Standard Terms of Business
1.1 Investec Securities Proprietary Limited ("ISL") is a member of the JSE Limited (the "JSE") and an authorised Financial Services Provider ("FSP"). As such, it is regulated by the rules and directives ("the Rules") of the JSE, the provisions of the Securities Services Act 36 of 2004 ("SSA"), the Financial Advisory and Intermediary Services Act 37 of 2002 ("FAIS") and any other applicable legislation or replacement legislation (together, the "Applicable Legislation") in the conduct of its investment business in South Africa.
1.2 This agreement constitutes a Mandate as contemplated in the rules of the JSE and the terms and conditions set out below shall regulate the relationship between ISL and its clients in this regard.
1.3 This Mandate shall supersede any previous Mandate relating to safe custody, trading or investment services entered into between ISL and the Client and any such mandate shall cease to have effect except to the extent of any accrued rights and obligations thereunder.
2.1 The words and phrases used in this Mandate shall, unless the contrary appears, have the meaning ascribed to them in the Rules, and the Applicable Legislation.
2.2 This Mandate shall apply to all and any investment business within the scope of point 3 below undertaken with you or on your behalf by ISL. This Mandate and all transactions undertaken in accordance with them shall be subject to the terms of any product sheet provided to you on a case by case basis, as well as any related agreement entered into between ISL and yourself, and:
(a) all South African and applicable overseas laws and in particular the Applicable Legislation;
(b) rules, statements of principle and directives of applicable authorities (including self-regulating organisations) responsible for the regulation of Investment business;
(c) all statutory and other requirements relating to money laundering locally and abroad;
(d) all rules, regulations and by-laws of any relevant exchange and/or clearing institution;
(e) applicable accepted market practice and custom; and
(f) circulars or practice notes issued by any regulatory body.
(together, the "Applicable Regulations").
Our services shall be conducted on the basis set out in the schedules annexed to this agreement and subject to the Applicable Legislation. Our services may not be available to residents of countries where they are prohibited by law. If you are in doubt, you should consult with your financial advisor. We will not be responsible for the use of our services and the consequences thereof should you be contracting with us where it is prohibited by your country's laws. ISL may, at its sole discretion, determine a minimum investment amount required for any service offered and amend such minima from time to time.
3.1 Custody and Settlement services
3.1.1 ISL will generally deal with you on a controlled basis, which means that ISL will provide or arrange safe custody for your investments as per paragraph 4, unless otherwise notified.
3.1.2 In specific instances, ISL may agree to deal with you as a non controlled client, which means that you will be instructing ISL to deal on your behalf but will have appointed your own central securities depository participant ("CSDP").
3.2 Execution only dealing services This is a "safe custody and dealing only" service. By signing the Schedule marked as Schedule 2, you authorise ISL to provide you with safe custody and settlement services as per point 3.1.1 and trading (execution only) on your instructions and with your prior written consent.
3.3 Dealing with advice schedule This is a "safe custody and advisory" service. By signing the Schedule marked as Schedule 3A, you authorise ISL to provide you with safe custody as per point 3.1.1 and to execute and settle transactions in investments on your behalf, only on your instructions. ISL may render certain advisory services to you should you so require, provided you have also completed the Investment Assessment which allows us to determine the suitability of such investments for you.
3.4 Advisory Investment Service Schedule This is a specialised mandate, which ISL will determine if suitable for you. By signing this Schedule marked as Schedule 3B, ISL will provide you with a personalized advisory investment service in relation to those investments for which ISL is authorised to advise and transact.
3.5 Discretionary Investment Services By signing Schedule 4, you hereby authorise ISL to manage your investments on a discretionary basis which means that we will execute and settle transactions in investments, including exercising our discretion for any corporate event, action or rights attached to your investments, without prior reference to you but according to the Investment mandate selected by you.
Our services shall be conducted on the basis set out in the schedules annexed to this agreement and subject to the Applicable Legislation. Our services may not be available to residents of countries where they are prohibited by law. If you are in doubt, you should consult with your financial advisor. We will not be responsible for the use of our services and the consequences thereof should you be contracting with us where it is prohibited by your country's laws. ISL may, at its sole discretion, determine a minimum investment amount required for any service offered and amend such minima from time to time.
Subject to the Schedules signed by you, and specific addenda as may be required by the Applicable Legislation, you hereby appoint ISL to enter into transactions with you or on your behalf, both in the Republic of South Africa and, if and when permitted by law, in foreign countries in respect of the following instruments:
(a) listed and unlisted securities and financial instruments, including securities and financial instruments that are listed or traded primarily outside the Republic of South Africa, including any derivatives thereof including but not limited to warrants, single stock futures or contracts for difference;
(b) money market instruments, including but not limited to, notes, negotiable certificates of deposit, commercial paper or other debt instruments, including any derivatives thereof;
(c) bonds and other fixed income instruments including depository receipts or other instruments relating to the investments referred to in (a) and (b) above;
(d) participatory interests in a collective investment scheme as defined in the Collective Investment Schemes Control Act 45 of 2002;
(e) units or any form of participation in a collective investment scheme licensed or registered in a foreign country;
(f) foreign currencies solely for the purpose of foreign investments, subject to any applicable legislation;
(g) Krugerrands and similar investment coins and, subject to any applicable legislation, bullion;
(h) investments similar to or related to any of the aforesaid or contemplated in the applicable regulations, including transactions with banks or other financial institutions in order to give effect or facilitate any transactions between you and ISL, including short and long term bank deposits, and/or money broking transactions on your behalf;
(i) long term insurance policies as defined in the Long Term Insurance Act 52 of 1998;
(j) retirement fund products under the provisions of the Pension Fund Act 24 of 1956;
(k) any other securities, financial instruments or transactions as ISL may from time to time agree with you in writing; (together, "Investments").
5. Instructions and notices
5.1 Any instructions, notices or other communications given by you or us ("Instructions") shall preferably be given or notified in writing and shall be served to our respective addresses as set out at the back of the Account Opening booklet as notified by one party to the other from time to time. Unless the contrary is proved:
(a) Instructions delivered by hand will be deemed to be received on the date of delivery;
(b) Instructions delivered by post will be deemed to be received on the tenth day after the date of posting (not including Saturday, Sunday, public holidays or any day on which the JSE is closed);
(c) Instructions delivered by facsimile or electronic medium will be deemed to be received on the date of transmission.
5.2 ISL may accept Instructions received or given by telephone or electronic medium as long as we are reasonably satisfied that such Instructions are genuine. Where Instructions are sent to us via electronic medium (for example email), ISL or its agents give no guarantee as to the timeliness or execution of these Instructions. ISL undertakes to act promptly with due care and diligence. You hereby request and authorise ISL to rely upon and act in accordance with any instruction which may from time to time be, or purport to be given by you or in your name(s). You should also be aware that email is not a secure medium and that any Instructions received by us purported to be from you by email will be actioned. ISL shall have no obligation to verify the authenticity of any email sent to us. ISL will not be held liable to you or to any other person for or in respect of any direct, indirect or consequential damage, expense, loss or cost of any kind or nature, arising from an instruction sent or received via electronic medium, whether or not as a result of delay, data destruction, system malfunction, interruption of communication links or provider service, or any similar problem over which ISL has no control. You should therefore not assume that any email has been received by us and/or actioned unless you receive either an email and/or telephone call acknowledging our receipt.
You acknowledge and agree that generally it will not be possible to cancel or revise an electronic instruction after it has been given.
You further acknowledge and agree that there are risks of misunderstanding, error and fraud in any communication by electronic medium and that such risks shall be borne by you unless caused by the deliberate and provendefault of the directors, officers or employees of ISL.
5.3 At all times, you shall be responsible for promptly giving any Instructions to ISL as required. It is your duty to ensure that any Instructions given to ISL are correct, complete, clear and intelligible. ISL shall not be responsible or liable for any reason whatsoever for any loss or damage (whether direct or consequential) as a result of not receiving Instructions or receiving Instructions which are late, incomplete, ambiguous or incorrect with respect to your investments. In such cases, ISL may, in its absolute discretion, take such reasonable steps as ISL considers necessary or desirable for its own or your protection.
5.4 Without prejudice to the above, you agree that ISL may deem any such Instruction purported to be given by you as authentic, valid and properly executed on your behalf and that it will be binding on you notwithstanding that such Instruction may have been made without or in excess of authority from you and/or any error, misunderstanding, fault, forgery or lack of clarity may have been made or contained in the terms of such Instruction. You further agree that ISL shall be under no duty to verify the authenticity of such Instruction or to enquire whether such Instruction has been made properly or with due authority. By your signature hereto you agree that ISL shall not be liable for relying on any such Instruction and you indemnify ISL, on demand, in full, against all claims, liabilities, damages, losses, costs and expenses of any kind arising from ISL acting or omitting or refusing to act on such instruction.
5.5 You agree that ISL is authorised to take all steps necessary in connection with or in reliance upon any such Instruction but reserves the right to refuse to do so if, in its opinion, there are grounds for such refusal to act. The right to refuse to act includes, but is not limited to, the right to refuse to receive or dispose of any money, securities or documents. You further agree that if, after Instructions are received, ISL reasonably believes that it is not reasonably practicable to act upon such Instructions within a reasonable time, ISL may defer acting upon those instructions until, in ISL's reasonable opinion, it is practicable to do so. ISL shall not be liable for any losses resulting from such deferral or refusal. If ISL declines to accept Instructions from you, we will notify you but we will not be obliged to give you a reason for such refusal.
5.6 ISL may (but shall not in any circumstances be obliged to) require confirmation (in such form as ISL may request) of any Instruction:
(a) which is given orally;
(b) if it appears to ISL that such confirmation is necessary or desirable; or
(c) if such Instruction is to close an account or remit money due to you
6. Orders and transactions
6.1 Orders may be passed to overseas branches or associate companies of ISL for execution. Other intermediate brokers (selected at ISL's discretion) may also be used. Orders are subject to the terms and conditions of any intermediate broker and to the Applicable Regulations.
6.2 Capacity - Unless specifically instructed by you in writing or agreed with you at the time of your order, ISL, and its associate companies, will be free to choose (at their absolute discretion) whether to carry out any transaction as principal or as agent, or partly as principal and partly as agent (in which case separate contract notes may be issued).
6.3 You acknowledge that many transactions will be effected subject to, and in accordance with the Applicable Legislation. In particular, you acknowledge that the Applicable Legislation usually contains wide powers in an emergency or otherwise undesirable situation. You further agree that if any exchange or clearing house takes any action which affects a transaction, ISL may take any action which it, in its discretion, considers in your best interest. ISL shall not be liable for any loss suffered by you as a result of the acts or omissions of any exchange or clearing house or any action reasonably taken by ISL as a result of such acts or omissions.
6.4 ISL shall not be required to do anything or refrain from doing anything which would, in its opinion infringe the Applicable Legislation. ISL may at any time and without notice, do whatever it considers necessary to comply with the Applicable Legislation and whatever ISL does or does not do in order to comply with such legislation shall be binding on you.
6.5 Best execution - ISL will adhere to the best execution principle in respect of transactions which it undertakes for you in that it will, subject to paragraph 16 below, take reasonable care to obtain the result which is the best available result for you, taking into account the terms and conditions agreed with you. To support the best execution principle, all transactions in South African equity securities will be conducted through the JSE central order book, other than report only transactions and provided that such transactions qualify as reported transactions in terms of the JSE rules.
6.6 Aggregation of orders - ISL may combine any of your orders with orders of its own, of associate companies, or persons connected with it (including employees and other customers) and/or of other persons. Such aggregated trades will be allocated in accordance with Applicable Regulations. Although orders will only be aggregated where ISL reasonably believes it to be in the overall best interests of its clients, aggregation may in some cases result in your obtaining a less favourable price than if your orders had been executed separately.
6.7 Market abuse - You agree that you will not, by deliberate or negligent act or omission, commit market abuse. Market abuse means distorting, misleading, manipulative or deceptive transactions as well as taking unfair advantage of the market by use of insider information. Market abuse includes for example, transactions between accounts involving no change of beneficial ownership, transactions which gives a false appearance of trading, transactions aimed at improperly influencing the price of a security.
7. Counterparty Risk
7.1 This agreement and/or specific services or investments may be subject to any requirements as determined by ISL in its absolute discretion and at any time, in respect of credit or counterparty risk including but not limited to collateral, margining or other requirements.
7.2 ISL will perform an ITC check, prior to opening this account.
8. Telephone calls
8.1 In order to assist in monitoring compliance with the Applicable Regulations and to avoid misunderstandings, telephone conversations between you and employees of ISL may be recorded with or without use of an automatic tone warning device.
8.2 Our recordings shall be and will remain the sole property of ISL and will be accepted by you as conclusive evidence of the orders, instructions or conversations so recorded. ISL will not be obliged to deliver full transcripts of such recording. You accept that a certificate confirming the content of such recording and certified to be correct by an officer in the service of ISL shall constitute rebuttable proof of the facts contained in such recording.
8.3 You agree that ISL may deliver copies or transcripts of such recordings to any court or regulatory authorities, when requested to do so.
8.4 You also agree that ISL may use such recordings and transcripts for purposes of quality control, record retention and dispute resolution.
9. Credit notes, statements and valuations
You undertake to carefully peruse and verify the contents of each document received from ISL. Such documents shall, in the absence of manifest error, be conclusive unless you notify ISL in writing to the contrary as soon as reasonably possible.
9.1 Contract notes
(a) In respect of each transaction entered into by ISL on your behalf, ISL will issue to you or to your order a contract note or electronic confirmation.
(b) The contract note or confirmation will supersede any oral acknowledgment of your order given at the time and you should contact us immediately if the contract note or confirmation does not correspond with your instructions. In the absence of manifest error, contract notes or confirmations will be conclusive and binding on you.
(c) The contract note may reflect an average price as permitted in terms of the Rules. Prices and times of each transaction will only be made available to you upon your request and provided your account is not managed on a discretionary basis by ISL.
9.2.1 Subject to the Applicable Legislation, ISL shall furnish you with a statement of account which will be provided to you at regular intervals but no less than every three months;
(a) unless you consent in writing not to receive the statements because these are made available to you through electronic means, such as the internet, on a continuous basis;
(b) unless your portfolio includes any transactions in derivative instruments during the course of a month and /or open positions in derivative instruments in which case these shall be supplied to you monthly.
9.2.2 ISL shall not be obliged to provide statements more frequently than monthly.
9.2.3 ISL may provide information to you in separate statements either during the reporting period or as at the reporting date, on request by you.
9.2.4 ISL may provide a statement to you and/or to an agent or third party nominated by you in writing.
(a) Statements will provide you with the quantity, description and market value of your portfolio at the reporting date.
(b) In the event that you request ad hoc valuations, such valuations will be provided on the basis stated, which should not be taken to imply that the valuation represents a market value or that any market professional would quote the same or similar values or that any transaction or position can be realised for that value.
(c) Provision of a valuation does not constitute either a bid or an offer by ISL or a member of the Investec group of companies (the "Group"). If ISL subsequently agrees to quote a firm price, that firm price may differ from the most recent valuation provided to you which may be unfavourable to you.
(d) Valuations will be provided solely for your information and are not intended for the benefit of any other party. ISL specifically disclaims liability for any use you may make of any valuation. You should discuss with your external advisors the extent to which any valuation provided by ISL may be used to value your or any other person's Investments. Providing valuations to you on one or more occasions does not create an obligation for ISL to continue to do so in the future.
(e) Valuations of listed South African Investments will be prepared on the basis of the ruling prices disseminated by the relevant exchange on the date specified. Unlisted Investments will be valued at the most recent estimate, if, in the opinion of ISL it is reasonable to do so, otherwise they may be excluded from the valuation. Valuation of non-South African Investments will be based on the latest closing prices available to us.
10. Fees and charges
10.1 In consideration for the services to be provided by us in terms of this Mandate or additional services, ISL shall be entitled to fees, commissions, administration fees or charges as set out in the "Fee Schedule" annexed hereto as amended from time to time on written notice as well as any other fees, costs or charges reasonably incurred as a result of this Mandate or in terms of any addendum agreement.
10.2 Should this Mandate be terminated at any time, our pro-rata fee for the applicable period shall be computed and payable on the date of termination.
10.3 ISL is specifically authorised to realise any investment that may be held by us in terms of this agreement should there be insufficient cash available to settle any outstanding fee, charge or commission.
10.4 In addition to its charges or fees, ISL may be required to pay on your behalf taxes, duties, statutory charges and other expenses as may be applicable in respect of services provided under this Mandate.
10.5 You agree that ISL shall be entitled at its discretion to debit your account with any amount due by you to ISL under this Mandate, including any expenses or taxes incurred on your behalf, as well as all other agreed fees and expenses, or to deduct or withhold such fees, charges or expenses from any amount received by ISL for your account or payable by ISL to you.
10.6 Notwithstanding the above, ISL may at its absolute discretion charge discounted fees or commissions without this amounting to treating certain clients unfairly.
10.7 ISL will not receive any commissions, incentives, fees reductions or rebates from any third party for placing your investments with them, without full disclosure to you.
10.8 If ISL considers it necessary, it may request advice from legal or other professional advisers ("Advisers") of its own choosing in connection with any action to be taken by ISL in relation to the Investments. If ISL appoints any approved third party custodian (the "Custodial Agent") or Adviser (deeming it necessary or advisable in protecting and enforcing ISL's rights under these Terms of Business), it shall be entitled to pay normal remuneration to such Custodial Agent or Adviser, such remuneration shall be for the account of the Client.
11. Clients' funds
11.1 All Client's deposits/transfers and funds including interest, dividends, proceeds of disposals and cash ("Clients' funds"), received by us for your account arising from the services provided in terms of this Mandate, shall be paid by us for your credit and in your name into JSE Trustees (Proprietary) Limited ("JSET") or into any other client trust account as may be permitted by applicable laws or regulations, unless you specifically instruct ISL to pay such Clients' funds over to you on receipt thereof.
11.2 You agree that where cash is deposited in a client trust account other than JSET as provided for in sub-paragraph 11.1 above, ISL may in its discretion, in order to maximise the return on cash for you, invest all or any amount of such cash in a money market fund with a registered asset manager.
11.3 Where this Mandate is terminated, or where you have instructed us by notice in writing to realise and repay to you any portion of the Investments under our management, ISL shall pay any Clients' funds into your bank account as stipulated in the Application Form annexed hereto subject to paragraph 12.2 below.
11.4 You authorise us to retain or to withdraw from any cash deposited on your behalf in JSET or any other client trust account as actually required:
(a) to pay for Investments purchased on your behalf from time to time;
(b) to effect such other payments as are strictly necessary in the operation of this Mandate; and
(c) to discharge a debt due to us from you whether in respect of fees or charges due under these this Mandate or otherwise.
11.5 Cash held with a third party shall be held on deposit in accordance with the provisions of the applicable Schedules or in accordance with the provisions of this clause.
11.6 In terms of the Rules, ISL is not authorised to receive or accept cash deposits (or combination of cash deposits) which would exceed an amount of R5 000 (Five Thousand Rand).
12.1 Client's funds deposited by us on your behalf in JSET or any other client trust account in terms of this Mandate, as permitted by the Applicable Legislation, will only be paid to a bank account in your name or as designated by you in the Application Form or amended by you in writing from time to time.
12.2 ISL, or any party whom we transact with on your behalf, will not make any third party payment (except for payment to an account in your name held at another broker, bank, asset manager or financial services provider or as may be required when exercising our discretion in managing your Investments).
13.1 Payable to you
Interest will be paid to you on a gross pooled basis calculated according to JSET trustees rates or money market rates or, provided you have signed the Money Broking Schedule, marked as Schedule 5, as applicable to your specific investment. ISL may retain a portion of the interest earned on such pooled funds as disclosed in our Fees Schedule and amended from time to time.
13.2 Payable by you
If you are in default in paying any amount when it is due, ISL may at its own discretion require that you pay interest on demand, which will accrue and be levied on a daily basis at Investec's nominated rate being the prevailing Prime Lending Rate as published by FNB from time to time.
14. Conflicts of interest and relationships
14.1 ISL and its staff are required to avoid conflicts of interest and will not knowingly place their interests above those of its/their clients. ISL and its staff are required to comply with a policy of independence when acting on your behalf. In terms of such policy, certain divisions of ISL are separated by "Chinese walls" and may not be aware of services or transactions undertaken by other divisions within the Group.
14.2 ISL is a member of the Group which is involved in, inter alia, investment banking, including corporate finance and capital market activities, securities issuing, distributing, trading and research, custodial and trustee services and investment management. You understand and accept that ISL or the Group may have, directly or indirectly, an interest, arrangement or relationship which could be material or in conflict of interest with your transaction. You agree that ISL or the Group may transact such business or perform other services without prior reference to you and approval from you.
14.3 ISL may provide advice and other services to third parties whose interests may be in conflict or competition with your interests. ISL, the Group and their employees may take positions opposite to you or may be in competition with you to acquire the same or a similar position. For example, and without limitation:
(a) ISL or the Group may have been involved in the issue of a relevant security;
(b) ISL or the Group may hold securities as a result of underwriting;
(c) the issue or sale of securities may be underwritten by ISL or the Group;
(d) ISL or the Group may trade securities on its own account and may have a long or a short position in such securities;
(e) ISL or the Group may provide commercial banking services to an issuer or counterparty; or
(f) ISL or the Group may be involved in corporate finance activities affecting securities.
15. Liability and indemnity
15.1 Save as set out in 15.2 below, ISL or any third party acting on your behalf will not be liable for any loss, costs, expenses, claims or damages (whether direct, indirect or consequential) arising out of or pursuant to this Mandate or its termination.
15.2 However, ISL shall incur liability for the claims, loss, liability, costs, expenses or damages (whether direct, indirect, or consequential) in the operation of your account, which are attributable to willful default, fraud or gross negligence of ISL or any employee or agent of ISL acting within the scope and course of his employment.
15.3 In the event that you instruct us to sell or purchase any Investment, ISL shall use all reasonable endeavours to do so, but shall be under no liability for any loss or expense you may incur by reason of any change in market conditions before the particular transaction is effected.
15.4 Nothing contained in this Mandate shall exclude or restrict any obligation which ISL has under the Applicable Regulations in relation to you, the Client, or any liability which ISL may incur under the Applicable Regulations in respect of a breach of any such obligation. Nor shall anything in this Mandate require you to indemnify or compensate ISL to any extent prohibited by the Applicable Legislation.
15.5 ISL shall not be liable for the taxation consequences of any transaction nor for any taxation charges arising for any reason.
15.6 ISL may as part of its services to you offer Capital Gains Tax ("CGT") computations or information to assist you. Whilst such information will always be provided in the utmost good faith, we give no representation, warranty or guarantee as to its completeness, accuracy or appropriateness to you. You should be aware that due to the complexity of constantly changing tax legislation, we are unable to accept responsibility for such computations and/or information. We strongly recommend that you seek expert advice in relation to CGT and any taxation issue. ISL will accept no liability for any tax consequences of you acting on such information.
16. Power to sell out or close transactions
At any time after termination of this Mandate, or after ISL have determined that you have not performed or in our reasonable opinion, are unlikely to perform any of your obligations to us, ISL may, without reference or notice to you:
16.1 treat any or all outstanding transactions as having been immediately cancelled and terminated and/or;
16.2 sell such of your Investments held by us as ISL in our absolute discretion deem appropriate (without being liable for any resulting loss or diminution in value) and/or;
16.3 without being liable for any resulting loss or diminution in value, close out, replace or reverse any such transaction, enter into any other transaction or take, or refrain from taking, such other action at such time or times in such manner as ISL, in our absolute discretion, consider necessary or appropriate to cover, reduce or eliminate our loss or liability under or in respect of any transaction, position or commitment undertaken for you and to pay any outstanding amounts due and payable from you to us.
17. Set off and lien
17.1 ISL shall be entitled at any time and without notice to you, to retain or make deductions from or set off amounts or credit balances which ISL may owe to you or are holding for you in order to meet any liabilities which you may have incurred or ISL may have incurred on your behalf under this Mandate. In addition, ISL may exercise a right of retention over any or all your assets in our possession, which assets shall be deemed to have been pledged to us, and to sell such assets and apply the same or the proceeds of the sale to your liabilities (whether actual or contingent), which may at any time be or become due to us under this Mandate.
17.2 For the avoidance of doubt, the provisions of sub-paragraph 17.1 above shall apply to the proceeds of any sale or closing out of a position or other sum arising under point 16 above.
17.3 In addition, ISL shall in respect of any outstanding amounts due and payable from you to us, have the right at any time, without notice, to combine and/or consolidate all or any of your accounts maintained with us, in such manner as ISL may determine.
18. Privacy and Confidentiality
18.1 ISL undertakes to keep all information it receives in connection with this Mandate as confidential, and not to disclose any such information to any third party except as permitted under this Mandate or as required or permitted by law or Applicable Regulations.
18.2 In addition to information as prescribed by law, ISL may collect information which it believes to be relevant and necessary to provide you with the services required, to provide you with better customer services or products and to conduct our business.
18.3 ISL will not disclose your information to any external organisation unless it has your prior consent or is required by law.
18.4 You acknowledge and agree that ISL may:
(a) share any information received from you in connection with services performed in accordance with this Mandate with any Investec company or division, including but not limited to information required for the verification of identity under any law, provided you have agreed so in the Account Documentation or otherwise;
(b) disclose and otherwise freely utilise the information which is or becomes publicly available;
(c) be required to disclose your information from time to time to Government or judicial bodies, regulators or similar agencies but will only do so under proper authority;
18.5 You undertake to keep all information you receive in connection with this Mandate confidential and not to disclose any such information to any third party except as permitted under this Mandate or as required or permitted by law or applicable regulations.
19.1 This Mandate may be terminated without penalty at any time by either party giving an instruction to the other in accordance with point 5. Any such termination shall not affect any outstanding orders or transactions or legal rights or obligations which may already have arisen or the provisions of point 16 above which shall continue in full force and effect.
19.2 ISL shall not initiate any transaction in any investments on your behalf after notice of termination has been received or given, unless you instruct otherwise.
19.3 Upon any such termination, ISL shall account to any such successor custodian as designated by you in writing to ISL within14 days of such termination (and, failing any such designation, to the Client) for all monies and Investments then held by it pursuant to this Mandate.
19.4 If ISL has given an instruction to terminate the Mandate and has received no instructions from you with respect to the disposition of the investments or has been unable to contact you for a period of 12 months from the date of notice of termination, ISL shall be entitled to sell the investments in the market at the best price reasonably obtainable, whereupon your only right against ISL shall be an entitlement to claim a sum equal to the net proceeds of sale after deduction of the dealing costs and any outstanding fees due to ISL.
19.5 Subject to that set out above, if ISL for any reason ceases to be a member of the JSE, this Mandate shall terminate with immediate effect.
19.6 If the Client is an individual, the Client's death shall not terminate this mandate until ISL receives notice of termination from the executor of the Client's estate. This Mandate shall be binding on the Client's personal representatives.
20. Dormant accounts
20.1 It is your responsibility to ensure you maintain complete and accurate contact details with ISL at all times. ISL will classify your account as a dormant account, in the following circumstances:
(a) no transactions have taken place for a period of twelve months; and
(b) the cash balance or market value of your investments is equal to or lower than a threshold determined from time to time by ISL and notified to you; and
(c) our reasonable efforts to make contact with you are unsuccessful.
20.2 If your account is classified as dormant in accordance with 20.1, ISL may at its absolute discretion:
(a) sell any investments held by us (without being liable for any resulting loss or diminution in value) in the market at the best price reasonably obtainable to set-off any debit balance on your account whereupon your only right against ISL shall be an entitlement to claim a sum equal to the net proceeds of sale after deduction of the dealing costs and any outstanding fees due to ISL; and/or
(b) transfer any credit balance to a suspense account, where it will be retained until we receive a valid claim from you for such balance; and/or
(c) close your account.
21. Force majeure
In the event of any failure, interruption or delay in the performance of our obligations hereunder resulting from acts, events or circumstances not within our control, including but not limited to acts of God, industrial disputes, acts or regulations of any governmental bodies and authorities or of any Investment exchange or clearing house or the breakdown, failure or malfunction of any telecommunication, postal or computer service, or any other reason beyond our control, ISL shall not be liable to you or any other person for or in respect of any direct, indirect or consequential liability, loss, damage or cost of any kind or nature.
You warrant to and for the benefit of ISL that:
(a) you have full power and authority and are validly existing under the laws of your jurisdiction of establishment to enter into this Mandate and to carry out all the transactions contemplated in this Mandate. You further warrant that you have taken all necessary action (including the obtaining of all necessary consents, authorisations, registrations and the like, with any government or other regulatory body or authority) and that such consents or authorisations are of full force and effect. You further warrant that the execution, delivery and performance of this Mandate will not constitute a breach or result in any default under any other terms of business, memorandum, agreement, constitution, and does not conflict or violate any other obligation, judgment or rules by which you are bound;
(b) all details of your financial position and any other information given to ISL are and will remain complete, accurate and not misleading in any material respect;
(c) you will notify ISL forthwith of any material change in any information provided to us;
(d) all investments delivered or caused to be delivered to ISL in terms of this Mandate are not subject to any lien or charge and that they shall remain free of any lien or charge;
(e) you will comply in all material respects with all applicable laws and orders and you agree that failure to comply will materially affect its ability to perform its obligations under this Mandate;
(f) you will comply with all Applicable Legislation, including but not limited to anti money laundering legislation.
23.1 This Mandate as amended or substituted by us from time to time, constitute the whole agreement between the parties relating to the terms on which ISL will undertake Investment business with you.
23.2 We may amend any provision of these terms, or of any other document issued or executed pursuant to, or in terms of this Mandate or any arrangements with you by sending a written notice describing such changes to the address recorded in our books. Such changes will become effective at a date specified in the notice which will be at least fifteen calendar days after the notice has been sent to you. In the case of changes brought about by circumstances outside our control we will notify you of such changes as soon as possible.
23.3 Should you ask us not to include any provision of this mandate by giving us written notice to that effect, we may only be able to agree if such change is relevant to the circumstances and if is practicable for us to carry out your request.
24. Certificate of proof
A data message made by ISL in the ordinary course of business, or a copy or printout of, or an extract from such data message certified to be correct by an officer in the service of ISL, is on its mere production in any civil, criminal, administrative or disciplinary proceedings under any law or the common law, admissible as evidence against you and shall constitute rebuttable proof of the facts contained in such record, copy, printout or extract.
25. Invalidity of provisions
If any of the provisions of this Mandate is or becomes invalid, illegal or unenforceable under any law, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired.
ISL chooses as our respective domicilium citandi et executandi for the purpose of the service of all notices and process pursuant to this Mandate our respective physical addresses appearing respectively on the Application form and at the back of the Account Opening booklet, or such other physical and postal addresses as may be stipulated by notice in writing.
27.1 No term, provision, condition or presentation relating to the subject matter hereof, not contained in this Mandate shall be binding on either party.
27.2 Your rights under this Mandate are not capable of assignment and your obligations shall not, without ISL's consent, be capable of performance by anybody else.
27.3 To the extent that you may be entitled in any jurisdiction to claim for yourself, or for your property or assets, immunity in respect of your obligations under this Mandate from service of process, jurisdiction, suit, judgment, execution, attachment (whether before judgment, in aid of execution or otherwise) or legal process or to the extent that such immunity (whether or not claimed) may be attributed to you or to your property or assets, you hereby waive such immunity to the fullest extent permitted by the laws of such jurisdiction.
27.4 You shall not use the name of ISL or any member of the Group in any way without its prior written approval.
27.5 ISL will not be responsible for insuring any Investments accepted for deposit unless found liable pursuant to any other provision of this Mandate.
27.6 ISL undertakes to obtain and transmit to you any information which a relevant product supplier must disclose in terms of any law, unless you agree in writing specifically requesting the discretionary FSP (Financial Service Provider) not to provide such information.
28. Incorporation by reference
The Schedules annexed hereto and addenda or additional product specific terms and conditions are incorporated by reference into this agreement and shall be binding as if specifically incorporated into this Mandate until cancelled by notice in writing.
29. Governing law and jurisdictions
The Schedules annexed hereto and addenda or additional product specific terms and conditions are incorporated by reference into this agreement and shall be binding as if specifically incorporated into this Mandate until cancelled by notice in writing.29.1 This Mandate and all contemporaneous and subsequent terms of business shall be governed by and construed in accordance with the laws of the Republic of South Africa.
29.2 You irrevocably hereby agree to such exclusive jurisdiction in relation to all legal matters arising under or in connection with this Mandate ("Proceedings") and you hereby waive any objection to Proceedings in the courts of the Republic of South Africa on the grounds of venue or inconvenient forum. Those submissions shall not affect ISL's right to take Proceedings in any other court of competent jurisdiction.
30. Acting on behalf of another person
30.1 ISL is not permitted to transact with a person whom it reasonably believes requires authorisation as an authorised financial services provider or as a representative in terms of FAIS, without having taken reasonable measures to ascertain that such person has the required authorisation. Please request our Intermediary Agreement if you fall under this category.
30.2 If you are acting as an agent of or intermediary for any other person, ISL will continue to treat you as a Client for all purposes (including settlement of transactions) related to such dealings. ISL shall not treat the person on whose behalf you are acting as a client and will not accept any responsibility towards any person on whose behalf the Client is acting, unless ISL has established a separate client relationship with that person, even where such a person has been identified to ISL. You will however still be required to furnish ISL with full details of the person on whose behalf you are acting.
30.3 Where you are acting on behalf of another person, you undertake to comply with all Applicable Legislation including but not limited to:
(a) money laundering legislation, by obtaining and recording evidence of the identity and source of funds of that person or any other persons for whom you act and you hereby agree to provide ISL with written confirmation to that effect;
(b) any legislation regulating the management of securities or rendering of advice or intermediary services and you hereby agree to provide ISL with a copy of the necessary approval as well as proof of your authority to act on behalf of such client.
31. Joint clients and trustees
31.1 If you are acting jointly with one or more persons:
(a) any instruction, notice, demand, acknowledgement or request to be given by or to you under this Mandate may be given by or to any one of you, provided all joint clients have also signed the Joint account or Investment Club agreement.
(b) all liabilities under or in connection with this Mandate are joint and several; and
(c) on the death of any one of you, ISL may treat the survivor(s) as the only person(s) entitled to the investments held under this Mandate and shall be indemnified against all claims of any nature.
31.2 Where the Client is a trust administered by a number of trustees, the trustees shall:
(a) notify ISL in writing of any changes in trustee(s); and
(b) shall confirm by way of a resolution signed by all appointed trustees that each trustee has all the necessary powers to enter into this Mandate.
32. Complaints and disputes
32.1 ISL shall deal with complaints in accordance with the Applicable Legislation.
32.2 ISL will investigate and respond to complaints timeously.
32.3 Should you have any complaint about our services, you should initially contact the manager of the office you usually deal with. If your complaint concerns the manager or you are dissatisfied with the manager's response, you should refer the matter in writing to:
The Compliance Officer - Investec Securities Proprietary Limited
P O Box 78055, Sandton, 2146
Fax number: 011 286 9595
32.4 Information on ISL's complaints procedure can be obtained by mailing [email protected]
32.5 ISL will consider complaints within the timeframe determined by the applicable legislation (six months under JSE rules, five years under FAIS).
32.6 If you are dissatisfied with our response, you may refer the complaint to the JSE Limited or the FAIS Ombud, as may be applicable.
33. Dividend Withholding Tax
33.1 For purposes of this clause 33 and notwithstanding anything contained in the mandate, "investments" shall mean "securities which are listed on the JSE".
33.2 Subject to 33.4 below, as from 1 April 2012, you acknowledge that you will be liable for Dividend Withholding Tax ("DWT") in respect of any and all dividends (other than a dividend in specie) declared and paid on your Investments, which shall be levied at the rate stipulated in the Income Tax Act 58 of 1962 ("ITA"), from time to time, and calculated on the amount of such dividend
33.3 You, hereby acknowledge that ISL as a regulated intermediary under the ITA is obliged:
(a) to deduct DWT from any and all gross dividends declared and paid to any of your Accounts: (b) only to pay to you the net amounts of such dividends; AM
(c) to pay the DWT to the South African Revenue Services ("SARS").
33.4 In the event that any of the exemptions as provided for in Section 65 F of the ITA are applicable to you, you undertake to complete the Beneficial Owner Declaration of Status (DTD (EX)" or "DTD(RR)"), as prescribed by SARS and available from ISL account administrator, and deliver the fully completed and signed declaration (together with the supporting documentation thereto) to ISL.
33.5 You acknowledge and agree that the full DWTshall be withheld by ISL, in respect of any and all dividends declared and paid to any of my accounts, until the DTD(EX) or DTD(RR) (as the case may be) has been (a) duly completed and signed by you and (b) received and processed by ISL.
33.6 You undertake to inform ISL immediately should any of your circumstances change which would result in any exception no longer being applicable. You shall have no claim against ISL as a result of your failure to notify ISL timeously of such changes in terms of this clause, ISL shall withhold DWT from the date or receipt of the changed status notification
33.7 Notwithstanding the above clauses, you understand and agree that, in terms of the ITA, in the event that DWT was withheld in respect of the dividend payment made to you by ISL in circumstances where an exemption was applicable, that you may apply to ISL for a refund of such DWT, provided that (a) such application is submitted to ISL within a period of 3 (three) years calculated from the date of the respective net dividend payment by ISL to you and (b) that you submit the requisite declaration and supporting documentation to ISL's complete satisfaction. ISL shall endeavor to refund the amount of DWT withheld within a period of 1 (one) year from the date of the submission of the said application and declaration. It is specifically recorded and agreed that ISL shall only accept claims for refunds in respect of DWT which had been previously withheld by it and not by any third party.
33.8 You hereby give express authority/permission to ISL, to pass any and all of my information and documentation to SARS. You acknowledge that ISL, as authorized regulated intermediary in terms of the ITA, is obligated to submit such information and /or documentation to SARS.
33.9 Other than the submission of the claim to SARS, ISL shall have no responsibility in respect of any matter relating to the submission, including but not limited to any delays and/or repayment.
Schedule 1 - Custody and Settlement Services Schedule
This Schedule describes the terms and conditions under which ISL will provide you with Custody and Settlement services. It must be completed by ALL Clients except NON CONTROLLED Clients i.e. Clients who have appointed their own Central Securities Depositary Participant ("CSDP").
1. Deposits of Investments
1.1 ISL may at its absolute discretion refuse to accept any Investment tendered for deposit by you, if ISL determines that the acceptance would be illegal or contrary to any applicable rules of any exchange or market, or if ISL reasonably suspects that an Investment is tainted by fraud.
1.2 Investments accepted for deposit will be credited to a safe custody account with a Central Securities Depositary Participant ("CSDP") or a Custodial Agent, (which may both be in the same group as ISL), in a custody account in the name of ISL designated for your Investments) as at the relevant trade date, value date, actual settlement date or such other date as applicable, but in any event as soon as reasonably possible.
Your Investments shall be held by us in safe custody reflected as an electronic entry in such depository or registry subject to any Applicable Legislation and the Rules. If ISL is not an account holder in such depository or registry, then ISL shall be entitled to create an electronic entry in respect of the Investments in the depository or registry through a participant of our choice. Notwithstanding anything contained in this sub-paragraph, unless you notify us to the contrary, any such Investments shall be held to your order via the participant's nominee or our nominee.
1.3 Where an Investment accepted for deposit is held outside the Republic of South Africa, you accept that the practice of separate identification of your Investment and the settlement, legal and regulatory regimes applying in that particular jurisdiction may be different from those applying in the Republic of South Africa.
1.4 An Investment accepted for deposit may be pooled with that of one or more clients as a result of which, your Investments may not be identifiable by separate certificates, other physical documents of title or electronic record.
1.5 ISL may move such Investments from one electronic entry to another or withdraw any such Investment from safe custody but only for the purposes of:
(a) transferring the Investments to you or to an account in your name held by another JSE member, upon termination of our mandate;
(b) dealing with the Investments as may actually be required in fulfilling this mandate;
(c) lodging the Investments on your behalf with any person or entity in terms of an order of court or a special resolution of the issuer of the Investments;
(d) to the extent permitted by the Applicable Legislation, lending any Investments to a third party approved by us, in terms of a written agreement and against the provision to us of satisfactory security for the return of equivalent Investments;
(e) any other lawful purpose in terms of this mandate.
1.6 Should Investments accepted for deposit be credited to your account prior to actual receipt by ISL or its Custodial Agent and should they subsequently not be received, ISL shall be entitled to reverse such credits.
1.7 You hereby authorise ISL to sign any certificates of ownership or other certificates, forms or other documentation relating to your Investments or to obtain such a certificate from any appropriate tax authority which may be required by any Regulations made by any relevant tax authority or any other regulatory authority in any jurisdiction, whether governmental or otherwise, relating to income tax, any other tax levied or ownership. For such purpose, ISL may disclose to any such tax authority such information relating to your Investments as ISL shall determine to be necessary, usual or appropriate for such purpose.
1.8 Unless Instructions are received from you to the contrary, ISL shall, as soon as is reasonably practical, credit to your account all dividends, interest, capital and other rights (together, "Income") accruing to you and received by ISL or its Custodial Agent, except that ISL shall be authorised to deduct or withhold any tax which is required to be so deducted or withheld, or where ISL is liable or accountable to do so by law or practice of any relevant revenue authority of any jurisdiction. In accounting for tax, or making deductions or withholding of tax, ISL may estimate the amounts required to be deducted or withheld, and in the event that the amount deducted or withheld is in excess of the actual liability, the excess shall be refunded to you as soon as is reasonably practical.
1.9 ISL will not accept liability or responsibility for default of a CSDP, nominee company or Custodial Agent unless it is a connected company.
2. Registration and recording
2.1 You agree that legal title to an investment accepted for deposit may be registered or recorded in the record of legal entitlement either in your name, the name of a nominee company, or a Custodial Agent, or ISL. Should you require registration into the name of any other person, ISL will only do so at your own risk and only on your written Instructions.
2.2 If the Investments purchased, held or sold on your behalf are held by another financial services provider or its offshore equivalent, and ISL reasonably believes that it shall be in your best interests, or it is not feasible to do otherwise, due to the nature of the law or market practice of an overseas jurisdiction, legal title to an investment accepted for deposit may be registered or recorded in the name of a Custodial Agent or the name of ISL. In such circumstances, the investment may not be segregated from those of ISL and in the event of default of ISL, you may not be as well protected.
3. Settlement of transactions
3.1 A contract note or electronic confirmation will be sent to you or your agent in respect of each transaction effected for you. Unless arranged by prior written agreement with ISL, all transactions will be due for settlement and/or delivery on the day of placing your order or day of trade, if the trade is not executed on the day of order.
3.2 Any issue regarding the contract note or confirmation of a transaction must be raised immediately, failing which such contract note or confirmation shall be prima facie proof as to the correctness thereof.
3.3 You hereby acknowledge that you have been informed of your material obligations in terms of settlement rules and that you will be liable for any penalty or margin or interest levied by any settlement authority due to your failure to settle or deliver.
3.4 You hereby understand and agree to comply with the settlement rules of the respective markets in which transactions have been undertaken on your behalf. These may result in obligations to pay or deliver within specific timeframes on which ISL has no control. Should you fail to put ISL in a position where it can effect settlement on your behalf, you may be liable for interest, charges and/or penalties which ISL may recover directly and without prior notice from your account.
4. Management of corporate actions
4.1 ISL will endeavour to notify you of any Corporate Action that may affect the shares on your portfolio. ISL will be obligated to follow Issuer Default (i.e. the default as determined by the issuing company) in respect of any corporate action event or other exercise of shareholder's rights, unless you direct your personal broker or account administrator to take any other course of action. It is your sole responsibility to inform ISL of your instruction timeously and to retain any record of confirmation form ISL which evidences receipt of your instructions.
4.2 If you have signed and completed the Discretionary Schedule, ISL will have full discretion with regard to any corporate action, event or exercise of any right.
4.3 You agree that where an Investment is held by a Custodial Agent, ISL shall only be obligated to pass on promptly such Instructions to the Custodial Agent. You acknowledge that the terms of business of a Custodial Agent may contain provisions relating to the giving of Instructions and any action permitted in the absence of such Instructions and that such provisions shall be binding on you.
5. Scope of responsibility and limitation of liability
Unless you have specifically agreed to ISL providing other services by signing the appropriate Schedules:
5.1 ISL will not be made to manage any Investments or advise you or any such Investments. Other than any rights or duties under this Schedule, ISL will not be required to have regard to any particular Investment objectives or be subject to any duties or disclosures towards you or be subject to any restriction in dealing for ISL's own or its clients' account by reason of any custodian services provided to you.
5.2 Without prejudice to the liability of ISL from time to time pursuant to any other provision of this Mandate, ISL shall not be responsible for insuring any Investments.
5.3 Any Custodial Agent appointed by ISL shall be a person who ISL reasonably believes to be a person whose business includes the provision of investment custodial services and ISL shall not be liable for the loss of any Investment or for any loss arising or incurred by you, wholly or partly as a result of any act, omission, default or insolvency of such Custodial Agent and any laws, acts, decrees, regulations edicts, orders or other mandates, and any acts of warfare, seizure, confiscation, destruction or impairment of property, promulgated and/or done by any court or by any governmental, military or civil authority, whether de jure or de facto in control of or operating at the place where such Custodial Agent is located. ISL's sole obligation, in the event of any loss of an investment or loss in connection with any cash or investment held with any such Custodial Agent shall be to assign to you such rights (if any) as ISL may have against such Custodial Agent.
5.4 ISL's liability at any time in connection with any loss of any Investment or for any loss arising or incurred by you shall not under any circumstances exceed the amount of or (as appropriate) market value of any cash and Investments deposited with ISL.
5.5 ISL shall have no liability or responsibility to you with respect to any fluctuations or changes in the conversion value of Investments into other currencies and/or property.
6. Lien and set-off
6.1 Without prejudice and in addition to the provisions of clause 17 of the Mandate, or any right to set off or other similar rights which ISL may be entitled to exercise over any of your Investments, monies or other property, all monies and investments accepted for deposit and held from time to time by ISL under the terms and conditions of this Schedule, shall be subject to a general lien in favour of ISL for all or any obligations which you may owe to ISL.
6.2 If you fail to perform any obligation under any other mandate, instrument or undertaking between you and ISL (irrespective of the currency, place of payment or booking office of the obligation), ISL may set off against that obligation any money or Investments held in custody and apply the proceeds. ISL shall give you notice of any set off effected under this provision. If any amounts are in different currencies, ISL may convert the amounts into the same currency at a rate of exchange determined by ISL in good faith.
6.3 Nothing in this provision creates a security interest.
Schedule 2 - Execution Only Dealing Services Schedule
By your signature to this Schedule, you hereby agree that:
1. ISL will provide you solely with execution dealing and safe custody services. This means that we will not be managing your portfolio and that all transactions will only be effected with your prior instruction and consent.
2. You understand and acknowledge that ISL may from time to time provide you with general information, opinions and recommendations related to JSE authorized investments. However, these are not intended to address your specific circumstances and should not be construed to be appropriate for your personal objectives. Furthermore, ISL will always execute transactions on your behalf on instructions provided by you, after you have established what is appropriate for your transaction, either with yourself or with the assistance of your professional financial advisor.
3. ISL will not provide any risk warnings except with regard to Foreign Investments and Derivative Instruments. Should you wish to deal in such investments, you are required to initial and sign the appropriate Schedules.
4. ISL shall not be responsible for contacting you with regard to any corporate action.
5. You therefore indemnify ISL for any actual and contingent losses, liabilities, damages and costs (including legal costs) as a result of the investment decisions made by you.
Schedule 6 - Foreign Investments
Where applicable, and to the extent permitted by the Applicable Regulations, you hereby authorise ISL to purchase, sell and enter into any transaction in investments that are listed or traded primarily outside the Republic of South Africa ("Foreign Investments").
By signing this Schedule you agree that:
1. Transactions in Foreign Investments are subject to the control, rules and any conditions imposed by the Exchange Control Department of the South African Reserve Bank ("SARB"). In particular, you acknowledge that investments are subject to specific limits, conditions and forms as determined by SARB and South African Revenue Services as applicable, i.e. whether such Foreign Investments are made directly under the Foreign Investment Allowance granted to individual taxpayers or under ISL's approval to enter into Foreign Portfolios Investments ("Asset Swap").
Where you are requesting us to make Foreign Investments by using your individual offshore investment allowance, you hereby warrant that you do not exceed the permitted maximum amount.
2. In executing services under this Schedule, ISL may transact through any third party of its choice.
3. All currency transactions effected on your behalf in South Africa under this Schedule will be effected through Investec at wholesale rate as quoted by Investec Capital Markets. Limit orders will not be entertained. ISL may add an administration fee to the wholesale rate quoted. This will be disclosed to you at the time of dealing and the all-in exchange rate charged to you will be reflected on your transaction confirmation note. ISL has no control over currency transactions effected by foreign counterparties.
4. You are advised and accept that the conversion of South African Rands to foreign currency is subject to receipt of the investment amount, approval of the application by ISL and/or the relevant foreign investment manager or administrator or their delegates, who may decline the application at their discretion. In the event that your application is denied or cancelled, you hereby indemnify ISL and the Group against any claim for loss or damage which you may sustain as a result thereof, including any interest or exchange rate fluctuation. You agree and undertake to provide ISL with all information and/or assistance as required by the South African or foreign authorities in effecting Foreign Investments on your behalf.
5. Orders or any other transaction in Foreign Investments may be passed to overseas branches or associate companies of ISL for execution, or any other intermediate broker, investment manager or administrator (selected at ISL's discretion). Orders or any other transaction in Foreign Investments will be subject to the terms and conditions of the intermediate broker, investment manager or administrator selected by ISL. Where applicable, you agree to be bound by and shall act in accordance with the rules if any Foreign Investment, including any rules relative to consent.
6. Subject to clause 2.2 in Schedule 1, you understand and accept that all funds deposited, including dividends, proceeds of disposal or other funds received by us on your behalf shall be held in a trust account separated from ISL's assets unless it is paid over to you on receipt. Such funds may be pooled with funds of other clients. All distributions received on your behalf will be automatically reinvested.
7. ISL will submit to you for payment, or may recoup from you, any administration fees, charge or management fees charged by the offshore investment manager, administrator or custodian of your Foreign Investments.
8. You understand and accept that all Foreign Investments will be held in safe custody with a custodian of our choice and subject to the terms of ISL's Custody and Settlement Schedule. ISL will only be responsible for passing on to you any information regarding corporate events as it receives such information.
9. You understand and accept that restrictions on Foreign Investments may apply where you are making use of ISL's approval to acquire Asset Swaps on behalf of its clients. You agree that where you are asking us to transact in such Asset Swaps Investments, you may be limited to categories of instruments as approved by the SARB.
ISL will assume no responsibility with respect to the SARB amending or adding further restrictions to such categories of investments.
10. You further acknowledge and agree that under such SARB approval, you will at all times not have direct access to your offshore investments but will be obliged to deal through us as your authorised agent. In particular, you hereby confirm that you understand that such Foreign Investments will only be repaid to you via a domestic payment in rands, as required by the SARB regulations. This means inter alia that you cannot directly transfer any of such foreign investments and/or that all your instructions relating to such foreign investments must be through ISL, including buying, switching, or redeeming any such investments.
A transaction in a Foreign Investment can involve significant risks. Only investors with sufficient knowledge and experience in financial and business matters to evaluate the relevant merits and risks should consider Foreign Investments. In addition, you accept that such risk may result in financial loss to you. Such risks include but are not limited to:
1. Foreign currency risk
Foreign denominated investments involve the risk that a change in the exchange rates between the currencies involved may cause your investments or the income from it to go down or up beyond that of expected market fluctuations.
2. Non readily realisable investments
Certain Foreign Investments may be illiquid and may not be suitable for all investors. You should also be aware that certain investments may only deal at certain dates and may require up to several weeks before you can access proceeds of sale in SA rands.
3. Risk of counterparty default
The foreign counterparty, custodian or manager may default or go into insolvency.
4. Unregulated investments
We will only enter into transactions in unapproved collective schemes or unregulated instruments at your specific written request unless such investments have been approved by our investment managers and you have given ISL full discretion to manage your Investments. If you are acting as a trustee or authorised signatory for any South African regulated entity, it is your responsibility to ensure that you comply with any Applicable Regulations, including but not limited to prudential and tax regislation.
5. South African Exchange Control regulations
Should your Investments be subject to the SARB regulations regarding Asset Swap investments, you acknowledge that ISL will not be liable should such regulations change, including any obligation to unwind such investments (repatriation) at the SARB's request.
Under no circumstances, will ISL be responsible for the taxation implications of your investing in Foreign Investments. You are strongly advised to consult with your personal tax advisers.
By your signature hereto, you hereby acknowledge:
(a) that you have been informed of the risks inherent in Foreign Investments, and that, where appropriate, you have received copies of specific risk disclosures as may be published by specific markets or institutions;
(b) that you have not been guaranteed any investment return;
(c) that unless you have given ISL full discretion by signing the full discretion Schedule which is part of this mandate, ISL has not solicited you in any way, but that you have personally chosen such Foreign Investments at your sole discretion and with no advice from ISL.