General Terms of Business for Intermediaries

Unless the context indicates otherwise the following expressions have the following meanings:

1.1 Agreement means these General Terms of Business read together with:

a) any product-specific Intermediary Agreement/s for the specific Investec facility or product required;
b) the relevant banking facility and investment agreements; and/or
c) any Product Rules for Investec’s investment and other products
all as amended from time to time, including all notices and correspondence that Investec may send to the Intermediary.

1.2 AML means anti money laundering as that term is defined in the Prevention of Organised Crime Act No.121, of 1998 and FICA.

1.3 Applicable Law means any of the following to the extent it applies to any party (i) any statute, regulation, policy, by-law, directive, notice or subordinate legislation; (ii) the common law; (iii) any applicable industry code, directive, policy or standard enforceable by law; or (iv) any applicable direction, policy or order that is issued by a regulator having the force of law.

1.4 Business Day means any day other than a Saturday, Sunday or official public holiday in South Africa.

1.5 CFT means combatting the financing of terrorism as that term is defined in the Prevention of Organised Crime Act No.121, of 1998 and FICA.

1.6 Client means any client of the Intermediary to whom the Intermediary markets or provides financial services concerning Investec’s products or facilities and also any client of the Intermediary with whom the Intermediary has concluded a Prescribed Contract and on whose behalf the Intermediary will transact with Investec.

1.7 CODI means the Corporation for Deposit Insurance

1.8 CRS means the Common Reporting Standard as specified and required under the Tax Administration Act, No. 28 of 2011 for the automatic exchange of financial account information.

1.9 Data Protection Legislation means the following legislation where applicable:

(i) the Protection of Personal Information Act No. 4 of 2013 as amended or substituted.
(ii) the EU General Data Protection Regulation (2016/679) (GDPR), replacing the EU Directive 95/46/EC; or
(iii) such other legislation as may become applicable to the protection of personal information in South Africa and any other relevant jurisdiction.

1.10 Deposit Insurance Regulations  means regulations issued by  the Minister of Finance, in terms of sections 288(1) and 166AB(1)(b) of the Financial Sector Regulation Act 9 of 2017

1.11 EU means the European Union.

1.12 FAIS means the Financial Advisory and Intermediary Services Act No.37 of 2002.

1.13 FATCA means the US Foreign Account Tax Compliance Act.

1.14 FICA means the Financial Intelligence Centre Act, 2001.

1.15 IGA means the intergovernmental agreement that the South African and United States governments have concluded to improve international tax compliance and to implement FATCA.

1.16 Information means any information as generally understood, source codes, reports, notes, working papers, emails, designs, techniques, models, templates, generalised features of the structure, sequence and organisation of software, user interfaces, screen designs, general-purpose consulting and software tools, utilities and routines logic, coherence and methods of operational systems, methodologies, documents, presentations, spreadsheets, materials, data, technologies, programmes, processes, records and facts, whether in hard copy or electronic format.

1.17 Insolvency Event means the occurrence of any of the following events in relation to the Intermediary:

(i) the Intermediary is wound-up, liquidated, deregistered or placed under business rescue, in any such event whether provisionally or finally and whether voluntarily or compulsorily; or
(ii) the Intermediary passing a resolution providing for any such event; or
(iii) the Intermediary taking any procedural steps in relation to any such event; or
(iv) the Intermediary is or becomes insolvent or commits any act which is or, if it were a natural person, would be an act of insolvency as defined in the Insolvency Act No. 24, of 1936.

1.18 Intermediary means the person or Juristic Entity who concludes Transactions with Investec on behalf of his/her/its Client/s or who provides financial services or markets and distributes Investec products to its Client/s and who in each case agrees to be bound by this Agreement.

1.19 Intermediary Agreement means an intermediary agreement or any other agreement concluded between Investec and the Intermediary in respect of the specific Investec product, banking or finance facility that the Intermediary wishes to recommend or distribute to its Client/s or to conclude with Investec on behalf of its Client/s.

1.20 Investec means Investec Bank Limited, or any other member of the Investec Limited group of companies and/or any duly appointed agent of that Investec group company, with whom the Intermediary signs an Intermediary Agreement for the provision of intermediary services in respect of that Investec entities products or Facilities.

1.21 Investec Brand means the name, logo, product description and/or trademarks of Investec from time to time.

1.22 Juristic Entity means any entity that is not a natural person.

1.23 Parties means Investec and the Intermediary.

1.24 Personal Information means all Information relating to an identifiable natural or Juristic Person as defined in POPI.

1.25 POPI means the Protection of Personal Information Act No.4 of 2013.

1.26 Prescribed Contract means a written contract of agency, mandate or investment management agreement concluded between the Client and the Intermediary (where the Intermediary holds a Category II licence in terms of FAIS) in accordance with clause 8.

1.27 Process/Processing has the same meaning assigned thereto in POPI and includes any operation or activity or any set of operations, whether or not by automatic means, concerning Personal Information, including: (a) the collection, receipt, recording, organisation, collation, storage, updating or modification, retrieval, alteration, consultation or use; (b) dissemination by means of transmission, distribution or making available in any other form; or (c) merging, linking, as well as restriction, degradation, erasure or destruction of Information.

1.28 Product Rules means the specific terms and conditions applicable to Investec’s products or banking or finance facilities as contained in the relevant Investec product documentation or facility agreements, as the case may be.

1.29 Responsible Party means a public or private body or any other person which, alone or in conjunction with others, determines the purpose of and the means for processing Personal Information.

1.30 Sanctions means the economic sanctions laws, regulations, embargoes or restrictive measures administered, enacted or enforced by any Sanctioning Body.

1.31 Sanction List means any of the sanctions lists of specially designated nationals or designated persons or entities (or equivalent) held by a Sanctioning 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.

1.32 Sanctioning Body means any one or a combination of the following entities:

(i) the Office of Foreign Assets Control of the Department of Treasury of the United States of America;
(ii) the United Nations Security Council;
(iii) the European Union or any participating member state of the European Union;
(iv) Her Majesty's Treasury of the United Kingdom; and
(v) any other Sanctioning Body of a foreign country in whose currency Investec may facilitate payment.

1.33 Sanctioned Country means a country which is subject to general Sanctions or embargo by a Sanctioning Body.

1.34 Sanctioned Transaction means either the use by any Client or the Intermediary of amounts in an account for the purpose of financing directly or indirectly the activities of any person or entity which appears on a Sanctions List or which is in a Sanctioned Country, and/or the contribution or making available of amounts paid from an account to any person or entity, if the relevant Client or Intermediary has actual knowledge 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 appears on a Sanction List, in each case to the extent that such financing or provision of funds would be prohibited by Sanctions.

1.35 Security Policy means Investec's computer security policy, as amended from time to time by Investec.

1.36 Transaction means a transaction concluded by the Intermediary or by the Intermediary’s Client/s, as applicable, in respect of banking and finance facilities and/or investment products or any other product offered by Investec and, where applicable, including an encumbrance for purposes of the issue of a guarantee and/or noting of a cession or a pledge in respect of the transaction.

1.37 Website means www.investec.com.

2.1 The headings in this Agreement are for reference purposes only and shall not affect the interpretation of any of the provisions to which they relate.

2.2 Words importing one gender include the other genders; words in the singular include the plural and vice versa; and natural persons include corporate entities.

2.3 A reference to legislation is a reference to the legislation as at the date of enactment of the legislation or as it is amended or re-enacted from time to time, and includes all regulations issued under that legislation.

2.4 This Agreement shall be binding on and enforceable by the permitted assigns, curators, business rescue practitioners, or liquidators of the Intermediary, and reference to the Intermediary shall be deemed to include the Intermediary's permitted assigns or liquidators, curators, or business rescue practitioners as the case may be.

2.5 When any number of Business Days is prescribed in the Agreement, same shall be reckoned exclusively of the first and inclusively of the last Business Day.

2.6 Should the day for the performance of any obligation in terms of the Agreement fall on a day which is not a Business Day, then such obligation shall be performed on the immediately following Business Day.

2.7 For the purposes of these General Terms of Business, expressions used which are not defined in this clause 2 shall have the same meaning as in FAIS and FICA.

2.8 If any conflict exists between these General Terms of Business and the provisions of any legislation referred to herein, then the provisions of the legislation will prevail.

3.1 Investec will not permit the Intermediary to conclude Transactions or distribute products to its Client/s and shall not be bound in any manner to do so until the Intermediary has completed and executed the relevant product-specific Intermediary Agreement (if applicable), completed and signed or procured the completion and signature by its Client/s of the product and facility documentation and agreements and submitted all forms and provided all supporting documentation required by Investec in terms of its internal policies and procedures and all Information contained therein has been verified and accepted by Investec. In addition, the Intermediary shall provide supporting Information and documents to Investec which shall include, but not be limited to, the following where applicable:

3.1.1 all information required by FICA;
3.1.2 its VAT registration number;
3.1.3 copy of the Intermediary’s licence issued to the Intermediary pursuant to section 8 of FAIS indicating the category of financial service and sub-categories of financial products in respect of which the Intermediary may render financial services;
3.1.4 proof of bank account details of the Intermediary and the Client/s in the form of a bank reference letter or bank statement, certified by the relevant bank;
3.1.5 completed AML/CFT Questionnaire;
3.1.6 the Intermediary’s BEE score;
3.1.7 copy of the Intermediary’s current insurance policy as required by FAIS;
3.1.8 copy of the latest audited financial statements if the Intermediary is a Juristic Person;
3.1.9 resolution of the board any Intermediary who is a Juristic Entity authorising it to enter into Transactions with Investec and in respect of an Intermediary who is a category II financial services provider, the resolution shall confirm the identity of the authorised signatories who may sign on the Intermediary’s behalf and provide sample signatures of such signatories; and
3.1.10 other documents required by Investec in terms of its internal policies and procedures from time to time, in respect of which, notice has been given to the Intermediary.

3.2 The Intermediary hereby provides consent to Investec for Investec to source, store and process any regulatory license of the Intermediary and the Intermediaries employees directly from applicable regulators if Investec elects, in our sole discretion, to source such information from the regulator as opposed to from the Intermediary. The Intermediary further represents that it has obtained and will obtain on an ongoing basis, all necessary consent from the Intermediary’s employees required by Investec to source the Intermediary employees regulatory license or accreditation information directly from applicable regulators. This clause will not discharge the Intermediary of any obligation under clause 3.1 above.

3.3 Notwithstanding compliance by the Intermediary with the provisions of clause 3.1 above, Investec may, in its sole discretion, refuse to allow an Intermediary or any of its representatives to enter into Transactions in respect of banking facilities or products on behalf of that Intermediary’s Client/s.

3.4 The relationship of the Parties shall be governed by the terms of this Agreement and any applicable Product Rules or terms and conditions applicable to the relevant Transaction and nothing herein contained shall be deemed to constitute a partnership, joint venture, agency, or the like between them.

3.5 In either effecting any Transaction for and on behalf of its Clients or distributing any of Investec’s facilities or products, neither the Intermediary nor its employees or representatives will act or purport to act as the agent of Investec.

3.6 Prior to the operation of any account or the effecting of any Transaction, and from time to time thereafter as required by Investec, the Intermediary shall furnish Investec with all necessary supporting documentation required by Investec and all documents, information, details, authorisations, approvals, licences and the like which the Intermediary is obliged to provide in terms of Applicable Law.

3.7 All accounts and all Transactions shall be subject to this Agreement as well as the Product Rules, as amended from time to time. The Intermediary is at all times responsible for reading and understanding the Product Rules relating to a Transaction and for ensuring that it has provided each of its Clients with a reasonable and appropriate general explanation of the nature and material terms of the relevant Investec product, facility, or Transaction and that it has made a full and frank disclosure of any Information that would reasonably be expected to be required for the Client to make an informed decision in relation thereto, including if appropriate, the provision of material contractual Information and material illustrations, projections, or forecasts in the possession of the Intermediary.

3.8 The Intermediary is responsible for ensuring that all Client/s receive the relevant product/facility documentation in respect of the relevant Transaction, which Investec will provide to the Intermediary, as well as a copy of the Intermediary Agreement, the Product Rules, account statements, and IT3(b) certificates. The Intermediary is also responsible for ensuring that all Client/s are provided with information regarding Investec as product/facility provider in compliance with the requirements of FAIS General Code of Conduct (Section 4) and that they are at all times made aware of all fees which may be applicable to a Transaction.

3.9 Except as specifically provided to the contrary, Investec shall act as principal in respect of the Transactions entered into with the Intermediary and/or its Client/s.

3.10 The Intermediary shall ensure that any of Investec’s products or facilities it recommends to its clients are appropriate and suitable for the Client’s specific needs.

3.11 The Intermediary shall ensure that all of its representatives and key individuals meet and maintain compliance with the Fit and Proper requirements as set out in the Board Notice 194 of 2017 and any subsequent legislation, including but not limited to compliance with the requirements for honesty, integrity, good standing, competency, class of business, product training, continuous professional development, operational ability, and financial soundness.

4.1 While Investec will primarily liaise with the Intermediary for the purpose of implementing the Transactions, nothing in this Agreement may be construed as preventing Investec from engaging directly with any of the Client/s.

4.2 Investec is accordingly entitled to, without limitation, send Clients this Agreement, the Intermediary Agreement and Product Rules applicable to the Transaction, send statements to Clients in any medium, confirm the Client's instructions in relation to any Transaction (if necessary or appropriate) and obtain or confirm Client Information to enable Investec to report appropriately and timeously to any regulatory authority. The Intermediary accordingly undertakes to accurately capture all Client/s' email, postal addresses, and contact details and provide same to Investec.

4.3 It is recorded, for the avoidance of doubt, that this clause 4 will apply irrespective of whether such engagement was initiated by Investec, the Intermediary or the Client/s.

With effect from the date on which Investec advises the Intermediary that it is able to do so, the Intermediary shall be entitled to effect Transactions on behalf of Client/s and/or to market and distribute Investec products to its Client/s strictly in accordance with the Agreement.

6.1 The Intermediary warrants that it will comply with Investec's Security Policy, as provided to it from time to time, at all times during the currency of the Agreement.

6.2 Investec may update the Security Policy and will notify the Intermediary of such updates.

7.1 The Intermediary shall not be entitled to use the Investec Brand or mention Investec's name (other than to comply with Applicable Law), whether in printed, video, audio, or digital form, without Investec's prior written consent.

7.2 Investec reserves the right to either provide the Intermediary with the artwork in respect of the Investec Brand or to provide the Intermediary with guidelines (including measurements and specifications) for the correct use of the Investec Brand.

7.3 Notwithstanding the aforesaid, Investec may at any time, require the Intermediary to remove all reference to Investec's Brand from its website or other material.

8.1 The Intermediary shall not be permitted to enter into any Transactions as agent on behalf of a Client unless it has concluded a Prescribed Contract with such Client which makes provision for the following terms (in addition to all such other provisions as may be usual or customary for agreements of this nature):

8.1.1 confirmation that the Intermediary is authorised to perform all obligations under the Transactions described in the Prescribed Contract on the Client's behalf whether by using an Investec trading platform or system or otherwise;
8.1.2 confirmation of the fees charged by the Intermediary for rendering services to the Client;
8.1.3 confirmation that the Client assumes all risk associated with the administration of the entrusted funds by the Intermediary (except insofar as the Client may have a lawful right of recovery against the Intermediary) as well as the responsibility to ensure that the Intermediary executes the Client’s instructions recorded in the Prescribed Contract;
8.1.4 confirmation that the Client consents to the sharing of his/her/its Client Information with Investec in order to enter into the Transaction and to comply with Investec's obligations to report to all tax authorities in compliance with the IGA, CRS or any other Applicable Law; and
8.1.5 unless Investec agrees otherwise, the Client undertakes to communicate solely with the Intermediary with respect to all Transactions.

9.1 The Intermediary undertakes to retain all Prescribed Contracts concluded with its Client/s and all supporting documents relating to the information collected in terms of clause 10 for a period of at least seven (7) years (or longer as advised by Investec from time to time if required by Applicable Law) from date of the last Transaction with each Client or date of termination of each Client relationship, as applicable, and undertakes to furnish true copies thereof to Investec as soon as possible but no later than one (1) Business Day after a request received from Investec.

9.2 The Intermediary hereby gives Investec or its nominee or agent free and easy access to its Prescribed Contracts and to the documentation collected and recorded in terms of its obligations under clause 10, and for these purposes, the Intermediary will allow Investec at all reasonable times to conduct onsite visits to:

9.2.1 inspect such records; and/or
9.2.2 audit the Intermediary's compliance with all Applicable Laws and the provisions of this Agreement on at least an annual basis.

9.3 Investec shall be entitled to conduct batch sample testing on such reasonable terms as Investec may determine in order to determine compliance by the Intermediary with FICA, FAIS, POPI, and any other Applicable Law.

10.1 The Intermediary undertakes to capture correctly and comprehensively all Client Information that Investec indicates as being mandatory to capture in respect of each Client. The Intermediary shall keep updated all information it is mandatory to capture.

10.2 Investec reserves the right to require that further information be captured by the Intermediary after a Transaction has already been concluded on behalf of a Client, in order to comply with Applicable Law.

10.3 Where the Intermediary is required to open a bank account on behalf of a Client in relation to a Transaction, the Intermediary agrees to procure that, prior to opening the bank account on behalf of its Client, the Client completes and signs the Investec form entitled “Tax Related Information Form” (or any similar form that Investec provides the Intermediary with) or the Intermediary's own form which includes all the fields and declarations in the Investec Tax Related Information Form. The Intermediary shall retain all Tax Related Information Forms in terms of the provisions of clause 9 and/or shall provide Investec with the original or a copy thereof forthwith upon an account being opened for a Client for verification or reporting purposes.

10.5 The Intermediary acknowledges that, in compliance with the IGA, CRS or any other Applicable Law, Investec may be required to report details relating to a Client or an account (including a status of non-compliance where Investec is not in receipt of the required documents and/or information) to the relevant authorities and the Intermediary undertakes to ensure that Client/s are made aware of this. The Intermediary further acknowledges that Investec may suspend an account until a valid and signed Tax Related Information Form is received to Investec’s satisfaction.

10.6 The Intermediary acknowledges that, in order to timeously furnish all relevant authorities with required information, Investec may contact Clients directly to obtain all and any information and/or supporting documents and/or verification of same.

10.7 The Intermediary shall further ensure that, in compliance with POPI, Clients are directed to take note of Investec's data protection statement on the Website.

10.8 The Intermediary undertakes to keep all information collected and recorded in terms of this clause 10 accurate and up to date and undertakes to provide any updated information to Investec in accordance with the time limits prescribed in the relevant Applicable Laws

10.9 Investec shall process the information provided by the Intermediary in accordance with Applicable Laws.

10.10 The Intermediary acknowledges that FICA has removed all exemptions, including Exemption 4 and that as a consequence it is required to comply with FICA in relation to its Clients and to confirm such compliance with FICA to Investec. The time period for delivering requested FICA documents is one (1) day in line with the Financial Intelligence Centre requirements imposed on an accountable institution under FICA.

10.11 Warranties and undertakings relating to regulatory compliance

10.11.1 The Intermediary warrants and undertakes to and in favour of Investec as material warranties and undertakings inducing Investec to enter into the Agreement that:

10.11.1.1 it is an accountable institution as defined in FICA and is duly registered with the Financial Intelligence Centre and it will subject itself to Investec’s FICA and Client on-boarding process;
10.11.1.2 it has a documented risk management and compliance programme as required by FICA;
10.11.1.3 it shall operate in accordance with the standards established under FICA as may be amended from time to time and in particular it will (i) comply with part 1 of Chapter 3 of FICA regarding customer due diligence and the identification and verification of Clients; (ii) comply with sections 22 and 22A of FICA regarding the obligation to keep records; (iii) upon request by Investec, it shall provide written confirmation to the satisfaction of Investec, that it has established and verified the identity of the Client in accordance with the prescribed requirements under FICA and keep copies of the records held by the Intermediary in accordance with FICA, which records must be capable of being reproduced in a legible format;
10.11.1.4 it will not open a bank account for a Client unless it is in possession of a completed and signed Tax Related Information Form from the Client and it is in possession of the relevant category of FAIS licence to be able to open and maintain the bank account;
10.11.1.5 all information captured by the Intermediary onto any Investec trading platform or system will be true and correct in all respects;
10.11.1.6 it does comply and will continue to comply with all Applicable Laws for the duration of the Agreement; and
10.11.1.7 on receipt of demand from Investec, the Intermediary will make information relating to the identification and verification of Clients available to Investec without delay, in particular if such documentation is requested by Investec pursuant to a regulator demand for information or for Investec to conduct an enhanced due diligence under FICA or to monitor a Transaction.
10.11.1.8 it will at all times hold a FAIS licence as an independent financial services provider with the relevant product sub-categories to be able to act as an intermediary in respect of any Transaction.
10.11.1.9 that it, as well as its Key Individuals and Representatives have all required regulatory licenses, internal and external approvals, and the Intermediary undertakes to notify Investec immediately should (i) the Intermediary’s regulatory license(s) be suspended, withdrawn, revoked, or cancelled; (ii) if their Key Individuals or Representatives no longer meet the regulatory requirements; or (iii) if the Intermediary and their Key Individuals and Representatives are the subject of any regulatory investigation, enforcement action, and/or receive a regulatory fine, penalty, finding, censure or debarment.

10.11.2 The Intermediary undertakes to notify Investec forthwith in writing in the event that it has knowledge of or forms a reasonable apprehension that any of its warranties in clause 10.11.1 or elsewhere in the Agreement are or may be inaccurate, untrue or incorrect in any manner and for any reason whatsoever provided that such notice shall not in any manner whatsoever prejudice Investec's rights in respect of any breach of the warranties in the Agreement nor create any duties or obligations on the part of Investec in relation thereto.

10.12 CODI is South Africa’s Deposit Insurance Scheme that covers Qualifying Depositors’ covered deposits to the amount specified in terms of the regulations should the bank fail. Investec represents that, with reference to CODI (all terms not defined in the Agreement will have the meaning as per definitions in the Deposit Insurance Regulations):

10.12.1 where the Client is a “Qualifying Depositor” who entered into a Transaction, which is a “Qualifying Deposit”, such Qualifying Deposit will be covered up to a limit of cover specified in the Deposit Insurance Regulations made in terms of the Financial Sector Regulation Act, 9 of 2017; and

10.12.2 any Transaction which does not meet the definition of a Qualifying Depositor and/or Qualifying Deposit, will not be covered by CODI.

11.1 The Intermediary accepts responsibility for confirming that the Client is not currently named on any list of prohibited countries, territories, entities, and individuals maintained by a Sanctioning Body or by the FIC on behalf of a Sanctioning Body.

11.2 The Intermediary acknowledges that Investec reserves the right to conduct the necessary due diligence in respect of all Clients to ensure that they are not on any Sanction List, not located in any Sanctioned Country and that the account is not used to directly or indirectly finance or fund a Sanctioned Transaction. The Intermediary acknowledges that Investec reserves at all times the right to close such an account forthwith and that Investec shall in accordance with Applicable Laws be entitled to freeze property and Transactions.

11.3 The Intermediary undertakes to comply with all Applicable Laws in relation to compliance with Sanctions and to advise Investec of all information that comes to its knowledge regarding breach or potential breach of Sanctions by any Client.

11.4 The Intermediary warrants that it is not on any Sanction List and is not registered or has a place of business in a Sanctioned Country.

12.1 For electronic Transactions concluded by the Intermediary on behalf of its Client, the Intermediary shall ensure that only those of its representatives who are authorised to do so and whose identities, contact details, and signatures have been provided to Investec, have access to the relevant Investec trading platform or system and undertakes that all information entered into the system by them shall be true and correct. The intermediary shall ensure that Investec is in possession of the current list of its authorised representatives and that the list held by Investec is kept updated at all times.

12.2 In effecting any Transaction the Intermediary undertakes to comply with:

12.2.1 this Agreement;
12.2.2 the Product Rules; and
12.2.3 any applicable Prescribed Contract.

12.3 All payments to Investec in respect of amounts owing under this Agreement shall be made by electronic funds transfer.

13.1 The Intermediary hereby warrants and undertakes to and in favour of Investec as material warranties and undertakings inducing Investec to enter into the Agreement that:

13.1.1 it has the necessary capacity, powers and authority to enter into this Agreement and any person signing on its behalf or effecting Transactions is duly authorised and empowered to do so;
13.1.2 it has sufficient insurance cover (whether fidelity insurance or otherwise) in respect of all such risks as may be reasonable in relation to the Transaction being concluded and undertakes to provide proof thereof to Investec on request;
13.1.3 it will enter into products and facilities on behalf of its Client with Investec solely in terms of the Prescribed Contract from its Client and it will conclude Transactions with Investec in its capacity as Intermediary on behalf of its Client with whom it has a Prescribed Contract;
13.1.4 it will act in good faith in its dealings with Investec and with its Clients, as required by FAIS and it will not do or fail to do anything that would render any Transaction voidable or unenforceable and it will not make any false or misleading statements that adversely affect the reputation of Investec or which would cause Investec to suffer loss; and
13.1.5 it will notify its Clients that it is an independent intermediary acting independently of Investec and that it is not an agent or partner of Investec; and
13.1.6 On termination of this Agreement for any reason whatsoever, the Intermediary shall be obliged to remove all references to Investec from any of its marketing material and website; and

13.1.7 With reference to foreign currency account related currency conversions facilitated by the Intermediary, where the Intermediary is a non-SARB approved intermediary:

13.1.7.1  Unless otherwise agreed between the Intermediary and Investec, where currency conversions are facilitated directly with Investec by non-SARB approved and regulated Intermediaries to or from foreign currency accounts, the exchange rate at which such conversions are concluded will be a market related Investec rate, determined at the time of execution, subject to all requirements being met.  There will be no exchange rate confirmation prior to execution.

13.1.7.2  Without limitation, Investec does not accept any liability due to any delay or change in market conditions before any particular transaction is effected, and the client will be responsible for all transactions entered by the client or on the client’s behalf by the Intermediary, and the client will be fully liable to Investec for the settlement of any transaction arising from any aforementioned currency conversion.

The Intermediary hereby consents to Investec taking whatever security precautions it may consider necessary in relation to usage of any Investec trading platform or system, including recording of telephone conversations with or without use of an automatic tone warning device. Any recordings shall be and remain the sole property of Investec and the Intermediary agrees that Investec may deliver copies or transcripts of recordings to any court or regulatory authority.

15.1 Investec may only share any information obtained by Investec in terms of the Agreement with any person in accordance with Applicable Laws and as may be appropriate at Investec's reasonable discretion with the prior written consent of the Intermediary (which shall not be unreasonably withheld) unless required to do so in terms of any Applicable Law.

15.2 Any Personal Information pertaining to a Client which is held by Investec pursuant to this Agreement, a Transaction or otherwise, shall be held subject to such rights of access to which the Client may be entitled and Investec shall be entitled to inform Clients of such rights from time to time in accordance with Applicable Laws and the disclosure of such Client Information to third parties shall be subject to Investec’s compliance with Applicable Laws and POPI and where applicable, subject to the Intermediary procuring the prior consent of the Client for such disclosure.

16.1 The Intermediary hereby indemnifies Investec and holds it harmless against any loss, damage, expense, penalty, claim, fine, tax or liability which may be sustained or incurred by Investec or any Client or other person arising (whether directly or indirectly) out of the breach by the Intermediary of this Agreement (including a breach of any warranty) or arising from any lack of authority of the Intermediary or its employees on behalf of such Client, except to the extent that such loss was occasioned by the fraud or gross negligence of an employee of Investec.

16.2 The Intermediary hereby indemnifies Investec against any loss that may be incurred as a result of the Intermediary drawing against uncleared funds or funds where the normal clearance periods were waived by Investec.

16.3 Investec shall not be responsible and disclaims all liability for any loss, damage, liability or expense of any nature whatsoever which may be suffered by the Intermediary or the Client or a third party as a result of or occasioned by the failure by Investec to perform or Process any Transaction as a result of the loss or destruction of data, hacking, computer viruses, use of system in a non-secure environment, power failures, natural phenomena, riots, acts of vandalism, sabotage, terrorism, failure or unavailability of third party systems or by any inability of any third party to Process a Transaction or any other event beyond Investec's control, except to the extent that such loss was occasioned by the fraud or gross negligence of an employee of Investec.

16.4 The Intermediary further indemnifies Investec against any claim against it arising from the Intermediary conducting its business telephonically or by way of email.

Investec is entitled at its sole discretion, and without notice to the Intermediary or the Client, to suspend the Intermediary's access to any of its trading platforms or systems or bank accounts, to terminate any Transaction and to terminate this Agreement and/or to withhold payment of any amount held in any account or to refuse to Process a Transaction, suspend the implementation of any new Transaction or the opening of any new accounts and/or to withdraw or limit access to any Investec product and/or service used by the Intermediary if it reasonably suspects that the funds, or any part thereof, are the proceeds of a crime or result from any criminal activity or if the Intermediary is in breach of any of its warranties in terms of the Agreement or if the Intermediary, Client or Transaction is in contravention of any Applicable Law.

18.1 Should any dispute, disagreement or claim arise between the Parties (“the dispute”) concerning the Agreement, the Parties shall endeavour to resolve the Parties dispute by negotiation.

18.2 This entails one of the Parties inviting the other or others in writing to meet and to attempt to resolve the dispute within fourteen (14) days from date of written invitation.

18.3 If the dispute has not been resolved by such negotiation within fourteen (14) days of the commencement thereof by agreement between the Parties, then the Parties shall submit the dispute to mediation on the basis that:

18.3.1 the mediator will be a Senior Counsel agreed to by the Parties within three (3) business days of receiving written notice of mediation, failing which a Senior Counsel determined by the Chairman for the time being of the Johannesburg Bar Council;
18.3.2 the mediator shall act as an expert and not an arbitrator; and
18.3.3 the decision of the mediator shall become final and binding within fourteen (14) days of delivery thereof to the Parties, unless one or either of the Parties disputes the mediator's decision by written notice to the other Party within the aforesaid fourteen (14) day period, in which event the dispute shall be referred to arbitration in accordance with the provisions of clause 18.4.

18.4 In the event of either of the Parties furnishing its notice of dispute within fourteen (14) days of the mediator's decision as envisaged in terms of clause 18.3 above, the dispute shall be submitted to arbitration for final resolution in accordance with the rules of the Arbitration Foundation of Southern Africa by an arbitrator or arbitrators appointed by the Arbitration Foundation of South Africa.

18.5 Unless otherwise agreed in writing by all the Parties, any such negotiation, mediation or arbitration shall be held in Sandton.

18.6 The provisions of this clause shall not preclude either Party from applying to the appropriate court of law for urgent interim relief.

19.1 The Intermediary undertakes to inform Investec immediately of any Client complaints, legal notices, or court process documents that it receives in respect of any of Investec’s products or facilities or of any Transaction.

19.2 the Intermediary warrants and undertakes that it will handle any Client complaints in accordance with FAIS and any other Applicable Laws.

19.3 The Intermediary undertakes to assist Investec to resolve any Client complaint or claim logged directly with Investec by a Client. This includes the Intermediary providing all information and documentation relevant to the complaint as soon as reasonably possible and at least within such time as to ensure that Investec response to a Client Complaint within any prescribed regulatory timelines. The Intermediary agrees that Investec can engage directly with such Clients to resolve the necessary complaint or claim.

20.1 This Agreement shall terminate, subject to clause 20.3, on no less than ninety (90) days' written notice of termination by either Party which may be given for any reason whatsoever. Prior to the expiry of the ninety (90) day period, the Intermediary shall close any and all accounts opened in terms of the Agreement and shall ensure that all funds are transferred in accordance with any Applicable Law.

20.2 From the date that written notice of termination is given in terms of clause 20.1:

20.2.1 the Intermediary shall not be permitted to enter into new Transactions; and
20.2.2 no new accounts may be opened and no guarantees or other security shall be requested in respect of existing accounts and/or Transactions.

20.3 If the Intermediary is in breach of any of the obligations, undertakings and/or warranties contained in this Agreement, and if such breach is capable of being remedied, and such breach as not been remedied to the satisfaction of Investec within five (5) Business Days from the date of written notice given by Investec to the Intermediary, Investec shall be entitled, at its election, without prejudice to any other rights which Investec may have in terms hereof or at law, to cancel the Agreement with immediate effect. In this regard, the Parties agree that:

20.3.1 any fraudulent act or omission of the Intermediary; or
20.3.2 any contravention by the Intermediary of any Applicable Law; or
20.3.3 the occurrence of an Insolvency Event, will constitute a breach which Investec may regard, at its discretion, as not capable of remedy and the Agreement and or the relevant Transaction may be cancelled by Investec with immediate effect on written notice to the Intermediary on the occurrence of any one or more of such events.

20.4 Should Investec receive notification from a Client of termination of a Prescribed Contract with the Intermediary, Investec shall be obliged to act on such instruction from the Client and cease to act on the Intermediary’s instructions in respect of any Transactions for that Client, remove the Intermediary's access to its operating system for that Client and/or access to the Client’s account with immediate effect. Investec shall thereafter act in accordance with the instructions of the Client in relation to the Transaction/account. The Intermediary acknowledges that it shall have no claim against Investec in respect of any loss or damages it sustained as a result of Investec so acting.

20.5 On cancellation of the Agreement for reasons other than those set out in clauses 20.3.1 to 20.3.3, Investec agrees to facilitate the transfer of the rights and obligations under the Transaction in accordance with the reasonable instructions of the Intermediary and the Client/s, without prejudice to any rights it may have in law and subject to the provisions of any Applicable Law and/or any applicable Product Rules.
20.6 On cancellation or termination of the Agreement for any reason, the Intermediary shall forthwith deliver to Investec any computer hardware, documentation, stationery and any other proprietary materials of Investec in its possession or control and undertakes to take all such steps and to sign all such documents as may be reasonably required for the purpose of implementing this clause.

21.1 Investec may from time to time amend or substitute the Agreement. Where this happens, Investec shall give the Intermediary at least twenty (20) Business Days’ notification by means of either mail, electronic mail, Short Message System (SMS), message on the Corporate Cash Manager system, announcements on the Investec Website or otherwise.

21.2 Investec shall not be liable for any loss occasioned by the Intermediary if the Intermediary does not receive notification of any amendment.

21.3 Should the Intermediary not accept the amendment; the Intermediary shall be entitled to terminate the Agreement in accordance with the provisions of clause 20.1.

22.1 The Parties undertake to:

22.1.1 comply with the provisions of the applicable Data Protection Legislation as amended or substituted from time to time;
22.1.2 treat all Personal Information strictly as defined within the parameters of the Data Protection Legislation;
22.1.3 process Personal Information only in accordance with the consent it was obtained for, for the purpose agreed, in accordance with any lawful and reasonable written instructions received from the applicable Responsible Party and as permitted by law;
22.1.4 process Personal Information in compliance with the requirements of all Applicable Laws;
22.1.5 secure the integrity and confidentiality of any Personal Information in its possession or under its control by taking appropriate, reasonable technical and organisational measures to prevent loss, damage, unauthorised destruction, access, use, disclosure, or any other unlawful processing of Personal Information;
22.1.6 not transfer any Personal Information to any third party in a foreign country unless such transfer complies with the relevant provisions of POPI regarding trans-border Information flows; and
22.1.7 not retain any Personal Information for longer than is necessary for achieving the purpose of the Agreement or in fulfilment of any other lawful requirement.

22.2 The Parties undertake to ensure that all reasonable measures are taken to:

22.2.1 identify reasonably foreseeable internal and external risks to the Personal Information in its possession or under its control;
22.2.2 establish and maintain appropriate security safeguards against the identified risks;
22.2.3 regularly verify that the security safeguards are effectively implemented;
22.2.4 ensure that the security safeguards are continually updated in response to new risks or deficiencies in previously implemented safeguards;
22.2.5 provide immediate notification to the Responsible Party if a breach in Information security or any other applicable security safeguard occurs;
22.2.6 provide immediate notification to the Responsible Party where there are reasonable grounds to believe that the Personal Information has been accessed or acquired by any unauthorised person;
22.2.7 remedy any breach of a security safeguard in the shortest reasonable time and provide the Responsible Party with the details of the breach and, if applicable, the reasonable measures implemented to address the security safeguard breach;
22.2.8 provide immediate notification to the Responsible Party where either Party has, or reasonably suspects that, Personal Information has been processed outside of the purpose agreed to or consented to;
22.2.9 provide the Responsible Party, upon request with all Information of any nature whatsoever relating to the processing of the Personal Information; and
22.2.10 notify the other Party, if lawful, of receipt of any request for access to Personal Information, in its possession relating to the other Party.

22.3 Each Party reserves the right to inspect the Personal Information processing operations, as well as the technical and organisational information security measures employed by the other Party to ensure compliance with the provisions of this clause 22.

The Intermediary shall not be entitled to cede, assign, make over or transfer any of the Intermediary's rights or obligations in respect of or arising out of this Agreement or any Transaction concluded by it without the prior written consent of Investec. Investec may without notice to the Intermediary cede, assign, make over or transfer any of its rights or both its rights and obligations under this Agreement or any Transaction to any person, firm or company.

Upon signature of this Agreement by the Parties, the provisions of this Agreement shall be deemed to be incorporated by reference into each product specific Intermediary Agreement entered or to be entered into in respect of a Transaction between Investec and the Intermediary on behalf of its Client/s as if same were set out in such agreements.

The Intermediary shall not divulge to any party any confidential Information concerning the business or affairs of Investec or in relation to the intellectual property of Investec in respect of the products and or facilities and the Parties shall keep the Agreement and details of the Transactions confidential (the aforegoing being Confidential Information). Neither Party shall act in a manner prejudicial (or intended to be prejudicial) to the other Party and in particular, the Intermediary shall not use the Confidential Information directly or indirectly for its own benefit nor attempt to interfere with the relationships that Investec has with its own Clients in order to circumvent any business currently carried on by Investec.

Product Rules may be executed in any number of counterparts and by electronic mail, each of which will be deemed to be an original but all of which together will constitute one and the same agreement.

27.1 Notices or other correspondence may be given to the Intermediary by hand, post, or ecommunication to the address, telephone number or electronic mail address provided to Investec at the time of applying to Investec to enter into an Intermediary Agreement or to conclude a banking or finance facility with Investec or as notified by the Intermediary in writing from time to time.

27.2 Correspondence sent to the Intermediary by Investec:

27.2.1 by post, will be deemed to be received on the tenth (10th) Business Day after the date of posting; and
27.2.3 by electronic mail, will be deemed to be received by the Intermediary on the next Business Day after sending.

27.3 Correspondence given by the Intermediary to Investec will be deemed to be received by Investec only when Investec acknowledges receipt thereof.

This Agreement shall be governed by and construed in accordance with the laws of South Africa. The Intermediary hereby consents to the jurisdiction of the High Court of South Africa in respect of any disputes arising out of or in connection with this Agreement or any matter related to or in connection therewith.