SECTION D - TERMS AND CONDITIONS

 

TERMS OF USE AND AGREEMENT OF THE SOFTWARE, PLATFORMS AND INFRASTRUCTURE (SPI) OF EXCHANGE TRUST

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.

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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. 

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2. PROHIBITED USE OF THE SPI

No Member or User shall use the SPI:

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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. 

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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: 

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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: 

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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. 

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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. 

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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.

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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: 

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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. 

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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:

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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 certifiedpost@exchangetrust.co.za 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. 

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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.

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10. LIMITATION OF LIABILITY

The ETSS liability for the lawful use of the SPI to any Member or User shall be limited to:

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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.

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11. CONFIDENTIALITY

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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.

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13. TERMINATION

 

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. WARRANTY

 

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. GENERAL

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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. 

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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:

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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

(iii)arbitration

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.

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17. USER REQUESTED MODIFICATIONS AND SERVICE ERRORS

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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. FEES

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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.

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19. STANDARD SUPPORT AND OFFICE (WORKING) HOURS

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(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 support@exchangetrust.co.za (Managed during the above Office Hours)