Please read the following terms and conditions carefully
Acceptance of Conditions of Access
The following are the terms and conditions on which you may use the Absa Capital website (the "Site") and they become effective when you access the Site for the first time and constitute a binding agreement between you and Absa Capital, a division of Absa Bank Limited, 1986/004794/06 or its co-subsidiaries or affiliates, as the case may (“Absa Capital”). The current version of these terms and conditions govern our respective rights and obligations each time the Site is accessed by you.
Use of Site
We may in our sole discretion terminate your access to or use of this Site for any reason, including without limitation where we believe that you have not acted in accordance with the terms and conditions of this Site.
Amendments to these terms and conditions
We may amend these terms and conditions from time to time. All amendments to the terms and conditions will be posted on the Site. Unless otherwise stated, the current version of the terms and conditions will supersede and replace all previous versions of the terms and conditions.
Disclosure of interests
Absa Capital or its employees may, from time to time, maintain a long or short position in securities referred to on the Site or other securities of issuers referred to on the Site or in related futures or options; purchase or sell, make a market in, or engage in any other transactions involving such securities or issuers, earn brokerage or other compensation in respect of the foregoing; and provide investment banking, credit or other services to any issuer named on the Site. Absa Capital may have acted as manager or co-manager of a public offering of securities discussed on the Site in the past three years.
Information on this Site
All information on the Site is only intended to provide you with general information relating to us, our products and services. The information provided on this Site does not constitute an offer but may be treated as an invitation to do business.
We may provide information from time to time on projected revenues, income, earnings per share, capital expenditures, dividends, capital structure or other financial items; the plans, objectives and/or projections of the bank for future operations, including those relating to the services of the bank; or future economic performance. Such projections are only estimates. Actual events or results may differ
You acknowledge that all calculations done through the use of software or calculators supplied on this Site, including the rates, are guidelines only and subject to final confirmation at the time of finalizing the transaction. Any pricing is indicative and does not, and is not intended to, constitute either an offer to buy or sell or a representation that a purchase or sale can be effected at that price. Past performance is not indicative of future results. All information regarding the product and services including information in respect of the terms and conditions, interest rates, pricing or any other matters are subject to change without notice.
Privacy and Security
, the terms of which are incorporated into these terms and conditions and the information in our Security Policy.
Third Party Information and Sites
We may use the services of other third party organizations to provide information on this Site. We have no control over the third party information and make no representations or warranties of any nature as to its accuracy, appropriateness or correctness. We will not be directly or indirectly liable for any damages that may arise from your reliance on it.
Where we provide hypertext links to third party internet web-sites, such links are not an endorsement by us of any products or services in such web-sites. You use such links entirely at your own risk and we accept no responsibility or liability for the content, use or availability of such web-sites. We have not verified the truth or accuracy of any content of such web-sites. No third party is permitted to link any other web-site to this Site without obtaining our prior written consent.
Our online services and products (“Services”) are subject to registration and approval, which we may, in ore sole discretion, accept or reject. The Services are subject to separate terms and conditions that are available on the relevant sections of this Site where the online services and products are provided.
In the event of conflict between these terms and conditions and those of the Services, the provisions of the Services terms will apply.
Nothing on this Site should be construed as a solicitation or offer, or recommendation, to acquire or dispose of any investment or to engage in any other transaction, or to provide any investment advice or service.
Although we have taken all reasonable care to ensure that the information provided on this Site is accurate, we give no warranties of any kind. ALL CONTENT AND THE WEB SITE ITSELF ARE PROVIDED “AS IS” WITHOUT ANY WARRANTY OF ANY KIND. ABSA CAPITAL MAKES NO REPRESENTATIONS OR WARRANTIES (WHETHER EXPRESS OR IMPLIED) AND, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY EXPRESSLY DISCLAIMS ANY AND ALL EXPRESS, IMPLIED AND STATUTORY REPRESENTATIONS AND WARRANTIES OF ANY KIND TO USER AND/OR ANY THIRD PARTY INCLUDING, WITHOUT LIMITATION, ANY WARRANTY AS TO ACCURACY, TIMELINESS, COMPLETENESS, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND/OR FREEDOM FROM COMPUTER VIRUS. Opinions and any other content on the Site are provided by us for personal use and informational purposes only and are subject to change without notice.
Nothing contained on the Site constitutes investment, legal, accounting, tax or other advice and the information contained on the Site is not to be relied on in making an investment or other decision. You should obtain your own relevant and specific professional advice before making any investment decision.
WE WILL ACCEPT NO LIABILITY IN ANY EVENT INCLUDING (WITHOUT LIMITATION) NEGLIGENCE FOR ANY DAMAGES OR LOSS OF ANY KIND, INCLUDING (WITHOUT LIMITATION) DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, EXPENSES OR LOSSES ARISING OUT OF, OR IN CONNECTION WITH YOUR USE OR INABILITY TO USE THE SITE, OR IN CONNECTION WITH ANY ERROR, OMISSION, DEFECT, COMPUTER VIRUS OR SYSTEM FAILURE, OR LOSS OF ANY PROFIT, GOODWILL OR REPUTATION, EVEN IF EXPRESSLY ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE ACCESS OF, USE OF, PERFORMANCE OF, BROWSING IN OR LINKING TO OTHER SITES FROM THIS SITE.
We reserve the right to modify, suspend or discontinue, temporarily or permanently, the Site or any part of it, with or without notice, at any time. You agree that we shall not be liable to you or to any third party for any such modification, suspension or discontinuance of the Site.
These terms and conditions will be governed and construed in accordance with the law of the Republic of South Africa without reference to any conflict of law provisions and you agree that the South African Courts shall have exclusive jurisdiction to determine any matter or dispute in connection with or arising out of this Site and these terms and conditions.
Please do not send confidential information over the Internet. Information is sent at your own personal risk. Internet communications may not be secure. We recommend that you do not send confidential information to us over the Internet unless it is sent by way of a secure method of transmission using appropriate encryption technology. Absa does not accept legal responsibility for any loss or damage suffered as a result of confidential information sent to us over the Internet.
Monitoring of Communications
You expressly give your consent for us to monitor your internet and e-mail traffic on our website. You acknowledge that we monitor internet and e-mail traffic on the website primarily to ensure that users and consumers are not acting illegally, unlawfully or in breach of these terms and conditions and:
- to maintain the integrity and security of our website and information technology systems;
- to investigate and detect any unauthorised use of our website and information technology systems; and
- as an inherent part of and to secure the effective operation of our website and information technology systems.
We retain all copyright and other intellectual property rights in all material, including logos and other graphics and multimedia works published on or via the Site.
The logos and trademarks shown on this Site are our registered and unregistered trademarks or that of third parties. Nothing on this Site should be construed as granting any licence or right to use any trademark without our prior written permission and/or that of third parties, as the case may be. You may not, without our prior written permission, use our intellectual property and you should obtain the consent of the relevant third parties to use such third parties’ intellectual property.
The entire content of this Site is subject to copyright with all rights reserved and the information held is for your own personal use only. You may reproduce this information in hard copy solely for your personal use. The information may not otherwise be reproduced, distributed or transmitted to any other person or incorporated in any way into another document or other material. The information and software on this Site may not be taken out of context or presented in an unfair, misleading or discriminating manner. You agree not to remove any copyright notice or other notice signifying Absa Capital or any third party’s intellectual property rights. Except as expressly provided herein, nothing contained on this Site shall be deemed or construed to confer any license or right, expressly, by implication, estoppel or otherwise, under any of Absa Bank’s intellectual property rights.
Copyright Absa Bank Limited, 2011 (all rights reserved).
The headings of the clauses in the conditions are provided for convenience and ease of reference only and will not be used to interpret, modify or amplify the terms and conditions.
Where any dates or times need to be calculated in terms of the terms and conditions, the international standard time: GMT plus two hours shall be used. No failure or delay by us to exercise any of our rights will be construed as a waiver of any such right, whether this is done expressly or implied, nor will it affect the validity of any part of these terms and conditions or prejudice our right to take subsequent action against you.
If any of these terms, conditions or provisions are held to be invalid, unlawful or unenforceable; the term, condition or provision will be deleted from the remaining terms, conditions and provisions which will continue to be valid to the full extent permitted by law.
1.Scope: These Absa Capital Services Terms (“Terms”) apply to your access and use of any Absa Capital Service. They supplement any relevant product-specific agreement (e.g. ISDA) between you and Absa Capital. In using an Absa Capital Service or clicking the “Accept” button below, client consents to these Terms, including the electronic delivery of required information and the use of client’s personal information for operational purposes. Client agrees to comply with the PACE FX User Guidelines, as amended from time to time, and other reasonable instructions notified to client relating to the use of Absa Capital Services.
2.Logons and Security: Client must keep each Logon issued to it secret and ensure that it is used only by the individual or system for whom issued. Client is liable for all use or misuse of any such Logon and will comply with all reasonable instructions notified to it from time to time relating to any such Logon. Client will promptly inform us if it suspects that the security or functionality of any Logon or Absa Capital Service has been compromised. We will not be liable for any resulting transactions concluded in the client’s name, but which have not been notified to us within 24 hours, client must successfully log off from the Absa Capital Service after each session. We may, in our sole discretion, and without notification to client, end a session if: (a) we deem the client’s conduct to be inappropriate or illegal; or (b) client breaches these Terms.
3.Third Party Information and Websites: We may use the services of other third party organisations to provide information on this Absa Capital Service. We have no control over the third party information and make no representations or warranties of any nature as to its accuracy, appropriateness or correctness. We will not be directly or indirectly liable for any loss or damages that may arise from your reliance on it. Where we provide hyperlinks to third party internet web-sites, such links are not an endorsement by us of any products or services in such web-sites. You use such links entirely at your own risk and we accept no responsibility or liability for the content, use or availability of such web-sites. We have not verified the truth or accuracy of any content of such web-sites. No third party is permitted to link any other web-site to this Absa Capital Service without obtaining our prior written consent.
4.Help Desk: When client phones the Help Desk, a Help Desk consultant may request certain information from it in order to verify its identity. The Help Desk consultant will, however, never request client to reveal its Logon details. For more information on the Help Desk please see www.barcap.com/abcap/pacefx/help.
5.Instructions: Client authorises us to act (without further enquiry) on any instruction given or appearing to be given using a Logon and received by us in relation to any Absa Capital Service (“Instruction”). Client is not required to submit Instructions; and we are not required to act on any Instruction or to execute any transaction. We have no responsibility for transmissions that are inaccurate or not received by us, and we may implement an Instruction on the terms actually received by us. Where an Absa Capital Service permits, you may send cancellations of an Instruction before it is executed; a cancellation is only effective when we inform you. We may cancel a transaction executed at a manifestly erroneous price or volume or where a Regulator requires. Acts and omissions of client’s Authorized Users are deemed for all purposes to be the actions of client.
6.Transactions: Price information on an Absa Capital Service is indicative only; a transaction shall only be binding when we send an acknowledgment to client, including by electronic means. We may send a subsequent definitive confirmation to client in relation to such acknowledged transaction.
7.No Advice: We are not soliciting any action based upon use of any Absa Capital Service. ABSA CAPITAL DOES NOT MAKE ANY RECOMMENDATION AS TO THE SUITABILITY OF ANY INVESTMENT OR PROPOSED TRANSACTION. CLIENT ACKNOWLEDGES THAT WE WILL NOT, AND ARE UNDER NO DUTY TO, PROVIDE ADVICE IN RELATION TO ANY SUCH TRANSACTION OR PROPOSED TRANSACTION THROUGH ANY ABSA CAPITAL SERVICE. Client agrees that (a) the ABSA CAPITAL Services are not and will not be the basis for any of its investment decisions and (b) it is solely responsible for (i) any investment or trading decisions it makes with respect to products available via any Absa Capital Service and (ii) determining whether any transaction is suitable, appropriate or advisable for it or its clients. Provision of the Absa Capital Services does not make us an advisor or fiduciary for client or its managed or fiduciary accounts. These Terms do not constitute an offer to sell or solicitation of an offer to buy securities or other financial instruments.
8.Intellectual Property: We grant client a non-exclusive, non-transferable, personal licence to use (but not modify) each Absa Capital Service, subject to these Terms, solely for client’s internal use (for viewing data and sending Instructions) and if client is a broker-dealer, investment manager or investment advisor, as agent on behalf of its clients, but otherwise not for use on behalf of third parties. All rights not expressly granted are reserved. Client acknowledges that all intellectual property rights in the Absa Capital Services, including the trademark Absa Capital, belong to us or our licensors and are protected under applicable law. Certain aspects of Absa Capital Services may be provided by third parties and client will comply with additional restrictions on usage notified to client that they may impose.
9. Representations and Warranties: Each party represents and warrants to the other that it has all necessary authorisations and capacity to enter into and perform its obligations under these Terms and client has duly completed and returned to Absa Capital the Resolution and Authorised Signatory form attached hereto as Annex A.
10.Client Indemnity: Client hereby indemnifies Absa Capital and its Related Parties against all Losses arising from client’s use of an Absa Capital Service and any claims by a third party in relation to client’s use of a Absa Capital Service, except to the extent caused by our gross negligence, fraud or wilful misconduct.
11.Absa Capital Indemnity: If any third party claims that client’s use of Proprietary Absa Capital Services in accordance with these Terms infringes its intellectual property (an “IP Claim”), and client (a) notifies us promptly of any actual, or threatened IP Claim, (b) does not make any admission of liability, (c) assists us in responding to the IP Claim, and (d) allows us to control discussions and litigation relating to the IP Claim, then Absa Capital will indemnify client against damages finally awarded against client and reasonable legal expenses incurred by client in dealing with the IP Claim except to the extent the IP Claim arises as a result of (i) the combination by client or its agents of any Absa Capital Service with other technology if such claim would have been avoided absent such combination, or (ii) modification by client or its agents of any Absa Capital Service. This paragraph states our entire obligation and client’s sole remedy regarding intellectual property infringement.
12.DISCLAIMER: SAVE AS EXPRESSLY SET OUT IN THESE TERMS, EACH ABSA CAPITAL SERVICE IS PROVIDED “AS IS”. ABSA CAPITAL AND ITS RELATED PARTIES MAKE NO WARRANTY, REPRESENTATION OR OTHER ASSURANCE IN CONNECTION WITH ANY ABSA CAPITAL SERVICE, INCLUDING AS TO AVAILABILITY, ACCURACY, COMPLETENESS, RESULTS, FUNCTIONALITY, RELIABILITY, PERFORMANCE, TIMELINESS, NON-INFRINGEMENT, SUITABILITY, QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE. ALL REPRESENTATIONS, WARRANTIES AND ASSURANCES (STATUTORY, IMPLIED OR OTHERWISE) ARE EXCLUDED. WE AND OUR RELATED PARTIES HAVE NO LIABILITY TO CLIENT OR THIRD PARTIES IN CONNECTION WITH ANY ABSA CAPITAL SERVICE OTHER THAN FOR WILFUL DEFAULT, GROSS NEGLIGENCE AND FRAUD AND UNDER PARAGRAPH 10 (CLIENT INDEMNITY) ABOVE. FURTHER, WE ARE NOT LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL LOSSES WHICH CLIENT MAY INCUR OR EXPERIENCE IN CONNECTION WITH THIS AGREEMENT OR USE OF ANY ABSA CAPITAL SERVICE, EVEN IF WE KNEW OF THE POSSIBILITY OF THOSE LOSSES. Client is solely responsible for any losses, damages or costs resulting from your or its reliance on any data that we or our Related Parties may provide in connection with client’s use of the Absa Capital Services. NOTHING IN THESE TERMS LIMITS OR EXCLUDES ANY LIABILITY TO THE EXTENT CONTRARY TO APPLICABLE LAW.
13.Market Data: We and any provider of Market Data are not liable (a) if the Market Data is inaccurate or incomplete in any respect or (b) for any actions that client takes or does not take based on it. Client will use Market Data solely as part of an Absa Capital Service and will not redistribute or disclose it, save as required under Applicable Regulations. Market Data is the intellectual property of us or our licensor(s). We may collect trade-related data and aggregate it with data of other users such that no user can be readily identified. We shall own all rights in that aggregated data.
14.Usage Information: If we have an enquiry relating to client’s use of an Absa Capital Service, client will promptly provide us and/or Regulators with any information, access to premises or systems or assistance reasonably requested by us or any Regulator. Any attendance at client’s premises will, unless Applicable Law otherwise requires, be subject to reasonable prior notice and client’s reasonable security and confidentiality procedures.
15.Investment Managers: If client is an investment manager or agent, client agrees that (a) it is executing these Terms on its own behalf and as agent of client’s principals, (b) client has all requisite authority to so execute and to effect transactions through the Absa Capital Services on behalf of its principals, (c) all such transactions will be suitable and/or appropriate for the principals (to the extent client has a duty under Applicable Regulations to ensure this) and (d) client will give us prior notice of any principals on whose behalf it will use an Absa Capital Service and client has duly completed and returned to Absa Capital the Resolution and Authorised Signatory form attached hereto as Annex A. Client will indemnify us against any claims by client’s principals in respect of the Absa Capital Services.
16.Compliance with laws: Client will comply, and co-operate with us in complying, with all Applicable Laws when using or accessing any Absa Capital Service.
17.Regulatory: Client confirms that it is an experienced corporate or institutional investor. Client acknowledges that we may trade for our own account or for others on the same markets and in the same products (including at different prices or using different strategies than those available via any Absa Capital Service), which could affect the value or terms of client’s transactions.
18.Compliance with South African Exchange Control: The client undertakes to comply with all the provisions of the Exchange Control Regulations promulgated in terms of the Currency and Exchanges Act, 1933 (Act No. 9 of 1933) (“the Exchange Control Regulations”) and the Exchange Control Rulings issued by the Exchange Control Department of the South African Reserve Bank pursuant to the Act (“the Exchange Control Rulings”) and warrants that any transaction entered into by it using the Absa Capital Service complies with the provisions of the Exchange Control Regulations and the Exchange Control Rulings.
19. Transactions entered into by Clients other than authorised dealers as defined in the Exchange Control Regulations: Client confirms and represents that any instruction it gives or transaction it enters into using any Absa Capital Service is purely aimed at covering a firm and ascertained exposure to possible losses as a result of adverse movements (a) in currency exchange rates, interest rates or commodity prices arising from an underlying transaction with a non-resident of the Republic of South Africa if it is a resident of the Republic of South Africa, or (b) in currency exchange rates, interest rates or commodity prices or in respect of credit exposures (other than credit exposures in respect of foreign currency denominated securities issued by South African residents or in respect of securities issued by non-residents) arising from an underlying South African exposure if it is a non-resident of the Republic of South Africa, in both cases arising from a transaction which is permitted in terms of the Exchange Control Rulings or in respect of which transaction a specific South African
Reserve Bank authority has been granted.
20.Jurisdictional Disclaimer: The website is maintained by Absa Capital and is made available to Absa Capital clients. This website is not directed to, nor intended for distribution or use by, any person or entity in any jurisdiction or country where the publication or availability of this website or such distribution or use would be contrary to local law or regulation. If you choose to access information on this website, it is your responsibility to comply with the applicable local, national or international laws and any use of this website outside of South Africa is entirely at your own risk. Applicants may be granted access to the
Absa Capital Services once we are satisfied that such access would not be in breach of the relevant laws of the jurisdiction in which the applicant is resident, registered or domiciled.
21.Confidentiality & Privacy/Data Protection: Without the other’s consent, neither party shall disclose or use for any purpose except as contemplated under these Terms or the relevant product agreement (e.g. ISDA) any information disclosed to it by the disclosing party in connection with an Absa Capital Service, except to the extent that such information is (a) already available in the public domain, other than as a result of a breach of these Terms, (b) already known to the receiving party at the time of disclosure, (c) required to be disclosed under Applicable Laws or court order or (d) requested by a Regulator. Client hereby consents that we may disclose information to our agents and suppliers (provided that they are subject
to confidentiality obligations). Client hereby consents that we may store and use the contact details of the client, Authorised Users and the Security Administrator in countries worldwide (including countries outside South Africa). Neither client nor we shall make any public announcement relating to client’s use of the Absa Capital Services without the other’s prior written consent.
22.Monitoring of Communications: You expressly give your consent for us to monitor your internet and/or e-mail traffic on the Absa Capital Service. You acknowledge that we monitor internet and e-mail traffic on the Absa Capital Service primarily to ensure that users are not acting illegally, unlawfully or in breach of these Terms and: we monitor internet and e-mail traffic on the Absa Capital Service primarily to ensure that users are not acting illegally, unlawfully or in breach of these Terms and:
23.Notices: In accepting these terms, client agrees to the provision of notices (including acknowledgments, confirmations, statements and communications required under Applicable Laws) by email and other electronic means as permitted under Applicable Laws and such electronically delivered documents shall be deemed to be “in writing”; client may revoke this consent by written notice to us, but client’s access to an Absa Capital Service may be terminated.
24.Amendments: We may amend these Terms by 10 or more days’ written notice to client (or immediately if a change is required under Applicable Laws). All amendments to the Terms will be posted on the Absa Capital Service.
25.Third party rights: These Terms are for the benefit of Absa Capital, Related Parties, our suppliers, our agents and client. No other third party has rights under these Terms.
26.Further assurances: Client shall cooperate with any reasonable request we may make to give full effect to these Terms and any Instruction and to protect our and Related Parties’ rights in the Absa Capital Services.
27.Termination: This Agreement is effective until terminated by either party upon written notice to the other. We may suspend, limit or terminate client’s access to all or part of any Absa Capital Service (with or without cause or notice).
28.Governing law and jurisdiction: These Terms are governed by the laws of South Africa and client hereby submits to the exclusive jurisdiction of the courts of South Africa. If there is a conflict between these Terms and the terms of a product-specific agreement, the terms of the product-specific agreement will prevail. For some Absa Capital Services, exchange or trading system rules may also apply.
29.Breach of these Terms: Should client breach these Terms, we will be entitled, without prejudice to our rights in terms of the Terms or at law, to claim damages from client, commence criminal proceedings and/or obtain an interdict against client, as appropriate.
30.Miscellaneous: These Terms (and the BARX User Guidelines) are the parties’ entire agreement and supersede all previous agreements on the matters covered by these Terms.
Neither party may assign the Agreement without the other’s written consent; any assignment in breach is void. However, we may assign this Agreement to any Affiliate or to any entity which succeeds to all or substantially all of our assets and business. The following paragraphs of these Terms shall survive termination: 8-14, 18-24 and 27-29.
31.Update of Terms: These Terms were last updated on 01 November 2009.
32.Definitions and interpretation: Headings are for ease of reference only. The following terms shall have the following meanings ascribed to them:
32.1. to maintain the integrity and security of the Absa Capital Service and Absa Capital information technology systems;
32.2 to investigate and detect any unauthorised use of the Absa Capital Service and Absa Capital information technology systems; and
32.3 as an inherent part of and to secure the effective operation of the Absa Capital Service and Absa Capital information technology systems.