e-clipse Operations Terms & Conditions
This Agreement governs the rights and obligations of the Client and Investec Bank Limited ("Investec") in respect of e-clipse Operations. Please refer to clause 26 for the definitions of terms used in these E-Clipse Operations Terms and Conditions.
1.1 This Agreement governs the rights and obligations of the Client and Investec in respect of e-clipse Operations on e-clipse.
1.2 This Agreement supersedes and substitutes any agreement between the parties or their predecessors in title in respect of e-clipse Operations or any part thereof.
1.3 This Agreement is confined to e-clipse Operations and, unless otherwise provided for, does not apply to the Offline Business.
2.1 These e-clipse Operations Terms and Conditions are hereby deemed to be incorporated by reference into the Standard Terms and Conditions, notwithstanding anything to the contrary contained in the Standard Terms and Conditions.
2.2 Whenever inconsistencies arise between the interpretation of the Standard Terms and Conditions and the provisions of these e-clipse Operations Terms and Conditions, the provisions of the Standard Terms and Conditions shall prevail.
2.3 For ease of use, Investec has included hyperlinks in the electronic display of this Agreement to text elsewhere in this Agreement or on the e-clipse Website. These links are indicated herein by underlined text and the cursor should change into a selection cursor when held over this text. Any hyperlinked text is deemed to be incorporated into this Agreement by reference.
3.1 These e-clipse Operations Terms and Conditions are binding between the parties on the use of the Services in any manner or form.
3.2 Without affecting the validity of the provisions of clause 3.1 and without imposing any duty on Investec to do so, Clients may be required to Submit acceptance of the Agreement and/or Amendments, from time to time. The provisions of clause 10 shall apply with regard to acceptance of Amendments.
3.3 Whenever contractual terms, disclaimers or notices are displayed or hyperlinked on the e-clipse Website or emails sent to Clients, such contractual terms, disclaimers or notices shall be deemed to be accepted by the Client on commencement of an Online Session unless the Client immediately ends the Online Session without submitting any Instruction.
4. Relationship between the User, the Client and Investec
4.1 The Client is any person who would like to use e-clipse Operations, on its own behalf or on behalf of other entities such person is mandated to act on behalf of.
4.2 Investec is offering its Clients the ability to use e-clipse Operations, via the e-clipse Website or via www.investec.com.
4.3 The Client has nominated, appointed and mandated certain individuals to act on behalf of the Client in using e-clipse Operations; the User(s) and has notified Investec accordingly.
4.4 In order for the Users to access e-clipse Operations, the Users will be given an Access Code unique to each User.
4.5 As such, any action or omissions by the User in respect of e-clipse Operations shall be deemed to be authorised by the Client and shall be binding on the Client.
4.6 The Client hereby indemnifies Investec against any and all claims, loss, demands, liability, costs and expenses of whatsoever nature and howsoever caused and arising, which may at any time be made against Investec by any person or which Investec may sustain or incur arising directly or indirectly out of or in consequence of any Instructions or using e-clipse Operations, other than such claims, loss, demands, liability, costs and expenses arising as a direct result of Investec’s gross negligence, wilful misrepresentation or fraud.
5. Access code
5.1 The User will be supplied with an Access Code by such means and in such format as Investec may determine from time to time. Any use of e-clipse Operations is subject to Investec having issued the User with an Access Code.
5.2 Each time the User accesses e-clipse to logon on e-clipse Operations, the User will be prompted to enter his/her Access Code. The Access Code is unique to each User and a PIN will be delivered to the Client’s chosen physical address in a sealed envelope. Should the envelope and or its contents appear to be tampered with, please contact Support Centre which will arrange for another PIN to be delivered.
5.3 Please note that should Investec have provided the User with a PIN previously for e-clipse Dealing that same PIN may be used to access e-clipse. Each time the User attempts to log onto e-clipse, the User’s Access Code will be required for successful logon.
5.4 Should the User experience any difficulty logging onto e-clipse or should the User have lost or forgotten his/her Access Code; the User must please contact e-clipse support centre on 0800 28 28 28 or [email protected] for assistance
5.5 For prompt assistance the User must please inform the Support Centre that he/she has an Investec Capital Markets e-clipse query.
5.6 The User undertakes to ensure that the Access Code is neither easily accessible nor disclosed to anyone. Storing the Access Code on a computer or network will be regarded as prima facie negligent for purposes of evidence with regard to unauthorised transactions.
5.7 The User shall be obliged to log-off from e-clipse Operations before exiting an Online Session. Failure to log-off which results in unauthorised transactions or transactions shall be for the Client’s account and Investec will not be held liable.
5.8 Investec may, in its sole discretion and for whatever reason, require a User to change his/her Access Code from time to time and the User undertakes to comply with such requirement unconditionally.
5.9 The Client and User acknowledge that the Access Code may enable the User to access some or all Online Services of Investec and, accordingly, unauthorised use of the Access Code could expose the User or the Client, as the case may be, to fraudulent transactions on other accounts held with Investec.
5.10 Any changes to the User’s authority or access rights in respect of e-clipse Operations may take up to 48 hours to be implemented, and the Client will be liable for any Instruction attributable to the User’s Access Code until such time as the changes have been effected. In the event that the Client wishes to terminate its mandate in respect of an authorised User, the Client must contact the Support Centre and such changes may take up to 48 hours to effect. Any Instructions received before such changes are effected, whether authorised or not, will be executed and the resultant loss, if any, will be for Clients account. Investec will not be held liable in this regard. In the event that the Client wishes to mandate new Users, change profiles, or delete users, the Client must contact the Support Centre and follow the new User take-on process communicated to it, which process could take more than 48 hours to complete.
6. Client Support
7. Signature and authority by Client
7.1 The Client hereby designates the User’s Access Code as the Client’s signature for purposes of all subsequent actions performed or Instructions given during an Online Session.
7.2 In as far as a signature is required for each Instruction in terms of the Agreement or applicable legislation, the Client hereby designates each Submission of an Instruction by the User as its written signature.
7.3 Whenever required in the Agreement or applicable legislation, the Submission of the Access Code, together with the Submission of an Instruction shall, collectively, constitute and have the same effect as a written, signed authority.
7.4 By accepting the terms and conditions of the Agreement, the client authorizes the Bank to sign the Bank’s standard Cross-Border Foreign Exchange Transaction Reporting Integrated Form on the Client’s behalf electronically, based on the information supplied by the Client on each payment instruction. The Client hereby confirms that the information furnished in the payment instructions, including information provided for the purposes of Cross-Border Foreign Exchange Transaction Reporting, is true and correct.
8. Instructions, Actions and Omissions
8.1 The Client warrants that the User is authorised to engage in e-clipse Operations on behalf of the Client.
8.2 The User shall therefore be entitled to instruct Investec in respect of e-clipse Operations and perform actions on e-clipse for and on behalf of the Client. Investec shall be entitled to regard all Instructions received from the User as well as any action or omission on e-clipse Operations as actually originating from and authorised by the Client and to act on such Instruction, action or omission. Under no circumstances shall Investec be held liable for any unauthorised instructions, actions or omissions. Instructions will be scrutinized only from an Exchange Control perspective, Investec is not obliged to check, confirm or scrutinize any other details, such as payment details, and therefore any errors, late payments, or losses arising from the information supplied by the Client, will not be for the account of Investec.
8.3 An Instruction becomes irrevocable once submitted to Investec and confirmed as executed in e-clipse by display of a transaction reference number. Payment instructions together with all necessary documents pursuant to the South African Reserve Bank Rules and Regulations, must be received by Investec at least two business Days prior to the value date for that transaction, failing which Investec may not be in a position to make payment on value date and any loss arising from late payment shall be for the Client’s account. Such documents should be sent to [email protected]
8.4 Investec shall not be liable for the User executing the same Instruction, action or omission, as the case may be more than once and duplicated Instructions or actions may not be reversible
8.5 It is the Client’s responsibility to ensure that any Instruction or action is accurate in every respect. Investec will not be held responsible if the User submits an incorrect Instruction or performs an incorrect action.
8.6 Any and all Instructions Submitted by the User and confirmed as accepted in e-clipse will be executed by Investec.
8.7 Instructions should be sent from a secure location. If the User does not use a secure location to provide Instructions, any loss incurred will be for the Client’s account.
9. Sufficient notification
9.1 The Client hereby grants Investec authority to issue notifications required in terms of the Agreement, legislation or regulation, as the case may be, by posting such notification on the e-clipse Website or sending such notification by email.
9.2 Any notices so issued by Investec, shall as far as they contain contractual terms pertaining to e-clipse Operations, also form part of this Agreement.
9.3 A certificate signed by the administrator responsible for the maintenance of the information system (whose authority it shall not be necessary to prove) shall be prima facie proof of the first date of publication, withdrawal or contents of a notification.
10.1 This Agreement may be amended by Investec from time to time. The Client acknowledges that by Users accessing the e-clipse Website from time to time, the Client shall become bound to the current version of the Agreement (the "current version") and, unless otherwise stated in the current version, all previous versions shall be superseded by the current version. Clients undertake to view the then current version each time use is made of e-clipse Operations.
10.2 Without derogating from the aforegoing and without imposing any obligation on Investec whatsoever, Investec reserves the right to give Clients notification of any amendment of the Agreement either by electronic mail or by posting a notice on the e-clipse Website. On notification of the existence of the amended terms, Clients are obliged to visit the e- clipse Website and view the then current version of the Agreement, which will be deemed to have been perused and accepted by the Client whenever the User makes use of e-clipse Operations.
10.3 A certificate signed by the administrator responsible for the maintenance of the e-clipse Website shall be prima facie proof of the date of publication and content of the current version and all previous versions of the Agreement. The same provisions apply with regard to notices and disclaimers posted on the e-clipse Website.
11. Unavailability of E-Clipse Operations
11.1 Investec shall at all times and for whatever reason, have the sole and exclusive right to suspend or terminate e-clipse Operations without any prior notification or giving any reasons for such termination or suspension.
11.2 Clients acknowledge and accept that e-clipse Operations may become unavailable from time to time due to various circumstances, including: routine maintenance; technical failure or problems with the Investec System; technical failure or problems with third party information technology systems; unavailability of telecommunication or electricity services; or other circumstances beyond the control of Investec.
11.3 Without derogating from the provisions of clause 23, Clients undertake to limit their potential losses by utilising Investec’s Offline Business for the duration of the unavailability of e-clipse Operations.
12.1 The Client warrants to Investec that it and its Users: (a) have the requisite legal capacity to make use of e-clipse Operations; (b) have complied with all applicable statutory provisions; and (c) have read, understood and accepted the terms of this Agreement.
12.2 This Agreement evidences the sole terms and conditions governing e-clipse Operations. Clients acknowledge and agree that any warranties, statements or representations of whatever nature and in whatever form, including promotional materials, granted or made by Investec, its employees, agents or advisors which are not evidenced in the Agreement shall not be valid and enforceable and Client shall not hold Investec liable to any such warranty or representation, whether made prior to, during or after concluding the Agreement.
The Client hereby indemnifies Investec for all losses and/or all expenditures which Investec may incur on its behalf due to: (a) non-payment; (b) any Instruction or action being cancelled or reversed; (c) unauthorised instructions or actions executed which are not due to Investec’s negligence; or (d) delayed payments.
14. No professional advice
Investec does not act as financial advisor. All material published on the e-clipse Website (the "material") is only intended to provide general information regarding Investec and e-clipse Operations and does not constitute professional advice of whatever nature. All material including, without limitation, research, opinions, figures, prices, projections or other content are provided "as is" and the User and the Client shall not place reliance thereon in taking actions which might affect the Clients finances without consulting Investec directly.
15. No offer
Unless clearly otherwise stated, no material should be construed as an offer of whatever kind made by Investec. All material on the Website merely constitutes an invitation to do business with Investec.
16. Intellectual property
16.1 The logos and marks displayed on the e-clipse Website are registered and unregistered trademarks of Investec and/or third parties. Nothing contained on the e-clipse Website should be construed as granting any licence or right to use any trademark without the written permission of Investec and/or such third parties.
16.2 Furthermore the Client and the Users acknowledge that they do not have intellectuall property rights in or to e-clipse and e-clipse Operations which belong to Investec or Investec’s licensors. In the event that e-clipse Operations or part thereof are provided under license to Investec from third parties, use of that part of e-clipse Operations shall bind the Client to any additional terms that Investec or such third party shall notify the Client from time to time.
17. Use of browser and software
17.1 Clients are required to use and maintain only hardware and software of sufficient quality and performance capability for the purposes of utilising e-clipse Operations and to use only the Specified makes and versions of internet browser software. Failure to use a Specified browser may result in a higher security risk and/or cause some or all of the functionality of the e-clipse Website not to operate properly or at all and Investec shall not be held liable in this regard.
17.2 Software, if any, made available for download on or via the e-clipse Website is governed by licence conditions establishing a legal relationship with the licensor. Clients indemnify Investec against any breach of such licence conditions.
17.3 Investec gives no warranty and makes no representation, whether express or implied, as to the quality or fitness for purpose or use of such software.
17.4 While Investec takes every effort to ensure that the e-clipse system is secure, Investec cannot warrant, expressly or by implication that any files, downloads or applications available via the e-clipse Website are free of viruses, or any other data or code which has the ability to corrupt or affect the operation of Clients’ systems.
18. Transmission of information
Information transmitted via the Internet, including e-mail, is susceptible to unlawful access or monitoring and/or viruses. Clients shall bear all risk of transmitting such information in this manner and under no circumstances will Investec be liable for any loss, harm or damage suffered by them as a result thereof. Investec reserves the right to request independent verification of any information transmitted via the e-clipse Website or e-mail.
19. RSS Feeds
19.1 Investec may, in its sole discretion, display RSS Feeds sourced from third parties on the e-clipse Website.
19.2 Whilst Investec will try to select appropriate RSS Feeds to prevent objectionable content from being displayed, the contents of the RSS Feeds do not express the views or opinions of Investec in any manner whatsoever and shall not constitute an endorsement or recommendation of that information, by Investec.
19.3 Investec does not guarantee the accuracy, timeliness, completeness, performance or fitness for a particular purpose of any of the information contained in the RSS Feeds. No responsibility is accepted by or on behalf of Investec for any errors, omissions, or inaccurate information on the RSS Feeds.
19.4 No action should be taken or omitted to be taken in reliance upon information on the RSS Feed. Investec accepts no liability for the results of any action taken on the basis of the information contained in any RSS Feeds.
20. Hyperlinks; deep linking; crawlers and metatags
20.1 External hyperlinks may be provided for convenience. These web pages are beyond the control of Investec and no representation or endorsement is made as to their content.
20.2 No person shall be entitled to link a website or any web pages to any web pages of the e-clipse Website without the prior written consent of Investec.
20.3 No person shall be entitled to send search-software (crawlers) to retrieve information from the e-clipse Website for reproduction or processing, in any manner or form, without the prior written consent of Investec.
20.4 No person shall be entitled to use Investec’s name or that of any of its proprietary products or services for purposes of metatagging without the prior written consent of Investec.
21. Technology neutrality
Investec makes e-clipse Operations available to Clients subject to the principle of technology neutrality, which principle Clients hereby accept. The principle of technology neutrality means that, unless otherwise stated in the Agreement:
21.1 e-clipse Operations is subject to the same business fundamentals and principles governing Investec’s Offline Business.
21.2 e-clipse Operations is subject to the same processing turn-around times and performance criteria as applied by Investec in its Offline Business.
21.3 Any reference to words in the Agreement, legislation or regulations traditionally associated with a non-electronic or non-Online environment, including the terms "writing", "document" or "signature", shall include electronic or Online forms thereof.
21.4 Documents or displays viewed or printed by Clients via an information system shall prima facie be deemed to be "true copies" of the original.
eclipse Operations and these e-clipse Operations Terms and Conditions are governed in accordance with the laws of the Republic of South Africa.
Clients may be required to complete and submit a registration form and/or complete any other documents or provide any other information as may be required by Investec from time to time. Investec, in its sole and absolute discretion and without stating reasons therefore, shall have the right to reject any application for e-clipse Operations.
For details of Investec’s data protection practices, please read Investec’s Data Protection Statement which explains how Investec processes personal information.
25. Disclaimer & limitation of liability
25.1 The e-clipse Website and e-clipse Operations are provided "as is" and Investec makes no express or implied representations or warranties with regard thereto. Without limiting the generality of the foregoing:-
25.1.1 Investec does not warrant that the e-clipse Website or e-clipse Operations will be error-free or will meet any particular criteria of accuracy, completeness or reliability of information, performance, quality or latency.
25.1.2 Investec expressly disclaims all implied warranties, including, without limitation, warranties of merchantability, title, fitness for a particular purpose, non-infringement, compatibility, security and accuracy.
In the event of system delay or failure, or if the Client or User has queries on the status of an Instruction, the Client or User must please contact the Support Centre.
25.2 Neither Investec, any company in the Investec group, its shareholders, agents, consultants or employees will be liable for any damages whatsoever relating to the use of the e-clipse Website, or the Services or the information contained therein, including, without limitation, any direct, indirect, special, incidental, consequential or punitive damages, whether arising out of contract, statute, delict or otherwise. Without derogating from the generality of the foregoing, Investec shall not be liable for:
25.2.1 Any interruption, malfunction, downtime or other failure of the e-clipse Website or e-clipse Operations, the Investec system, databases or any component part thereof for whatever reason;
25.2.2 Any loss or damage with regard to Client data or other data directly or indirectly caused by malfunction of the Investec system, power failures, unlawful access to or theft of data, computer viruses; programming defects, or negligence on the part of Investec ;
25.2.3 Any interruption, malfunction, downtime or other failure of goods or services provided by third parties, including, without limitation, the public switched telecommunication service providers (currently Telkom), internet service providers, electricity suppliers (currently Eskom), local authorities and certification authorities;
25.2.4 An event of vis major or any other event over which Investec has no direct control.
26. Miscellaneous Provisions
26.1 e-clipse Fees
Tariffs and fees for the use of and access to e-clipse Operations, shall be levied and charged in accordance with Investec’s fee structure notified to the Client from time to time unless otherwise agreed between the parties in writing. Each Client is responsible for all fees, costs and expenses associated with his/her access to and use of e-clipse Operations.
26.2 Use of e-clipse and e-clipse Operations
26.2.1 The Client is granted a personal, non-transferable, non-exclusive and limited license to use (but not modify or sub-license) e-clipse for the purposes of e-clipse Operations, subject to the e-clipse Operations Terms and Conditions. The Client will use e-clipse Operations via its Users for itself or on behalf of certain corporate counterparties and as such the Client agrees to these e-clipse Operations Terms and Conditions on behalf of such corporate counterparties. All rights not expressly granted are reserved and this license automatically terminates upon the termination of the relationship of the parties.
26.2.2 The Client and its Users agree to be bound by any disclosures, disclaimers, instructions, trading limits and or trading conditions or terms in accordance with the e-clipse Operations Terms and Conditions, the ISDA Agreement and the Standard Terms and Conditions.
26.2.3 Investec may restrict access to or prohibit the use of e-clipse Operations or any part thereof for regulatory or other reasons, with or without prior notice and Investec shall not be liable for any losses whatsoever for such restriction or prohibition.
In these e-clipse Operations Terms and Conditions the following terms shall have the following meaning:
"Access Code" means the User specific code or codes required to initiate an Online Session and includes any component part of such Access Code such as the Investec Identification number and single sign on PIN;
"Agreement" means these e-clipse Operations Terms and Conditions read with the Standard Terms and Conditions and the ISDA Agreement if any;
"Client" means any person who has authorised the User(s) to use e-clipse Operations on its behalf or on behalf of other entities in accordance with mandates by such other entities;
"e-clipse" means the platform on which Investec provides e-clipse Operations from time to time;
"e-clipse Website" means the website (including all its constituent web pages) on which Investec provides e-clipse Operations from time to time;
"Electronic Signature" means an electronic signature as defined in the Electronic Communications and Transactions Act and includes the identifier/s provided for in clause 5;
"E-Clipse Operations" means Online Services provided by Investec to Clients to confirm and settle forex transactions;.
"Hyperlink" means any graphic, icon or text on the e-clipse Website linked to any other website or web page, whether on the e-clipse Website or any other website;
"Information System" means a system for generating, sending, receiving, storing, displaying or otherwise processing Instructions and includes the Internet, telephone voice recognition, Short Messaging System (SMS) and Wireless Application Protocol (WAP) communications;
"Instruction" means an instruction given Online by a User, to Investec, for Investec to facilitate e-clipse Operations;
"Investec System" means the information technology infrastructure of the information system underlying e-clipse Operations, owned, leased or managed by Investec;
"ISDA Agreement" means the ISDA Master Agreement entered into between Investec and the Client, (together with all other Transactions and Confirmations previously entered into between the Parties) failing which, it shall mean the 2002 ISDA Master Agreement, as published and amended from time to time by the International Swaps and Derivatives Association, Inc, as if, on the Trade Date of the first Transaction between the Parties, the Parties had executed that agreement (without any Schedule thereto) and specified that (i) the Cross Default provisions will apply to both Parties and that the Threshold Amount will be 3% of each Party’s Shareholders Equity as disclosed in their latest published audited financial statements, (ii) the Credit Event Upon Merger provisions will apply to both Parties (iii) the Automatic Early Termination provisions will not apply (iv) the Termination Currency will be selected by the Non-Defaulting Party and (v) that Multiple Transaction Payment Netting will apply;
"Offline Business" means e-clipse Operations Services provided by Investec otherwise than via the Online medium including but not limited to telephone or email;
"Online" means via any Information System used for e-clipse Operations from time to time;
"Online Session" means the uninterrupted period during which the User has access to e-clipse Operations, from time to time;
"Personal Information" means information relating to an identifiable, living natural person or where applicable an existing juristic person, which includes but is not limited to name, address, contact details, date of birth, place of birth, identity number, passport number, bank details, details about employment and financial information;
“RSS Feeds” means information sourced from third parties and displayed on the e-clipse Website from time to time;
"Services" means the ability of Clients to view forex trades, view, accept or reject trade confirmations and Spot advices, provide payment instructions with regards to these trades, either singularly, or by splitting and netting instruction; and maintaining settlement instructions. Real time reports on trades, confirmations, and payments are available to the customer Online
between 08H00 and 17H00 from Mondays to Fridays, excluding Weekends and Public Holidays in the Republic of South Africa;
"Specified" means displayed on or via the e-clipse Website;
"Submit" means the submission of information by the Client to Investec through the Investec System and includes the clicking of any icon or hyperlink on the Website or functionality on the Client’s Internet browser which transmits information to Investec;
"Standard Terms and Conditions" means the Investec Standard Terms and Conditions and/or the ISDA Master Agreement executed between Investec and the Client and applicable to e-clipse Operations;
"User" means the individual authorised to act on behalf of the Client, which individual shall be provided with an Access Code, which is unique to him or her;
[Terms not defined herein are defined in the Standard Terms and Conditions or the ISDA Agreement as the case may be.]
a. Investec Bank Limited name and legal status
Investec Bank Limited is a public company (Reg No. 1969/004763/06).
b. Investec Bank Limited addresses and telephone number
+27 11 286 7000
+27 11 286 7000
+27 11 286 9923
100 Grayston Drive, Sandown, Sandton, 2146, South Africa
c. Money Laundering Legislation
Investec is required by law (The Financial Intelligence Centre Act no 38 of 2001) to identify all clients and to verify such identification via documentary evidence as specified by the Regulations to the Act and our own internal policies.
We are not permitted to perform any transaction on your account if it is not compliant with the requirements of the legislation.
d. The address where Investec Bank can receive legal service of documents
Investec Capital Markets Division
ICM Legal and Compliance,
3rd Floor Zone 3
100 Grayston Drive
e. The terms of agreement which are applicable to each Transaction Please refer to the Standard Terms and Conditions, the E-Clipse Operations Terms and Conditions and the ISDA Agreement.