The Parties to this agreement are: Exchange Trust Settlement Services (Pty) Ltd (ETSS) and the User Registered on the SPI. The User indicates his/her acceptance of this agreement by checking the electronic acceptance boxes in each of the sections below.
SECTION A - INTRODUCTION
ETSS provides a secure proprietary owned financial transaction platform consisting of Software, Hardware, Data Messaging Systems and Bespoke Payment Integrations giving it access to international payment systems, known in short as the SPI.
ETSS does NOT provide, offer, sell, purchase, recommend or provide any advice on any Product as defined in this Agreement or that may appear on this website. All members are encouraged at all times to seek their own independent advice from suitably qualified and licensed entities.
ETSS provides the SPI exclusively to Licensed and/or Authorised Providers (AP's), AP's make the SPI functions available to their Users, Members and Operators. The Product/s provided to any and all Users/Members through the SPI shall at all times be under the auspices of an AP, the License Number of the obligated AP together with information related to his/her/Its Licensed Category and any associated Product Restrictions and or Limitations shall be available to all User/s, Members at all times. The License Number and Issuing Authority of the AP shall be clearly stated on the relevant Data Messages used by the SPI and in the Product definitions presented to the User/Member.
The use and acts performed by users of the functions provided through the SPI to Users, Members and Operators, are regulated as Financial Intermediary Services and any unlawful use of these functions imposes a critical business risk for ETSS. ETSS will, after due evaluation of the AP License, Authorisation, Applicable Categories, Product Restrictions and Limitations of such Categories, and in its sole discretion to do so, enter into a contract with an AP to provide the SPI to the AP. Each Product provided by the AP on the SPI will be individually evaluated and authorized by ETSS prior to such products being made available on the SPI.
The SPI is a regulatory compliant operating environment for AP’s to Offer, Provide and obtain Settlement for Products and who are subject to the requirements of the Acts as listed below in Section B.
The User/Member wishes to enter into one or more Transactions with one or more APs for one or more of such AP's Products or Services offered via the SPI.
The User/Member is obligated to clear a settlement received in his/her/its Settlement Account, to a Bank Account within 30 Days of a Transaction being completed.
The User confirms that he/she will at all times act on his/her own behalf and will not Act on behalf of any other User/Member except where such User in doing so, is listed as an Operator on the SPI and has the appropriate mandate from such other User/Member to act on his/her/its behalf. The User expressly hereby agrees that such an action shall be deemed as impersonation fraud and is a material breach of this agreement.
The User acknowledges that he/she has reviewed the AP's License and Restrictions (if any) and accepts the Product and the Transaction Requirements of the AP as offered on the SPI.
ETSS provides the SPI from the territory of South Africa from where the SPI extends globally, the primary applicable laws for the use of the SPI are the laws of South Africa, however the AP's and Product approval process takes into consideration the laws of other jurisdictions in which contracts are formed on the SPI by an AP and its Users/Members and Operators.
Members and Users by accepting these Terms and Conditions also accept the Code of Conduct of ETSS and agree to be bound by the Code of Conduct.
It is important that the User Reads and Understands these Terms and Conditions as set out below as well as the Code of Conduct, which shall be applicable to all Users of any of the functions of the SPI. The User must only proceed if he/she agrees to be bound by these Terms and Conditions and the Code of Conduct.
SECTION B - THE ACTS
The VARIOUS SPI functions supports AP's in specific Product compliance requirements as required by the following Acts (as amended from time to time) and where applicable also taking cognizance of requirements as contained in International Public Law and laws of other jurisdictions in which contracts may be formed on the SPI. The applicable Acts forming part of this agreement are:
"ECTA" shall mean the Electronic Communications and Transactions Act of South Africa, Act 25 of 2002;
"FAIS" shall mean the Financial Advisory and Intermediary Services Act of the Republic of South Africa, Act 37 of 2002;
"FMB" shall mean the Financial Markets Bill of the Republic of South Africa, Bill B12B of November 2012;
"FICA" shall mean the Financial Intelligence Centre Act of the Republic of South Africa, Act 38 of 2001.
"NPSA" shall mean the National Payment Systems Act of the Republic of South Africa, Act 78 of 1998 and the NPS Directive, Directive 1 of 2007, for Payments To and From third Parties as gazetted in Government Gazette 30261.
"PFA" shall mean the Pension Funds Act of the Republic of South Africa, Act 24 of 1956;
"FSA" shall mean the Friendly Societies Act of the Republic of South Africa, Act 25 of 1956;
"CEA" shall mean the Currency and Exchanges Act of the Republic of South Africa, Act 9 of 1933 and it’s Promulgated Regulations of 1 December 1961.
"COBA" shall mean the Co-operative Banks Act of the Republic of South Africa, Act 40 of 2007;
"FMA" shall mean the Financial Markets Act of the Republic of South Africa, Act 19 of 2012;
"BA" shall mean the Banks Act of the Republic of South Africa, Act 94 of 1990 and as amended by the subsequent Bank Amendments Acts;
"NCA" shall mean the National Credit Act of the Republic of South Africa, Act 34 of 2005;
"LIA" shall mean the Long-term Insurance Act of the Republic of South Africa, Act 52 of 1998;
"SIA" shall mean the Short-term Insurance Act of the Republic of South Africa, Act 53 of 1998;
"MSA" shall mean the Medical Schemes Act of the Republic of South Africa, Act 131 of 1998;
"BOEA" shall mean the Bills of Exchange Act of the Republic of South Africa, Act 56 of 2000;
"POPI" shall mean the Protection of Personal Information Act of the Republic of South Africa, Act 4 of 2013;
SECTION C - DEFINITIONS
In the context of this Agreement the following meanings shall be ascribed to words used:
"ETSS" shall mean Exchange Trust Settlement Services (Pty) Ltd, Registration Number: 2013/033896/07, Address: 1st floor, Willowbridge Centre, Carl Cronje Drive, Tyger Valley, South Africa , Tel Number +27 84 655 2222, Email: email@example.com, Represented by J Steyn as Public Officer;
"AP" shall mean a Licensed or Authorised Entity and shall be a FSP or an ACP.
"FSP" shall mean an Authorized Financial Services Provider licensed by the relevant Authority and Licensed in the relevant category of products or Services it wishes to present on the SPI and which license is valid in the Jurisdiction where the Contract between the User/Member and the FSP will be concluded in terms of the ECTA. A FSP shall be a Member of the SPI and shall have an Operator/s and may have Users. The relevant FSP criteria as well as the FSP license referenced herein shall be available on the SPI to all Users of its Products.
"ACP" shall mean an Authorized Commodity Services Provider licensed by the relevant Authority and Licensed in the relevant category of Products or Services it wishes to present on the SPI and which license is valid in the Jurisdiction where the Contract between the User/Member and the ACP will be concluded in terms of the ECTA. An ACP shall be a Member of the SPI and shall have an Operator/s and may have Users. The relevant ACP criteria as well as the ACP license referenced herein shall be available on the SPI to all Users of its Products.
"SPI" Shall mean the Secure Proprietary Software as a Service, Platform as a Service and Infrastructure as a Service, consisting of Software, Hardware and Bespoke Payment Integrations and Data Messaging Systems as owned by ETSS and used as a tool to manage Settlement against the provision of Product/s. The SPI is operated under these Terms and Conditions and the Code of Conduct by the Users and Operators of AP's.
"Service/s" shall mean the availability of the electronic functions of the SPI to an AP and its Users/Operators and Clients, for the processing in Electronic format on the SPI; the Remitting of Money Against Available Funds, the Receiving of Money, Issue of Payment Guarantees, Provision of Financial Escrow Services, the Collecting and Storing of Personal Information related to Transactions Requirements, Provision of Financial Product Administration and Settlement of Payment Obligations, Product Claims Administration, Product Endorsement, Complaint and Advice Administration and Record Keeping as per FIAS, Storage of Transaction Data and Transaction History in the format as required by FIAS, ECTA, FICA.
"Functions" shall mean and relate to the SPI software applications consisting of but not limited to; Forms, Grids, Reports, Databases, Tables, Source Code, Data Views, Access and User Controls, User Interfaces, System Interfaces, Links with other Systems, Data Storage Systems, Integrated Security, Digital Certificates, which are combined into a uniform Platform and Infrastructure.
"DAY/S" shall mean an ordinary calendar day during which the banks in South Africa are accepting over the counter business.
"Effective Date" shall be in terms of the ECTA the Date and Time when the Offeror or First Party of an agreement or contract formed on the SPI receive the acceptance of the Contract or Agreement.
"Product/s" shall mean any Financial Product or Commodity Product and its Related Services
"Financial Product" shall mean any product, Instrument, security, derivative or Service provided exclusively through a FSP Product Supplier and that has the definition as described in FAIS and FMA, and shall include, but not be limited to:
securities and instruments, including shares, debentures and securitised debt, any money-market instrument, any warrant, certificate, and other instrument acknowledging, conferring or creating rights to subscribe to, acquire, dispose of or convert securities and instruments;
a participatory interest in one or more collective investment schemes,
a long-term or a short-term insurance contract or policy, referred to in LIA, and the SIA respectively;
a benefit provided by-
a pension fund organisation as defined in section 1 (1 ) of the PFA, to the members of the organisation by virtue of membership; or
a friendly society referred to in the FSA, to the members of the society by virtue of membership;
a foreign currency denominated investment instrument, including a foreign currency deposit,
a deposit as defined in section 1 (1) of the BA;
a health service benefit provided by a medical scheme as defined in section 1 (1) of the MSA;
any other product similar in nature to any product referred to in paragraphs (a) to (g);
any combined product containing one or more of the financial products referred to in paragraphs (a) to (h);
any financial product issued by any foreign product supplier and marketed in the Republic and which in nature and character is essentially similar or corresponding to a financial product referred to in paragraphs (a) to (I);
any Payment Card, Payment Token or Loyalty Card;
"Securities" shall mean listed and unlisted, either on paper or dematerialized, as defined in the FMA and shall include:
shares, depository receipts and other equivalent equities in public companies;
debentures, and bonds issued by public companies, public state-owned enterprises, the South African Reserve Bank and the Government of the Republic of South Africa;
any product, contract or certificate based on a financial index, and shall exclude the Commodity itself;
any Financial Product related to a physical Commodity but not the Commodity itself;
"Derivative/s" shall mean any financial instrument, contract, certificate or security, as defined in the FMB, that creates rights and obligations and whose value depends on or is derived from the value of one or more underlying asset, commodity, rate or index, on a measure of economic value or on a default event, but shall exclude the asset or commodity itself;
"Commodity" shall mean a marketable, material and physical item, provided exclusively through an ACP Product Owner/Supplier, it shall exclude all Derivatives, Securities or related Financial Products and shall include:
Hard Commodity, which shall mean: mined or extracted goods and shall be provided in unprocessed or processed format as bulk or as individual items,
Soft Commodity, which shall mean: general agricultural or grown goods and shall be provided in unprocessed or processed format as bulk or as individual items.
Energy Commodity, which shall mean: mined or extracted goods for the production of energy and shall be provided in unprocessed or processed format as bulk
"Product Owner" or "Product Supplier" shall mean the Entity who retains the Ultimate Responsibility and Liability for the performance of a Product on the SPI and shall be an AP.
"Product Intermediary" or "Product Provider" shall mean the Entity who promotes, advertises, sells, markets or provides advice on the Products of the Product Owner on the SPI, and shall be an AP.
"Product Administrator" shall mean the Entity who is responsible for the administration of Product and Commodity obligations such as premium collections, reconciliation, claims, distribution, certificates, inspections, physical delivery, warehousing/safe keeping and shipment of the Products of the Product Owner on the SPI, and shall be an AP
"Product Holder" shall mean the Entity to whom the Product Owner has the Liability, and who has acquired the Product from the Product Owner/Supplier with or without the assistance of a Product Provider.
"Processing" or "Processes" shall mean the action, act or operation of a User and/or an Operator of an AP on any function of the SPI or to invoke any function of the SPI whether or not such action will result in an Automatic or Manual Transaction and shall have the meaning as ascribed to such operations in terms of NPSA, ECTA, FICA, FAIS and POPI.
"Processor" shall mean the AP that Processes Personal Information and Transactions for Members on the SPI.
"Operator" shall mean a User that is either a Representative of an AP or in the Employ of an AP.
"Data Subject" shall mean User or Member prior to and after becoming a User or Member.
"Confidential Information" shall mean but shall not be limited to the SPI functions, business processes, operating procedures, business relationships, applications, data messages, system logs, instruction manuals, promotional and marketing material, contracts, forms, tables, performance, accuracy, members, users, technology infrastructure, licenses or any other matter, function, derivative function that may be associated with the SPI and reasonably regarded as a trade secret.
"Accountable Institution" shall mean the AP in the relationship between the AP and the User/Member, and ETSS in the relationship between ETSS and the AP, as required in terms of FICA and ECTA.
"Key Person" shall mean the Entity provided by the FSP in terms of FAIS who is responsible for Product Knowledge and Advice given by the FSP.
"Compliance Officer" shall mean the Entity provided by the FSP in terms of FAIS who is responsible for legal and regulatory compliance of the FSP.
"Responsible Party" or "Public Officer" shall mean in terms of POPI the AP.
"Bank Account" shall mean an Account with a Deposit Taking institution as specified in the BA and controlled by the Member/User.
"Imposed Duties" shall mean the duties imposed on the Accountable Institution, Key Person, Compliance Officer, and Responsible Party in terms of the relevant Acts.
"Entity" shall mean a Natural or Corporate person and shall be one of the following classes;
Natural Person South African Resident,
Natural Person Non-South African Resident,
a South African Trust with South African Beneficiaries and or Trustees,
a South African Trust with Foreign Trustees and or Beneficiaries,
a Foreign Registered Trust with South African Trustees and or Beneficiaries,
a Foreign Registered Trust with Foreign Trustees and or Beneficiaries,
a South African Company/Partnership with South African Shareholders and Directors/Partners,
a South African Company/Partnership with Foreign Shareholders and Directors/Partners,
a Foreign Registered Company/Partnership with South African Shareholders and or Directors/Partners.
a Foreign Registered Company/Partnership with Foreign Shareholders and Directors/Partners,
"Third Party Payment Processor" shall mean Capital Computer Bureau (Pty) Ltd with registration number 68/00104/07, a company duly incorporated in South Africa with its registered offices at 1 Edward Street, Hennopspark, Centurion, Pretoria, South Africa. Fully accredited as Third Party Processor by PASA and sponsored by ABSA, duly represented by J de Wet as Public Officer.
"Member" Shall mean the Entity who meets and continues to meet the requirements of these Terms and Conditions and the Code of Conduct and has access and use of the SPI functions, through its User/s and Operator/s.
"User" shall mean a Single Identifiable Natural Person who represents the Member and who has received a User Name and Password to gain user access to the SPI, a Member may have more than one User. The User fulfils the role of either Addressee and/or Originator, in respect of a Data Message as defined in the ECTA and is the person who is intended by the Originator to receive the Data Message, but shall not be an Entity acting as an intermediary or Operator in respect of that Data Message;
"User Rights" shall include the rights as per this Terms and Conditions and in particular be the functions of the SPI to which the User has access, these functions shall be determined by the AP and authorized by the appointed Operator of the AP;
"Electronic Communication" shall mean a communication by means of Data Messages generated on the SPI to Users, and or between the SPI and its Users, and or between Users;
"Electronic Signature" shall mean in terms of the ECTA, the data attached to, incorporated in, or logically associated with other data and which is intended by the User to serve as his/her signature, the SPI generates a unique signature for each user, under the Authenticated Signature of the SPI, for each Transaction in the form of a QRCode to represent the authorized signature of the User. The QR Code consists of the User ID, Transaction Date Time Stamp and OTP as generated by the SPI for the User and the Transaction;
"OTP" shall mean a single use, One Time Pin Code, sent to the designated Email or Mobile of the User, the code of which must be entered into the SPI as a function of Authenticating a Transaction by the User;
"Data Messages" shall be as prescribed in the ECTA, and shall mean a uniquely identifiable data set which is Generated, Sent, Received or Stored by or on the SPI and include:
voice, where the voice is used in an Automated Transaction, granting of Approval, granting of a Mandate; and
any stored record on the SPI used in the generation, execution or in support of any Transaction;
"Data Integrity" shall mean Data that has remained complete and unaltered after being presented in its final form as a Data Message, save for the addition of any endorsement and any change which arises in the normal course of communication, storage and display, provided that the User is Identified and the origin and destination of that data message as well as the date and time it was sent or received can be demonstrated.
"PADSS" shall mean the Payment Application Data Security Standard as laid down by the International Data Security Council for Data Security as it relates to Payment Transactions.
"System Log" shall mean the recording of actions taken by users of the SPI in order to demonstrate the particular actions taken by a User to add, remove or alter data as well as the date and time when such actions were taken.
"FSB" shall mean the Financial Services Board of South Africa as enacted by the Financial Services Board Act of the Republic of South Africa, Act 97 of 1990.
"Settlement Bank" shall mean Amalgamated Banks of South Africa (ABSA) Ltd, it is the Bank which is integrated into the SPI and provides access to the National Payment Systems in South African Rand
"Dealer Bank" shall mean Mercantile Bank Ltd of South Africa which is integrated into the SPI and provides access from South Africa to other international banks in various Currencies. ETSS holds a Trust Account and CFC Accounts with Mercantile Bank for the Trade of Foreign Currencies.
"SPOT" shall mean The purchase or sale of a Foreign Currency for immediate delivery.
"FEC" shall mean Foreign Exchange Contract for purchase or sale at some time in the future.
"Settlement Account" shall mean a Non-Interest bearing Account provided by the SPI and shall provide for one or two Authorised Users that may - jointly or individually - instruct and authorize Transactions on the Account. The Settlement Account is operated under the Instructions of the Authorised User/s and is held at the Settlement Bank. The Settlement Bank's authorized Third Party Payment Processor remits money to and from the Settlement Account as instructed by the User/s on the SPI. All Settlement Account transactions will reflect in the corresponding Transaction Account.
"Foreign Transaction" shall mean a Transaction that can take place between Non-South African Parties and in currency other than South African Rand (ZAR). The Foreign Transaction is subject to laws and jurisdictions outside of South Africa.
"Local Transaction" shall mean a Transaction that includes a South African Resident and or South African Rand (ZAR).
"Settlement Payment" shall mean a deposit into the Settlement Account, the deposit of which is of a temporary nature for the settlement of one or more specific Transactions.
"Settlement Proceeds" shall mean any receipt into the Settlement Account of the User/Member as a result of a Transaction, the User/Member shall clear the Settlement Proceeds to a Bank Account within 20 Days after the Transaction Completes alternatively the User/Member shall initiate a new Transaction with an AP.
"Settlement Instructions" shall mean a request by a Payee to a Payor to be settled to his/her/its Settlement Account or Currency Account and such Instruction is provided as a Data Message on the SPI.
"Transaction/s" shall mean one or more settlement/s against a contract of Purchase and Sale of a specific Product on the SPI.
"Transaction Requirement/s" shall mean the information criteria of the Product Supplier to sell, issue, trade a Product and where such information criteria is in the form of a Data Message/s.
"Transaction History" shall mean a sequential audit trail of each and every financial Debit and Credit entry into the Transaction Account, Currency Account or Settlement Account of a User/Member stipulating the Date, Time, Purpose and Origin of funds as well as the user who authorized the Transaction. Transaction History may contain Transactions that are cleared to the Settlement Account or Currency Account as well as Transactions not cleared to the Settlement Account.
"Transaction Account" shall mean an Account in any currency against which Transaction Entries are Debited and Credited whether or not such entries had a corresponding Settlement to the Settlement Account, each Settlement Account shall have one Transaction Account, and not every Transaction Account shall have a corresponding Settlement Account.
"Currency Account" shall mean a Controlled Foreign Currency (CFC) Settlement Account and shall be in any other Currency other than South African Rand (ZAR).
"CDSA" shall mean Currencies Direct South Africa (Pty) Ltd, a FSP (License No: 43493), Suite 208, Clock Tower, V&A Waterfront, Cape Town, South Africa, who is licensed to trade Securities and Derivative Instruments of SPOT and FEC Markets and who will be providing these services to Members of the SPI. CDSA is authorized by the Dealer Bank and the South African Reserve Bank to Make and Execute Foreign Currency Contracts on behalf of ETSS, CDSA holds a Nostro Account at the Dealer Bank to trade currencies.
"Automated Transaction" shall mean an Electronic Transaction conducted or performed, in whole or in part, by means of Data Messages in which the conduct or Data Messages of one or both parties in the Transaction are not reviewed by a User or Operator;
"Transaction Summary" shall mean a logical group of Transactions that result in multiple but related simultaneous settlements to multiple Users and or Members and corresponding Transaction and Settlement Accounts.
"Settlement" shall mean the completion of a Transaction by the Crediting and Debiting of the Settlement Accounts of the Payee and Payor respectively, with the aim to remit Money against Available Funds of the Payor to the Payee as instructed by the User of the Payor on the SPI and or requested by the Payee to the Payor and approved by the Payor on the SPI.
"Date and Time" shall mean Greenwich Mean Time plus two hours.
"Payee" shall mean a Member receiving Funds.
"Payor" shall mean a Member making a payment of Money against Available Funds in the Settlement Account.
"Transfer" means the creating of the appropriate Debit and Credit entries on the Payor and Payee Settlement Accounts and/or giving instruction to the Settlement Bank's Third Party Payment Processor to remit Money to a third party using the Data Messages on the SPI.
SECTION D - TERMS AND CONDITIONS
The Parties to this agreement are: Exchange Trust Settlement Services (Pty) Ltd (ETSS) and the User Registered on the SPI. The User indicates his/her acceptance of this agreement by checking the electronic acceptance boxes in each of the sections below.
1. THE USER's RIGHTS, OBLIGATION AND LIMITATION OF USE
1.1.The User hereby obtains a non-exclusive, non-transferable right to use the SPI as outlined in this Agreement.
1.2.The User may not without the prior written consent of ETSS use any of the Trade Marks, Logo's or Branding of the SPI on any website, printed material or other media.
1.3.The User may use the SPI to transmit information related to the Product/s and Transactions and Members related to the Transaction, between Product Owners, Product Providers and Product Holders using the Data Messages of the SPI.
1.4.The User shall be entitled to use and have access to all the SPI functions as acquired and Authorised by the respective AP of the User.
1.5.The User/Member shall be entitled to have multiple Settlement Accounts for different Products and one Transaction Account for each Settlement Account.
1.6.The User/Member shall have the right to apply for a Currency Account and subject to approval by the relevant AP, make Settlement Deposits and receive Settlement Proceeds in any currency on the SPI.
1.7.The User shall be entitled to use the SPI to provide Financial Advise only in so far as the User is appropriately registered in terms of FAIS with the FSB and such registration is noted on the SPI.
1.8.It is the Obligation of the User to at all times safe guard his/her access codes to the SPI. The User hereby explicitly indemnifies ETSS of any liability arising from the unauthorized use of the User's access codes and accepts any liability arising from any Transaction as if the User has actually authenticated such a Transaction.
1.9.The Member and its User/s shall exclusively use the SPI for Settlement of a Transaction between Product Owners, Product Providers and Product Holders. As the case may be; where such Transaction is initiated on the SPI, the Member and its User/s agrees that any attempt by the Member or User to effect Settlement outside the SPI on a Transaction already active on the SPI without the written consent of ETSS and or the AP shall be considered a Material Breach of this Terms and Conditions and the result will be for ETSS to unconditionally withdraw or terminate access to the SPI in use by the Member and its User/s. Such an attempt may further impose on ETSS a duty to report as referenced in this Terms and Conditions.
1.10.The Member and its User/s agree to execute Settlement Instructions within a reasonable period not exceeding 24Hours or as otherwise agreed between the Payor and Payee using the Data Messages of the SPI.
1.11.The User shall not copy, in whole or in part or in any way reverse engineer the functions and or Products provided by and on the SPI or the SPI itself. Any such attempt shall be considered a Material Breach of this Terms and Conditions and the result will be for ETSS to unconditionally withdraw access to the SPI in use by the Member and its User/s.
2. PROHIBITED USE OF THE SPI
No Member or User shall use the SPI:
2.1.Unless the FSP License specifically allows, to Manage, Hold, Issue or Exchange Securities and or Derivatives;
2.2.Unless the FSP License specifically allows, to create Markets for Securities and or Derivatives;
2.3.To create fictitious or non-existent or Barer Users;
2.4.Unless the FSP License specifically allows, to Manage Collective Investments;
2.5.Unless the FSP License specifically allows, to use the SPI to trade currency not related to a Product Transaction;
2.6.To Take or Make Deposits in the Settlement Account unrelated to a Transaction;
2.7.To Receive Deposits or Hold Deposits as defined in Section 1(1) of the BA, on behalf of any third party;
2.8.To Engage in any activity that is considered unlawful in the jurisdiction where the Member and or User is situated.
3. TRANSACTION ACCOUNT
The SPI will provide a Transaction Account in the applicable currency for each Product on the SPI, the Member and its User/s hereby Accepts and Agrees that:
3.1.The Transaction Account is not a Bank Account and is an audit record of a Transaction/s that should reflect in a Bank Account of the relevant Payor and Payee.
3.2.Actual Settlement and Clearing between Transaction Accounts is not under the control of the SPI.
3.3.Settlement of any Transaction remains the responsibility of the Payee in a Transaction and the Payee will need to contact the Payor to confirm Settlement should such Settlement not reflect in the Payee account within a reasonable time of Transaction completion.
3.4.Confirming a Transaction Settlement remains the obligation of the Payor and that the Payor agrees to confirm such Settlement on the SPI within a reasonable period of 24 Hours of completing such Settlement.
3.5.The SPI cannot accept Automated Transactions on a Transaction Account where such Transaction Account is not linked to a Settlement Account.
3.6.ETSS does not warrant and does not accept any liability for Settlement on a Transaction Account which is not linked to a Settlement Account.
4. SETTLEMENT ACCOUNT
The SPI provides an Optional Settlement Account for Users to make or receive Settlement Payments, where such Settlement Account is approved by ETSS and made active, the Member and its User/s hereby Accepts and Agrees that:
4.1.The Settlement Account is a valid Bank Account maintained by the Settlement Bank for the purposes of the SPI and contains Money of the Member/User in the relevant Currency as ready and available cleared funds that can be remitted using Data Messages of the User, on the SPI, pursuant to the Terms and Conditions of this User Agreement.
4.2.ETSS warrants the transactions and funds in the Settlement Account as outlined in this agreement.
4.3.The use of a Settlement Account must be used as the preferred Bank Account to make Settlement Payments and receive Settlement Proceeds authorized by the User/Member for Product/s on the SPI.
4.4.Settlement Deposits shall be of a Temporary nature and shall at all times relate to a Transaction. Settlement Proceeds shall be cleared within 20 Days, to a Bank Account of the Member/User if such Proceeds are not applied to a Product/s.
4.5.If the Proceeds referred to in 4.2 are not cleared as referenced, the SPI shall return the funds less service fees and charges (if any) to the relevant Payor Settlement Account or Bank Account where the funds originated from.
4.6.Access to the Settlement Account is restricted to the Authorised Users of the Settlement Account.
4.7.Access and use of the functions of this account is subject to the requirements of the NPSA.
4.8.An account that remains inactive for 105 Days shall be considered as dormant and shall be deactivated; an account that is dormant for 120 Days shall be closed. All funds remaining in this account shall be transferred to the ETSS suspense Account.
5. CURRENCY ACCOUNT
ETSS deals in currency through the Dealer Bank and CDSA. Additional requirements to effect trades and open Currency Accounts will apply and shall be covered by separate Product Terms and Conditions.
5.1.The User/Member may apply for a Currency Account on the SPI.
5.2.The SPI will create a Currency Account that allows for SPOT and FEC transactions through CDSA, or for Foreign Transactions through the global offices of CDSA.
5.3.ETSS warrants the transactions and funds in the Settlement Account as outlined in this agreement.
5.4.ETSS and CDSA are dealing as principals and have negotiated the best currency SPOT and FEC rates.
5.5.The Member/User shall have 20 Days to accept currency SPOT prices for a specific currency exchange.
5.6.SPOT prices will be as displayed on the SPI. These are updated every 24 hours.
5.7.Additional charges may apply for Telephonic SPOT quotes and Settlement.
5.8.All foreign Currency received in the Currency Account must be cleared to the Settlement Account within 20 Days or to a CFC Bank Account at the Dealer Bank.
5.9.The User / Member Accepts and Agrees that if the Proceeds referred to in 5.8 is not cleared as referenced the SPI shall return the funds less service fees and charges (if any) to the originator Bank Account.
6. PAYMENT GUARANTEES
The Payment Guarantees (PG) issued by the SPI on behalf of AP's for its Members and Users against specific Transactions shall be of the following nature:
6.1.Such PG shall not be of a Bearer Type;
6.2.PG's may be Transferrable provided that the Transfer has taken place on the SPI and both Transferee and Transferor are Members of the SPI and the Transferor has endorsed the PG using its Electronic Signature;
6.3.Such PG’s shall only be provided against cleared and available funds of the AP or its Members and Users on whose behalf it is issued.
6.4.Subject to the approval of the AP, the PG may or may not be issued with Red Clause conditions.
6.5.PG’s may have additional Endorsement with or without Aval by a FSP. The Endorsement and Aval will be clearly indicated on the PG and is irrevocable against the Electronic Signature of the FSP.
6.6.PG’s endorsed shall be by default unconditional and for full face value less SPI charges unless otherwise stipulated on the PG by the FSP providing the Endorsement or Aval.
6.7.PG’s endorsed by the SPI will be without Aval and constitutes an irrevocable undertaking by the SPI to settle the obligations of the PG as an Automated Transaction against available cleared and blocked funds of the Drawer/Payor.
6.8.PG’s endorsed with Aval constitute liability on behalf of the Drawer by the FSP providing the Aval. Additional Terms and Conditions and charges may apply.
6.9.PG’s endorsed with Aval and settled by the SPI on behalf of a Member will automatically transfer all the rights arising out of the PG against the Member for whom the Aval was provided to the FSP providing the Aval.
6.10.Contracts for endorsed PG’s payable in South Africa either with or without Aval, to Member/s / User/s anywhere outside the Republic of South Africa, shall be deemed to be under South African Law.
6.11.Contracts for endorsed PG’s payable outside South Africa shall be deemed to be signed under the laws of the Jurisdiction in which the Operator of the FSP providing the Endorsement or Aval was at the time of affixing his/her Electronic Signature to the PG.
6.12.All PG’s are issued under the International Uniform Rules for Demand Guarantees (URDG 758), using the SWIFT messaging format of MT760
6.13.Member/s and User/s shall use the SPI exclusively to establish the SWIFT for the PG, which shall be transmitted by the SPI to the transaction Banks being the Confirming Bank, Settlement Bank and Clearing Bank noted on the Demand Guarantee.
7. LEGAL RECOGNITION OF ELECTRONIC TRANSACTIONS BY THE USER
The User explicitly hereby agrees to be bound by the Authenticity of Electronic Communications and Transactions as prescribed in the ECTA, as such the User Agrees as follows:
7.1.The User has been properly identified as a User at the time when the User was provided with the Access Codes to the SPI.
7.2.The User is at all times exclusively in control of his/her Access Codes and Electronic Signature.
7.3.Information contained in any Data Message is legally binding on the User, whether the User has affected his/her Electronic Signature or not;
7.4.A requirement in law that a document or information must be in writing is met if:
(a)the document or information is in the form of a Data Message;
(b)accessible in a manner usable for subsequent reference by the parties referenced in the document, via the SPI.
7.5.Where the signature of a person is required by law and such law does not specify the type of signature, that requirement in relation to a Data Message is met through the application of the Electronic Signature, the User agrees that his Electronic Signature is not without legal force and effect merely on the grounds that it is in electronic form.
7.6.Where an electronic signature is not required by the parties to a Transaction, an expression of intent or other statement is not without legal force and effect merely on the grounds that:
(a)it is in the form of a Data Message; or
(b)it is not evidenced by a User's Electronic Signature but is evidenced by other means of Data Messages from which such person is intent or other statement can be inferred.
7.7.Where a law requires information to be presented or retained in its original form, that requirement is met by a Data Message if:
(a)the Data Integrity of the information from the time when it was first generated in its final form as a Data Message is retained;
(b)that information is capable of being displayed or produced to the User to whom it is to be presented.
7.8.Where a law requires a signature, statement or document to be notarised, acknowledged, verified or made under oath, that requirement is met if the Electronic Signature of a SPI User authorised in his/her jurisdiction to perform those acts is attached to, incorporated in or logically associated with the Data Message, provided that such User's credential is noted on the SPI;
7.9.Where a law requires or permits a person to provide a certified copy of a document and the document exists in paper or other physical form, that requirement is met if an electronic copy of the document is Uploaded to the SPI and Certified to be a true copy thereof and the Certification is confirmed by the use of an Electronic Signature of a SPI User authorised in his/her jurisdiction to perform those acts is attached to, incorporated in or logically associated with the Data Message, provided that such User's credentials are noted on the SPI. Additional Charges will apply for Certification.
7.10.Where a seal is required by law to be affixed to a document and such law does not prescribe the method or form by which such document may be sealed, that requirement is met if the Data Message indicates that it is required to be Under Seal and it includes the Electronic Signature of the Member or User by whom it is required to be sealed.
7.11.Where a law requires or permits a person to send a document or information by registered or certified post or similar service, that requirement is met if an Electronic Copy of the document or information is sent to firstname.lastname@example.org and sent by the Systems Operator to the electronic address provided by the sender on the SPI. Additional Charges will apply for Certified mail delivery.
7.12.An agreement is concluded between Members and or Users by means of Data Messages when such agreement is concluded partly or in whole by means of the Data Messages, at the Date and Time when and place where the acceptance of the offer was received by the Offeror or the First Party of such agreement.
7.13.A data message used in the conclusion or performance of an agreement will be regarded as having been sent by the originator when it is finalized on the SPI, where it is capable of being retrieved by the addressee/recipient whether or not the recipient has actually retrieved the Data Message or not.
7.14.An acknowledgement of receipt of a Data Message by the Addressee is not necessary to give legal effect to the Data Message.
7.15.The Data Message Time and Date shall be GMT+2 Johannesburg South Africa. This Date and Time shall be used for contract purposes.
8. IMPOSED DUTIES UNDER FATF40+9 INTERNATIONAL REGULATIONS
The SPI provides for international money transactions. This places certain Imposed Duties on ETSS as the Systems Operator to comply with Anti Terrorism and Anti Money Laundering regulations as provided under FATF40, and Countering of Terrorism Funding (CTF):
8.1.Every User and every Member shall be appropriately identified. Corporate Members shall have further requirements to disclose their Shareholders, Beneficiaries, Partners, Directors and Trustees where the ultimate control and benefit of the corporate resides.
8.2.The Identification of the Beneficial Ownership of the proceeds of Transactions must be provided.
8.3.The monitoring of Politically Exposed individuals that are utilizing the SPI for Transactions as well as the involvement of such persons in Transactions.
8.4.Source of Capital, Application and Destination of Capital shall be appropriately Identified.
8.5.Volume and Rate of Transactions shall be monitored, where such Volume and Rate is not within the expected ordinary business of the Member. ETSS is obliged to investigate such a Transaction for its purpose and retain reasons for the deviation.
9. IMPOSED DUTY TO REPORT
ETSS has the Imposed Duty to report Transactions of the following nature to the Financial Intelligence Centre and to the National Intelligence Agency. The Imposed Duty is obligatory, if in the opinion of a South African Court, ETSS has had reasonable knowledge of an activity or has not made an effort to either confirm or refute a possible unlawful activity.
9.1.Reportable Activities that may or may not be unlawful are:
9.1.1.An activity which has or is likely to have the effect of concealing or disguising the nature, source, location, disposition or movement of Funds/Proceeds of unlawful activities or any interest which anyone has in such Funds/Proceeds;
9.1.2.An activity in which another person has obtained the Funds/Proceeds of unlawful activities, and who enters/ed into any agreement with anyone or engages in any arrangement or transaction whereby:
(a)the retention or the control by or on behalf of the said other person of the Funds/Proceeds of unlawful activities is facilitated; or
(b)the said Funds/Proceeds of unlawful activities are used to make funds available to the said other person or to acquire property or products on his or her behalf.
9.1.3.Any Settlement that is higher than the Settlement Amount of a Transaction;
9.1.4.Transactions that do not Settle as anticipated for no apparent reason;
9.1.5.Any Transaction that has no apparent or lawful purpose;
9.1.6.Any Transaction that has a reasonable attempt to evade the payment of Tax in any jurisdiction;
9.1.7.Any Funds of USD 10 000 or more about to be received or already received from Foreign Institutions or to be Paid to Foreign Institutions for or on behalf of any member;
9.2.Additional ETSS Obligations are:
9.2.1.ETSS is furthermore obliged to provide all information on any User who is acting on behalf of a Member when requested by the Financial Intelligence Centre to do so;
9.2.2.ETSS and all of its employees further has the obligation not to disclose such reporting to the affected parties of whom such report is made.
10. LIMITATION OF LIABILITY
The ETSS liability for the lawful use of the SPI to any Member or User shall be limited to:
10.1.Liability arising out of wrongful or negligent acts, or wrongful omissions to act; notwithstanding anything to the contrary contained in this Agreement shall not include any indirect or consequential loss or damage, including without limitation, loss of profit, revenue, anticipated savings, business transactions or goodwill or other contracts whether arising from negligence or breach of contract.
10.2.Liability not related to funds shall be limited to; accuracy and availability of information, Data Integrity, providing a replacement service within a reasonable time period, restoring data within a reasonable time period, restoring services within a reasonable time period and shall be, where applicable, covered by the ETSS Indemnity Insurance.
10.3.Liability related to money shall at all times be limited to cleared and freely transferable deposits held in the Settlement Account and shall be covered by the ETSS Fidelity Insurance.
10.4.Any liability claim shall be subject to the Terms and Conditions of the ETSS Indemnity /Fidelity Insurance.
10.5.The Member and the User agrees that it is the Member and the User's responsibility to verify all aspects of the relevant AP and its Product/s, that all information and criteria provided on the SPI is subject to and dependent on the input from Users related to AP's. ETSS does not independently verify such information unless where explicitly indicated on the SPI.
10.6.The Member and User hereby specifically indemnifies ETSS against any liability arising from any tort either directly or indirectly arising from any act or omission of any act of the relevant AP, Member, User or Product related to any Transaction whether or not such Transaction was introduced, completed or finalized on the SPI or not.
11.1.The User hereby grants express permission to the Systems Operator for the collection, collation, processing, integration and disclosure of any personal information where such disclosure is required by Law or required for a lawful purpose by an AP for a Specific Product or Transaction in which the Member or User is engaged or has provided its consent to.
11.2.The SPI shall not electronically request, collect, collate, process or store personal information of any User which is not necessary for the lawful purpose for which the personal information is required.
11.3.The SPI shall not use the personal information for any other purpose than the disclosed purpose without the express written permission of the Member or User, unless it required to do so by law.
11.4.The SPI must, for as long as the personal information is used and for a period of at least five years thereafter, keep a record of the personal information and the specific purpose for which the personal information was collected or shared with an AP.
11.5.The SPI will for as long as the personal information is used and for a period of at least five years thereafter, keep a record of any third party to whom the personal information was disclosed and of the date on which and the purpose for which it was disclosed.
11.6.SPI will destroy and un-identify in terms of POPI any information that was acquired for a Product or Transaction and where such Product or Transaction Contract was not formed with the User/Member within a period of 45 Days after terminating the Transaction, unless such information is used in another Transaction of the User/Member.
11.7.The SPI shall delete or destroy all personal information which has become obsolete after providing notice to the relevant AP.
11.8.The User agrees that the SPI and its shareholders have invested significantly in the development and provision of the SPI. Any attempt therefore to misappropriate, copy, divulge, disclose or use any Confidential Information gained by the User, will infringe on the investment earnings and value of the SPI. The User hereby explicitly agrees not to disclose any Confidential Information to any party, either directly or indirectly, without the written permission of ETSS, unless it is obligated to do so by law.
11.9.In the event of a dispute between Members and Users of AP's the parties involved in the Dispute may request Transaction information to be disclosed. This may include all Data Messages, Transaction History and System Logs. ETSS will in its sole discretion after consultation with the parties disclose such information or where it is compelled by a court having jurisdiction over ETSS to disclose such information.
12. PROPRIETARY RIGHTS
12.1.The Member and the User acknowledges that:
(i)the SPI constitute and embody the Confidential Information of ETSS.
(ii)ETSS own and will retain all rights, title and interest in the SPI and all related copyrights, patents, trade secrets and other proprietary rights; and
(iii)the User obtains no rights in or to the SPI other than the right from ETSS to use the SPI pursuant to this Agreement.
12.2.Nothing in this Agreement shall be construed to convey any title or ownership rights to the Member or User.
13.1.This User Agreement shall remain in effect until terminated by either party, or
13.2.If the User has committed any material breach of this Agreement.
13.3.Termination shall not include the termination of clauses 8, 9, 10, 11, 12, 16 and any current Transaction or Agreement entered into on the SPI pursuant to clause 7.
13.4.Transactions currently active shall not Terminate simply as a result of the Termination of this Agreement.
13.5.Upon termination the User shall provide ETSS the bank coordinates in the form of a bank statement confirming the bank accounts to which all funds related to the User shall be transferred.
13.6.Upon the transfer of all cleared and available funds less any fees due to ETSS, less any retained Transaction Proceeds to other Payees, the Agreement shall be terminated as per this clause.
14.1.ETSS warrants that it has the right to make the SPI available to the User/Member for use pursuant to this Agreement.
14.2.ETSS warrants that its systems complies with the requirements of the various Acts as listed in this agreement.
14.3.ETSS warrants the correctness, validity and availability of Transactions and Settlement Amounts reflected in the Settlement Account subject to the correctness of the Product Transaction Requirements of the AP.
14.4.ETSS warrants that its equipment performance specifications are as follows:
(i)99.5% uptime on hosted servers and web sites
(ii)24 hours dedicated server onsite support
(iii)System and Application Security Standards as required by PADSS
14.5Other technical support that the SPI has access to, includes:
(i)Email Support Centre with reference numbering.
(ii)Telephonic Support Centre.
(iii)Remote desktop support.
15.1.The headings used in this Agreement are for convenience only.
15.2.This Agreement, it's Schedules and any duly executed related addenda constitute the Entire Agreement between ETSS as the First Party to this Agreement and the User and - as of the Effective Date - supersedes all other agreements, proposals, purchase orders, or representations, whether written or oral, relating to the subject matter hereof.
15.3.No alterations or modifications of this Agreement will be valid unless effected herein.
15.4.Neither Party may assign its rights under this Agreement without the other Party's prior written consent.
15.5.Neither party shall be liable for delays in performance hereunder due to causes beyond its reasonable control and force majeure.
15.6.If any provision of this Agreement is deemed illegal or unenforceable, that provision shall be severed and the remainder of this Agreement shall remain in full force and effect. A waiver shall be effective only if made in writing and signed by an authorized representative of both parties. The waiver of any right or election of any remedy in one instance shall not affect any rights or remedies in another instance.
15.7.All required notices to be sent to ETSS under this Agreement shall be sent to: Exchange Trust Settlement Services (Pty) Ltd, 1st floor, Willowbridge Centre, Carl Cronje Drive, Tyger Valley, South Africa
15.8.All required notices to be sent to the User shall be sent to the email address of the User as recorded on the SPI. Such notice shall, at the discretion and election of ETSS, be in Electronic form as per this Agreement.
15.9.The laws of the Republic of South Africa will govern the validity, interpretation and performance of this Agreement and the courts of the Republic of South Africa will have sole jurisdiction.
15.10.The SPI servers, equipment and the associated Software Programs are hosted with Hetzner at its data centre in Cape Town.
15.11.The SPI shall display notices to the User at the time of Log-in to confirm changes to the User Agreement or to the System. The User is required to confirm that such notice was received by clicking the relevant confirmation boxes.
15.12.The use of any search technology, such as "web-crawlers" or "web-spiders", to search and gain information from the SPI is not permitted.
15.13.ETSS may provide links to other site(s). In the event of a link being provided; ETSS expressly record that such link(s) are only provided for convenience and the inclusion of such a link does not imply endorsement of any such linked site(s). Any implied liability is expressly denied.
16. DISPUTES AND COMPLAINTS
Disputes can take the form of a grievance action between Members and Users of AP's excluding such action with ETSS, or between any Member, User or AP with ETSS. In the event that a dispute is with ETSS the following procedure will be applicable:
16.1.A dispute concerning or arising out of this Agreement exists once a party notifies the others in writing of the nature of the dispute and requires it to be resolved under this clause. The parties must refer any dispute to be resolved by:
(i)negotiation; failing which
(ii)mediation; failing which
16.2.Within 10 Days of notification, the parties must seek an amicable resolution to the dispute by referring it to designated and authorised representatives of each of the parties to negotiate and resolve it by the parties signing an Agreement resolving it within 15 Business Days.
16.3.If negotiation fails, the parties must refer the dispute for resolution by mediation under the rules of the Arbitration Foundation of Southern Africa (or its successor or body nominated in writing by it in its stead) (AFSA).
16.4.If mediation fails, the parties must refer the dispute within 15 Days for resolution by arbitration (including any appeal against the arbitrator’s decision) by one arbitrator (appointed by agreement between the parties) as an expedited arbitration in Sandton under the then current rules for expedited arbitration of AFSA. If the parties cannot agree on any arbitrator within a period of 10 Days after the referral, the arbitrator will be appointed by the Secretariat of AFSA.
16.5.The periods for negotiation or mediation may be shortened or lengthened by written agreement between the parties.
16.6.This clause will not preclude any party from access to an appropriate court of law for interim relief in respect of urgent matters by way of an interdict, or mandamus pending finalisation of this dispute resolution process, for which purpose the parties irrevocably submit to the jurisdiction of the Cape Town High Court of the Republic of South Africa.
16.7.This clause is a separate, divisible agreement from the rest of this Agreement and must remain in effect even if the Agreement terminates, is nullified, or cancelled for any reason or cause.
16.8.User complaints shall be directed on the SPI to the relevant Responsible Party of the AP, who will deal with the Complaint in terms of the relevant AP's Product terms and the SPI Code of Conduct.
17. USER REQUESTED MODIFICATIONS AND SERVICE ERRORS
17.1.Any and all modification requirements or requests from the User shall be documented, scoped and the cost calculated and acceptance for such work shall be obtained in writing from the User prior to the commencement of any work.
17.2.In the event that the User should experience an error or defect in the SPI then the User shall notify ETSS immediately by email of such error or defect.
17.3.The User must make "Screen Dumps" or "Screen Prints" of such error or defect and send the proof by email to the support email address.
17.4.ETSS expressly reserve the right, in its sole and absolute discretion, and without prior notice to the User, to alter and /or amend the content of any part of the SPI and also to change any amounts, costs or rates as may be quoted.
18.1.Consulting and Non Standard Service Fees for any work request by the user shall be applicable and charged separately by ETSS to the User / Member.
18.2.The Service fees are contained in the Term Sheet between ETSS and the AP.
18.3.Standard operating fees are published on the ETSS website and updated from time to time at the sole discretion of ETSS.
18.4.Changes in third party service provider fees e.g. Bank charges, will be on charged as and when implemented by such 3rd Party.
19. STANDARD SUPPORT AND OFFICE (WORKING) HOURS
(i)Monday to Friday - 08h00 to 17h00 (GMT +2 Hours)
(ii)Saturday, Sunday and Public Holidays Closed for Support. Support for special circumstances can be arranged.
(iii)Support number 087 702 2367 (Office Hours)
(iv)Support email email@example.com (Managed during the above Office Hours)