TERMS AND CONDITIONS APPLICABLE TO APS APPLICATION

1. DEFINITIONS

In these terms and conditions the following words will have the following meanings:

1.1. Account means any bank account held in the name of the Customer together with any bank accounts in      respect of which the Customer holds a Valid Mandate.
1.2  APS means Automated Payment System.
1.3. Bank means your registered bank in terms of the Banks Act, 1990 as amended.
1.4. Billing Account means the Customer’s nominated account used for the purpose of debiting the fees      payable in terms of this agreement.
1.5. Channel means the Internet network.
1.6. Commencement Date means the date of submitting or signing the application for registration, or the      date of accepting these terms and conditions, whichever occurs first.
1.7. Customer means the sole proprietor/partnership/company/close corporation or any other created entity      (whether corporate or unincorporated) or the state, which has registered for the APS.
1.8. Main User/s means any person/s authorized or deemed to be authorized by the Customer to use the APS.
1.9. Operator means any person/s nominated and authorized by the Main User to perform certain specified      functionalities as determined and delegated by the Main User, on behalf of the Main User
1.10. Password means 6 (six) to 12 (twelve) alphanumeric (both letters and numbers) characters chosen by       the Customer, Main User or Operator, as the case may be, used as additional security and       authentication during the access procedure.
1.11 Pin means the first layer security and authentication alphanumeric character set chosen by the      Customer, Main User or Operator.
1.11. Reminder Notice means any reminder by the APS to the Customer in terms of services offered by the       APS, inclusive of sms notifications, e-mail notifications and any electronic and non electronic       notifications.
1.12. User number means the number assigned to the Customer, Main User, or Operator upon successful       registration to the APS and should be used to access the APS in conjunction with the Password.
1.13. Valid Mandate means an authorised instruction given by the Customer authorising the Main User or       Operator to act on behalf of the Customer.
1.14. Service Provider means the legal entity who will be providing the APS.

 

2. USE OF THE APS SUBJECT TO CONDITIONS

2.1 The use of the APS is provided subject to these terms and conditions. The Customer acknowledges that     the APS will enable the Customer to access facilities (e.g. bank accounts); and that such facilities,     Accounts or products might be governed by separate terms and conditions.
2.2 The Service Provider may vary these terms and conditions by giving reasonable notice of such     amendment to the Customer, by posting a notification of amendment on the website.
2.3 A certificate signed by the administrator responsible for maintaining this website will be accepted     as sufficient proof of the date of publication and content of the current version and all previous     versions of the terms and conditions and will be regarded as correct, unless the Customer proves     otherwise.

3. INTERNET

3.1 The Customer will obtain access to the APS via the Internet and it is specifically noted that the     Customer must register with an Internet Service Provider before the Commencement date.
3.2 The Customer will be solely responsible for the acquisition, installation and maintenance of the     connection to the Internet and any related costs or expenses will be borne by the Customer.
3.3 Should the Internet software and hardware requirements be modified with a view to improving or     upgrading the Internet and/or the APS, the resultant cost of any hardware, software or Internet     connection required for use of the APS will be for the Customer’s own account.
3.4 In the event that the Customer experiences problems with the Internet and the Internet connection, it     is the Customer’s responsibility to liaise with the Internet Service Provider prior to contacting the     Service Provider.
3.5 All information on this website is only intended to provide the Customer with general information     about the APS and the Service Provider will not be liable for information which is not accurate or up     to date.

4. OPERATION OF THE ACCOUNT

4.1 The APS will be available at all times, subject to the availability of the APS connection and to any     periods required for necessary maintenance of the APS.
4.2 The Customer authorizes the Service Provider to carry out any and all instructions given via the APS,     including the debiting of and transfer of funds from the Account and the furnishing of information on     the Account, provided that the instructions are authenticated by the use of:
5.2.1 the Pin and Password; (The Secret Code/Word provided by the customer)
5.2.2 any other procedures which may be agreed to in writing between the Customer and the Service       Provider or the Bank.
4.3 The Customer accepts the financial limits imposed on transfer of funds, which limits may be altered     at any time as agreed between the Customer and the Bank.
4.4 The provision of the APS will not entitle the Customer to overdraw the Account if borrowing     arrangements have not been made with the Bank, or to overdraw in excess of any borrowing limit agreed     by the Bank.
4.5 The Customer acknowledges that an instruction to pay cannot be revoked by means of the APS once the     Customer has sent the instruction. The Customer will have to follow a recall request process with the     Bank.

5. DUTIES OF THE CUSTOMER

5.1 The Customer must keep its Pin, Password and User number secret. The Customer must not disclose the     Pin, Password or User number, thereby giving access to any unauthorized person, known or unknown to     the customer.
5.2 The Customer must take all reasonable precautions to prevent unauthorized use of the APS and     unauthorized access to the Account.
5.3 If the Customer suspects that the Pin, Password or User number has become known to someone else, the     Customer must immediately notify the Service Provider and immediately change the Pin and/or Password.
5.4 The Customer must provide the correct account number as well as the correct branch clearing code,     where required, of all beneficiaries when instructing the service provider via the APS to make     payments. Nor the service provider or the Bank does at any stage verify an account number and branch     clearing code against the name of a beneficiary.

6. UNAUTHORISED USE OF THE PASSWORD

If any unauthorized person obtains the Pin, Password or User number in any manner whatsoever, such a person will be regarded as the Customer’s duly authorised agent with full authority to use the APS on the Customer’s behalf, unless the Customer is able to prove that the person has obtained the Pin, Password or User number due to the Service Provider’s negligence or due to internal fraud in the Service Provider.

7. THE MAIN USER

7.1 The Customer must provide the Service Provider with the necessary written authorizations in terms of     authorized Main Users to use the APS.
7.2 The Customer is entitled to appoint new Main Users by providing the Service Provider with amended     written authorizations from time to time.
7.3 It is the Customer’s responsibility to control and restrict access to the APS. The Service Provider     will supply the Customer with the means to register access Pins and Passwords for each Main User.
7.4 If the Customer chooses to utilize operators, the Main User will be responsible for selecting the     operating abilities of and the functionalities to be performed by each Operator nominated by the Main     User. All financial transactions created by the Operator will only be effected once authorised by the     Main User irrespective of the authorisation requirements set at time of registration.
7.5 The Customer may revoke a Main User’s or Operator’s access to the APS at any time by giving the     Service Provider written notice of the revocation.

8. LIABILITY FOR LOSS OR DAMAGE

8.1 The Customer acknowledges that the use of the APS and the Account is at the Customer’s own risk.
8.2 The Customer acknowledges that the Bank, the Service Provider and the APS relies solely on the     account number and the branch code of a beneficiary provided by the Customer, when receiving any     instructions from the Customer to make a payment. Nor the Service Provider or the Bank is obliged to     determine whether the name of the beneficiary and the account number and branch clearing code of such     a beneficiary refer to the same person.
8.3 The Service Provider will not be responsible for any damage, loss or consequential damage which the     Customer may suffer as a result of:
8.3.1 any malfunction or defect in the hardware used by the Customer (which includes the personal       computer);
8.3.2 any defect in the software used by the Customer to gain access to the APS;
8.3.3 any act or omission by the Internet Service Provider or any defect in the APS or any other medium       by which access is gained to the system;
8.3.4 the APS being off-line or unavailable;
8.3.5 any industrial action;
8.3.6 any other circumstances not reasonably within the Service Provider or Bank’s control;
8.3.7 erroneous, unauthorized, incomplete, or unlawful instructions from the Customer;
8.3.8 unlawful or unauthorized access by another person(s);
8.3.9 the Service Provider’s failure to send Reminder Notices; and
8.3.10 incorrect or late execution or non-payment of any instruction given by the Customer, due to the        circumstances set out in 8.3.1 to 8.3.9 above.

9. INDEMNITY AND WARRANTY BY THE CUSTOMER

9.1 The Customer indemnifies the Bank and/or the Service Provider against any damage, loss and/or     consequential damage that the Bank and/or the Service Provider may suffer as a result of incorrect,     wrong, unauthorized and/or wrongful instructions or information given by the Customer or any other     person authorized or deemed to be authorized to act on behalf of the Customer
9.2 The Customer warrants its authority to deal with the accounts of a third party on the basis of a     Valid Mandate.
9.3 The Customer hereby warrants to the Bank and the Service Provider that the Customer has the required     legal capacity to enter into and be bound by these terms and conditions.

10. RECORDING OF TELEPHONE CONVERSATIONS

For the protection of the Customer, the Bank and the Service Provider and to maintain the highest level of service, the Bank and/or the Service Provider may record telephone conversations between the Customer and the Bank’s and/or the Service Provider’s staff in respect of the APS.

11. FEES

11.1 Any fees, costs, taxes, commission, and charges in respect of the APS will be debited to the      Customer’s Billing Account.
11.2 The Bank and/or the Service Provider may vary the charges, fees, costs, taxes, commission charges      and levies in respect of the APS by giving reasonable notice of such amendments to the Customer, by      posting a notification of amendment on the website.

12. INTELLECTUAL PROPERTY

12.1 The Service Provider, and where applicable the Bank, retains all copyright and other intellectual      property rights in all material, including logos and other graphics and multimedia works published      on or through this website.
12.2 The Customer is authorized to view and download one copy of these terms and conditions to a local      hard drive or disk, print and make copies of such printouts, provided that:
12.2.1 the material is used for considering use of the APS and for no other commercial purposes;
12.2.2 any reproduction of the Service Provider and/or the Bank’s proprietary material from this website        or portion of it, must include the either or both of the Service Provider and the Bank’s copyright        notices in its entirety.
12.3 The logos and trademarks shown on this website are the Service Provider and where applicable the      Bank’s registered and unregistered trademarks, or that of third parties.
12.4 Nothing on this website should be construed as granting any license or right to use any trademark      without the Service Provider and the Bank’s prior written consent and/or the prior written consent      of third parties, as the case may be. The Customer may not, without the Service Provider and the      Bank’s prior written consent, use the Service Provider and/or the Bank’s intellectual property or      the intellectual property of third parties for any purposes whatsoever.
12.5 The Customer is prohibited from spoofing, linking and framing any part of the website.

13. TERMINATION, SUSPENSION OR WITHDRAWAL OF THE APS

13.1 The Customer may terminate the APS by giving the Service Provider 30 (thirty) days’ notice. Notice      by the Customer to the Service Provider should be given via e-mail or in writing.
13.2 The Service Provider is entitled, at its discretion, to terminate the APS at any time the Service      Provider deems it necessary.
13.3 In order to protect the Customer, the Service Provider and the banking systems, the Service Provider      is entitled to immediately suspend or withdraw all or part of the APS if:
13.3.1 the APS is being used contrary to the terms and conditions of this agreement;
13.3.2 the Service Provider has reasonable grounds to believe that the APS may be used negligently,        illegally or fraudulently; or
13.3.3 the Service Provider believes that the security of the systems used to provide the APS may be        compromised.
13.4 In the event of the APS not being utilized for a period of 6 (six) months or longer, the Service      Provider reserves the right to terminate the APS without prior notice. The Customer may reapply for      the APS at any time.
13.5 The Customer is liable for all transactions and/or obligations (and related charges) which are      incurred up to and including the date of termination.

14. CERTIFICATE OF INDEBTEDNESS

Subject to clause 2.3, a certificate signed by any of the Service Provider’s managers (whose appointment need not be proved) will be sufficient proof of all matters (including the Customer’s indebtedness to the Service Provider, interest and the rate of interest) stated therein.

15. CONFIDENTIALITY OF INFORMATION AND SECURITY

15.1 The Service Provider and/or the Bank cannot be held responsible for the confidentiality of      information contained in documents that are sent to the selected fax number or e-mail address, or      for documents that do not reach the selected fax number or email address.
15.2 The Customer acknowledges that information transmitted through the Internet or any other      communication system, including wireless communication system, is susceptible to unlawful access,      distortion and monitoring and that the Customer uses the APS at its own risk.
15.3 The Customer should comply with the security tips as published on the website from time to time.

16. USE OF THE APS OUTSIDE SOUTH AFRICA

When the Customer uses the APS outside the South African monetary area, such use will be subject to certain exchange control regulations and it is the Customer’s duty to become aware of the contents of those regulations, and to comply with them.

17. CESSION AND DELEGATION

The Customer may not cede or assign or otherwise make over or dispose of any of the Customer’s rights or obligations in terms of these terms and conditions without prior written consent of the Service Provider and the Bank.

18. NO WAIVER

If the Service Provider and/or the Bank, for any reason or purpose, does not immediately enforce or implement any of the Service Provider and/or the Bank’s rights in terms of these terms and conditions, it does not mean that the Service Provider and/or the Bank has abandoned or waived any of those rights.

19. ADDRESSES AND E-MAIL COMMUNICATIONS

19.1 The Customer’s physical address as provided by the Customer to the Service Provider is the address      (Dom cilium citandi et executandi) which the Customer chooses as the address where any process of      court may be served on the Customer (‘domicile addresses). The Customer’s mail address (be it      residential, postal or electronic) will be used to forward statements, notices or other      communications.
19.2 If the Customer moves to another physical address, changes the mail address or wish to give the      Service Provider any notice, the Customer must inform the Service Provider in writing Service      Provider’s Dom cilium citandi et executandi.
19.3 Only physical addresses within the Republic of South Africa may be used.
19.4 Notices given by the Service Provider will be regarded as having been received by the Customer:
19.4.1 by e-mail to the Customer’s e-mail address, at the time of transmission;
19.4.2 by hand, on the date of delivery;
19.4.3 by telefax, at the time of transmission;
19.4.4 by SMS, at the time of transmission.
19.5 An e-mail message will be deemed to be sent:
19.5.1 by the Customer, at the time at which the Service Provider is capable of accessing such message;
19.5.2 by the Service Provider, at the time shown on the message as having been sent, or if not so shown,        at the time shown on the Service Provider’s computer system as having been sent.
19.6 An e-mail message is deemed to be received:
19.6.1 by the Customer once it becomes capable of being retrieved by the Customer;
19.6.2 by the Service Provider, once the Service Provider has confirmed receipt thereof to the Customer,        or responded thereto, whichever is the earlier.
19.7 An e-mail message shall be attributed:
19.7.1 to the Customer, if it purports to have originated from the Customer, irrespective of the fact        that someone else may have impersonated the Customer or whether the message sent to the Service        Provider resulted from an error or malfunction in the communication system;
19.7.2 to the Service Provider, if it has been sent by a duly authorized representative and such        representative acted within the scope of such authority or by an automated system programmed by        the System Provider and such system operated without error or malfunction.

20. CONSENT TO JURISDICTION

The Customer hereby consents in terms of section 45 of the Magistrates’ Courts Act, 32 of 1944, that any legal proceedings, which have to do with this agreement, may be instituted in any magistrate’s court which (in terms of section 28 of the Magistrates’ Courts Act) has jurisdiction over the Customer.

21. LEGAL COSTS

21.1 The Customer will be liable for all legal costs, which will include but not be limited to:
21.1.1 legal costs on the so-called attorney and client scale (that is all the disbursements made by the        attorney briefed by the Service Provider, including all cost of any advocate instructed by him, as        on brief, and the cost of the professional services rendered by the attorney to the Service        Provider);
21.1.2 collection charges and tracing fees; and
21.1.3 Value-added Tax (VAT) thereon, which the Service Provider may incur in recovering or attempting to        recover moneys which the Customer owes the Service Provider.