1. DEFINITIONS
Unless inconsistent with the context, the following expressions shall have the meanings set forth against them, namely:
1.1. “Capital Sum” means the sum reflected in part B1 of the Quotation, which sum Bike Life Finance has agreed to lend and advance to the Borrower pursuant to the provisions of this Loan Agreement
1.2. “Domicilium” means the domicilium citandi et executandi chosen by the Borrower being the address reflected in part A6 of the Quotation.
1.3. “Instalments” means the instalments of capital and interest reflected in part C4 of the Quotation.
1.4. “Interest Rate” means the annual rate of interest reflected in part D4 of the Quotation.
1.5. “Loan” means that portion of the Capital Sum, which is advanced to the Borrower.
1.6. “NCA” means the National Credit Act 34 of 2005, as amended, together with the regulations and notices promulgated in terms thereof, from time to time.
1.7. “Place of Payment” means the address reflected in part A2 of the Quotation.
1.8. “Quotation” means the Quotation issued by Bike Life Finance to the Borrower in terms of Section 92 of the NCA on the date reflected on page 1 of the Quotation, and accepted by the Borrower on the date reflected on page 3 of the Quotation, a copy of which is annexed marked “A”.
1.9. “Repayment Date” means the date reflected in part G3 of the Quotation.
2. LOAN
2.1. Bike Life Finance hereby lends to the Borrower, which hereby borrows the Capital Sum upon the terms and conditions set out in this Loan Agreement and in the Quotation.
2.2. The Capital Sum will be advanced on the Borrower’s behalf in accordance with the terms of the Quotation and this Loan Agreement subject to compliance by the Borrower with the terms and conditions of this Loan Agreement. The amount to be advanced shall at no time exceed the Capital Sum.
2.3. The utilisation of the Loan shall remain within the Capital Sum at all times.
3.INTEREST
3.1. Interest on the Loan at the Interest Rate shall be calculated from the first day of each month to the last day of that month nominally annually compounded monthly in arrears and shall be payable on the first day of the following month commencing from the first day of the month following the month in which the Capital Sum (or any portion thereof) is advanced by Bike Life Finance to the Borrower save that interest shall also be so calculated and be so payable on the first day of the month following the month in which the Capital Sum (or any portion thereof) is advanced by Bike Life Finance to the Borrower, such interest to be calculated for the period from the date of advancement until the last day of such month.
3.2. Subject to the NCA, the applicable rate of interest shall be subject to change if any law or ruling with which Bike Life Finance has to comply, results in an increase or decrease in cost to Bike Life Finance in maintaining the Loan granted to the Borrower.
4.REPAYMENT
4.1. With effect from the date reflected in part G2 of the Quotation, the Borrower shall repay the Loan (together with interest thereon) to Bike Life Finance in monthly Instalments on the first day of each month.
4.2. The Capital Sum together with any outstanding interest shall be paid in full by the Borrower by not later than the Repayment Date.
4.3. Should any Instalment not be paid on due date, Bike Life Finance will have the right, without prejudice to Bike Life Finance’s further or alternative rights and remedies, to charge penalty interest, in addition to any other interest provided for in the Loan Agreement, on all amounts so outstanding from the date those amounts became due and payable to the date of payment thereof (both dates inclusive), calculated at the highest interest rate applicable to any part of the principal debt under this agreement.
4.4. Any payment made by the Borrower shall be applied firstly towards the payment of due or unpaid interest, secondly towards any due or unpaid fees or charges, and thereafter towards the repayment of the Capital Sum.
4.5. All payments shall be made free of exchange, without deduction or set off at the Place of Payment or at such other address as may be stipulated in writing by Bike Life Finance.
4.6. Subject to the NCA, the Borrower shall not have any right to defer or withhold payment of any amounts due and payable in terms of this Loan Agreement.
4.7. The Borrower shall be required to sign a monthly debit order to provide for the due payment of the monthly Instalments and shall also sign any variation to the debit order to provide for continued payment in accordance with the provisions of this Loan Agreement and the NCA.
5. UNDERTAKINGS
The Borrower undertakes to provide Bike Life Finance with:
5.1. the Borrower’s updated and signed statement of assets and liabilities (including contingent liabilities) annually or at the request of Bike Life Finance, which statements must be to Bike Life Finance’s satisfaction.
6. FEES AND CHARGES
7. INSURANCE
7.1. Although not compulsory, the Borrower confirms that it has been explained to the Borrower that it is to the Borrower’s benefit to obtain and have, for the duration of this agreement, credit life assurance and/or insurance cover against damage or loss of any property and/or optional insurance in relation to the Borrower’s obligations under this agreement or relating to the possession, use, ownership or benefits of the goods or services supplied in terms of this agreement. An existing policy can be used or a new policy can be obtained through any insurer of the Borrower’s choice. It is the Borrower’s duty to take whatever steps are necessary to obtain and have insurance as aforesaid and this agreement does not provide such insurance.
8. ASSIGNMENT
Bike Life Finance shall be entitled to cede and assign its rights and obligations in terms of this Loan Agreement to any third party and the Borrower hereby consents to such cession and assignment.
9. STATEMENT BY BORROWER
The Borrower:
9.1. understands the risks and costs as well as the Borrower’s rights and obligations under this Loan Agreement;
9.2. states that entering into this Loan Agreement will not cause the Borrower to become over-indebted as contemplated in the NCA;
9.3. has fully and truthfully answered all requests for information made to the Borrower by or on behalf of Bike Life Finance leading to the conclusion of this Loan Agreement;
9.4. acknowledges that Bike Life Finance has given the Borrower a pre agreement statement and a quotation (in the form of the Quotation);
9.5. has the necessary legal capacity to enter into this Loan Agreement and is not subject to an administration order in terms of Section 74 of the Magistrates’ Courts Act and has not been sequestrated as insolvent;
9.6. did not receive an offer from Bike Life Finance which will automatically result in an agreement if the Borrower does not decline the offer;
9.7. was not induced, harassed or forced to enter into this Loan Agreement;
9.8. has not been required or induced to enter into any supplementary agreements or documents other than this Loan Agreement and the Offer Letter and Quotation;
9.9. records that this Loan Agreement was completed in full at the time the Borrower signed it; and
9.10. is aware that, when this Loan Agreement takes effect, Bike Life Finance must report the relevant details required in terms of Section 69(2) of the NCA to the National Credit Register or a registered credit bureau.
10. TERMINATION
10.1. The Borrower may anticipate the Repayment Date in full or in part and/or terminate the Loan Agreement with or without giving notice to Bike Life Finance, provided that on the date the Loan Agreement terminates the Borrower pays to Bike Life Finance the outstanding Capital Sum together with a R500 admin charge (known as an early termination charge in accordance with section 125 of the NCA), to which Bike Life Finance is entitled.
10.2. If this agreement is a lease or an instalment agreement entered into at any location other than Bike Life Finance’s registered business premises, the Consumer has the right to terminate this agreement within five business days after the date on which the agreement was signed by the consumer, by delivering a notice in the prescribed manner to Bike Life Finance; and tendering the return of any money or goods, or paying in full for any services, received by the consumer in respect of the agreement. Bike Life Finance’s further rights and obligations are set out in Section 121 of the NCA.
11.BREACH
11.1. Should the Borrower:
(a) breach any of the terms and conditions of the Quotation or this Loan Agreement including the annexures hereto; or
(b) compromise or attempt to compromise with any of the Borrower’s creditors; or
(c) be placed in liquidation, sequestration, voluntarily surrender the Borrower’s estate or become subject to business rescue proceedings;
then the Borrower will be in default of the Borrower’s obligations under this Loan Agreement and all amounts owing under this Loan Agreement shall, without any further action by either party, be forthwith due, owing and payable.
11.2. If the Borrower is in default, Bike Life Finance may:
(a) refuse to advance to the Borrower or any other person the portion of the Capital Sum not already advanced at the time;
(b) give the Borrower written notice of such default and may propose that the Borrower refer this Loan Agreement to a debt counsellor, alternative dispute resolution agent, consumer court or ombud with jurisdiction, with the intent that the parties resolve any dispute under this Loan Agreement or develop and agree on a plan to bring repayments up to date;
(c) if:
(i) Bike Life Finance has given the Borrower notice referred to in clause (b) above or it has given notice to terminate any debt review process under Section 86 of the NCA which may then be under way in respect of this Loan Agreement; and
(ii) the Borrower has been in default under this Loan Agreement for at least 20 (twenty) business days; and
(iii) at least 10 (ten) business days have elapsed since Bike Life Finance delivered the notice contemplated in clause (i) above; and
(iv) in the case of a notice in terms of clause (b) above, the Borrower has not responded to that notice, or has responded to the notice by rejecting Bike Life Finance’s proposal;
then Bike Life Finance may commence legal proceedings to enforce this Loan Agreement and recover legal costs and default administration charges from the Borrower.
12. PROOF OF INDEBTEDNESS
12.1. A Certificate signed by any Manager or Accountant of Bike Life Finance (whose authority need not be proved) stating the amount to be due and payable at any time shall constitute prima facie proof for all purposes of the facts therein stated.
12.2. A Certificate signed by a Manager of Bike Life Finance (whose authority need not be proved) certifying the prime rate of interest levied by Bike Life Finance’s bankers from time to time shall constitute prima facie proof of such rate of interest.
13.DOMICILIUM
13.1. The Borrower appoints the Domicilium for the service of all letters, notices and documents to be sent to or to be served upon the Borrower. Any letter or notice sent to the Borrower at the Domicilium by prepaid registered post shall be deemed to have been received by the Borrower on the 7th (seventh) day after the date of posting.
13.2. Each party shall be entitled, from time to time, by giving written notice to the other party, to vary its Domicilium to any other physical address within the Republic of South Africa.
14.JURISDICTION
The parties hereby consent in terms of Section 45 of the Magistrate’s Court Act of 1944 to any legal proceedings being instituted in the Magistrate’s Court of any district having jurisdiction in respect of the Borrower by virtue of the provisions of Section 28 (1) of the said Act. Notwithstanding such consent, Bike Life Finance shall have the option of instituting proceedings against the Borrower in the High Court of South Africa.
15. REPRESENTATIONS
The Borrower acknowledges that the Borrower has not relied upon any representations or warranties other than those contained in this Loan Agreement.
16. INDULGENCES
No indulgence, leniency or extension of time which Bike Life Finance may grant to the Borrower shall in any way preclude Bike Life Finance from exercising its rights in terms of this Loan Agreement.
17. FICA
The Borrower acknowledges that Bike Life Finance is required by law and in particular the Financial Intelligence Centre Act of 2001 (FICA) and the Prevention of Organised Crime Act of 1998 (POCA) to establish the true identity of persons who conclude transactions with Bike Life Finance. The Borrower undertakes to supply Bike Life Finance with all information requested by Bike Life Finance, details of which will be requested by Bike Life Finance or Bike Life Finance’s attorneys.
18.VARIATIONS
Save as otherwise provided in the NCA, no amendments to or variations of this Loan Agreement shall be binding upon the parties unless reduced to writing and signed by each of the parties.
19.DISPUTE RESOLUTION
The Borrower may:
19.1. resolve a dispute by alternative dispute resolution in terms of the NCA; and
19.2. file a complaint with the National Credit Regulator or the National Consumer Tribunal.
20. SEVERABILITY
The setting aside or suspension of any provision contained in this Loan Agreement shall not render the Loan Agreement void but rather the provision shall be severed from this Loan Agreement or altered by a court of competent jurisdiction (if it is reasonable to do so having regard to the Loan Agreement as a whole).
21. CREDIT BUREAUX
21.1. The Borrower confirms that Bike Life Finance may transmit to registered credit bureau information concerning:
(a) this Loan Agreement and the Borrower’s account with Bike Life Finance;
(b) any non-compliance by the Borrower with the terms of this Loan Agreement.
21.2. The Borrower agrees that such credit bureau will provide a credit profile and possibly a credit score on the creditworthiness of the Borrower. The Borrower has the right to contact such credit bureaux to have the credit records disclosed and to correct any inaccurate information.
22. DEBT COUNSELLOR
If the Borrower experiences difficulty in meeting repayments, Bike Life Finance invites the Borrower to contact Bike Life Finance without delay. The Borrower has the right to apply to a debt counsellor to be considered for an order to be declared over indebted in terms of Section 86 of the NCA in accordance with the process set out in that Section.
23. CONTACT DETAILS
The Borrower should take note of the following contact details:
23.1. the National Credit Regulator – Tel: (011) 647 4400
Fax: (011) 484 6122
PO Box 2694
Houghton
2041
23.2. the National Consumer Tribunal – Tel: (0860) 627 627;
23.3. the ombud responsible for Banks – Tel: (0860) 800 900
Tel: (011) 838 0035
Fax: (011) 838 0043
PO Box 5728
Johannesburg
2000
23.4. Credit Bureau:
(a) Experian – (0861) 105 665;
(b) Trans Union ITC – (086) 148 2482.
24. STATEMENTS OF ACCOUNT
24.1. The Borrower will be provided with a statement of account posted to the Borrower’s Domicilium as per the requirements of the NCA.
24.2. The form and content of the statement of account will comply with Section 109 of the NCA.