Investec FX Online Trading Terms and Conditions

Transcription

1 Investec FX Online Trading Terms and Conditions This Agreement governs the rights and obligations of the Client and Investec Bank Limited ("Investec") in respect of the Services. Please refer to clause 24 for the definitions of terms used in these Investec FX Online Terms and Conditions. 1. Application 1. This Agreement governs the rights and obligations of the Client and Investec in respect of online trading on Investec FX. 2. This Agreement supersedes and substitutes any agreement between the parties or their predecessors in title in respect of the Services or any part thereof. 3. This Agreement is confined to the Services and, unless otherwise provided for, does not apply to the Offline Business. 2. Acceptance 1. This Agreement is concluded between the parties on the date that it is executed by the party signing last in time. 3. Relationship between the User, the Client and Investec 1. The Client is any banking institution which would like to utilise the Service, on its own behalf. 2. Investec is offering its Clients the ability to utilise the Service. 3. The Client has nominated, appointed and mandated certain individuals ( Users ) as per the dealer mandate attached hereto as Annexure A to act on behalf of the Client.; 4. In order for the Users to access the Services, the Users will be given an Access Code unique to each User. 5. As such, any action or omissions by the User in respect of the Services shall be deemed to be authorised by the Client and shall be binding on the Client. 6. The Client hereby indemnifies Investec against any and all claims, loss, demands, liability, costs and expenses of whatsoever nature and howsoever caused and arising, which may at any time be made against Investec by any person or which Investec may sustain or incur arising directly or indirectly out of or in consequence of any Instructions or the Services, other than such claims, loss, demands, liability, costs and expenses arising as a direct result of Investec s gross negligence, wilful misrepresentation or fraud. 4. Access code 1. The User will be supplied with an Access Code by such means and in such format as Investec may determine from time to time. The use of the Services by any User is subject to Investec having issued the User with an Access Code prior to the use of the Services by such User. 2. Each time the User accesses the Investec FX Website to logon for purposes of the Services, the User will be prompted to enter his/her Access Code. The Access Code is unique to each User and it shall be delivered to the Client s chosen address. Should appear to be compromised, please contact the FX Desk which will arrange for another Access Code to be delivered. 3. Each time the User attempts to log onto Investec FX, the User s Access Code will be required for successful logon. 4. Should the User experience any difficulty logging onto Investec FX or should the User have lost or forgotten his/her Access Code; the User must please contact the FX Desk for assistance on The User undertakes to ensure that the Access Code is neither easily accessible nor disclosed to anyone. Storing the Access Code on a computer or network will be regarded as prima facie negligent for purposes of evidence with regard to unauthorised transactions. 6. The User shall be obliged to log-off from the Services before exiting an Online Session. Failure to log-off which results in unauthorised Transactions shall be for the Client s account and Investec will not be held liable. 7. Investec may, in its sole discretion and for whatever reason, require a User to change his/her Access Code from time to time and the User undertakes to comply with such requirement unconditionally. 8. Any changes to the User s authority or access rights in respect of the Services may take up to 24 hours to be implemented, and the Client will be liable for any Instruction attributable to the User s Access Code until such time as the change has been effected. In the event that the Client wishes to terminate its mandate in respect of an authorised User, the Client must contact the FX Desk and any changes may take up to 24 hours to effect and any Instructions received before such change is effected, whether authorised or not, will be executed and any resultant loss will be for Clients account. Investec will not be held liable in this regard. In the event that the Client wishes to mandate new Users, the Client

2 must contact the FX Desk and follow the new User take-on process communicated to it, which process could take more than 24 hours to complete. 5. Client Support For all other Investec FX queries that are unrelated to account activation or Access Code regeneration, the User must please contact the FX Desk on Signature and authority by Client 1. The Client hereby designates the User s Access Code as the Client s signature for purposes of all subsequent actions performed or Instructions given during an Online Session. 2. In as far as a signature is required for each Instruction in terms of the Agreement or applicable legislation, the Client hereby designates each Submission of an Instruction by the User as its written signature. 3. Whenever required in the Agreement or applicable legislation, the Submission of the Access Code, together with the Submission of an Instruction shall, collectively, constitute and have the same effect as a written, signed authority. 7. Instructions 1. The Client warrants that each User is authorised to engage in the Services on behalf of the Client. 2. The User shall therefore be entitled to instruct Investec in respect of transactions for and on behalf of the Client. Investec shall be entitled to regard all Instructions received from the User as actually originating from and authorised by the Client and to act on such Instruction. Under no circumstances shall Investec be held liable for any actions taken on the basis of unauthorised Instructions. 3. An Instruction becomes irrevocable once submitted to Investec and confirmed as executed in Investec FX by display of a trade reference number. 4. Investec shall not be liable for the User executing the same Instruction more than once and neither Instruction shall be reversible. 5. It is Client s responsibility to ensure that any Instruction given to Investec is accurate in respect of the transaction details. Investec will not be held responsible if the User submits an Instruction detailing incorrect transaction information. 6. Any and all Instructions submitted by the User and confirmed as executed in Investec FX will be executed by Investec. 7. Instructions must be sent from a secure location. If the User does not use a secure location to provide Instructions, any loss incurred will be for the Client s account. 8. Sufficient notification 1. The Client hereby grants Investec authority to issue notifications required in terms of the Agreement, legislation or regulation, as the case may be, by sending such notification by Any notices so issued by Investec, shall as far as they contain contractual terms pertaining to the Services, also form part of this Agreement. 3. A certificate signed by the administrator responsible for the maintenance of the information system (whose authority it shall not be necessary to prove) shall be prima facie proof of the first date of publication, withdrawal or contents of a notification. 9. Amendments 1. This Agreement may be amended by Investec from time to time. 2. Without derogating from the aforegoing and without imposing any obligation on Investec whatsoever, Investec reserves the right to give Clients notification of any amendment of the Agreement either in writing or by electronic mail On notification of the existence of the amended terms, Clients are obliged to execute and return a copy of such amendment 10. Unavailability of the Services 1. Investec shall at all times and for whatever reason, have the sole and exclusive right to suspend or terminate the Services without any prior notification or giving any reasons for such termination or suspension.

3 2. Clients acknowledge and accept that the Services may become unavailable from time to time due to various circumstances, including: routine maintenance; technical failure or problems with the Investec System; technical failure or problems with third party technology systems; unavailability of telecommunication or electricity services; or other circumstances beyond the control of Investec. 3. Clients undertake to limit their potential losses by utilising Investec s Offline Business for the duration of the unavailability of the Services. 11. Warranty 1. The Client warrants to Investec that it and its Users: (a) have the requisite legal capacity to make use of the Services; (b) have complied with all applicable statutory provisions; and (c) have read, understood and accepted the terms of this Agreement. 2. This Agreement evidences the sole terms and conditions governing the Services. Clients acknowledge and agree that any warranties, statements or representations of whatever nature and in whatever form, granted or made by Investec, its employees, agents or advisors which are not evidenced in the Agreement shall not be valid and enforceable and Client shall not hold Investec liable to any such warranty or representation, whether made prior to, during or after concluding the Agreement. 3. The Client undertakes to Investec that neither it nor its Users are listed on any Sanction List and neither it nor its Users are registered nor have a place of business in a Sanctioned Country and it will ensure that no transaction nor the use of this Service will directly or indirectly finance or fund, a Sanctioned Transaction or a person or entity on a Sanctions List. 4. Investec hereby reserves the right not to enter into a Sanctioned Transaction, and/or transact with any Client who is listed on any Sanction List. 5. The Client acknowledges that, in compliance with the IGA or any other applicable law, Investec may be required to report details relating to the Client or an account to the relevant authorities. 12. Indemnity The Client hereby indemnifies Investec for all losses and/or all expenditures which Investec may incur due to: (a) any Instruction being cancelled or reversed and (b); unauthorised Instructions executed which are not due to Investec s negligence. 13. No professional advice Investec does not act as financial advisor. All material published on the Investec FX Website (the "material") is only intended to provide general information regarding Investec and the Services and does not constitute professional advice of whatever nature. All material including, without limitation, research, opinions, figures, prices, projections or other content are provided "as is" and the User and the Client shall not place reliance thereon in taking actions which might affect the Clients finances without consulting Investec directly. 14. No offer Unless clearly otherwise stated, no material should be construed as an offer of whatever kind made by Investec. All material on the Website merely constitutes an invitation to do business with Investec. 15. Intellectual property 1. The logos and marks displayed on the Investec FX Website are registered and unregistered trademarks of Investec and/or third parties. Nothing contained on the Investec FX Website should be construed as granting any licence or right to use any trademark without the written permission of Investec and/or such third parties. 2. Furthermore the Client and the Users acknowledge that they do not have intellectuall property rights in or to Investec FX and the Services which belong to Investec or Investec s licensors. In the event that the Services or part thereof are provided under license to Investec from third parties, use of that part of the Services shall bind the Client to any additional terms that Investec or such third party shall notify the Client from time to time. 16. Use of browser and software

4 1. Clients are required to use and maintain only hardware and software of sufficient quality and performance capability and to use only the Specified makes and versions of internet browser software. Failure to use a Specified browser may result in a higher security risk and/or cause some or all of the functionality of the Investec FX Website not to operate properly or at all and Investec shall not be held liable in this regard. 2. Software, if any, made available for download on or via the Investec FX Website is governed by licence conditions establishing a legal relationship with the licensor. Clients indemnify Investec against any breach of such licence conditions. 3. Investec gives no warranty and makes no representation, whether express or implied, as to the quality or fitness for purpose or use of such software. 4. While Investec takes every effort to ensure that the Investec FX system is secure, Investec cannot warrant, expressly or by implication that any files, downloads or applications available via the Investec FX Website are free of viruses, or any other data or code which has the ability to corrupt or affect the operation of Clients systems Transmission of information Information transmitted via the Internet, including , is susceptible to unlawful access or monitoring. Clients shall bear all risk of transmitting such information in this manner and under no circumstances will Investec be liable for any loss, harm or damage suffered by them as a result thereof. Investec reserves the right to request independent verification of any information transmitted via the Investec FX Website or Technology neutrality Investec makes the Services available to Clients subject to the principle of technology neutrality, which principle Clients hereby accept. The principle of technology neutrality means that, unless otherwise stated in the Agreement: 1. The Services are subject to the same business fundamentals and principles governing Investec s Offline Business; 2. the Services are subject to the same processing turn-around times and performance criteria as applied by Investec in its Offline Business; 3. any reference to words in the Agreement, legislation or regulations traditionally associated with a non-electronic or non- Online environment, including the terms "writing", "document" or "signature", shall include electronic or Online forms thereof; 4. documents or displays viewed or printed by Clients via an information system shall prima facie be deemed to be "true copies" of the original. 19. Jurisdiction The Services and these Investec FX Online Terms and Conditions are governed in accordance with the laws of the Republic of South Africa. 20. Registration Clients may be required to complete and Submit a registration form and/or complete any other documents or provide any other information as may be required by Investec from time to time. Investec, in its sole and absolute discretion and without stating reasons therefore, shall have the right to reject any application for the Services. 21. Privacy For details of Investec s data protection practices, please read Investec s Data Protection Statement which explains how Investec processes personal information. 22. Disclaimer & limitation of liability 1. The Investec FX Website and the Services are provided "as is" and Investec makes no express or implied representations or warranties with regard thereto. Without limiting the generality of the foregoing:-

5 1. Investec does not warrant that the Investec FX Website or the Services will be error-free or will meet any particular criteria of accuracy, completeness or reliability of information, performance, quality or latency. 2. Investec expressly disclaims all implied warranties, including, without limitation, warranties of merchantability, title, fitness for a particular purpose, non-infringement, compatibility, security and accuracy. In the event of system delay or failure, or if the Client or User has queries on the status of an Instruction, the Client or User must please contact the FX Desk. 2. Neither Investec, any company in the Investec group, its shareholders, agents, consultants or employees will be liable for any damages whatsoever relating to the use of the Investec FX Website, or the Services or the information contained therein, including, without limitation, any direct, indirect, special, incidental, consequential or punitive damages, whether arising out of contract, statute, delict or otherwise. Without derogating from the generality of the foregoing, Investec shall not be liable for: 1. Any interruption, malfunction, downtime or other failure of the Investec FX Website or the Services, the Investec system, databases or any component part thereof for whatever reason; 2. Any loss or damage with regard to Client data or other data directly or indirectly caused by malfunction of the Investec system, power failures, unlawful access to or theft of data, computer viruses; programming defects, or negligence on the part of Investec ; 3. Any interruption, malfunction, downtime or other failure of goods or services provided by third parties, including, without limitation, the public switched telecommunication service providers (currently Telkom), internet service providers, electricity suppliers (currently Eskom), local authorities and certification authorities; 4. An event of vis major or any other event over which Investec has no direct control. 23. Miscellaneous Provisions 1. Investec FX Fees Investec will not charge a separate fee for access to the Services, unless otherwise agreed between the parties. Each Client is responsible for all fees, costs and expenses associated with his/her access to and use of the Services. 2. Use of Investec FX and the Services 1. The Client is granted a personal, non-transferable, non-exclusive and limited license to use (but not modify or sub-license) Investec FX for the purposes of the Services, subject to the Investec FX Online Terms and Conditions. The Client will use the Services and enter in to Transactions, via its Users on behalf of certain corporate counterparties and as such the Client agrees to these Investec FX Online Terms and Conditions on behalf of such corporate counterparties. All rights not expressly granted are reserved and this license automatically terminates upon the termination of the relationship of the parties. 2. The Client and its Users agree to be bound by any disclosures, disclaimers, instructions, trading limits and or trading conditions or terms in accordance with the Investec FX Online Terms and Conditions, the ISDA Agreement and the Standard Terms and Conditions. 3. Investec may restrict access to or prohibit the use of the Services or any part thereof for regulatory or other reasons, with or without prior notice and Investec shall not be liable for any losses whatsoever for such restriction or prohibition. 24. Definitions In these Online Trading Terms the following terms shall have the following meaning: "Access Code" means the User specific username and password provided to each User by Investec which is required to initiate an Online Session; "Agreement" means these Investec FX Online Terms and Conditions read with the Standard Terms and Conditions and the ISDA Agreement; "Client" means any person who has authorised the User(s) to use the Services on its behalf or on behalf of other entities in accordance with mandates by such other entities;

6 "FATCA" means Foreign Account Tax Compliance Act and all regulations published thereunder; "IGA" means the intergovernmental agreement that the South African and United States governments have concluded to improve international tax compliance and to implement FATCA "Investec FX" means the platform on which Investec provides the Services from time to time; "Investec FX Website" means the website (including all its constituent web pages) on which Investec provides the Services from time to time; "Hyperlink" means any graphic, icon or text on the Investec FX Website linked to any other website or web page, whether on the Investec FX Website or any other website; "Information System" means a system for generating, sending, receiving, storing, displaying or otherwise processing Instructions and includes the Internet, telephone voice recognition, Short Messaging System (SMS) and Wireless Application Protocol (WAP) communications; "Instruction" means an instruction given Online by a User, to Investec, for Investec to perform the Services; "Investec System" means the information technology infrastructure of the information system underlying the Services, owned, leased or managed by Investec; "ISDA Agreement" means the ISDA Master Agreement entered into between Investec and the Client, (together with all other Transactions and Confirmations previously entered into between the Parties) failing which, it shall mean the 2002 ISDA Master Agreement, as published and amended from time to time by the International Swaps and Derivatives Association, Inc, as if, on the Trade Date of the first Transaction between the Parties, the Parties had executed that agreement (without any Schedule thereto) and specified that (i) the Cross Default provisions will apply to both Parties and that the Threshold Amount will be 3% of each Party s Shareholders Equity as disclosed in their latest published audited financial statements, (ii) the Credit Event Upon Merger provisions will apply to both Parties (iii) the Automatic Early Termination provisions will not apply (iv) the Termination Currency will be selected by the Non-Defaulting Party and (v) that Multiple Transaction Payment Netting will apply; "Offline Business" means the services provided by Investec otherwise than via the Online medium including but not limited to telephone or ; "Online" means via an information system platform used for online trading of various foreign currencies on an execution only basis from time to time; "Online Trading" means the Services provided Online by Investec to Clients; "Online Session" means the uninterrupted period during which the User has access to the Services, from time to time; "Personal Information" means information relating to an identifiable, living natural person or where applicable an existing juristic person, which includes but is not limited to name, address, contact details, date of birth, place of birth, identity number, passport number, bank details, details about employment and financial information. RSS Feeds means information sourced from third parties and displayed on the Investec FX Website from time to time; Sanctioning Body means any one or a combination of the following entities- the Office of Foreign Assets Control of the Department of Treasury of the United states of America; the United Nations Security Council; the European Union; Her Majesty s Treasury of the United Kingdom; and/or

7 any other equivalent body that may from time to time impose sanctions; Sanctioned Country means a country which is subject to general sanctions by a Sanctioning Body; Sanction List means any of the lists of specifically designated nationals or designated persons or entities (or equivalent) held by a Sanction Body, each as amended supplemented or substituted from time to time, and/or any other sanctions lists that Investec may from time to time deem necessary or be required to screen against; "Sanctioned Transaction" means either the use by any person of amounts held in an account or any economic benefit derived from a Transaction for the purpose of financing directly or indirectly the activities of any person or entity which is on a Sanctions List or for the purpose of financing directly or indirectly the activities of any person in a Sanctioned Country, and/or the contribution or making available of amounts paid from an account or pursuant to a Transaction to any person or entity, if the relevant person has actual knowledge, without having made enquiry, that such person or entity intends to use such funds for the purpose of financing the activities of any person or entity which is in a Sanctioned Country and/or is on a Sanction List, in each case to the extent that such financing or provision of funds would be prohibited by Sanctions; "Services" means Online execution only currency trading provided by Investec between 08H00 and 17H00 from Mondays to Fridays, excluding Weekends and Public Holidays in the Republic of South Africa; "Specified" means displayed on or via the Investec FX Website; "Submit" means the submission of information by the Client to Investec through the Investec System and includes the clicking of any icon or hyperlink on the Website or functionality on the Client s Internet browser which transmits information to Investec; "Standard Terms and Conditions" means the Investec Standard Terms and Conditions and/or the ISDA Master Agreement executed between Investec and the Client and applicable to foreign exchange trading and Transaction settlement; "User" means each individual authorised to act on behalf of the Client as set out in the Dealer Mandate in Annexure A, which individual shall be provided with an Access Code, unique to him or her; a. Investec Bank Limited name and legal status Investec Bank Limited is a public company (Reg No. 1969/004763/06). b. Investec Bank Limited addresses and telephone number Telephone: Fax: Physical Address 100 Grayston Drive, Sandown, Sandton, 2146, South Africa Web c. Money Laundering Legislation Investec is required by law (The Financial Intelligence Centre Act no 38 of 2001) to identify all clients and to verify such identification via documentary evidence as specified by the Regulations to the Act and our own internal policies. We are not permitted to perform any transaction on your account if it is not compliant with the requirements of the legislation. d. The address where Investec Bank can receive legal service of documents Investec Corporate & Institutional Banking Division

8 ICIB Treasury Legal, 3rd Floor Zone Grayston Drive Sandown 2146 South Africa e. The terms of agreement which are applicable to each Transaction Please refer to the Standard Terms and Conditions, the Investec FX Online Terms and Conditions and the ISDA Agreement.

9 Annexure A Dealer Mandate Financial Intelligence Centre Act 38 of 2001 Authorised Person Investec FX All Documentation is compulsory and must be original independently certified copies. Faxed or ed copies cannot be accepted Section A Authorising Entity Trade name (if different from legal name) Registration number Registered address Registered trade address (if different to above address) Income Tax number VAT number (if applicable) Web Address Section B The below mentioned users are duly authorised to deal on the Investec FX platform:

10 3. 4. The below mentioned users have view only rights on the Investec FX platform: 5.

11 Documentation required: 9. Please tick if document attached Bar-coded identity document or passport (if foreigner) Please ensure this form is signed as per your authorising board resolution Authorised By:- Signature Authorised By:- Signature Authorised By:- Signature