box in the Application, to third parties who may use it to contact You by email, telephone, mail, SMS or other method permitted by Law in relation to offers they feel might interest You; and
17.3.5 in connection with certain business transactions involving Our assets or business.
17.4 We and other organisations may access and use the information recorded by fraud prevention agencies. We may transfer Your Personal Information abroad to countries whose data protection laws are less strict than in South Africa. If so, We will ensure the information is held securely to standards as least as good as those in South Africa and only used for the purposes set out in this clause.
17.5 Your Personal information may also be used for other purposes for which you give your permission or, in very limited circumstances, when required by any relevant Law.
17.6 Your Personal Information is held subject to Our Privacy Policy and the applicable Law.

18. Compliance

18.1 While We have in the drafting of this Agreement used Our best endeavours in order to comply with all applicable Laws. To the extent that this Agreement may require amendment in order to comply with any particular Law, You by Your signature hereto agree to such amendment which will be set out in a schedule to this Loan Agreement to the extent applicable.

19. Contact Details

19.1 Any contact details You give telephonically, in writing or otherwise, for all purposes, will be regarded as the legal address where notices and statements can be delivered to You. Your contact details include cellular phone number, physical address, employment address, email address and home telephone numbers.
19.2 You may change Your contact details by delivering to Us written notice of the new contact details by hand, registered mail or electronic mail or by notifying the relevant call centre.
19.3 We chooses the following address as Our address for legal notices : 463 Quartz Dive, Kya Sands Business Park, Kya Sand, Randburg.

20. Your Undertakings

By signing this Agreement or by telephonically accepting this Agreement, You:

20.1 accept all of the terms and conditions of the Agreement;
20.2 agree to be bound by all of the declarations and terms contained in the Agreement and those contained in the Application;
20.3 declare that all of the information that You have given now and previously, including but not limited to the declarations provided in the Application either in writing or as electromagnetically recorded via telephone conversation with the Call Centre is true, accurate and correct in all respects and is not misleading or deceptive in any way;
20.4 acknowledge that We are relying on the information that You have given Us;
20.5 acknowledge that You understand and appreciate the risks, costs, rights and obligations in the Agreement;
20.6 acknowledge that You received or were told and carefully considered the Terms and all other documents that need to be signed and returned to Us in order to accept this offer before You signed these documents;
20.7 unconditionally absolve and indemnify Us from and against any loss, damage, costs or expenses which either We or You may sustain or incur, either directly or indirectly as a result of Our relying on and using the banking details and or any information supplied to it by You or on Your behalf, in order to pay the proceeds or collect amounts owing in respect of the Agreement;
20.8 agree that We will not be liable in respect of any errors or omissions from any particulars given to us by You or on Your behalf;
20.9 understand and accept that all other documentation signed by You in connection with this Agreement forms part of the Loan Agreement, as if it had been specifically incorporated herein;
20.10 declare that the Agreement has been explained to You and You fully understand and appreciate all of Your rights and obligations in terms thereof;
20.11 understand and agree that We rely on the correctness of all the information provided by You and not responsible for the consequences of any error or omission contained therein and You hereby indemnify Us against any claim and/or damage whatsoever arising from such error or omission;

21. Governing Law and Jurisdiction

21.1 This Agreement shall be governed by the laws of the Republic of South Africa.
21.2 We will be entitled, but not obliged to institute any proceedings arising out of or in connection herewith in the appropriate Magistrates Court with jurisdiction. In the event that We institute proceedings in the High Court, You hereby consent to the jurisdiction of the South Gauteng High Court.

22. General

22.1 No Party may rely on any representation, warranties, promises, terms of inducement, whether actual or implied, which allegedly induced that Party to enter into this Agreement, unless the representation is recorded herein.
22.2 No indulgence, leniency, relaxation, waiver or extension of time which We may grant You, in the event of claims and/or disputes arising, will in any way whatsoever prejudice Us or preclude Us from exercising Our rights in terms of this Agreement, and neither will it constitute a waiver or limitation of any of Our respective rights.
22.3 Without prejudice to any other provision of this Agreement, any successor-in-title including any executor, heir, liquidator, judicial manager, curator or trustee of either party, shall be bound by this Agreement.
22.4 In the event that You committing any breach of the Agreement or in the event that We are required to take any legal action, You agree and undertake to pay Our legal costs as between attorney and own client including collection commission, tracing fees, valuation charges, transport costs and other expenses in connection therewith