Investec Youth Account Debit Card Terms & Conditions
The headings in this agreement are for reference only. Words importing one gender include the other genders; words in the singular include the plural and vice versa; and natural persons include created entities. The following expressions have the following meanings –
1.1 "account" means the account in the name of the account holder which is designated for the debiting of transactions in terms of this agreement;
1.2 "account holder" means the person in whose name the account was opened by Investec;
1.3 "anti-corruption laws" means any bribery, fraud, kickback, or other similar anti-corruption law or regulation of any relevant country, including but not limited to the Prevention and Combating of Corrupt Activities Act 12 of 2004, the UK Bribery Act, 2010 and the US Foreign Corrupt Practices Act 1977;
1.4 "applicable laws" includes all statutes, subordinate legislation, common law, regulations, directives, codes of practice, rules, circulars, guidance notices, judgments and decisions of any competent authority, or any governmental, intergovernmental or supranational body, agency, department or regulatory, self-regulatory or other authority or organisation and any replacement or amendment thereof;
1.5 "ATM" means an automated teller machine;
1.6 "business day" means any day other than a Saturday, Sunday or official public holiday in South Africa;
1.7 "Common Monetary Area" means the area consisting of South Africa, Lesotho, Namibia and Swaziland;
1.8 "contactless transaction" means a transaction effected by holding the debit card against the terminal of the merchant;
1.9 "debit card" means the debit card, issued by Investec to the account holder;
1.10 "e-communication" means an electronic communication by means of a data message as defined in the ECT Act and includes communications exchanged by means of the website, email and mobile phone (e.g. WAP, WIG, SMS);
1.11 "ECT Act" means the Electronic Communications and Transactions Act 25 of 2002;
1.12 "guarantor" means the person, who is an existing Investec Private Bank account holder who undertakes to satisfy upon demand by Investec, any obligation of the account holder in terms of this agreement as more fully set out in clause 17 hereof;
1.13 "Investec" means Investec Bank Limited and/or any duly appointed agent of Investec;
1.14 "Investec Group" means Investec Bank plc, Investec plc and Investec Limited together with their holding companies (and other subsidiaries of those holding companies) and any direct or indirect subsidiaries of those three companies and includes Investec;
1.15 "merchant" means any supplier of goods and/or services who is enabled and authorised to accept the debit card as a payment method;
1.16 "Online Banking Password" means the password chosen by the account holder for access to the website and which must be used, together with any other verification mechanism (where applicable), every time the website is accessed;
1.17 "personal information" means personal information as defined in POPI;
1.18 "PIN" means the a personal identification number allocated by Investec, or selected by the account holder (if applicable) in respect of the debit card;
1.19 "POPI" means the Protection of Personal Information Act 4 of 2013;
1.20 "POS device" means the device at a merchant which is enabled to accept debit cards as a payment method;
1.21 "process/processing" has the same meaning assigned thereto in POPI when referred to in the context of personal information;
1.22 "product rules" means the specific conditions applicable to the use of an account, product or service offered by Investec;
1.23 "purchase" means any transaction, which can be processed by a merchant in accordance with the Visa/MasterCard card programme rules in respect of the supply of goods and/or services by the merchant to the account holder, including all fees and charges in connection with such transaction;
1.24 "Sanctioned Country" means a country which is subject to Sanctions by a Sanctioning Body;
1.25 "Sanctioned Transaction" means either the use of the debit card or the account 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 to any person or entity, if the account holder 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;
1.26 "Sanctioning Body" means any one or a combination of the following entities – 1.26.1 the Office of Foreign Assets Control of the Department of Treasury of the United States of America; 1.26.2 the United Nations Security Council; 1.26.3 the European Union or any participating member state of the European Union; and 1.26.4 Her Majesty's Treasury of the United Kingdom.
1.27 "Sanction List" means any of the lists of specially designated national 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, verify and process transactions against;
1.28 "Sanctions" means the economic sanctions laws, regulations, embargoes or restrictive measures administered, enacted or enforced by any Sanctioning Body;
1.29 "South Africa" means the Republic of South Africa;
1.30 "transaction" means any transaction effected by the account holder by using the debit card and/or the debit card number and/or the account and/or the account number and which is debited or credited to the account;
1.31 "verification mechanisms" means the PIN, the Online Banking Password, passwords utilised by Verified by Visa (where applicable), other passwords and any other form of verification mechanism implemented by Investec from time to time, in order to facilitate and secure the use of the debit card and/or the account and matters ancillary thereto, including specifically any e-communication which Investec may send in relation to any transaction;
1.32 "Verified by Visa" means the on-line service offered by Investec, in conjunction with Visa, that uses personal passwords or identity information to help protect Visa card members against unauthorised use online, as more fully contemplated in clause 19 and as modified, augmented and/or enhanced from time to time;
1.33 "Verified by Visa Website" means the website related to Verified by Visa which may be accessed at the website;
1.34 "Visa" means Visa International Services Association, a corporation organised and existing under the laws of the State of Delaware, United States of America, having an office and principal place of business at 3125 Clearview Way, City of San Mateo, State of California, United States of America or any subsidiary of this corporation;
1.35 "website" means the Investec website being http://www.investecprivatebank.co.za (including all its constituent web pages) on which Investec provides banking and financial services from time to time, including all pages over which Investec exercises control.
2. Application for a debit card
2.1 When an application for an account is approved, Investec will issue a debit card to the account holder. Investec will deliver the debit card to the guarantor as contemplated in 2.2 below.
2.2 This agreement becomes effective upon the earlier of –
2.2.1 Investec delivering or procuring, by courier or otherwise, the delivery of the debit card to the guarantor (or any person authorised by the guarantor in writing to accept the debit card on its behalf ("authorised acceptor")) in person at the address furnished by the guarantor or by the authorised acceptor; or
2.2.2 Investec delivering the debit card, together with such documentation as may be deemed necessary by Investec, to the guarantor or the authorised acceptor in person at Investec; or
2.2.3 the use of the debit card number and/or the account and/or the account number.
3. Account holder's and the guarantor's right to terminate
The account holder or the guarantor may terminate this agreement at any time by giving prior written notice to Investec of at least 20 (twenty) business days. Upon termination, the account holder or the guarantor must pay all fees and charges due or payable by the account holder to Investec in terms of the agreement up to and including the settlement date.
4. Use of the debit card and the account
4.1 Only the account holder in whose name the debit card is issued and whose name is embossed on the debit card shall be entitled to use the debit card. Any authority given in any form by the account holder to any other person shall not entitle such person to use the debit card.
4.2 The account holder understands and agrees that –
4.2.1 the guarantor will at all times have full transactional access to the account and that the account holder will not be able to block such access by the guarantor; 4.2.2 the guarantor will receive notifications of all transactions conducted on the account, unless otherwise instructed by the guarantor.
4.3 The debit card shall be valid for the period specified on it, unless the debit card and/or the account is revoked, cancelled, suspended, closed and/or terminated at an earlier date by Investec, the account holder or the guarantor in accordance with this agreement. Immediately on receipt of the debit card, the account holder must sign the debit card on the space provided with a ballpoint pen in order for the debit card to be valid.
4.4 The debit card shall entitle the account holder, subject to the discretion of Investec, and subject to this agreement, to effect transactions provided there is at all times sufficient funds available in the account.
4.5 The account holder undertakes not to effect transactions in excess of the funds available in the account. If the account holder does not have sufficient funds available in the account or if the account holder has defaulted under the agreement in any manner –
4.5.1 Investec shall be entitled to refuse to make any payment in respect of any transaction or to process a transaction; and
4.5.2 Investec shall not be liable for any costs incurred or any loss or damage suffered by the account holder in this regard, provided that Investec did not act with gross negligence or fraudulent intent.
4.6 The account holder understands and agrees that –
4.6.1 limits are imposed on transactions, and the maximum amount of any transaction will depend on whether the transaction is a contactless transaction or performed online or off-line. The account holder will not be allowed to exceed these limits.
4.6.2 no debit orders or stop orders will be allowed against the account.
5. Compliance with applicable laws and reporting of transactions
5.1 The account holder acknowledges that Investec is obliged to report transactions occurring outside the Common Monetary Area to the South African Reserve Bank. Any transaction in a currency which is not that of the account will be converted into the currency in which the account is denominated at Visa’s prevailing rate of exchange, subject to any applicable exchange control regulations, on the date of posting of any such transaction to the account and shall be shown on the account holder’s statement in South African Rands. The account holder acknowledges that there may be a delay before a transaction effected by the account holder in a foreign country is debited or credited, as the case may be, to the account and the account holder agrees to bear the foreign exchange risk in respect of any such delay. All transactions effected by the account holder in a foreign country shall incur a commission fee to be determined by Investec from time to time. The fee will be included in the amount posted to the account in terms of the provisions of this clause.
5.2 Investec, as part of the Investec Group, is obliged to comply with laws and policies relating to international and local anti-money laundering and Sanctions. Investec will therefore screen, verify and process all account holder and guarantor- related information and thereafter monitor all information, instructions and transactions by and on behalf of the account holder and the business relationship on a continuous basis. This may result in the prohibition, limitation or delay in the execution of instructions or transactions and even in the suspension of the account and the declining or terminating of any transaction or the business relationship with the account holder. To the extent permitted, Investec shall advise the account holder of any action it intends to take in terms hereof. The account holder acknowledges and confirms that neither the Investec Group, nor its employees, officers, or directors, shall be liable for any direct, indirect or consequential loss, damage, cost or expense whatsoever that may be suffered or incurred by the account holder as a result of, arising from or relating to any such prohibition, limitation, delay, decline or termination due to the implementation of this clause.
5.3 The account holder hereby undertakes and warrants that when using the debit card or the account –
5.3.1 the account holder will comply with all applicable laws of South Africa and that the debit card and/or the account will not be used for any unlawful purposes including, for example, engaging in unlawful gambling via the internet;
5.3.2 the account holder will comply with all applicable anti-corruption laws; and
5.3.3 the account holder will not conclude any transaction with a person on the Sanctions List or a person located in any Sanctioned Country, and will ensure that the debit card and/or the account are not used for a Sanctioned Transaction.
6. Secure transactions
6.1 The account holder shall be obliged and hereby agrees, to use the PIN for each transaction at an ATM or POS device, unless it is a contactless transaction which does not require the PIN.
6.2 The account holder further agrees to use and/or implement any verification mechanisms (where applicable) in accordance with the agreement and/or any other conditions or guidelines which Investec may impose from time to time, subject to the provisions of any applicable law. The account holder acknowledges that failure to use and/or implement any verification mechanism may result in unauthorised use of the debit card and/or the account (or any other account held in the Investec Group) and losses, for which the account holder will be liable. In the event that the account holder forgets the PIN, the account holder may request it via Investec’s online banking site or the Investec client support centre.
6.3 The account holder undertakes to use the debit card, debit card number and/or account and/or account number only in a secured environment and acknowledges that any use of the debit card, debit card number and/or account or account number in a public place or at a device or terminal which is accessible by the public generally, may result in the account holder’s details being compromised and/or losses for which the account holder may be held liable.
7. Authority to debit the account
7.1 Subject to applicable laws, the account holder shall reimburse Investec for all payments which Investec has made, or is required to make, for and on behalf of the account holder in respect of any transaction.
7.2 The account holder acknowledges and agrees that when cash or cheque deposits are made at any other bank –
7.2.1 cheque deposits will only be available as cash after the cheques have been paid;
7.2.2 Investec may at its discretion effect a hold against a cheque or other payment until such is cleared by the issuing or paying bank;
7.2.3 cheque deposits which are dishonoured, i.e. not paid, will be debited to the account accordingly;
7.2.4 Investec shall not be liable for errors resulting from incorrect information furnished by the account holder or on the account holder's behalf; and
7.2.5 Investec shall be entitled to reverse any amount incorrectly credited to the account.
7.3 Notwithstanding anything expressed or implied in the agreement, Investec shall not be liable to the account holder or to any third party for any claim, loss, damages, cost or expense directly or indirectly resulting from or connected with any cheque that has been deposited into and credited to the account but which has subsequently been dishonoured for whatever reason, whether or not Investec has notified the account holder of such dishonour.
8.1 Investec shall be entitled to charge transactional fees for all financial services at Investec's standard rate for fees. These fees include, without limitation, ATM fees, monthly charges, account dormancy fees, transaction charges, debit card replacement fees and delivery costs. These fees may be amended from time to time upon prior written notice to the account holder. Monthly charges for the account that are due to Investec shall be payable whether or not the debit card is used by the account holder.
8.2 Subject to any applicable laws, any applicable duties, fees, interest, commissions, charges and taxes payable by the account holder to third parties shall be charged by Investec or paid over to the relevant authorities or third parties by Investec and debited to the account regardless of whether the account holder has accepted the amount or not.
9. Dormant account and unclaimed funds
9.1 Investec reserves the right to classify any account as a dormant account, if the account or the debit card or any facility or service linked to the account, has not been used for a period of 3 (three) months.
9.2 When an account is classified as dormant, the account holder will not be able to transact on the account, or use the debit card or any service linked to the account.
9.3 Investec will notify the account holder at the account holder's current address or contact details, before an account is classified as dormant. If the account holder does not respond to such a notice within 3 (three) months, Investec reserves the right to close the account. Investec will also notify the account holder before Investec closes the dormant account.
9.4 The account holder will remain entitled to unclaimed funds from the closed account, provided that the account holder is able to provide Investec with proof of identity and entitlement to the funds.
10. Statements and payments
10.1 Investec shall provide monthly statements to the account holder, which will, amongst others, show all transactions and all charges credited or debited to the account;
10.2 If the account holder has not raised a query regarding the correctness of any statement by delivering written notice to Investec within 45 days of the day indicated on the statement as the date of issue of such statement, the account holder shall be deemed to have admitted liability to Investec in respect of such debit and/or to have accepted that statement as true and correct, unless the contrary is proved by the account holder.
10.3 Any record of deposit to the account is subject to verification by Investec and should there be a discrepancy between the account holder’s records and Investec’s records, Investec’s records shall constitute sufficient proof of the correctness of Investec’s contentions and the onus shall be on the account holder to prove otherwise.
10.4 The account holder acknowledges that any refund, reversal or credit by any merchant pursuant to any transaction shall not constitute payment by the account holder of any amount due to Investec in respect of the account or the debit card.
11. Unauthorised use of the debit card, the account and lost debit cards
11.1 The account holder undertakes to take all reasonable precautions to prevent unauthorised use of the account or the debit card. These include (without limiting the generality of the foregoing) –
11.1.1 memorising the verification mechanisms and destroying any physical record of these mechanisms (which includes deleting any Online Banking Password or PIN sent by e-communication) and/or keeping such physical record in a safe location away from the debit card or any device or terminal;
11.1.2 not allowing any other person to use any device or terminal on which any verification mechanism is received or stored, or to use the debit card, the debit card number and/or the account number or to by-pass or tamper with any of the verification mechanisms, whether electronically or otherwise;
11.1.3 making use of and/or implementing or procuring implementation of any verification mechanism for each transaction and in particular checking and responding immediately to any e-communication sent by Investec concerning any transaction;
11.1.4 not using the debit card, debit card number and/or the account number in an unsecured environment or at a public device or terminal or at a device or terminal which is accessible by the public generally;
11.1.5 not opening or responding to any unsolicited e-communication or e-communication relating to the account where the originator is not known to the account holder and not accessing or using links to websites, web pages or other internet based content or services not owned, administered or offered by Investec;
11.1.6 not divulging any information to any third party which is personal, confidential or proprietary to the account holder, except as required under any applicable laws;
11.1.7 immediately reporting the theft or misappropriation of the debit card or any device or terminal used by the account holder for transactions, to Investec and notifying Investec immediately should any device or terminal cease to operate for no apparent reason or in circumstances which may be suspicious; and
11.1.8 acknowledging receipt of and signing the debit card.
11.2 Investec shall not be liable in any way if the account holder does not take reasonable precautions to prevent unauthorised use of the account or the debit card. Specifically but without limitation, Investec shall not be liable in any way if the account holder uses any verification mechanism in a public place or in any other unsecured environment in such a manner that the confidentiality and secrecy of the verification mechanisms is compromised. Similarly, Investec will not be liable in any way if the account holder does not make use of or does not implement or does not respond to any verification mechanism or if the account holder stores or records any verification mechanism on a computer, phone or network.
11.3 If the debit card, or any device or terminal used by the account holder for transactions, is lost, stolen, misappropriated or if someone other than the account holder uses the device or terminal or the debit card and/or the debit card number and/or the account and/or the account number or has knowledge of the verification mechanisms (the "debit card events"), or the account holder has reason to believe that any of the debit card events has occurred, the account holder shall be obliged immediately to notify Investec telephonically on its 24-hour telephone number which appears on each statement and on the reverse of the debit card. Any delay in providing the notification to Investec shall be presumed to be sufficient proof of negligence on the part of the account holder and the account holder shall bear the onus of proving the contrary.
11.4 If the account holder has been negligent in any way regarding the use or handling of the debit card, the debit card number, the account and/or the account number or the verification mechanisms, or any device or terminal used in relation to the account or the debit card, or if the account holder has breached the agreement, the account holder shall be liable for all payments which Investec has made or is bound to make arising from any unauthorised transaction concluded prior to Investec being reasonably able to act in order to prevent any such unauthorised transaction. The account holder shall be liable for the replacement cost of any lost, stolen or misappropriated debit card, even if such a loss was not due to negligence on the part of the account holder.
11.5 Notwithstanding the provisions of clause 11.4, the account holder shall not be liable for any loss due to payments made by Investec in respect of any transaction done or entered into where any of the debit card events have occurred, where the account holder proves that the loss cannot be attributed to the fact that the account holder intentionally or negligently caused the verification mechanisms to be disclosed to someone else or that the account holder did not use or implement the verification mechanisms or did not take reasonable precautions to prevent unauthorised use of the account or the debit card or did not otherwise comply with the agreement.
11.6 Notwithstanding the provisions of this clause 11, the account holder acknowledges and agrees that since Visa Paywave transactions do not require any verification mechanisms because they are contactless transactions, the account holder shall be liable for any loss due to payments made by Investec in respect of any transaction done or entered into regardless of whether any of the debit card events have occurred.
12. Dispute and claims
12.1 Investec shall not in any way be liable to the account holder if the debit card is not acceptable to, or is dishonoured by, any merchant and/or any other party for any reason or if Investec declines to approve any transaction.
12.2 Any claims or disputes between the account holder and any merchant regarding the nature, quality or quantity of any goods acquired or services rendered from or by the merchant or on the merchant’s behalf or any other matter or thing, shall in no way limit or affect Investec’s rights to receive payment or give rise to any rights of set-off or counterclaim against Investec.
12.3 Where the account holder is obliged to sign a sales or other voucher, the signature of any such voucher shall be deemed to be sufficient (prima facie) proof of the particulars contained in the voucher. Failure to sign any such voucher, including mail orders or written authorities, shall not release the account holder from liability to Investec.
12.4 The account holder acknowledges that no merchant is an agent of Investec or otherwise acts on Investec’s behalf. Any refund to the account holder by a merchant shall be credited to the account holder’s account only upon Investec receiving such amount.
12.5 The account holder shall not be entitled to countermand any payment made, or to be made, by Investec in respect of any transaction effected by using the debit card.
13. Failure/malfunction of networks and devices
Investec will not be responsible for any failure, malfunction or delay of any networks or electronic or mechanical device or terminal used in the acceptance and processing of transactions and any other use of the debit card. Investec will not be liable to make good or compensate the account holder for any damages, losses, claims or expenses resulting, and the account holder indemnifies Investec accordingly.
14. Suspension or cancellation of the debit card and termination of the account
14.1 The debit card will always remain the property of Investec, and, without Investec losing any right to any claim which it may have against the account holder or the guarantor, if the account holder is in default under the agreement as contemplated in clause 16 or if Investec reasonably suspects that the account holder has committed fraud or any criminal act, including a Sanctioned Transaction, Investec shall have the right to suspend the debit card at any time and/or demand the return of the debit card and/or cancel the debit card.
14.2 Investec may suspend or close the account upon written notice to the account holder and the guarantor if–
14.2.1 the account holder is in default under the agreement as contemplated in clause 16;
14.2.2 the guarantor closes its accounts at Investec or the guarantor dies;
14.2.3 the account holder dies.
14.3 Notwithstanding the aforesaid, Investec may close the account by giving written notice to the account holder and the guarantor of at least 10 business days before the account will be closed.
14.4 If the account has been suspended or closed or the debit card has been suspended or cancelled –
14.4.1 the debit card may no longer be used for any purpose; and
14.4.2 Investec may notify any merchant or any person who Investec thinks should know of the suspension, cancellation or closure without incurring any liability.
14.5 Notwithstanding the provisions of this clause 14, the agreement shall remain in effect until the account holder or the guarantor has repaid all amounts charged to the account.
14.6 A debit card which has been cancelled, suspended or revoked or is no longer required by the account holder must be destroyed and returned to Investec. The account holder undertakes to destroy the debit card by cutting the debit card vertically across its magnetic stripe and/or the integrated circuit chip in order to prevent unauthorised use. Failure to do so will result in the account holder being liable for any unauthorised use of the debit card and the account holder indemnifies Investec accordingly.
14.7 The account holder shall not be entitled to use the debit card, the debit card number, the account or the account number after the account has been closed or suspended or the debit card.
15. Personal Information
15.1 The account holder and the guarantor undertake to furnish Investec with all information and/or documentation required by Investec in terms of the Financial Intelligence Centre Act 38 of 2001.
15.2 The account holder and the guarantor agree that Investec may make enquiries to confirm and verify any information provided by the account holder or the guarantor in the application form.
15.3 The account holder and the guarantor acknowledge and expressly consent thereto that Investec may –
15.3.1 verify information provided by the account holder and the guarantor to Investec and generally make whatever enquiries it deems necessary from any source whatsoever;
15.3.2 process the personal information of the account holder and the guarantor to conclude the agreement and for purposes of maintaining the account, providing services to the account holder and the guarantor, including any benefits attached to the account and complying with the instructions of the account holder and the guarantor;
15.3.3 disclose the personal information of the account holder and the guarantor to entities involved in providing any benefits attached to the account;
15.3.4 disclose the personal information of the account holder and the guarantor contained in the application form, and any other documentation in relation to any of the account holder's or the guarantor's accounts to other entities in the Investec Group, if the account holder or the guarantor has applied for further accounts, products or services at any other entity within the Investec Group;
15.3.5 process and disclose the account holder's and the guarantor's personal information for purposes of the prevention, detection and reporting of fraud and criminal activities, the identification of the proceeds of unlawful activities and the combating of money laundering activities;
15.3.6 process and report on the personal information of the account holder and the guarantor to comply with an obligation imposed by applicable laws on Investec and any other entity within the Investec Group;
15.3.7 provide the account holder's financial information to any person who has agreed to provide security for the indebtedness of the account holder, such as the guarantor.
15.4 The account holder and the guarantor has the right to access their personal information held by Investec. Investec shall grant the account holder and the guarantor such access during office hours within a reasonable time after receiving a written request for access.
15.5 The account holder and the guarantor agree to Investec's Data Protection Statement from time to time, which they can access at www.investec.co.za/legal.html.
The account holder will be in default of this agreement if –
16.1 any amount payable to Investec under the agreement is not made on the due date; or
16.2 the account holder or the guarantor breaches any of the terms and conditions of the agreement or any other agreement with Investec, and the account holder or guarantor fails to remedy the breach within the timeframe provided for in the written notice to do so; or
16.3 the account holder or the guarantor publishes a notice of the voluntary surrender of the account holder's/guarantor’s estate; is placed under administration or debt review or commits an act of insolvency as defined in the Insolvency Act 24 of 1936; or an application or other proceedings have been brought against the account holder or guarantor, in terms of which the account holder or guarantor is sought to be sequestrated or placed under curatorship, in any such event whether provisionally or finally, whether voluntarily or compulsory; or
16.4 any representation, warranty or assurance made or given by the account holder or the guarantor in connection with the application or any information or documentation supplied by the account holder or guarantor is, in Investec's opinion, materially incorrect; or
16.5 the account holder or guarantor generally does or omits to do anything which may affect Investec's rights in terms of the agreement; or
16.6 the account holder or the guarantor, in the reasonable opinion of Investec, commits a breach of applicable laws or does or omits to do anything which may cause harm to Investec's reputation.
17. The guarantee by the guarantor
17.1 The guarantor guarantees and indemnifies Investec and undertakes as a principal and independent obligation (and not merely as an ancillary obligation) to and in favour of Investec or to any person who takes transfer of the Investec's rights under this agreement, the due, punctual and full payment of any and all of the amounts which the account holder owes or may hereafter owe to Investec in terms of this agreement ("debts"), and to pay to Investec on first written demand from Investec and without delay, any and all debts.
17.2 For its duration, this guarantee is a continuing covering guarantee and shall remain in full force and effect notwithstanding any temporary fluctuation in or extinction of the debts or any prior payment under this guarantee.
17.3 Without derogating from any other provisions of this guarantee, this guarantee shall at all times be fully and immediately enforceable, despite the fact that –
17.3.1 Investec may not exercise any of its rights against the account holder timeously or at all;
17.3.2 Investec may elect any particular remedy against the account holder to the exclusion of any other remedy;
17.3.3 Investec may give extended terms or any other indulgence to the account holder or may accept a part payment or other benefit in settlement or any other compromise in respect of the debts (in which case the guarantor shall remain indebted to Investec as if those terms had not been given or that part payment, or compromise had not been agreed to); or
17.3.4 the account holder may become insolvent, be placed in sequestration, under administration, or may become subject to any legal disability or to any law for the benefit or assistance of debtors and/or creditors.
17.4 Without derogating from clause 17.3 this guarantee shall be effective regardless of the validity or enforceability of the debts, any related documentation, and any collateral security for the debts.
17.5 No alteration, novation or variation of any present or future agreement between the account holder and Investec shall in any way release the guarantor from its liability under this guarantee. Accordingly, Investec and the account holder may at all times vary any and all of the terms and conditions of this agreement without prejudice to any of the rights of Investec against the guarantor, and any such variation(s) shall vary the obligations of the guarantor accordingly.
17.6 This guarantee shall only be terminated upon the full and final settlement of the debts and full payment of all of the guarantor's liabilities in terms of this guarantee, as confirmed in writing by Investec.
17.7 The guarantor hereby (without prejudice to or limitation of any other provision of this guarantee), and to the extent permissible in law –
17.7.1 renounces the benefits of all otherwise applicable legal immunities, defences and exceptions to the extent that they would be applicable in the absence of this renunciation, including the defences and exceptions of "cession of actions", "excussion", "division", "de duobus vel pluribus reis debendi" (i.e. all guarantors must be joined in any action, each for his proportionate share of the debt), "non causa debiti" (i.e. no cause of debt) , "errore calculi" (i.e. error in calculation), "no value received" and "revision of accounts", with the meaning and effect of all of which the guarantor declares itself to be fully acquainted; and
17.7.2 agrees that all admissions and acknowledgements of indebtedness by the account holder shall be binding on the guarantor.
18. Notices and domicilium
18.1 The address given by the account holder on the application form will be the account holder’s chosen domicilium citandi et executandi ("domicile address") (i.e. the address where at which all notices for purposes of legal process in terms of the agreement may be served on or delivered to the account holder).
18.2 The guarantor's latest domicilium address provided to Investec in respect of the guarantor's Investec Private Bank Account, shall be the domicilium address for purposes of this agreement.
18.3 The account holder and the guarantor may, by written notice to Investec, change their respective domicile addresses to any other physical address in South Africa. Any such change of a domicile address will only be effective 14 days after the date on which Investec receives the notice.
18.4 Any notice to the account holder or the guarantor by Investec may be addressed to the account holder or the guarantor at his/her/its chosen domicile address and will be deemed (unless the contrary be proved) to have been received by the account holder or the guarantor on the 4th day after posting.
18.5 Any notice delivered by hand to the account holder, the guarantor or a responsible person by Investec during ordinary business hours at the account holder’s or the guarantor's domicile address shall be deemed to have been received on the day of delivery.
18.6 All and any notices or communications by the account holder or the guarantor to Investec must be in writing and sent by prepaid registered post or by hand to Investec’s head office at 100 Grayston Drive, Sandown, Sandton.
19. Verified by Visa
In order to reduce the possibility of fraud and to increase the security of online transactions conducted by the account holder using the debit card, the account holder shall conduct the account in accordance with and subject to the terms and conditions relating to Verified by Visa set out in this clause 19.
19.1 Acceptance of terms
19.1.1 The account holder agrees that the use of any verification mechanism by the account holder represents acceptance by the account holder of all the terms and conditions applicable to the Verified by Visa service, provided that Investec may require the account holder to sign a non-electronic version of these terms and conditions.
19.1.2 Investec reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, Verified by Visa (or any part thereof).
19.1.3 Unless explicitly stated otherwise, any new features that augment or enhance Verified by Visa shall be subject to these terms and conditions.
19.1.4 The account holder understands and agrees that except as otherwise required by any applicable law, neither Investec nor Visa makes any representations or warranties of any kind, express or implied, including any warranties as to merchantability or fitness of Verified by Visa for a particular purpose.
19.2.1 The account holder’s data will not be shared with online retail merchants.
19.2.2 The account holder acknowledges and agrees that Investec and Visa may keep the account holder’s data and also may disclose the account holder’s data if required to do so by any applicable law, or as reasonably necessary to (a) comply with legal process or (b) to enforce the agreement.
The account holder is solely responsible for maintaining the confidentiality of the Online Banking Password and Transactional PIN, the account holder’s data and other verification information established by the account holder with or in relation to Verified by Visa, all activities that occur using a verification mechanism, the account holder’s data or other verification information supplied to or established by the account holder with Investec. The account holder agrees not to transfer or sell the account holder’s use of, or access to Verified by Visa to any third party. The account holder agrees to immediately notify Investec of any unauthorised use of the Online Banking Password or Transactional PIN or other verification information, or any other breach of security. The account holder acknowledges and agrees that, except as otherwise provided by any applicable law neither Visa nor Investec shall be liable for any loss or damage arising from the account holder’s failure to comply with these terms and conditions.
19.4 The account holder’s conduct
19.4.1 The account holder agrees not to –
184.108.40.206 impersonate any person or entity using Verified by Visa;
220.127.116.11 upload, post, e-mail or otherwise transmit any material that contains software viruses or any other computer code, files or programmes designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment used by Verified by Visa;
18.104.22.168 spam or flood the Verified by Visa Website or service;
22.214.171.124 modify, adapt, sub-license, translate, sell, reverse engineer, decompile or disassemble any portion of the Verified by Visa Website or service or the Software (as defined in clause 19.8.1);
126.96.36.199 remove any copyright, trademark, or other proprietary rights notices contained in Verified by Visa;
188.8.131.52 "frame" or "mirror" any part of the Verified by Visa Website or service without Investec’s prior written authorisation;
184.108.40.206 use any robot, spider, site search/retrieval application, or other manual or automatic device or process to retrieve, index, "data mine", or in any way reproduce or circumvent the navigational structure or presentation of the Verified by Visa Website or service or its contents, displayed on www.investecprivatebank.co.za;
220.127.116.11 otherwise interfere with, or disrupt, Verified by Visa or servers or networks connected to Verified by Visa, or violate these terms and conditions or any requirements, procedures, policies or regulations of Verified by Visa or of any networks connected to Verified by Visa; or 18.104.22.168 intentionally or unintentionally violate any applicable law in connection with the account holder’s use of Verified by Visa.
19.5.1 The account holder agrees that neither Visa nor Investec shall be liable to the account holder or to any third party for any modification, suspension or discontinuance of Verified by Visa.
19.5.2 Under no circumstances will Investec or Visa be liable for consequential, incidental, special or indirect losses or other damages, such as any damage to the account holder’s computer or telephone service, resulting from the account holder’s use of the Verified by Visa service.
19.5.3 Neither Investec nor Visa assumes any responsibility for, and will not be liable for, any damages to, or any viruses which may affect, the account holder’s computer equipment or other property on account of the account holder’s access to use, use of, or downloading from, the Verified by Visa Website.
Investec may temporarily or permanently deactivate the account holder’s ability to use Verified by Visa and terminate the account holder’s relationship with Investec at any time, with or without fault on the account holder’s part. For the account holder’s protection, Investec will automatically deactivate the account holder’s ability to use Verified by Visa if it is not used at least one time during any 12-month period. If Investec deactivates the account holder’s ability to use Verified by Visa, Investec will promptly give the account holder notice at the most current e-mail address, telephone number or telefax number the account holder has provided to Investec in accordance with the terms and conditions as reflected in Investec’s records.
19.7 Dealings with merchants
The account holder’s correspondence or business dealings with, or participation in promotions of, online retail merchants on or through Verified by Visa, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between the account holder and such merchant. The account holder agrees that neither Visa nor Investec shall be responsible or liable for any loss or damage of any sort incurred as a result of any such dealings. The account holder understands that use of Verified by Visa does not, in any way, indicate that either Investec or Visa recommends or endorses any merchant, regardless of whether the merchant participates in the Verified by Visa service. Accordingly, Verified by Visa does not, inter alia, verify, recommend or endorse the identity of the merchant or the quality of the merchant’s goods and/or services.
19.8 Verified by Visa’s proprietary rights
19.8.1 The account holder acknowledges and agrees that Verified by Visa and any necessary software used in connection with Verified by Visa ("Software") contains proprietary and confidential information that is protected by applicable intellectual property and other applicable law. The account holder acknowledges and agrees that the account holder does not acquire any ownership rights by using the Software and that Investec retains all rights, title and interest in, and to, the Software and all intellectual property rights to the Software. The account holder agrees not to modify, rent, lease, loan, sell, distribute or create derivative works based on Verified by Visa or the Software, in whole or in part.
19.8.2 Investec is providing the account holder a non-exclusive license to use the Verified by Visa services and any related software, and any future upgrades Investec elects to provide, in accordance with these terms and conditions.
19.8.3 Investec is a trademark of Investec. The account holder agrees not to display, alter or use in any manner, the trademark of Investec, without Investec’s prior written permission. Verified by Visa is a trademark of Visa. Verified by Visa and other Verified by Visa logos, products and names are trademarks of Visa (the "marks"). The account holder agrees not to display, alter or use in any manner the marks, without prior written permission from Visa.
The account holder expressly understands and agrees that any Software obtained through the use of Verified by Visa is downloaded and used at the account holder’s own discretion and risk and that, except as otherwise provided in the terms and conditions, the account holder will be solely responsible for any damage to the account holder’s computer system or loss of data that results from the download or use of any such Software or other materials through Verified by Visa.
Except to the extent that Visa or Investec acted with gross negligence or fraudulently, the account holder agrees to indemnify and hold harmless Investec, Visa, and their respective subsidiaries, officers, agents, co-branders or other partners, and employees, from any claim or demand, including reasonable attorney’s fees, made by any third party against Visa or Investec due to, or arising out of, the account holder’s data that the account holder submits, posts to or transmits through Verified by Visa, the account holder’s use of Verified by Visa, the account holder’s connection to Verified by Visa, or the account holder’s violation of these terms and conditions or applicable laws.
19.11 Age and responsibility
The account holder represents that the account holder is of sufficient legal age to use Verified by Visa and to create binding legal obligations for any liability the account holder may incur as a result of the use of Verified by Visa. The account holder understands that it is financially responsible for all uses of Verified by Visa by the account holder and those authorised by the account holder to use the account holder’s data, the account holder’s password or other verification information.
19.12 Conflicts of interpretation
To the extent that any provision contained in this clause 19 conflicts with any of the other provisions contained in the agreement ("Remaining Provisions"), the relevant provision contained in the Remaining Provisions shall prevail.
20. Transmission of information
20.1 The account holder undertakes to sign or execute any documentation as may from time be required by Investec arising from any telephonic, internet or mobile banking conducted by the account holder with Investec. The account holder consents to Investec taking whatever security precautions it may consider for such purposes, (including the recording of telephone conversations between the account holder and employees of Investec), with or without use of an automatic tone warning device. Investec’s recordings shall be and remain the sole property of Investec and will be accepted by the account holder as sufficient evidence of the instructions or conversations so recorded. The account holder agrees that Investec may deliver copies or transcripts of such recordings to any court or regulatory authority. Investec is not required to maintain copies of such recordings and transcripts.
20.2 Notwithstanding the provisions of clause 20.1, if the account holder is a minor, the account holder will not be allowed to conduct any telephonic banking.
20.3 With regard to instructions given or received by electronic medium, the account holder requests and authorises Investec to rely on and act in accordance with any instruction which may from time to time be, or purport to be, given by the account holder in its name. In authorising Investec to rely on and act in accordance with any instruction given by electronic medium, the account holder acknowledges that electronic medium is an inherently unreliable medium of communication and that such unreliability is beyond the control of Investec. The account holder acknowledges that as a result of such unreliability there may be delays in the transmission and receipt of instructions or other information and that this may result in delays in the execution of instructions sent by electronic medium. The account holder further acknowledges and agrees that generally it will not be possible to cancel or revise an electronic instruction after it has been given.
20.4 Without prejudice to the above, the account holder agrees that Investec may deem any such instruction purported to be given by the account holder as authentic, valid and properly executed on the account holder’s behalf and that it will be binding on the account holder notwithstanding that such instruction may have been made without or in excess of authority from the account holder and/or any error, misunderstanding, fault, forgery or lack of clarity may have been made or contained in the terms of such instruction. Investec shall be entitled to rely on and act in accordance with, instructions received from any person authorised or purportedly authorised to access or use the account, the account number and/or the debit card number, by virtue of any authority, resolution, mandate or power of attorney ("authority") provided by the account holder or nominee to Investec, unless such authority has been specifically cancelled by the account holder in writing and Investec has acknowledged such cancellation in writing or otherwise.
20.5 The account holder acknowledges that information transmitted by electronic medium is susceptible to monitoring and interception. The account holder is therefore discouraged from transmitting to Investec any information which may be confidential, proprietary or secret. The account holder 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 the account holder as a result thereof. Investec reserves the right to request independent verification of any information transmitted by electronic medium and the account holder consents to such verification from whatsoever source should Investec deem it necessary.
20.6 Investec requests that no unsolicited confidential or proprietary information be sent to Investec. Any such unsolicited information or material sent to Investec shall be deemed not to be confidential, unless otherwise agreed in writing by Investec. Notwithstanding the aforegoing and subject to the agreement, Investec will not send or forward any personal account holder information to any party, unless obliged to do so by law. The account holder’s attention is drawn to the fact that any e-mail sent by Investec to the account holder will not be encrypted and Investec is not liable for any loss suffered by the account holder resulting from any e-mail Investec sends to the account holder, unless the loss is caused by Investec’s gross negligence or fraud.
In terms of section 45 of the Magistrates' Court Act 32 of 1944, the account holder and the guarantor consent and submit for purposes of Investec taking legal steps to enforce any of its rights in terms of the agreement, to the jurisdiction of any Magistrate's Court notwithstanding the amount involved. This does not prevent Investec from bringing legal proceedings in a High Court that has jurisdiction.
The parties agree that the setting aside or suspension of any provision contained in the agreement shall not render the agreement void but such provision shall be severed from the agreement or altered by a court or tribunal of competent jurisdiction (if it is reasonable to do so having regard to the agreement as a whole).
23. Cession and assignment
23.1 The account holder shall not be entitled to cede or assign to any other person any of the account holder’s rights or obligations in respect of or arising out of the agreement or the use of any debit card or of the account.
23.2 Investec shall be entitled to cede and assign its rights and obligations in respect of or arising out of the agreement or the use of any debit card or the account without giving notice to the account holder.
24.1 A certificate signed by any manager of Investec specifying the amount owing by the account holder or the guarantor to Investec and further stating that such amount is due, owing and payable by the account holder or guarantor to Investec, shall be sufficient (prima facie) proof of the amount thereof and of the fact that such amount is so due, owing and payable for the purpose of obtaining provisional sentence or other judgment in any competent court. It shall not be necessary to prove the appointment of the person signing any such certificate.
24.2 Notwithstanding anything to the contrary in the agreement, Investec shall be entitled to amend the agreement from time to time by giving the account holder and the guarantor reasonable prior notice of any such change.
24.3 The notice referred to in clause 24.2 shall give the account holder an opportunity to terminate the agreement in accordance with the provisions of clause 3 before the new terms and conditions apply. If the account holder continues to use the account after the new agreement begins to apply, the amended agreement will apply to the account.
24.4 No amendment or consensual cancellation of the agreement by the account holder or the guarantor and no settlement of any dispute arising under the agreement and no extension of time, waiver or relaxation or suspension of any of the terms and conditions of the agreement or any estoppel against Investec shall be binding on Investec, unless recorded in a written document signed by Investec and the account holder/guarantor. Any such extension, waiver, relaxation, suspension or estoppel which is so given or made shall be strictly construed as relating only to the matter in respect whereof it was made or given.
24.5 No party shall be bound by any express or implied term, representation, warranty, promise or the like not recorded in the agreement. The account holder shall immediately inform Investec of any change of name, status or other details provided by the account holder, in particular if he or she has applied for debt review, is under an administration order, sequestration or any other form of insolvency (whether provisional or final) or is about to or has emigrated. Investec shall be entitled but not obliged to refuse to act on instructions given by the account holder using a different name or in circumstances where Investec is aware of any change in detail or status, until Investec is provided with the necessary documentary proof to its satisfaction.
24.6 The account holder and guarantor warrants that all information given to Investec by the account holder or guarantor, whether in terms of any application form, authority or payment instruction or via any service provided by Investec, or otherwise, shall be accurate and correct and shall constitute sufficient proof of the facts contained therein. Investec shall be entitled to rely on any such information given as contemplated in this clause 24.6 and shall not be liable howsoever in the event that it relies on or uses such information.
24.7 The agreement is confined to the use of the debit card and the account. Any access to and use of any other product or service provided or offered by Investec or the Investec Group through whatever medium of access available (including without limitation Investec’s Online Banking and Mobile Banking services) is subject to and governed by whatever terms and conditions apply to such products, services and access media ("ancillary conditions"). The account holder acknowledges that in order to access and use such other products and services, the account holder shall be obliged to comply with the ancillary conditions. Investec shall be entitled, but not obliged, to refuse to process any transaction or to act on any instructions given by the account holder until the account holder has complied with the ancillary conditions. Investec shall not be liable for any loss suffered or expense incurred by the account holder as a result of any such refusal.
24.8 The existence of a link or reference from the website to any other website, web pages or other content or service does not constitute Investec’s recommendation or approval thereof.
24.9 For the purposes of this agreement no electronic signature or advanced electronic signature, as defined in the ECT Act, shall constitute a signature.