Cession Agreement

Cession Agreement

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1.    Parties

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1.1.    Snappit:
Name: Snapp Investments (Pty) Ltd, 
Registration Number: 2022/274204/07, 
Address: Baleta Avenue Randburg, 13 Baleta Gardens, Boskruin 2154 
Email address: Admin@snappit.co.za
NCR number: NCRCP17144

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1.2.    The Cedent, as described in the Application Form.

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2.    Interpretation and Definition

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In this Agreement, unless the context indicates otherwise, the words and expressions recorded below shall bear the meanings assigned to them, cognate expressions bear corresponding meanings, and the provisions in clauses 2.19-2.22 shall apply to the interpretation of the Agreement:

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2.1.    “Agreement” refers to this Cession Agreement entered into by the Parties including the duly completed Application Form.

2.2.    “Application Form” refers to the form entitled as “Application Form” such provided to the Cedent by Snappit and to be signed by the Cedent and Snappit to form part of this Agreement.

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2.3.    “Cedent” refers to the party described in the Application Form.

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2.4.    “Claim” refers to the claim that the Cedent cedes in terms of this Agreement, which claim is described more fully in the Application Form.

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2.5.    “Deposit Holder” refers to the party described as such in the Application Form.

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2.6.    “Effective Date” refers to the date Snappit pays the Purchase Price as set out in clause 5, being the date on which this Agreement becomes effective .

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2.7.    “Interest Rate” refers to the maximum rate of interest permissible from time to time in terms of the law.

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2.8.    “Party” means either the Cedent or Snappit, as the context dictates, and “Parties” shall refer to both the Cedent and Snappit.

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2.9.    “Personal Information” refers to such information as deemed personal information in terms of the Protection of Personal Information Act 4 of 2013.

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2.10.    “Property” refers to the property as described in the Application Form.

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2.11.    “Purchase Price” refers to the amount payable by Snappit for the Claim being purchased from the Cedent, as more fully described in the Application Form.

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2.12.    “Rental Agreement” refers to the agreement in terms of which the Cedent paid a deposit which is to be refunded to the Cedent, as more fully described in the Application Form.

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2.13.    “Repayment Agent” means the party appointed by the Cedent in terms of the Application Form to repay the Purchase Price to Snappit in terms of clause 6.

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2.14.    “Sale Agreement” refers to the agreement in terms whereof the Cedent is selling its Property, as more fully described in the Application Form.

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2.15.    “Signature Date” means the date on which the last Party has signed the Agreement.

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2.16.    “Snappit” refers to the Party described in clause 1.1 above;

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2.17.    “Termination Date” refers to the date as set out in the termination notice envisaged in clause 10.

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2.18.    “Transfer” refers to the registration of the transfer in the Deeds Office of the Property sold in terms of the Sale Agreement into the name of the purchaser named in such a Sale Agreement.

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2.19.    Clause headings are for convenience only and are not to be used in its interpretation. 

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2.20.    An expression, which denotes any gender, includes the other genders, a natural person includes a juristic person and vice versa, and the singular includes the plural and vice versa.

2.21.    Any substantive provision, conferring rights or imposing obligations on a party and appearing in any of the definitions in this clause 2 or elsewhere in this Agreement, will be given effect as if it were a substantive provision in the body of the Agreement. 

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2.22.    Words and expressions defined in any clause will, unless the application of any such word or expression is specifically limited to that clause, bear the meaning assigned to such word or expression throughout this Agreement.

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3.    Sale and Cession of Claim

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3.1.    The Cedent hereby cedes, sells, assigns and transfers all of its right, title and interest in and to the Claim to Snappit as an out-and-out cession.

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3.2.    Snappit hereby accepts the cession, assignment and transfer and accordingly purchases all right, title and interest of the Cedent in and to the Claim.

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3.3.    The cession, assignment, transfer and sale of the Claim becomes effective upon payment of the Purchase Price, as set out in clause 5, without Snappit having to take further action.

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3.4.    Notwithstanding anything to the contrary contained herein and for the avoidance of doubt, Snappit does not assume the obligations of the Cedent under the Sale Agreement or Rental Agreement, or otherwise concerning the Property, all of which remain with the Cedent. 

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4.    Special Conditions

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4.1.    The effect of this Agreement is suspended until such date on which the special conditions as set out in the Application Form have been met, which date shall be the Effective Date.

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4.2.    Should the special conditions not be met within the time set out in the Application Form, this Agreement will be of no force and effect.

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5.    Payment of Purchase Price 

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5.1.    Snappit shall pay the Purchase Price to the Cedent by the latest 2 (two) business days after the Effective Date. 

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5.2.    The Purchase Price can be payable in more than one payment as set out in the Application Form.

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6.    Repayment to Snappit

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6.1.    The Cedent hereby appoints and irrevocably mandates the Repayment Agent as their agent to repay to Snappit the Purchaser Price. The appointment is confirmed by the written undertaking signed by the Repayment Agent and provided to Snappit in terms of the Application Form. The Cedent shall ensure that the Repayment Agent is in possession of the funds or guarantees to enable it to give the written undertaking for repayment of the Purchase Price.

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6.2.    Upon the sooner of either:
(where the Claim relates to the Sale Agreement – )

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6.2.1.    Registration of Transfer; or

6.2.2.    Failure or impairment of Transfer
(where the Claim relates to the Rental Agreement –)

6.2.3.    The deposit becomes payable in terms of the Rental Agreement; or

6.2.4.    Failure or impairment of payment of the deposit in terms of the Rental Agreement
the Cedent, or its Repayment Agent as the case may be, will repay the Purchase Price to Snappit and Snappit will on receipt of the Purchase Price cede the Claim back 
to the Cedent. 

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6.3.    The Cedent irrevocably grants Snappit with the power of substitution, full power and authority to recover in its name from any person/entity that is or shall be in possession of the amounts required to repay the Purchase Price, to institute action in their name against all or any party to recover the said amounts and to retain the proceeds recovered in the exercise of such powers on account of, and in reduction of, their indebtedness to Snappit, including all costs and expenses of whatsoever nature together with interest at the maximum rate permitted by law, together with legal costs as between attorney and client incurred in the exercise of such power.

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6.4.    If the Repayment Agent fails to make payment to Snappit, for whatever reason, when payment becomes due and pays any proceeds or deposits to the Cedent or any other person, the Cedent will immediately notify Snappit of such a failure and shall make payment of the proceeds or deposit to Snappit, which payment shall be made without set-off or deduction. Any additional costs, charges or interest that may be incurred due to the failure of the Repayment Agent, will solely be for the account of the Cedent.

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6.5.    For the avoidance of doubt, the Cedent remains liable for the repayment of the Purchaser Price should the Repayment Agent, for whichever reason, fail to make payment to Snappit in terms of the written undertaking.

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6.6.    The Purchase Price shall be reduced by an amount equal to the Snappit Fee as of the date on which the Purchase Price is settled (“Settlement Date”). 

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6.7.    If on the Transfer or Termination Date, as the case may be, the Purchase Price has been reduced, as contemplated in clause

6.6, thereby resulting in an overpayment of the Purchase Price by Snappit, as recalculated, then the Cedent shall repay the amount of such overpayment to Snappit upon demand, together with interest thereon at the Interest Rate allowable by law, calculated from the date of the demand to the date of payment. l

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7.    Snappit Fee

The Cedent will on the Settlement Date pay a Snappit Fee to Snappit as calculated and determined following and as set out in the Application Form.

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8.    Interest 

Any amount falling due for payment by the Cedent to Snappit in connection with this Agreement and not being paid, shall bear interest at the Interest Rate, calculated from the due date for payment thereof or, in the case of amounts due by way of indemnity or damage (whether liquidated or not) from the date upon which the relevant indemnified loss or damage is sustained.

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9.    Warranties

The Cedent warrants, represents and undertakes to Snappit the following:

9.1.    The Sale Agreement or the Rental Agreement, as the case may be, is valid and enforceable in all respects and in particular it:

9.1.1.    was completed in every respect before signature; and

9.1.2.    was completed within the ambit of the provisions of the Alienation of Land Act 68 of 1981, as amended, insofar as it may be applicable, as well as any regulations published thereunder.

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9.2.    The Cedent has, as at the date hereof, fully and timeously discharged all its obligations in terms of the Sale Agreement or Rental Agreement, as the case may be, and shall continue to do so.

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9.3.    All documents relevant to the Sale Agreement or Rental Agreement, as the case may be, have been delivered to Snappit.

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9.4.    The Claim or any part thereof is not subject to a prior cession, pledge or similar encumbrance.

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9.5.    The Cedent is not insolvent, nor to the best of his knowledge, have any steps been taken or threatened for the liquidation or sequestration of the Cedent’s estate, whether provisional or final or for the placing of the Cedent under judicial management. 

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9.6.    The Cedent has no overdue income tax or VAT owed to the South African Revenue Services.

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9.7.    The Cedent has accurately disclosed to Snappit all facts and information relating to the Sale Agreement or the Rental Agreement, as the case may be, the Property, and such information that may be relevant to a purchaser of the Claim and the information set out in the Application Form is true and correct. The Cedent acknowledges that Snappit has entered into this Agreement in reliance of the warranties set out in this clause and the Application Form, all of which are material, and that if any of the warranties are or become, to any extent, inaccurate or breached, the Cedent will have committed fraud against Snappit. 

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9.8.    (Where the Claim relates to a Sale Agreement) The Property and all structures thereon, which constitutes the subject matter of the Sale Agreement, are fit for the purpose intended and are not subject to any patent or latent defects known to the Cedent and not disclosed to the purchaser.

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9.9.    (Where the Claim relates to a Sale Agreement) The Cedent is not aware of any fact, matter or circumstance about the seller or the Property, which might prevent the Property from being transferred to the Purchaser following the Sale Agreement or which might cause the Registration Date to be delayed by more than 120 (one hundred and twenty) days after the Signature Date and shall forthwith notify Snappit in writing in the event of the Sale Agreement being cancelled, or if any dispute arises between the parties thereto, or any reason exists as to why the registration of the transfer may not proceed within the 120 (one hundred and twnety) day period referred to above.

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9.10.    (Where the Claim relates to a Sale Agreement) Snappit shall not be required to do anything (other than comply with this Agreement) or to pay any amount to procure the transfer of the Property to the Purchaser. 

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9.11.    (Where the Claim relates to a Sale Agreement) Save as expressly provided for in the Sale Agreement, no commission or other amount is or shall be due to any agent or other person as a result of the conclusion of the Sale Agreement.

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9.12.    (Where the Claim relates to a Sale Agreement) The Sale Agreement or any part thereof will not be amended or altered in any way before Transfer, without the prior written approval of Snappit. 

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9.13.    (Where the Claim relates to a Sale Agreement) The Property is not subject to any interdict, a caveat of whatsoever nature or attachment in terms of a Warrant of Execution or any similar court process. 

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9.14.    (Where the Claim relates to a Rental Agreement) The Cedent is not aware of any fact, matter or circumstance about the Deposit Holder or the leased Property, which might prevent the deposit being repaid to the Cedent in terms of the Rental Agreement and shall forthwith notify Snappit in writing in the event of any dispute arising between the parties to the Rental Agreement.

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9.15.    (Where the Claim relates to a Rental Agreement) The Rental Agreement or any part thereof will not be amended or altered in any way before the termination thereof, without the prior written approval of Snappit. 

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9.16.    (Where the Claim relates to an estate agent’s commission in terms of a Sale Agreement) The estate agent is owed the agent’s commission (as set out in the Application Form) and is not obliged to split or share the agent’s commission with any third party. 

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9.17.    (Where the Claim relates to an estate agent’s commission in terms of a Sale Agreement) The estate agent’s commission will be payable to the agent upon the Transfer of the Property into the name of the purchaser. 

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10.    Termination

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Snappit may terminate this Agreement by giving notice in writing to the Cedent, which notice will afford the Cedent 5 (five) business days to remedy the default set out in the notice, if any one of the following events occurs or if Snappit reasonably anticipates is likely to occur for any reason:

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10.1.    The Cedent commits a breach of any of its obligations under this Agreement;

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10.2.    Any warranty, representation or undertaking given by the Cedent herein is to any extent inaccurate or has been breached;

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10.3.    The purchaser in terms of the Sale Agreement is in breach of its obligations in terms of the Sale Agreement, including not being able to pay or procure the payment of the purchase price of the Property in terms of the Sale Agreement on Transfer;

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10.4.    The Deposit Holder in terms of the Rental Agreement indicates that the Cedent is not entitled to receive a refund of its deposit;

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10.5.    The Purchaser has repudiated liability in terms of the Sale Agreement;

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10.6.    The Cedent is in breach of the Sale Agreement or the Rental Agreement, as the case may be;

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10.7.    The Sale Agreement has not become or will cease to be of force or effect, whether by cancellation or otherwise;

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10.8.    Transfer does not occur for any reason whatsoever within 120 (one hundred and twenty ) days after the Effective Date;

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10.9.    Repayment to Snappit of the Purchase Price and Snappit Fee does not take place within 2 (two) days of the Transfer/ date on which refund of the deposit is due in terms of the Rental Agreement; 

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10.10.    Snappit’s rights or ability to enforce its rights in terms of this Agreement will be prejudiced for any reason.

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11.    Consequences of Termination

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11.1.    If this Agreement is terminated:

11.1.1.    all rights acquired by Snappit to the Claim shall be deemed to have been ceded and transferred back to the Cedent upon and against compliance by the Cedent with clause 11.1.2 and all other outstanding obligations in terms of this Agreement; 

11.1.2.    the Cedent shall repay to Snappit in full any amount or amounts paid by Snappit to the Cedent or any other person on its behalf in respect of the Purchase Price, together with the Snappit Fee (calculated up to and including the Termination Date) and interest thereon at the Interest Rate, calculated from the Termination Date to the date of such refund by the Cedent.

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11.2.    On termination of this Agreement by Snappit, Snappit shall be entitled (without prejudice to any other rights or remedies it may have) to recover from the Cedent the amount of all damages and loss suffered by Snappit as a result (directly or indirectly) of the Cedent’s failure, together with all sums previously paid to the Cedent under or in connection with this Agreement.  

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12.    Indemnification and Liability

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12.1.    Without prejudice to any of the rights of Snappit at law or in terms of any other provision of this Agreement, the Cedent indemnifies Snappit against all actual or contingent losses, liabilities, damages, costs (including legal costs on the scale as between attorney and own client and any additional legal costs) and expenses of any nature whatsoever which Snappit may suffer or incur (whether arising from contract, delict, a failure to comply with any law or otherwise) as a result of or in connection with this Agreement or the termination thereof. 

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12.2.    Any amount presently or in future payable by the Cedent to Snappit shall be paid immediately upon demand by Snappit therefore, in cash and without set-off or deduction of any nature whatever and at such address as Snappit may have stipulated for this purpose by 
notice. 

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13.    Renunciation of Benefits

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13.1.    The Cedent renounces the benefits of all legal exceptions whatsoever which could be taken to any action by Snappit in terms of or arising out of this Agreement. 

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13.2.    Without detracting from the generality of the foregoing, the Cedent expressly renounces the benefit of the exceptions non numeratae pecuniae (that the money has not been paid to him/her/it), excussion (that principal debtor should be claimed from first), division (that, in the event of multiple sureties, each are only liable for their proportionate share) and de duobus vel pluribus reis debendi (that, in the event of multiple principal debtors, each are only liable for their proportionate share), insofar as each may be appropriate, and acknowledges to be fully acquainted with the contents of these exceptions and the effect of the renunciation thereof.

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14.    Proof of amount owing and rates

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14.1.    A certificate issued under the hand of any director of Snappit, whose status need not be proved, shall be prima facie proof of the facts stated therein regarding any applicable Interest Rate and the amount owing by the Cedent to obtain the grant of judgment, summary judgment and provisional sentence by any competent court. 

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14.2.    In the event of the Cedent disputing the content of the certificate, the onus shall be on the Cedent to disprove the content of the certificate. 

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15.    Jurisdiction

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15.1.    The Cedent hereby consents to the jurisdiction of the Magistrates Court having jurisdiction over its person in respect of all legal proceedings related to this Agreement, notwithstanding that the value of the matter in dispute might exceed the jurisdiction of the Magistrates Court. 

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15.2.    Notwithstanding the foregoing, Snappit is entitled to institute action in the High Court having jurisdiction. 

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16.    Addresses and Notices

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16.1.    The Cedent chooses domicilium citandi et executandi (“domicilium”) for all purposes relating to this Agreement, including the giving of any notice, the payment of any sum and the serving of any process, at the respective addresses and e-mail addresses set out in the Application Form. Snappit’s domiciliam is as set out on the cover page.

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16.2.    Each Party shall be entitled from time to time, by giving notice to the other party, to vary its physical domicilium to any other physical address (not being a post office box or poste restante) within the Republic of South Africa, to vary its postal domicilium to any other postal address within the Republic of South Africa and to vary its e-mail domicilium to any other e-mail address. 

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16.3.    Any notice given by either Party to the other Party which is – 

16.3.1.    delivered by hand between the hours of 9:00 and 17:00 hours on any business day to that Party’s physical domicilium for the time being shall be deemed to have been received by that Party at the time of delivery; 

16.3.2.    posted by prepaid registered post to either Party’s  postal domicilium for the time being shall be deemed to have been received by the receiving Party on the 7th (seventh) day after the date of posting; 

16.3.3.    successfully transmitted by e-mail to either Party’s e-mail domicilium for the time being shall be deemed to have been received by the receiving Party on the day immediately succeeding the date of the successful transmission thereof.

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16.4.    Nothing in this clause shall operate to invalidate the giving or receipt of any written notice, which is actually received by a Party other than by a method referred to in this clause. 

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17.    Co-Principle Debtors

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17.1.    If there is more than one Cedent, such persons shall be jointly and severally liable as co-principal debtors under this Agreement towards Snappit.

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17.2.    If the Cedent is a juristic person or a trust, then the individual who signs the Agreement on behalf of the Cedent warrants authority and binds itself as co-principal debtor and stands surety for the Cedent for the due fulfilment of all obligations in terms of the Agreement.

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18.    General

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18.1.    This Agreement constitutes the sole record of the agreement between the parties concerning the subject matter hereof. Snappit shall not be bound by any express, tacit or implied term, representation, warranty, promise or the like not recorded herein. This Agreement supersedes and replaces all prior commitments, undertakings or representations, whether oral or written between the Parties in respect of the subject matter hereof. 

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18.2.    No addition to, variation, novation or agreed cancellation of any provision of this Agreement shall be binding upon the Parties unless reduced to writing and signed by or on behalf of the Parties. 

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18.3.    No indulgence or extension of time which either Party may grant to the other shall constitute a waiver of or, whether by estoppel or otherwise, limit any of the existing or future rights of the grantor in terms hereof, save in the event and to the extent that the grantor has signed a written document expressly waiving or limiting such right. 

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18.4.    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.

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18.5.    All provisions of this Agreement are, notwithstanding how they have been grouped or linked grammatically, severable from each other. Any provision of this Agreement which is or becomes unenforceable whether due to voidness, invalidity, illegality, unlawfulness or for any other reason whatever, shall only to the extent that it is so unenforceable, be treated as pro non scripto and the remaining provisions of this Agreement shall remain of full force and effect. The Parties declare that they intend that this Agreement would be executed without such unenforceable provision if they were aware of such unenforceability at the time of execution hereof.

18.6.    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.

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19.    Personal Information

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19.1.    The Cedent hereby grants consent to Snappit for the use and processing of Personal Information, provided by the Cedent or any third party herein, as is necessary to carry out actions and functions for the conclusion or performance of this agreement, as well as to inform the Cedent of additional services that could be of value to the Cedent. 

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19.2.    The Cedent acknowledges that he/she/it has a right to object to the processing of his/her/its Personal Information for marketing purposes and unless expressly stated otherwise, hereby consents to such Personal Information be used by Snappit for the abovementioned purposes. 

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19.3.    Snappit undertakes to process the Personal Information only as allowed for in terms of the Protection of Personal Information Act of 2013.