ELECTRONIC
BANKING SERVICES GENERAL TERMS AND CONDITIONS
Terms and Conditions of Use of
internet banking
ELECTRONIC BANKING SERVICES
GENERAL TERMS AND CONDITIONS
applicable
to the CLIENT (hereinafter referred to as "the client") and NEDBANK LIMITED (hereinafter referred
to as "the bank")
Upon formal
approval of the client by the bank, it will provide to the client various
electronic banking services ("the
services") in terms of which the bank, using its equipment, will
execute on behalf of the client, instructions given to it by the client in
written or electronic format. The client understands and accepts that the terms
and conditions stated below, shall apply to the use of any of the services pursuant
to this application.
1.1.
Once the bank has formally approved the
client and the client has been provided by the bank with a profile number (or
security device, signature numbers, passwords, application or PIN) ("the device"), the client shall be
afforded the utilisation of the services as listed below these terms and
conditions and may be allowed access from time to time to other profiles (other
systems containing other services) of the bank.
1.2.
Further services and profiles may be added
from time to time by the bank and it reserves the right to modify, replace or
withdraw any service and/or profile at any time, for any reason whatsoever,
without prior notice to the client.
1.3.
For the purposes hereof a reference to
"services" shall include a
reference to profiles and systems offered by the bank from time to time in
terms hereof.
2.1.
Should the client wish to make use of any of
the systems or services where a PIN is required, it is hereby recorded that a
PIN shall be allocated to the client in respect of the client's profile number.
The PIN will allow the client to gain access to the services linked to the
client's profile. In this regard the client agrees to comply with all the terms
and conditions in force from time to time and applicable to the bank's services
when entering its profile number and PIN to gain access to any of the services
or profiles.
2.2.
The client shall provide and maintain
hardware and all consumable materials required for the use of the services aforementioned.
The bank makes no representations as to the suitability of any of the client's
hardware, software or consumable materials for the use of the services.
2.3.
The client agrees to make use of the
services available to it after approval by the bank of the client and the
provision by the bank of the profile number or PIN to the client in accordance
with these terms and conditions.
3.1.
The client acknowledges that it is aware
that the rendering of the services is subject to various acts and other
legislation and the client undertakes to comply with all applicable legislation
at all times.
3.2.
The client acknowledges that its use of the
services shall in no way vary any aspect of the bank-client relationship
between it and the bank and the client furthermore, without limiting the
generality thereof, agrees in particular that:
3.2.1. the utilisation of any service shall be subject to the completion and
signature by a duly authorised signatory/signatories of the client of this
application form and any other documentation or agreement required by the bank
from time to time and the delivery thereof to a branch or electronic banking
centre of the bank;
3.2.2. it shall be obliged to settle any payment obligations to the bank in
accordance with the instructions issued to the bank through the service and
that this shall not in any way entitle the client to overdraw any account,
unless prior arrangements have been made with the bank and then only in terms
of such arrangements;
3.2.3. the limits allocated to any of the client's accounts will not be
exceeded.
3.3.
The client declares and warrants that all
information provided in the application form and any information to be given in
the future in terms hereof and information to be contained in each instruction
processed electronically through the service, is and will be correct in all
respects. The client records that it shall be obliged to inform the bank of any
change in the information provided by the client and that it will have no
claims against the bank in the event of any information provided by the client
to the bank being incorrect.
3.4.
The client at all times:
3.4.1. shall follow the security procedures notified to the client by the bank
from time to time or such other procedures as may be applicable to the services
from time to time and specifically those that are contained on the bank's
internet website. The client acknowledges that:
3.4.1.1. any failure on the part of the client to follow the recommended security
procedures may result in a breach of the client's profile confidentiality and
may lead to unauthorised transactions between accounts linked to the client's
electronic banking subscription with the bank;
3.4.1.2. any software downloaded by the client from the internet and specifically
the bank's internet site, is third-party software, the licensing of which shall
be subject to such terms and conditions as the licensor of such software may
impose;
3.4.2. shall ensure the safekeeping and confidentiality of all devices,
passwords, signature numbers and other confidential information;
3.4.3. shall ensure that the services are not used or the instructions are not
issued or the relevant functions are not performed by anyone other than a
person authorised to do so;
3.4.4. shall notify the bank immediately on the client becoming aware that a
device or password has been lost or forgotten or may have fallen into the hands
of an unauthorised person;
3.4.5. will be deemed to have read, understood and applied the information
displayed on any profile, system or electronic banking site and the client's
role in respect thereof.
3.5.
The client shall not at any time:
3.5.1. cede or assign any of its rights under this agreement without the prior
written consent of the bank;
3.5.2. operate or use the service in any manner that may be prejudicial to the
bank.
3.6.
The client understands and accepts that it
may link a business account or an account requiring multiple signatures to the
client's profile only if the client has submitted to the bank an original
written resolution or power of attorney to this effect and it will be the
responsibility of the client to ensure that no unauthorised persons have access
to its accounts.
3.7.
The bank shall be entitled and authorised to
debit the client's accounts with the amounts of the transactions effected via
the services or any of them as well as to debit the client's accounts with the
amount of any fees applicable to the services from time to time.
4.1.
The bank shall:
4.1.1. furnish the PINS to the client upon the bank having approved the
client's utilisation of the services offered in terms hereof;
4.1.2. furnish replacement PINs to the client only upon written notice that a
PIN has been lost or forgotten.
4.2.
The client acknowledges that:
4.2.1. the bank shall neither be required to enquire into the authority of any
person who uses or has used the services or the PINs, nor shall the bank be
required to enquire into the validity of any information provided by the client
to it for purposes of the utilisation of the services;
4.2.2. once the bank has received and implemented an instruction given by the
client in the utilisation of the services, the client shall not be entitled to
countermand or amend such instruction but shall be obliged to follow such
procedures as may be prescribed by the bank from time to time in respect of the
various services.
5.1.
The bank shall at all times retain its copyright
in or licence to the software (including the PINs) and associated
documentation, should such software and associated documentation belong to it,
used in the provision of the services as well as in respect of any logos,
trademarks or service marks used.
5.2.
The client shall not duplicate, reproduce or
in any way tamper with the software and associated documentation without the
prior written consent of the bank.
5.3.
In respect of third-party software, the bank
is not a party to any licence agreement entered into by the client and the
licensor and thus makes no warranties relating to such software, including
without limitation, warranties relating to the suitability for a particular
purpose, security features or performance. The client acknowledges that the use
of such software shall be at the client's own risk and indemnifies and holds
the bank harmless against any loss or damage which the client may suffer as a
result of the use, abuse or possession of such software.
5.4.
Furthermore, the client understands that the
utilisation of such third-party software may be illegal in jurisdictions
outside the Republic of South Africa and/or may infringe upon certain
third-party intellectual property rights in such jurisdictions. The client
understands that should it use any third-party software outside the boundaries
of the Republic of South Africa, it shall at all times be incumbent upon the
client to ascertain the legality of such use and to obtain all necessary
licences and permissions from the relevant parties. The client accordingly
indemnifies and holds the bank harmless against any and all liability which it
may incur in this regard.
6.1.
The client chooses as its domicilium citandi et executandi for the
purpose of legal proceedings and for the purposes of giving or sending any
notice provided for or necessary in terms of this agreement, the address given
in the application form.
6.2.
The bank's address for the purposes hereof
is:
6.3.
Physical: 135 Rivonia Road, Sandown,
Sandton, 2196
6.4.
Postal: P O Box 1144, Johannesburg, 2000
6.5.
Telefax: 011 295 2172
6.6.
Attention: The
Company Secretary
6.7.
provided that a party may change its
domicilium to any other physical address or telefax number by written notice to
the other party to that effect. Such change of address will be effective seven
days after receipt of notice of the change of domicilium.
6.8.
All notices to be given in terms of this
agreement will:
6.8.1. be given in writing;
6.8.2. be delivered or sent by telefax;
6.8.3. if delivered, be presumed to have been received on the date of delivery;
6.8.4. if sent by telefax, be presumed to have been received on the first
business day following the date of sending of the telefax unless the contrary
is proved.
6.9.
Notwithstanding the above, any notice
actually received by the party to whom the notice is addressed will be deemed
to have been properly given and received, notwithstanding that such notice has
not been given in accordance with the provisions of this clause.
7.2.
Any demand, claim or action arising against
the bank in connection with the circumstances referred to in subclause 7.1
above shall be limited to direct damages. Special or consequential damages are
hereby specifically excluded.
7.3.
The client indemnifies and holds the bank
harmless from:
7.3.1. all demands, claims, actions, losses and damages of whatsoever nature
which may be brought against the bank or which it may suffer or incur arising
from its acting, or not acting on any instruction or arising from or out of the
malfunction, failure or unavailability of any hardware, software or equipment,
the loss or destruction of any data, power failures, corruption of storage
media, natural phenomena, riots, acts of vandalism, sabotage, terrorism, any
other event beyond the bank's control, interruption or distortion of
communication links or arising from the reliance by any person on any
incorrect, illegible, incomplete or inaccurate information or data contained in
any instructions received by the bank;
7.3.2. any loss or damage that may arise from the use, misuse, abuse or
possession of any third-party software, including without limitation, any
operating system software, browser software or any other software packages or
programs;
7.3.3. any unauthorised access to the client's accounts or any breach of
security or any destruction or accessing of the client's data or any
destruction or theft of or damage to any of the client's equipment;
7.3.4. any loss or damage occasioned by the failure to adhere to any terms and
conditions applicable to the services and/or by the supplying of incorrect
information or loss or damage occasioned by the failure or unavailability of
third-party facilities or systems or the inability of a third party to process
a transaction.
8.1.
These terms and conditions govern the
relationship between the client and the bank in respect of the services. Should
there, however, be a conflict between the provisions hereof and the provisions
of any agreement relating to a specific service utilised by the client, then
the provisions of that agreement insofar as they conflict with the provisions
hereof only will take precedence.
8.2.
Notwithstanding the aforegoing terms and
conditions, the client acknowledges and accepts that the bank may from time to
time amend such terms and conditions insofar as they relate to the use by the
client of the services. In pursuance of the aforegoing the client confirms
that:
8.2.1. it is aware that all such changes shall be reflected in the terms and
conditions published on the bank's internet site;
8.2.2. by entering the client's electronic banking subscription number and PIN
or security device to gain access to the services, the client binds itself to
the terms and conditions in force at that point in time as they may appear on
the bank's internet site.
8.3.
In this agreement, unless expressly
indicated otherwise:
8.3.1. the singular shall include the plural and vice versa;
8.3.2. natural persons shall include created entities, whether incorporated or
not.
8.4.
This agreement shall be interpreted in
accordance with and governed by the laws of the Republic of South Africa,
notwithstanding the fact that any instruction emanated from outside the borders
of the Republic of South Africa.
9.1.
any amounts due to the bank in terms of this
agreement;
9.2.
any
loss or damage suffered by the bank as a consequence of the breach by the
client of any term of this agreement or the cancellation of this agreement or
the withdrawal of the services.
10.1. Should any dispute arise at any time between the bank and the client
relating to any matter arising out of any use of the services, such dispute
shall be finally resolved in accordance with the rules of the Arbitration
Foundation of South Africa by an arbitrator or arbitrators appointed by that
foundation. The client agrees that in pursuance hereof, either the client or
the bank may demand that a dispute be referred to arbitration by giving written
notice to that effect to the other party.
10.2. This clause shall not preclude the client or the bank from obtaining
interim relief on an urgent basis from a court with competent jurisdiction
pending the decision of the arbitrator.
10.3. The arbitration referred to herein shall be held at Johannesburg in the
English language and shall be held immediately with a view to be completed within
21 (twenty-one) days after it is demanded. The client irrevocably agrees that
the decision of the arbitrator in the arbitration proceedings:
10.3.1. shall be final and binding on it;
10.3.2. shall be carried into effect;
10.3.3. and may be made an order of court of competent jurisdiction.
10.4. This clause 10 is severable from the rest of the terms and conditions
and shall remain valid and binding on the client notwithstanding any
cancellation by the client of its electronic banking services with the bank or
any withdrawal by the bank of the services or any of them.
Notwithstanding
anything contained above, the agreement may be terminated at any time by the
bank or the client on having given such notice as may be required in respect of
each service utilised, except that in the event of any change in any law or the
application thereof, which would have the effect of prejudicing the bank should
it continue with the rendering of any service, the bank shall be entitled to
terminate the agreement on 48 (forty-eight) hours' written notice to the
client.
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Terms and Conditions of Use of internet banking
1
I understand and accept that these terms and
conditions shall apply to the use of any internet banking profile allocated to
me pursuant to this application. I confirm that all information and
instructions contained on the face of this form are correct and that I shall
have no claim against Nedbank Limited Reg No 1951/000009/06 (‘the bank’) in the
event of any of the information or instructions overleaf being incorrect. I
further undertake to notify the bank in writing should any of the said
information or instructions change at any time in the future.
2
I am aware that my internet banking profile shall
entitle me to use any or all of the bank’s Self Service Terminals, PhoneBank:
Self Service and Agent Assisted, and internet banking systems (‘the systems’).
3
I acknowledge that:
3.1 I
am aware that I may link to my profile only those accounts over which I have
direct control. I undertake to produce proof that I hold power of attorney over
any other accounts which I ask to be linked to my profile;
3.2 any
of the facilities made available by the bank under the systems may be modified,
replaced or withdrawn by the bank at any time without notice to me, in which
event the bank shall incur no liability to me whatsoever;
3.3 the
bank shall not be liable for any breakdown or failure of any equipment or
medium of access to the systems, or any of them;
3.4 the
bank shall be entitled to effect an electronic funds transfer in respect of the
accounts of which the numbers are provided in a payment instruction. I
acknowledge further that the bank shall not be obliged to verify the
destination account numbers, parties’ names or the amounts involved in any
instruction, and, in the event of a discrepancy in such a payment instruction
between the destination account number and the name of the party concerned, the
destination account number shall prevail;
3.5 should
I wish to make use of PhoneBank: Self Service and internet banking, the PIN
issued to me shall provide access to the systems and my accounts and I
therefore agree to:
3.5.1
change the PIN issued to me immediately on using the
systems for the first time (and on a regular basis thereafter) to a PIN of my
choice;
3.5.2
ensure the safe-keeping and confidentiality of such
PIN;
3.5.3
notify the bank immediately on becoming aware that my
PIN may have fallen into the hands of an unauthorised person;
3.6 the
use of the systems, or any of them, shall in no way vary any aspect of the
banker-client relationship between me and the bank, if any, and in particular I
agree that:
3.6.1
the use of the systems, or any of them, shall not
entitle me to overdraw on any account, unless prior arrangements have been made
with the bank, and then only in terms of such arrangements;
3.6.2
the limits allocated to my accounts shall not be
exceeded;
3.7 should
I make use of the bank’s internet banking system, I shall:
3.7.1
obtain and maintain the hardware and software
(‘equipment’) required to access the internet banking system;
3.7.2
read and take cognisance of the information and
recommendations accessible on the internet banking site about security and my
role therein. I acknowledge further that:
3.7.2.1
any failure on my part to follow the recommended
security procedures may result in a breach of my internet banking profile’s
confidentiality and may lead to unauthorised transactions between accounts
linked to my internet banking profile;
3.7.2.2
any software downloaded by me from the Internet,
whether from the bank's Internet site or not, is third-party software, the
licensing of which shall be subject to such terms and conditions as the
licensor of such software may impose. The bank is not a party to any licence
agreement entered into by me and thus makes no warranties relating to such
software, including without limitation, warranties relating to suitability for
a particular purpose, security features or performance. I understand that the
use of such software shall be at my own risk and I hereby absolve and hold the
bank harmless against any loss or damage which I may suffer as a result of the
use, abuse or possession of such software.
3.7.2.3
without derogating from the provisions of clause
3.7.2.2, I am aware that the use of such third party software may be illegal in
jurisdictions outside the Republic of South Africa and/or may infringe certain
third party intellectual property rights in such jurisdictions. I understand
that, should I use any third-party software outside the boundaries of the
Republic of South Africa, it shall at all times be incumbent upon me to
ascertain the legality of such use and to obtain all necessary licences and
permissions from the relevant parties. I accordingly absolve and hold the bank
harmless against any and all liability which I may incur in this regard.
4
I understand and accept that:
4.1 I
may link a business account or an account requiring multiple signatures to my
profile only if I submit to the bank a resolution to this effect;
4.2 once
the bank has received and implemented an instruction given by me via any of the
systems, I shall not be entitled to countermand or amend such instruction.
5
I hereby warrant that every instruction and all
information given to the bank shall be accurate, correct and in accordance with
the bank’s prescribed procedures.
6
The bank shall:
6.1 not
be required to inquire into the authority of any person using the systems, or
any of them;
6.2 be
and is hereby authorised to debit my accounts with the amounts of the
transactions effected via the systems, or any of them, except amounts in
respect of unauthorised use after receipt by any branch of the bank of written
notice by me in terms of clause 3.5.3;
6.3 be
entitled to debit my accounts with the amount of any fees payable to the bank
from time to time for the use of the systems, or any of them.
7
I hereby indemnify the bank against any demand, claim
or action against it relating to or in connection with my use of the systems,
or any of them, whether directly or indirectly, unless such demand, claim or
action shall have arisen from the gross negligence or willful misconduct of the
bank or any of its employees (in which case the matter shall be dealt with on
its legal merits).
8
Any demand, claim or action arising against the bank
in terms of clause 7 shall be limited to my direct damages and, without
limiting the generality of the clause, I agree that the bank shall not be
liable for:
8.1 any
amount that is not part of the actual amount of a transaction;
8.2 any
indirect, special or consequential damages;
8.3 any
loss or damage occasioned by the failure to adhere to these terms and
conditions and/or any incorrect information furnished by me, including, without
limitation, any failure by me to adhere to the terms and conditions of clauses
3.5 and 3.7;
8.4 any
loss or damage occasioned by the failure or unavailability of third parties’
facilities or systems or the inability of any third-party to process a
transaction. For the purposes of this clause, ‘third- parties’ include, without
limitation, the South African Post Office Limited, the Automated Clearing
Bureau (Proprietary) Limited, the Building Societies Data Bureau (Proprietary)
Limited and all financial institutions where the destination accounts are kept;
8.5 any
loss or damage that may arise from the use, misuse, abuse or possession of any
third-party software including, without limitation, any operating system
software, browser software, or any other software packages or programs;
8.6 any
failure or unavailability of the systems, or any of them, or failure by the
bank to perform a transaction as a result of the loss or destruction of data,
the deterioration or corruption of storage media, power failures, natural
phenomena, riots, acts of vandalism, sabotage, terrorism or any other event
beyond the bank’s control;
8.7 any
inability of the financial institution where a destination account is kept to
process a transaction;
8.8 any
destruction or accessing of my data or any destruction or theft of, or damage
to, any of my equipment;
8.9 any
unauthorised access to my accounts or any breach of security.
9
I acknowledge that, should I breach any of these
terms and conditions, the bank shall be entitled, without notice, to cancel
this agreement and withdraw the facilities under the systems with immediate
effect, without prejudice to any rights it may have to recover any amounts due
to it or any losses or any damages suffered by it in consequence of my breach.
10 I
shall be entitled to cancel my internet banking profile at any time, provided
that I give the bank at least 7 (seven) day’s written notice of my intention to
do so.
11 I
acknowledge that I shall not be entitled to cede, transfer or make over my
rights in and to the facilities or the use of the systems, or any of them, to
any other person.
12 Should
I make use of the bank’s internet banking system, I acknowledge that I shall be
responsible for all steps necessary to acquire access to the Internet and for
ensuring the security and confidentiality of such method of access. I
acknowledge further that the bank shall not be liable for any loss or damage
whatsoever which I may suffer as a result of the use, misuse or abuse of my
Internet access.
13 I
irrevocably undertake and warrant that I shall not make any claim or institute
any action against the bank should I incur any injury, loss or damage, whether
directly or indirectly, arising out of, in connection with or relating to the
use, misuse or abuse of my Internet access.
14 Should
any dispute arise at any time between the bank and me relating to any matter
arising out of any use of the systems, such dispute shall be finally resolved
in accordance with the rules of the Arbitration Foundation of Southern Africa
by an arbitrator or arbitrators appointed by the Foundation.
14.1 In
pursuance of clause 14, I agree that:
14.1.1
either I or the bank may demand that a dispute be
referred to arbitration by giving written
notice to that effect to the other party;
14.1.2
this clause shall not preclude either me or the bank
from obtaining interim relief on an urgent basis from a court of competent
jurisdiction pending the decision of the arbitrator;
14.1.3
the arbitration referred to in 14 shall be held:
14.1.3.1 at
Johannesburg in the English language; and
14.1.3.2 immediately
and with a view to its being completed within 21 (twenty-one) days after it is
demanded;
14.1.4
I irrevocably agree that the decision in arbitration
proceedings:-
14.1.4.1 shall
be final and binding upon me;
14.1.4.2 shall
be carried into effect;
14.1.4.3 may
be made an order of any court of competent jurisdiction.
14.2 This
clause 14 is severable from the rest of these terms and conditions and shall
remain valid and binding on me notwithstanding any cancellation by me of my
internet banking profile or any withdrawal by the bank of the systems, or any
of them, and/or my internet banking profile.
15 This
agreement shall be governed by and construed in accordance with the law of the
Republic of South Africa and all disputes, actions and other matters relating
thereto will be determined in accordance with such law.
16 Notwithstanding
the aforegoing terms and conditions, I acknowledge and accept that the bank may
from time to time amend such terms and conditions, insofar as they relate to my
use of the internet banking system. In pursuance of the aforegoing, I therefore
confirm that:
16.1 I
am aware that all such changes shall be reflected in the terms and conditions
published on the internet banking site;
16.2 by
entering my profile number and PIN to gain access to the internet banking
system, I thereby bind myself to the terms and conditions in force at that
time, as they appear on the internet banking site.
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