Entered into between NEDBANK LIMITED Reg No 1951/000009/06

 

and

     

Registration number/Master's reference number/Identity number

     

 

 

 

IT IS AGREED AS FOLLOWS:

 

1     DEFINITIONS AND INTERPRETATION

1.1     In this Agreement the following words have the following meanings:

1.1.1      Administrator means any person appointed by the Designated Person, whose functions include, but may not be limited to, the following: accessing and using the Services, giving instructions in respect of adding, deleting and maintaining of accounts and modules, authorising payment, collection and transfer instructions and appointing and terminating Users, on behalf of the Client;

1.1.2      Agreement means this Master Electronic Agreement, together with its Schedules;

1.1.3      Application Form means the application form, in respect of each Service, to be completed by the Client, and attached to this Agreement by means of a Schedule;

1.1.4      Available Balance means the actual balance available for electronic transfer by the Client, and includes any credit up to the limit the Bank has approved in favour of the Client;

1.1.5      Bank means Nedbank Limited, registration number 1951/000009/06, a company with limited liability and a bank registered in accordance with the laws of the RSA;

1.1.6      Business Day means any day (other than a Saturday, Sunday or a proclaimed public holiday in the RSA);

1.1.7      Client means

     

Registration number/Master's reference number/Identity number

     

an individual(s) or legal entity/entities registered in accordance with the laws of the RSA; also referred to as the Main Participant;

1.1.8      Designated Person means any person appointed by the Client to conclude and sign this Agreement and any amendment(s) and/or addition(s) thereto, to appoint and terminate the appointment of Administrators and generally to perform any act or do anything prescribed in terms of this Agreement and any addendum, and/or Schedule and/or addition thereto, on behalf of the Client;

1.1.9      Effective Date means the earliest date on which the Services commence, which date has been mutually agreed between the Parties and is set out in the Application Form;

1.1.10    Intellectual Property means any knowhow (that is not in the public domain), invention, patent, design, trademark, copyright material, goodwill, processes, methodology and all other identical or similar intellectual property as may exist anywhere in the world and any applications for registration of such intellectual property;

1.1.11    Helpdesk means the Nedbank Contact Centre as advised to the Client from time to time;

1.1.12    Manual means the user manual(s), as may be amended and/or replaced by the Bank from time to time, which contain(s) the standards, rules and procedures governing the Services, which manual(s) form(s) part of this Agreement;

1.1.13    Participant means any person(s) or legal entity/entities (whether within the Client's group structure or outside thereof) requiring access to and use of the Services in terms of this Agreement and in respect of which the Participant has provided its written consent to the Bank;

1.1.14    Parties means collectively the Client, the Participant(s) and the Bank;

1.1.15    RSA means the Republic of South Africa;

1.1.16    Schedule means any and all schedules and/or annexures attached to this Agreement and any addition and/or amendment thereto and/or replacement thereof, from time to time, with the understanding that an addition or amendment thereto or replacement thereof does not constitute a substitution of but only an addition to this Agreement;

1.1.17    Services means the electronic transactional banking services described in this Agreement and selected by the Client as being the Services that it wishes to receive from the Bank, as recorded in Schedule 1, as such Services may be amended from time to time; and

1.1.18    User means any person appointed by the Administrator to access the Services, and capture data and/or authorise payment, collections and transfer instructions on behalf of the Client as further set out in the Application Form.

1.2     In this Agreement:

1.2.1      clause headings are for convenience and are not to be used in the interpretation of this Agreement;

1.2.2      no provision will be construed or interpreted against a Party by reason of such Party having or being deemed to have structured or drafted such provision;

1.2.3      unless the context indicates a contrary intention, an expression that denotes:

1.2.3.1       any gender includes the other genders;

1.2.3.2       a natural person includes a juristic person and vice versa; and

1.2.3.3       the singular includes the plural and vice versa;

1.2.4      any substantive provision conferring rights or imposing obligations on any of the Parties and appearing in any of the definitions in clause 1.1 or elsewhere in this Agreement will be given effect to as if it were a substantive provision within the body of this Agreement;

1.2.5      terms other than those defined within this Agreement will be given their plain English meanings, and those terms, acronyms and phrases known in the information technology industry must be interpreted in accordance with their generally accepted meanings;

1.2.6      where figures are referred to in numerals and words, and there is a conflict between the two, the words will prevail, unless the context indicates a contrary intention;

1.2.7      the word 'clauses' refers to clauses of this Agreement; and

1.2.8      any reference to 'days' will be construed as a reference to calendar days, unless qualified by the word 'business', in which instance the definition of Business Day will apply. Unless specifically otherwise provided, any number of days prescribed is determined by excluding the first and including the last day or, where the last day falls on a Saturday, Sunday or public holiday, the next Business Day.

 

2     COMMENCEMENT AND DURATION

2.1     Save as otherwise agreed to, this Agreement will commence on the Effective Date and will continue for as long as the Services are being provided to the Client in accordance with this Agreement, provided that the respective Services will commence on such dates as are mutually agreed between the Parties and set out in the Application Form hereto. The Effective Date is thus the earliest of the aforesaid dates.

2.2      Save where otherwise provided in Schedule 1, any of the Parties may terminate a specific Service or this Agreement on 30 (thirty) days' written notice to the other Parties.

2.3     If the Client ceases to bank with the Bank, the Bank will cease provision of the Services and this Agreement will automatically terminate, provided that the Client will remain liable for any outstanding fees in respect of the Services received up to the termination date.

 

3     SCHEDULES

3.1     Each Schedule issued under this Agreement will be deemed to be a part of this Agreement. In particular, but subject to clause 3.2, the provisions of this Agreement apply to each and every Schedule issued under this Agreement.

3.2     In the event of conflict or inconsistency between the contents and provisions of this Agreement, the Schedules and/or Manuals hereto, such conflict or inconsistency will be resolved in the following order of precedence (in descending order of priority): (1) the Schedules; (2) this Agreement; and (3) the Manuals.

 

4     SERVICES

4.1     The Bank will provide the Services to the Client subject to the terms and conditions of this Agreement generally and in particular subject to the terms and conditions set out in the Services Required Schedule 1 and the Fee Schedule 2 hereto and the Client hereby agrees to access and use the Services strictly in accordance with the terms and conditions of this Agreement and the Schedules hereto.

4.2     The Client must select the Services that it requires by completing the relevant Application Form and signing Schedules 1 and 2, which request may in the sole discretion of the Bank be declined in respect of any or all of the selected Services.

4.3     The Parties may from time to time add additional Services to the Services that have been selected by the signing of an additional Schedules 1 and 2 and any other documentation that may be required by the Bank, and by the Bank's acceptance of such additional Schedules 1 and 2 or other documentation as may be required.

4.4     The Bank makes no representations as to the suitability of any of the Client's information technology systems for receiving, accessing or using the Services.

4.5     At the Bank's sole and absolute election, the Bank is entitled to subcontract any of its obligations hereunder to any other person or entity and may retain third parties to perform any and/or all of the Services. Notwithstanding the aforegoing, a subcontractor(s) and/or third party/parties will not become a party/parties to this Agreement.

4.6     The Client must at all times cooperate with the Bank and/or any third parties performing the Services.

4.7     The Client may log all Services-related issues with the Helpdesk.

4.8     The Client will be required to furnish the Bank with a certified copy of the Client's resolution authorising the representative and confirming such representative's authority to conclude this Agreement, which must be in the form and substance of that specified by the Bank in the Main Participant resolution annexed to this Agreement by way of a Schedule.

4.9     Where the Client requires a Participant to be added to the Services, the Client must furnish the Bank with a duly certified copy of a resolution passed by such Participant or a power of attorney issued by such Participant [if an individual(s), as the case may be], in the form and substance of the Participant resolution and power of attorney annexed to this Agreement by way of Schedules.

4.10    Where the Client or the Participant requires such Participant's access to the Services to be amended or terminated, written notice of such amendment or termination should be provided to the Bank by a duly authorised representative of the Client or the Participant, as the case may be, and the Bank will amend or terminate the Services to the Participant within 48 hours of receipt of such notice.

4.11    The Services and the terms of this Agreement will at all times be subject to (and may be amended in accordance with the requirements of) the Code of Banking Practice and the Bank's agreements with South African Bankers Services Company Limited, as well as all applicable legislation and regulations, as may be amended from time to time.

4.12    The Bank may at its sole and absolute discretion, which discretion will be exercised reasonably, at any time and on reasonable notice to the Client amend any of the Services or withdraw any and/or all of the Services and in such event the fees and charges in respect of the Services will be amended accordingly to take such change into account.

4.13    The Bank will, where applicable, provide the Client with devices, certificates, passwords and user numbers, as well as any replacement thereof, on request from the Client in terms hereof. The Client acknowledges that it has sole responsibility for and retains all risk in and to all passwords, PINs, user numbers, certificates and devices, and neither the Client nor any other person will have any recourse whatsoever against the Bank, including any claim for loss, injury or damage, for any reason whatsoever, relating to or arising from the loss, theft, use or misuse of the password, PIN, user number, certificate or device after delivery thereof to the Client, except if such loss, injury or damage arises as a consequence of the gross negligence or wilful misconduct of the Bank or any person acting for or controlled by the Bank. The Client acknowledges that the Bank retains ownership of the devices and certificates and, on request by the Bank, the Client is obliged to return to the Bank such devices and certificates.

4.14    The Bank will use reasonable commercial endeavours to ensure that its security procedures and equipment are at all times protected in order to enable it to provide the Services to the Client.

 

5     FEES AND CHARGES

5.1     The Client is liable to the Bank for the fees and charges for the Services, and such fees and charges will be due and payable as set out in Schedule 2, which fees and charges the Bank is, without prior notice, mandated and entitled to debit against any of the Client's bank accounts.

5.2     Additional or replacement devices required for the use of the Services may be purchased by the Client from the Bank at the Bank's then prevailing charges for such devices.

5.3     Interest on all overdue fees and charges will be charged at a rate that is equal to the ruling South African Reserve Bank repurchase rate (the Repo Rate) from time to time, x 2 + 10% (the Repo Rate times two, plus 10 per cent).

5.4     Unless otherwise specified, all fees and expenses set out in this Agreement are exclusive of value-added tax and other statutory fees and charges. The Client must pay all value-added tax and any such other fees and charges that may be payable on such fees and expenses.

5.5      The Bank will on an annual basis, and on notification to the Client, increase the fees set out in Schedule 2, in line with the Bank's standard rates.

 

6     CLIENT'S OBLIGATIONS

6.1     In order to receive and access the Services the Client is obliged to have appropriate connectivity, which may include internet connectivity, and the Client must maintain and assumes full responsibility for all necessary telecommunications lines, hardware, software and consumable materials required for the Client's access to and use of the Services.

6.2     Where applicable, the Client must maintain all applicable software licence arrangements directly with the third-party licensor of any software required for the Client to receive, access and use the Services, and the Client is liable for the payment of any applicable licence fees for such software. The Client is further obliged to ensure, at its own cost, that the hardware, middleware and software used by it to receive, access and use the Services are kept upgraded and refreshed from time to time so as to be and remain compatible with the hardware, middleware and software used and/or specified by the Bank from time to time for the provision of the Services.

6.3     Where applicable and in respect of certain Services, the Client is also required to:

6.3.1      comply with the Bank's specifications for the installation and configuration of the Client's information technology systems, including as specified in the Manuals and including the minimum security requirements as may be specified by the Bank from time to time;

6.3.2      maintain a dedicated leased telecommunications line or virtual private network connection between its information technology systems and the Bank's information systems, which link must comply with the minimum technical and security requirements as specified by the Bank from time to time, and the Parties must send and receive data across the link using Connect: Direct.

6.4     The Client must provide the Bank with all data the Bank may request to enable the Bank to prepare a Client profile and the Client is required to update such data electronically as and when required by the Bank and promptly as and when such data changes.

6.5     The Client must at all times:

6.5.1      adhere to the operating, maintenance and security requirements and procedures (including encryption standards) required by the Bank from time to time and ensure that its information technology systems are free from destructive programs, including without limitation viruses, worms and spyware;

6.5.2      ensure the integrity, safekeeping and confidentiality of all communication lines, data and other confidential information (such as devices, certificates, passwords and PINs);

6.5.3      where applicable, take adequate steps to ensure that its employees do not share devices, certificates, passwords or PINs with other persons, including other Client employees; and

6.5.4      ensure that the Services are not accessed or used, or any relevant functions performed, by anyone other than a person authorised by the Client to do so.

6.6     The Client must, on becoming aware of any breach of the confidentiality or security obligations hereunder or the loss or theft of any devices, certificates, PINs or passwords, immediately advise the Bank thereof, in writing.

6.7     The use of the Services is, in addition to the terms and conditions contained herein and in the Schedules hereto, further subject to the terms and conditions applicable to the Client's and/or Participant's bank accounts and facility agreements pertaining to such bank accounts held at the Bank in as far as the Client and/or Participant uses the Services to carry out banking transactions. In the event of any conflict in the terms and conditions as they relate to the Client's banking transactions the terms and conditions applicable to the Client's and/or Participant's relevant bank account(s) and facility agreement pertaining to such bank accounts will prevail over the terms of this Agreement.

6.8     The Client acknowledges that the Services allow the Client to check its and where applicable, the Participant's Available Balance and allow the Client's Administrator to determine the transaction limit of any of the Client's Users. The Client acknowledges that the Client' Users may transact only up to their individual transaction limit and a transaction cannot at any time exceed the Client's and/or Participant's Available Balance. The use of the Services does not entitle the Client to overdraw any account, unless prior arrangements have been made with the Bank and then only in terms of those arrangements.

6.9     The Client hereby irrevocably and unconditionally guarantees (acting in terms of its principal and primary obligation and not as surety) the due and punctual observance and performance by the Participant of all its obligations to the Bank in respect of all transactions effected by the Client on the Participant's bank account(s), including transactions that result in the aforegoing bank account(s) exceeding the Available Balance, and promises to pay the Bank on first demand all amounts from time to time due and payable (but unpaid) by the Participant.

6.10    The Client must perform its obligations in terms of this Agreement at its own cost.

 

7     INTELLECTUAL PROPERTY RIGHTS

7.1     The Bank will at all times retain any and all Intellectual Property rights to the Services as well as software and documentation used in the provision of the Services.

7.2     The Client may not duplicate, reproduce, decompile, reverse-engineer, create derivative works from or in any way tamper with any of the Bank's Intellectual Property or any device, certificate, software or documentation that may be provided to it by the Bank.

7.3     The Client represents and warrants that it will at all times access and use the Services and perform its obligations under this Agreement in a manner that does not constitute an infringement or misappropriation of any Intellectual Property or other proprietary rights of the Bank or any third party.

 

8     WARRANTIES

8.1     The Parties warrant and represent that:

8.1.1      they have the legal capacity and have taken all necessary corporate action required to empower and authorise them to enter into this Agreement;

8.1.2      this Agreement constitutes an agreement valid and binding on them and enforceable against them in accordance with its terms; and

8.1.3      they will, for the duration of this Agreement, comply with all relevant legislative, regulatory or documentary requirements (including, but not limited to South African exchange control regulations) and hold all necessary licences, certificates, authorisations and consents required under the laws of the RSA or in terms of this Agreement, as may from time to time be applicable to the Services and the use thereof.

8.2     The Client warrants that:

8.2.1      all information provided to the Bank by the Client or anyone on its behalf concerning the Client or its business is true and correct in all material aspects; and

8.2.2      in the event that the Client represents or acts on behalf of any third party for the purposes of this Agreement, it has the relevant legal authority to do so and hereby indemnifies the Bank against and holds the Bank harmless from any loss or damage that the Bank may incur, suffer or sustain, including any claim that may be made or instituted against the Bank by the Client or any third party, arising out of:

8.2.2.1          any lack of or defect in authority by the Client or its employees to represent or act on behalf of any third party for the purposes of this Agreement;

8.2.2.2          the Client acting outside of the mandate of the relevant authority that it receives from any third party, including a Participant;

8.2.2.3          any act or omission on the part of a Participant in accessing and/or using the Services; and

8.2.2.4          any failure to obtain consent to access a third-party bank account(s) and other information held with the Bank;

except if such loss or damage arises as a consequence of the gross negligence or wilful misconduct of the Bank or any person acting for or controlled by the Bank.

8.3     The Client acknowledges that it will not under any circumstances be entitled to countermand any instruction given by it pursuant to the use of the Services once the Bank has received such instruction.

8.4     Save for clause 8.1.3, all warranties, whether expressed, implied or tacit, with regard to the Services, including any implied warranties of satisfactory quality and fitness for a particular purpose, are hereby excluded and disclaimed by the Bank.

 

9     CONFIDENTIALITY UNDERTAKING

9.1     The Parties hereby acknowledge that they are aware that, in order to provide and access the Services, information that may be regarded as secret and confidential will be made available to one another.

9.2     Each Party must therefore treat as strictly confidential all information that: (a) each Party discloses in confidence; or (b) reasonably can be identified as confidential and/or proprietary to the Party who disclosed such information; or (c) is received or obtained as a result of entering into or performing in terms of this Agreement, which relates to:

9.2.1      the provisions of this Agreement;

9.2.2      the negotiations relating to this Agreement;

9.2.3      the subject matter of this Agreement; and/or

9.2.4      the other Parties.

9.3     Any of the Parties may disclose information that would otherwise be confidential if and to the extent:

9.3.1      required by law;

9.3.2      required by any securities exchange or regulatory or governmental body to which any Party is subjected, wherever situated, whether or not the requirement for information has the force of law;

9.3.3      disclosed to the professional advisers and auditors of any of the Parties;

9.3.4      the information comes into the public domain through no fault of that Party; or

9.3.5      the affected Party has given prior written approval to the disclosure, which approval may not be unreasonably withheld or delayed;

provided that any information so disclosed is disclosed only after written notification to the other Parties.

 

10   FORCE MAJEURE

10.1    The Parties are not liable for delays or failure to perform any of their obligations under the terms of this Agreement resulting from acts beyond the reasonable control of the Parties. Such acts include without limitation acts of God, strikes, lockouts, riots, acts of war, civil disorder, rebellions or revolutions in any country, epidemics, acts of terrorism, vandalism or sabotage, governmental regulations imposed after the fact, communication line failures, power and telecommunications failures, earthquakes, fire, floods or other disasters (a Force Majeure Event).

10.2    If any Party is affected by a Force Majeure Event, the affected Party must, where possible, notify the other Parties thereof.

 

11   INDEMNITY

11.1    The Client hereby indemnifies the Bank and its employees against and holds them harmless from any and all losses suffered or damage incurred as a result of the breach of the provisions of this Agreement by the Client, its Participants, directors and/or trustees and/or members and/or partners and/or its signatories, Administrators, Users or other employees; or for any loss caused by any theft, fraud or other unlawful activity or any negligent, wilful or fraudulent misconduct of the Client or its employees, unless such loss or damage arises as a direct or indirect consequence of the gross negligence or wilful misconduct of the Bank or any person acting for or controlled by the Bank.

11.2    Any demand, claim or action arising against the Bank in connection with this Agreement and/or the Services (whether arising out of contract or delict) will be limited to claims for direct damage only. The Bank is not liable for any special, indirect or consequential damage of any nature whatsoever.

11.3    The Client specifically indemnifies the Bank against and holds it harmless from all demands, claims, actions, losses and damage of whatever nature that may be brought against the Bank or that the Bank or the Client may suffer or incur arising from:

11.3.1    any instruction provided by the Client to the Bank, including without limitation any incorrect, illegible, incomplete or inaccurate information or data;

11.3.2    any inadvertent delays in accessing or using the Services, any Service interruptions, the malfunction, distortion, failure, interruption or unavailability of any hardware, software, communication links, equipment, third-party facilities or systems, or any security breaches caused by the Client or a third party or the inability of a third party to process a transaction;

11.3.3    any use, misuse, abuse or possession of any software used to access the Services, including without limitation any operating system software, browser software, third-party software or any other software packages or programs;

11.3.4    any unauthorised or unlawful access to the Client's accounts or data or any loss, destruction or theft of or damage to any of the Client's or the Bank's data or equipment;

11.3.5    any fluctuation in exchange rates, interest rates or values applicable to foreign exchange transactions, money market transactions or any other transaction conducted through the use of the Services; and

11.3.6    the Client not complying with any of the Client's obligations set out in clause 6 and in the Schedules hereto, together with any banking and security procedures specified by the Bank, including its security and technical procedures and requirements as set out in the Manuals;

except if such demands, claims, actions, losses or damage arises as a direct or indirect consequence of the gross negligence or wilful misconduct of the Bank or any person acting for or controlled by the Bank.

11.4    The Client has elected to use the Services based on the Client's, the Bank's and third parties' electronic infrastructure, which necessitates the electronic transfer of confidential data via the internet, email and/or fax. The Client indemnifies the Bank against and holds it harmless from all demands, claims, actions, losses and damage of whatever nature resulting from the delay, interception, miscommunication, malfunction, distortion, disclosure, loss and/or fraudulent abuse of such data, prior to, during and after transmission, except if such demands, claims, actions, losses or damage arises as a direct or indirect consequence of the gross negligence or wilful misconduct of the Bank or any person acting for or controlled by the Bank. The Bank is not obliged to confirm receipt of an instruction from the Client sent to the Bank by such means, and such instruction will be deemed to have been validly sent by the Client.

11.5    Any demand, claim or action arising against the Client in connection with this Agreement (whether arising out of contract or delict) will be limited to claims for direct damage only. The Client is not liable for any special, indirect or consequential damage of any nature whatsoever.

 

12   RETURNED DEBIT AUTHORISATION

12.1    The Client acknowledges that the Bank may be instructed by the Client from time to time, against the debiting of bank accounts conducted by a debtor of the Client and/or of a Participant, to:

12.1.1    pay certain amounts into the Client's and/or into the Participant's bank account; or

12.1.2    credit the Client's and/or Participant's bank account on payment instructions issued by the Client itself.

12.2    The Client warrants that:

12.2.1    it is entitled to debit the debtor's account; and

12.2.2    the debtor has waived the right to reverse the transaction, provided that the aggregate amount of daily transactions does not exceed the debtor's daily limit notified to the Bank from time to time.

12.3    The Client agrees that the Bank is not responsible for checking the amounts or account numbers referred to in the instructions received from the Client. The Client acknowledges that a limit is applicable in respect of the amounts that may be debited by the Bank on each debtor's account on a daily basis. The Bank may request a copy of each debtor's authorisation regarding the debiting of such debtor's account. The Client indemnifies the Bank against any loss arising out of any failure on its part in obtaining a valid and correct authorisation or mandate from its debtors.

12.4    The Client agrees that it will be liable for any direct damage that the Bank may suffer as a result of:

12.4.1    any breach by the Client of the warranties set out in this Agreement;

12.4.2    any payment made by the Bank on the Client's payment instructions;

12.4.3    the failure by the Bank for whatsoever reason to carry out the Client's payment instructions, unless such failure is a result of wilful misconduct or gross negligence on the part of the Bank; and/or

12.4.4    any debit transaction in respect of any third-party account initiated by the Bank on the instruction of the Client.

12.5    In particular, without derogating from the generality of the aforementioned, the Client authorises the Bank to debit the account originally credited with the amount of any transaction that has been returned by a debtor or a debtor's banker. The Bank is not responsible for checking the correctness or validity of such a return.

12.6    The Client hereby irrevocably and unconditionally binds itself to the Bank as principal and primary guarantor for the due and punctual payment of all obligations of the Participant arising out of all payments made by the Bank to the bank account(s) of a Participant(s) where the Bank acted on instructions from the Client in accordance with clause 12.1 above. The Client's liability in terms hereof will arise on breach of the warranty stipulated in 12.2. The Client promises to pay the Bank on first demand all amounts due and payable (but unpaid) by the Participant.

 

 

 

 

 

13   BREACH

13.1    Should any of the Parties breach any term of this Agreement or fail to perform any of its obligations in terms of this Agreement, and should the defaulting Party remain in default or fail to remedy such breach within 14 (fourteen) days of receipt of written notice calling on it to do so, the other Parties will be entitled but not obliged, without notice, to claim specific performance or terminate this Agreement, without prejudice to their rights to recover any loss or damage suffered by them as a consequence of the breach by the defaulting Party of any term of this Agreement or the termination of this Agreement.

 

14   TERMINATION AS A RESULT OF CHANGE IN LAW OR CHANGE IN THE CLIENT'S FINANCIAL POSITION

Notwithstanding anything to the contrary contained in this Agreement, this Agreement may be terminated at any time by the Bank on 48 (forty-eight) hours' written notice to the Client in the event of any change in any law that is applicable to this Agreement or the application thereof or a change in the Client's financial position that would have the effect of prejudicing the Bank should it continue to render any of the Services to the Client.

 

15   DISPUTE RESOLUTION

15.1    Should any dispute arise at any time between the Bank and the Client relating to this Agreement or a matter arising out of any use of the Services, such dispute will be finally resolved in accordance with the rules of the Arbitration Foundation of South Africa by an arbitrator(s) appointed by the foundation. The Parties agree that, in pursuance hereof, any of the Parties may demand that a dispute will be referred to arbitration by giving written notice to that effect to the other Parties.

15.2    This clause 15 does not preclude any of the Parties from obtaining interim relief on an urgent basis from a court with competent jurisdiction, nor does it preclude the Client from exercising any rights of enforcement that it may have in terms of the Consumer Protection Act, 68 of 2008.

15.3    Any branch manager of the Bank, whose authority and position need not be proved, may certify statements of, the balance of, the rate of interest of and interest on the Client's accounts, which constitutes prima facie proof of the information contained therein.

15.4    The arbitration referred to herein will be held in Johannesburg with a view to being completed within 21 (twenty-one) days after it is demanded. The Client irrevocably agrees that the decision of the arbitrator(s) in the arbitration proceedings:

15.4.1    is final and binding on it;

15.4.2    will be carried into effect; and

15.4.3    may be made an order of court of competent jurisdiction.

15.5    This clause 15 is severable from the remainder of the terms and conditions and remains valid and binding on the Client notwithstanding any cancellation by the Client of any of the Services or the withdrawal by the Bank of any of the Services.

 

16   DOMICILIUM CITANDI ET EXECUTANDI

16.1    The Parties choose the following as their respective addresses for the service of all notices and processes and execution in connection with this Agreement, which addresses may be changed to any other physical address in the RSA by not less than 5 (five)  Business Days' written notice to the other Parties:

16.1.1       

The Bank:

Nedbank Limited, 135 Rivonia Road, Sandown, Sandton, 2196

 

Marked for the attention of:

*The Divisional Director: Corporate Banking/Business Banking

16.1.2       

The Client:

     

 

     

 

     

 

Marked for the attention of:

     

 

16.2    All notices addressed to any of the Parties at its latest address notified by it to the other Parties will be deemed to have been received, unless the contrary is proved:

16.2.1    if delivered by hand, on the date of delivery; and

16.2.2      if sent by prepaid registered post, 5 (five) Business Days after the date of posting.

16.3    Legal notices may not be sent by telex, telegram, fax or email.

 

17   GENERAL

17.1    The Client is not entitled to assign or transfer the benefits or obligations of all or any part of this Agreement to any other party without obtaining the prior written consent of the Bank, which consent will not be unreasonably withheld.

17.2    The terms of this Agreement are deemed to be, in respect of each part, entire, separate, severable and separately enforceable in the widest sense from the rest of this Agreement.  Should any provision of this Agreement be found by any competent court to be defective or unenforceable for any reason whatsoever, the remaining provisions of this Agreement will continue to be of full force and effect.

17.3    No amendment, waiver or discharge of the terms and conditions of this Agreement will be valid, unless it is in writing and has been signed by all the Parties.

17.4    No failure or delay by the Bank in exercising any right, power or privilege under this Agreement will operate as a waiver thereof, nor will any single or partial exercise of any right, power or privilege preclude any other or further privilege thereof or the exercise of any other right, power or privilege.

17.5    This Agreement may be executed in one or more counterparts, each of which is deemed to be original, and all of which together constitute one and the same agreement at date of signature of the Party last signing one of the counterparts. The Parties undertake to take whatever steps may be necessary to ensure that each counterpart is duly signed by each of them without delay.

17.6    This Agreement is governed by and must be construed in accordance with the laws of the RSA, and all disputes, actions and other matters relating thereto will be determined in accordance with such laws.

17.7    Any provision of this Agreement that contemplates performance or observance of any of the Parties' obligations contained herein subsequent to any cancellation or termination of this Agreement will survive any cancellation or termination of this Agreement and will continue to be of full force and effect.

17.8    This Agreement constitutes the whole of the agreement between the Parties relating to the subject matter hereof and, save as otherwise provided herein, no amendment, alteration, addition, variation or consensual cancellation will be of any force or effect, unless it is in writing and has been signed by the Parties hereto or their duly authorised representatives. All existing agreements concluded with the Client relating to the Services will be cancelled with effect from the Effective Date and will be replaced by this Agreement.

17.9    Each Party must bear and pay its own costs of or incidental to the drafting, preparation and execution of this Agreement.

(version 10Dec08)