TERMS AND CONDITIONS OF THE DISCOUNT BARTERING AGREEMENT ALSO KNOWN AS THE FLASH ADVANCE AGREEMENT
In this Agreement:
1.1 clause headings are for convenience and will not be used in its interpretation;
1.2 unless the context clearly indicates a contrary intention, an expression which denotes any gender includes the other genders, a natural person includes an artificial person and the other way around, the singular includes the plural and the other way around;
1.3 the following expressions will bear the meanings assigned to them below and cognate expressions will bear corresponding meanings:
1.3.1 “Acceptance Date” means the date on which this Agreement is accepted by You by clicking “Confirm” or “OK”, or following any other affirmation prompt in the App and therefore accepting the terms associated with the Flash Advance;
1.3.2 “Agreement” means any in-App completed and accepted fields, these Terms and Conditions including the Flash Trader App and/or Standard Terms and Conditions found at https://flash.co.za/terms-conditions/ and all annexures, addenda and amendments thereto or hereto from time to time;
1.3.3 “App” means the Flash trader application for your Device;
1.3.4 “Bartered Value” means the amount designated as such in the relevant in-App completed and accepted fields, which is the amount of Your Future Receivables, which it has traded with Flash in exchange for the Flash Advance;
1.3.5 “Device” means the mobile device you use to access the App;
1.3.6 “Flash/us/we/our” means Flash Mobile Vending (Pty) Ltd, a private company with registered address at 36 Stellenberg Road, Parow Industria;
1.3.7 “Flash Advance” means the amount designated as such in the in-App acceptance fields, which is the amount that Flash will transfer to Your Flash Balance in exchange for the Bartered Value;
1.3.8 “Flash Balance” means Your virtual trading balance as reflected on the Flash System;
1.3.9 “Flash System” means the application programming interface and in general terms, is a set of clearly defined methods or communication protocols, computer systems, devices and communications infrastructure provided by Flash to communicate with the Flash Device or user Device in order to facilitate purchase of Products by customers by, among other things, accounting for the Your Flash Balance;
1.3.10 “Future Receivables” means the proceeds of sales by Your customers after the Acceptance Date, arising from payments by Your customers;
1.3.11 “Processing Fee” means the fee which may be charged by Flash for the processing, preparation and completion of documents, and the liaison and interaction with third parties as a result of the Flash Advance;
1.3.12 “Products” means the products provided to You / Your customers by means of the Flash System;
1.3.13 “Termination Date” means the date on which the full Bartered Value and, if relevant, Processing Fee have been paid to Flash by You;
1.3.14 “Termination Event” means any one or more of the events or circumstances described as a termination event as set out in clause 6 below;
1.3.15 “Top Up/s” means the increase in the Flash Balance which can be effected, inter alia, by the redemption of vouchers, EFT, safe deposits or card payments;
1.3.16 “Top Up Retention Value” means the value which Flash will deduct from Top Ups made by You on the Flash System, in order to satisfy any amounts owed to it in terms of this Agreement;
1.3.17 “You/Your” means the person who registered for the App and is making use of the Flash Advance function in the App;
1.4 if any provision in a definition is a substantive provision conferring rights or imposing obligations on any Party, then notwithstanding that it is only in this interpretation clause, effect will be given to it as a substantive provision forming part of this Agreement;
1.5 when any number of days is prescribed such number will exclude the first day and include the last day unless the last day falls on a Saturday, Sunday or public holiday in the Republic of South Africa, in which case the last day will be the next succeeding day which is not a Saturday, Sunday or public holiday in the Republic of South Africa.
2. SUMMARY AND COMMENCEMENT
2.1 By accepting the terms of this Agreement and/or making use of the Flash Advance functionality in the App, Flash offers to trade with You, against transfer of the Flash Advance into Your Flash Balance, its full right, title and interest in and to the Bartered Value on the terms and conditions as set out herein below.
2.2 You, as agent on behalf of Flash, will take receipt of the full amount of the Future Receivables and transfer to Flash the Top Up Retention Value every time You make a Top Up into the Flash System until such time as the entire Bartered Value together with any relevant Processing Fee has been transferred to Flash.
2.3 The Agreement will commence on Acceptance Date and Terminate on the Termination Date.
3. TRADE AND BARTER
3.1 Upon the You accepting Flash’s offer to trade in Your Future Receivables by accepting the terms of this Agreement and/or making use of the Flash Advance functionality in the App, a binding agreement between the Parties has come into existence, subject to the terms and conditions contained in this Agreement.
3.2 You hereby trade and Flash accepts the Bartered Value in exchange for the transfer of the Flash Advance by Flash to the Flash Balance.
3.3 Upon transfer of the Flash Advance to Your Flash Balance, Flash will own the right, title and interest in and to the Bartered Value, without the need for any other act of transfer.
3.4 The Flash Advance transferred by Flash is in exchanged for the Bartered Value and is not a loan from Flash to You.
3.5 You acknowledge that the full right, title and interest to the Bartered Value is being ceded by You to Flash.
3.6 After the cession referred to in clause 3.5, You will take receipt of the full amount of the Future Receivables as agent for and on behalf of Flash.
3.7 You will transfer the Future Receivables to Flash by either:
3.7.1 paying the Top Up Retention Value to Flash every time You Top Up; until such time as the entire Bartered Value together with any relevant Processing Fee have been paid to Flash; or
3.7.2 by Flash deducting the Bartered Value from Your Flash Balance at the end of the period agreed to in-App.
3.8 In the event that any of the Future Receivables are for any reason reversed, Flash will not repay You the amount so reversed (or any portion thereof) but may rather take the reversal into account when evaluating any adjustment of the Top Up Retention Value.
4. WARRANTIES, UNDERTAKINGS REPRESENTATIONS
4.1 When entering into this Agreement and on the Acceptance Date, You make the following representations and warranties to Flash:
4.1.1 You are a juristic person whose asset value or annual turnover equals or exceeds R1 000 000 (one million rand);
4.1.2 You have not entered into any invoice financing agreement in terms of which You have sold, factored, bartered or discounted Your existing or future invoices or the Future Receivables;
4.1.3 the person accepting the terms of this Agreement has the legal capacity and has taken all necessary steps and corporate action required to empower and authorise You to enter into and implement this Agreement on the terms and conditions set out in this Agreement;
4.1.4 this Agreement constitutes an agreement valid and binding on You and is enforceable against You in accordance with its terms.
4.2 You acknowledge that the provisions of clause 4.1 is of fundamental importance to Flash and go to the root of this Agreement and any breach thereof would constitute a material breach of this Agreement.
4.3 You undertake that during the currency of this Agreement, You will at all times:
4.3.1 conduct Your business in a manner consistent with Your past business practices, and not voluntarily cease operation of Your business;
4.3.2 not sell, dispose, convey or transfer its business or assets to any person, unless that person first agrees in writing to assume all of Your obligations under this Agreement, and Flash agrees in writing to such person assuming Your obligations;
4.3.3 not change Your place/s of business from the business address recorded on the Flash System, unless such update is amended on the Flash System;
4.3.4 not do (or fail to do, as the case may be) anything to avoid complying with any of Your obligations contained in this Agreement;
4.3.5 provide Flash with such further information regarding the Your financial condition and business operations which is required to maintain the accuracy of the information held by Flash, or as Flash may reasonably request from time to time; and
4.3.6 promptly notify Flash of the happening of any Termination Event.
4.4 Each of the warranties and representations made by You in this clause 4 is:
4.4.1 a separate warranty and is in no way limited or restricted by inference from the terms of any other warranty; and
4.4.2 is deemed to be a material representation inducing Flash to enter into this Agreement.
5. DEFAULT AND TERMINATION
5.1 A Termination Event will occur if:
5.1.1 You breach any term of this Agreement, including but not limited to, the breach of any of the warranties and fails to rectify such breach within 5 (five) days of receipt of written notice from Flash requiring You to do so;
5.1.2 Flash does not receive payment of a Top Up Retention Value for a consecutive period of 7 (seven) days or full payment of the Bartered Value on the date agreed to in-App;
5.1.3 an order is made by any court of competent jurisdiction, whether provisional or final, for Your winding up or sequestration (as the case may be);
5.1.4 You pass a resolution for the voluntary winding up of Your business;
5.1.5 You cease to carry on business, disposes of its business, changes the fundamental nature of Your business or disposes of the major portion of Your assets other than for value;
5.1.6 You assign Your rights under this Agreement to any third party without Flash’s prior written consent;
5.1.7 Your compromise generally with Your creditors or merges with a third party;
5.1.8 You apply for, or enter into the process of business rescue as contemplated in the Companies Act 71 of 2008;
5.1.9 You conduct and operate Your business in a manner which Flash, in its sole and absolute discretion, considers to be imprudent and/or irresponsible.
5.2 Upon the occurrence of a Termination Event or at any time thereafter whilst the Termination Event is continuing, Flash will be entitled but not obliged, without prejudice to any other rights it may have in terms of this Agreement or at law, by written notice to You, to cancel this Agreement and claim from You, as liquidated damages, the full amount which Flash would have received (being the Bartered Value less any payments made by You) had the Termination Event not occurred.
5.3 Notwithstanding any termination by Flash of this Agreement, You will indemnify and hold Flash harmless from and against all liabilities, losses, costs or expenses, including but not limited to legal costs, that Flash may suffer, incur or sustain arising out of:
5.3.1 the happening of any Termination Event;
5.3.2 any cancellation of this Agreement;
5.3.3 a breach by You of Your representations, warranties, or any of the terms of this Agreement and/or;
5.3.4 the protection and enforcement by Flash of its rights and remedies under, and in respect of, this Agreement.
6. CERTIFICATE OF INDEBTEDNESS
6.1 A certificate issued under the signature of Flash (or its duly authorised agent) that serves to certify the balance of the Bartered Value still to be paid to Flash including any further Bartered Value(s) by You as agent, that such amount is due to be paid and as to any other fact, matter or thing related to the bartering of Your Future Receivables by Flash in exchange for Flash Advance in terms of this Agreement, will be accepted as prima facie (that is, face value) proof of the contents and correctness of such certificate Furthermore:
6.1.1 it will not be necessary to prove the appointment or signature of the person signing any such certificate;
6.1.2 the certificate will be sufficient for Flash for the purposes of summary judgment, default judgment, provisional sentence, or any other proceedings, will be valid as a liquid document for such purposes and will, in addition, be prima facie (that is, face value) proof for purposes of pleading or trial in any proceedings instituted by Flash arising from this Agreement; and
6.1.3 You accept that, in order to defend any such proceedings by Flash, it will be necessary for You to prove that the amount on the certificate is not the amount that is owed by You.
7. DATA PERMISSIONS AND CONSENTS
7.1 By entering into this Agreement, You confirm, acknowledge and agree that Flash may use Your particulars as contained in this Agreement or any transaction concluded under it, or any entry, account or other information held by Flash (which may include personal information about Your directors, officers, shareholders, members or other individuals) for the purposes of:
7.1.1 monitoring the operation of and performance of obligations in terms of this Agreement;
7.1.2 assessing financial risks;
7.1.3 fraud prevention and preventing and detecting crime (including money laundering);
7.1.4 tracing and tracking;
7.2 You furthermore agrees that Flash may disclose any of Your details in respect of this Agreement to:
7.2.1 any credit reference agency or credit bureau (who may make records of searches and enquiries which may be used by others for lending, credit or purchasing decisions concerning You or any related parties);
7.2.2 any trade register;
7.2.3 any party which is engaged in Flash’s business or who is acting on Flash’s behalf; or
7.2.4 any other party where Flash is required or permitted to do so by law.
7.3 Flash will furthermore be entitled to:
7.3.1 transmit the details set out in this application (or any other information relating to You that is held by Flash) to jurisdictions other than South Africa, which jurisdictions may not have data protection laws equivalent to those in South Africa; and
7.3.2 monitor and/or record telephone calls made by You to Flash, or by Flash to You.
8.1 By entering into this Agreement, You:
8.1.1 accept and agree to be bound by all the terms and conditions of this Agreement;
8.1.2 declare that all of the information that has been provided by You is true and correct in all respects, and is not misleading or deceptive in any way; and
8.1.3 acknowledges that it has received, read and carefully considered the terms of this Agreement.
9.1 This Agreement, together with any annexures and amendments thereto, constitute the sole record of the Agreement between the Parties in regard to the subject matter thereof.
9.2 No indulgence, leniency or extension of time which Flash may grant or show to You shall in any way prejudice Flash or preclude Flash from exercising any of its rights in the future.
9.3 You may not change any of these terms and conditions contained herein.
9.4 No waiver of any right of Flash, shall be effective unless reduced to writing and signed by Flash.
9.5 Flash shall not be bound by any representation, express or implied term, warranty, promise or the like not recorded in this Agreement.
9.6 The rule of interpretation that, in the case of uncertainty, an agreement will be interpreted against the party who drafted it, will not apply to this Agreement.
9.7 Flash is entitled to unilaterally change this Agreement and Your continued use of the App and/or the Flash Advance function means that you have accepted such changes