General Terms of Business for Intermediaries
The Intermediary should ensure that he/she/it reads and understands these General Terms of Business as set out herein and should pay particular attention to all terms printed in bold.
Unless the context indicates otherwise the following expressions have the following meanings:
1.1. Account means a Corporate Cash Manager (“CCM”) account opened for a Client, or the Intermediary, as the case may be, on the Corporate Cash Manager system.
1.2. Administration Fee means the fee earned by the Intermediary pursuant to the terms of a Client Mandate, which fee is to be paid over by Investec to the Intermediary on behalf of a Client.
1.3. Agreement means this agreement between Investec and the Intermediary.
1.4. AML means anti money laundering as that term is defined in FIAMLA.
1.5. Applicable Law means any of the following to the extent it applies to any party:
1.5.1. any statute, regulation, policy, by-law, directive, notice or subordinate legislation;
1.5.2. the common law;
1.5.3. any applicable industry code, directive, policy or standard enforceable by law; or
1.5.4. any applicable direction, policy or order that is issued by a regulator having the force of law.
1.6. Business Day means any day other than a Saturday, Sunday, or official public holiday in either Mauritius or South Africa.
1.7. CFT means combatting the financing of terrorism as that term is defined in FIAMLA.
1.8. 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 Client Mandate and on whose behalf the Intermediary will transact with Investec.
1.9. Client Mandate means a written contract of agency, mandate or investment management agreement concluded between the Account Holder and the Intermediary in form and substance acceptable to us.
1.10. Corporate Cash Manager system means the proprietary banking system owned by Investec, designed to facilitate, and manage investments and other related transactions by an Intermediary on behalf of its Clients from time to time, as more fully described on the Website.
1.11. CRS means the Common Reporting Standard as specified and required under the regulations to the Income Tax Act, 1995 for the automatic exchange of financial account information.
1.12. Data Protection Act means the Data Protection Act, 2017.
1.13. FAIS means the Financial Advisory and Intermediary Services Act, 2002.
1.14. FATCA means the US Foreign Account Tax Compliance Act.
1.15. FIAMLA means the Financial Intelligence and Anti-Money Laundering Act, 2002.
1.16. FICA means the South African Financial Intelligence Centre Act, 2001.
1.17. IGA means the intergovernmental agreement that the Mauritian and United States governments have concluded to improve international tax compliance and to implement FATCA.
1.18. 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.
1.19. Insolvency Event means the occurrence of any of the following events in relation to the Intermediary:
1.19.1. 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
1.19.2. the Intermediary passing a resolution providing for any such event; or
1.19.3. the Intermediary taking any procedural steps in relation to any such event; or
1.19.4. 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.
1.20. Intermediary means a FAIS licensed financial services provider that is appointed by the Client in terms of a Client Mandate.
1.21. Investec means Investec Bank (Mauritius) Limited.
1.22. Investec Brand means the name, logo, product description and/or trademarks of Investec from time to time.
1.23. Juristic Entity means any entity that is not a natural person.
1.24. Parties means Investec and the Intermediary.
1.25. Personal Data means all Information relating to an identified or identifiable individual, as defined in the Data Protection Act.
1.26. Process/Processing has the same meaning assigned thereto in the Data Protection Act and includes any operation or set of operations performed on personal data or sets of personal data, whether or not by automated means, such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
1.27. 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.
1.28. 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 Data.
1.29. Sanctions means the economic sanctions laws, regulations, embargoes, or restrictive measures administered, enacted, or enforced by any Sanctioning Body.
1.30. 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.
1.31. Sanctioning Body means any one or a combination of the following entities:
1.31.1. the Office of Foreign Assets Control of the Department of Treasury of the United States of America;
1.31.2. the United Nations Security Council;
1.31.3. the European Union or any participating member state of the European Union;
1.31.4. His Majesty's Treasury of the United Kingdom; and
1.31.5. any other Sanctioning Body of a foreign country in whose currency Investec may facilitate payment.
1.32. Sanctioned Country means a country which is subject to general Sanctions or embargo by a Sanctioning Body.
1.33. 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.
1.34. Transaction means a transaction concluded by the Intermediary or by a Client, as applicable, in respect of banking and finance facilities and/or investment products or any other product offered by Investec and, if 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.
1.35. 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. If any conflict exists between this Agreement and the provisions of any Applicable Law referred to herein, then the provisions of the Applicable Law will prevail.
3. Investec’s CCM Account Terms and Conditions
3.1. This Agreement must be read in conjunction with Investec’s CCM Account terms and conditions as well as any Product Rules for Investec’s investment and other products, all as amended from time to time, including any notices and correspondence that Investec may send to the Intermediary. Together they record the respective rights and obligations of the Parties in relation to the conclusion by the Intermediary of Transactions on behalf of its Clients and/or the distribution of products or facilities to its Clients.
3.2. In the event of any conflict between this Agreement and the documents referred to in clause 3.1 the latter shall prevail.
4.1. With effect from the date on which Investec advises the Intermediary that it is able to do so, the Intermediary shall be entitled to open Accounts and effect Transactions on accounts on behalf of Clients strictly in accordance with Client Mandates and this Agreement.
4.2. Investec will allocate separate Accounts for each Client and each Account will bear the name of the relevant Client.
4.3. All Accounts and all Transactions shall be subject to the CCM Account terms and conditions as well as the relevant Product Rules, all as amended from time to time. The Intermediary is at all times responsible for reading and understanding the CCM Account terms and conditions and 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.
4.4. Investec will not permit the Intermediary to conclude Transactions, nor shall Investec be bound in any manner to do so until the Intermediary has completed and executed the relevant product-specific application form/s on the Corporate Cash Manager system and provided all supporting documentation required by Investec (where applicable) and all Information contained therein has been verified and accepted by Investec.
4.5. In addition, the Intermediary shall provide supporting Information and documents to Investec which shall include, but not be limited to, the following where applicable:
4.5.1. all information required by Investec to fulfil its “know your client” requirements under FIAMLA;
4.5.2. its VAT registration number;
4.5.3. a copy of the Intermediary’s FAIS 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;
4.5.4. proof of bank account details of the Client in the form of a bank reference letter or bank statement, certified by the relevant bank;
4.5.5. a copy of the Intermediary’s current insurance policy as required by FAIS;
4.5.6. 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 an appropriately FAIS licensed 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
4.5.7. 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.
4.6. The Intermediary is responsible for ensuring that all Clients 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 this Agreement, the Product Rules, Account statements, and tax certificates. The Intermediary is also responsible for ensuring that all Clients are provided with information regarding Investec as product/facility provider in compliance with the requirements of FAIS General Code of Conduct and that they are at all times made aware of all fees (including the Administration Fee) which may be applicable to a Transaction.
5. Relationship between Investec and the Intermediary
5.1. The relationship of the Parties shall be governed by the terms of this Agreement, the CCM Account terms and conditions, 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.
5.2. In either effecting any Transaction for and on behalf of its Clients neither the Intermediary nor its employees or representatives will act or purport to act as the agent of Investec.
5.3. The Intermediary hereby provides consent to Investec for Investec to source, store and process any regulatory license of the Intermediary and the Intermediary’s 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.
5.4. 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 this Agreement.
5.5. Notwithstanding compliance by the Intermediary with the provisions of this Agreement, Investec may, in its sole discretion, refuse to allow the Intermediary or any of its representatives to enter into Transactions in respect of banking facilities or products on behalf of the Intermediary’s Clients.
5.6. 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 Clients.
5.7. 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.
5.8. 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 Applicable Law, 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.
6. Relationship between Investec and the Client
6.1. 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 Clients.
6.2. Investec is accordingly entitled to, without limitation, send Clients this Agreement, the CCM Account terms and conditions 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 Clients’ email, postal addresses, and contact details and provide same to Investec.
6.3. It is recorded, for the avoidance of doubt, that this clause 6 will apply irrespective of whether such engagement was initiated by Investec, the Intermediary, or the Client.
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 Clients strictly in accordance with the Agreement.
8. Investec brand
8.1. 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.
8.2. 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.
8.3. 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.
9. Client Mandates
9.1. The Intermediary shall not be permitted to enter into any Transactions as agent on behalf of a Client unless it has concluded a Client Mandate 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):
9.1.1. confirmation that the Intermediary is authorised to perform all obligations under the Transactions described in the Client Mandate on the Client's behalf whether by using an Investec trading platform or system or otherwise;
9.1.2. confirmation of the Administration Fee charged by the Intermediary for rendering services to the Client;
9.1.3. 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 Client Mandate;
9.1.4. 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
9.1.5. unless Investec agrees otherwise, the Client undertakes to communicate solely with the Intermediary with respect to all Transactions.
9.2. The Intermediary acknowledges that it will be asked by Investec to select the applicable Administration Fee upon applying to Investec to use the Corporate Cash Manager system. If the Administration Fee changes, the Intermediary shall inform Investec accordingly, and shall be responsible for updating the relevant Client Mandates.
10. Documentation, retention, and access
10.1. The Intermediary undertakes to retain all Client Mandates and all supporting documents relating to the information collected in terms of clause 11 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.
10.2. The Intermediary hereby gives Investec or its nominee or agent free and easy access to its Client Mandates and to the documentation collected and recorded in terms of its obligations under clause 11, and for these purposes, the Intermediary will allow Investec at all reasonable times to conduct onsite visits to:
10.2.1. inspect such records; and/or
10.2.2. audit the Intermediary's compliance with all Applicable Law and the provisions of this Agreement on at least an annual basis.
10.3. 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 FAIS and the Data Protection Act, and any other Applicable Law.
11. Regulatory compliance
11.1. The Intermediary undertakes to capture correctly and comprehensively all Client Information that Investec indicates as being mandatory on the Corporate Cash Manager system to capture in respect of each Client. The Intermediary shall keep updated all information it is mandatory to capture.
11.2. 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.
11.3. Where the Intermediary is required to open an Account on behalf of a Client in relation to a Transaction, the Intermediary agrees to procure that, prior to opening the 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 10 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.
11.4. 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 Clients 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.
11.5. 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.
11.6. The Intermediary shall further ensure that, in compliance with the Data Protection Act, Clients are directed to take note of Investec's data protection statement on the Website.
11.7. The Intermediary undertakes to keep all information collected and recorded in terms of this clause 11 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 Law.
11.8. Investec shall process the information provided by the Intermediary in accordance with Applicable Law.
11.9. Warranties and undertakings relating to regulatory compliance:
11.9.1. The Intermediary warrants and undertakes to and in favour of Investec as material warranties and undertakings inducing Investec to enter into the Agreement that:
22.214.171.124. 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 “know your client” and Client on-boarding process;
126.96.36.199. it has a documented risk management and compliance programme;
188.8.131.52. it shall operate in accordance with all Applicable Law pertaining to customer due diligence, the identification and verification of Clients, and the keeping of records, which records must be capable of being reproduced in a legible format;
184.108.40.206. it will forthwith upon request from Investec provide a reference letter for a Client on its letterhead, in such format as required by Investec;
220.127.116.11. it will not open an 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 Account;
18.104.22.168. all information captured by the Intermediary onto any Investec trading platform or system will be true and correct in all respects;
22.214.171.124. it does comply and will continue to comply with all Applicable Law for the duration of the Agreement;
126.96.36.199. 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 or to monitor a Transaction;
188.8.131.52. 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; and
184.108.40.206. 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.
11.9.2. 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 11.9 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.
12.1. 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.
12.2. 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 Law be entitled to freeze property and Transactions.
12.3. The Intermediary undertakes to comply with all Applicable Law 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.
12.4. 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.
13. Transaction requirements
13.1. 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.
13.2. In effecting any Transaction, the Intermediary undertakes to comply with:
13.2.1. this Agreement;
13.2.2. the CCM Account terms and conditions;
13.2.3. the Product Rules;
13.2.4. the applicable Client Mandate; and
13.2.5. all Applicable Law.
13.3. All payments to Investec in respect of amounts owing under this Agreement shall be made by electronic funds transfer.
14. Warrants and undertakings
14.1. 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:
14.1.1. 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;
14.1.2. it has sufficient insurance cover (whether fidelity insurance or other cover that Investec finds suitable) 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;
14.1.3. it will enter into products and facilities on behalf of its Client with Investec solely in terms of the Client Mandate and it will conclude Transactions with Investec in its capacity as Intermediary on behalf of its Client from whom it has a Client Mandate;
14.1.4. 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
14.1.5. 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
14.1.6. 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.
15. Security measures
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.
16. Information sharing
16.1. Investec may only share any information obtained by Investec in terms of the Agreement with any person in accordance with Applicable Law 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.
16.2. Any Personal Data 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 Law and the disclosure of such Client Information to third parties shall be subject to Investec’s compliance with Applicable Law and the Data Protection Act and where applicable, subject to the Intermediary procuring the prior consent of the Client for such disclosure.
17.1. 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.
17.2. 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.
17.3. 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.
17.4. The Intermediary further indemnifies Investec against any claim against it arising from the Intermediary conducting its business telephonically or by way of email.
18. Suspension, termination and withholding
Investec is entitled at its sole discretion, and without notice to the Intermediary or the Client, to suspend the Intermediary's access to the Corporate Cash Manager System, any of its trading platforms or systems or 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.
19. Client complaints
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 Law.
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. Duration, termination, and breach
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 Client Mandate, 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 Clients, 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 electronic mail, Short Message System (SMS), message on the Corporate Cash Manager system, announcements on the 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. Data protection
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 Data strictly as defined within the parameters of the Data Protection Act;
22.1.3. process Personal Data 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 Data in compliance with the requirements of all Applicable Law;
22.1.5. secure the integrity and confidentiality of any Personal Data 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 Data;
22.1.6. not transfer any Personal Data to any third party in a foreign country unless such transfer complies with the relevant provisions of the Data Protection Act regarding trans-border Information flows; and
22.1.7. not retain any Personal Data 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. identify reasonably foreseeable internal and external risks to the Personal Data 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 Data 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 Data 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 Data; and
22.2.10. notify the other Party, if lawful, of receipt of any request for access to Personal Data, in its possession relating to the other Party.
22.3. Each Party reserves the right to inspect the Personal Data 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 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 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.
24. Confidentiality and non-circumvention
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.
This Agreement 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.
26. Notices and correspondence
26.1. Notices or other correspondence may be given to the Intermediary by the Corporate Cash Manager system, hand, or e-communication 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.
26.2. Correspondence sent to the Intermediary by Investec by hand or by electronic mail, will be deemed to be received by the Intermediary on the next Business Day after sending.
26.3. 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 Mauritius. The Intermediary hereby consents to the jurisdiction of the courts of Mauritius in respect of any disputes arising out of or in connection with this Agreement or any matter related to or in connection therewith.