Bank approved beneficiary service

Terms and conditions

A. Beneficiary directory file service

1. Specific terms and conditions

1. These specific terms and conditions for the Beneficiary Directory File Service ('the service') must be read together with the Master Electronic Banking Agreement ('MEBA'), if the Bank and the Client ('parties') have concluded a MEBA. Alternatively, if the parties have not concluded a MEBA, these service terms and conditions must be read with the electronic banking terms and conditions in section B below. These will form the agreement between the parties for the service.

2. The Bank ('we' or 'us') will be entitled to modify, replace or withdraw the service at any time.

3. The Client ('you'):

1. will be responsible for the prompt processing of the information received from us and the allocation of the payments received to your customer's accounts;

2. will return such amount to us within 10 days of us notifying you if payment is made to you in error;

3. acknowledge that we will not become a party to any third-party or customer disputes; and

4. acknowledge that we cannot accept any payments made using the service where an incorrect reference number has been inserted, and we will bear no liability arising from or as a result of payment we did not accept due to such an error.

4. We will transfer the value of all payments that your customers make to your nominated account and we will give you a payment schedule daily and in line with the instructions set out in the payment and delivery section of the application.

5. The service charges you have to pay are set out in an application or are as agreed in writing by the parties.

6. You authorise us to debit your nominated account monthly in arrears with any service charges and other amounts due to us for, or arising from, the use of the service.

7. You must give us prior written notice of any changes concerning the nominated account and/or your charge account for billing purposes or for any of the other particulars specified in the application.

8. You are responsible for notifying your customers of any changes to your banking details.

B. Electronic banking terms and conditions

1. Important notice

The electronic banking terms and conditions that appear in bold:

• may limit our risk or liability or that of a third party; 
• may create risk or liability for you; 
• may compel you to indemnify us or a third party; and/or
• serve as an acknowledgement by you of a fact.

Your attention is drawn to these terms and conditions because they are important and should be carefully noted.

Nothing in these terms and conditions is intended, nor must it be understood, to unlawfully restrict, limit or avoid any rights or obligations, as the case may be, created for you in terms of the Consumer Protection Act, 68 of 2008, to the extent that such legislation is applicable.

2. Definitions and interpretations

1. The following words have the following meanings:

1. 'Administrator' means any person appointed by the Designated person(s) whose functions include, but may not be limited to, the following: accessing and using the Service; giving instructions about adding, deleting and maintaining bank accounts and modules; authorising payment, collection and transfer instructions; and appointing and terminating users.

2. 'Agreement' means the specific terms and conditions of the Service as referred to in clause 1 above, together with these electronic banking terms and conditions, as amended, replaced or superseded from time to time, together with any schedules.

3. 'Application' means either the application form completed by the Designated person(s) for the Service, or the letter from us to you with the necessary Client data and information and certain terms regarding the Service.

4. 'Available balance' means the amount standing to the credit of a relevant bank account, and any credit facilities up to the limit we have granted to the accountholder for that account.

5. 'Bank' or 'we' or 'us' means Nedbank Limited, registration number 1951/000009/06, a company with limited liability and a bank registered in line with the laws of South Africa.

6. 'Business day' means any day other than a Saturday, Sunday or a proclaimed public holiday in South Africa.

7. 'Client or you' means the person, whether natural or juristic, who has applied for and is using the Service and/or is described as the Client in the Application; also referred to as the main participant.

8. 'Designated person' means any person(s) you have appointed to accept the Agreement and any amendment(s) and/or addition(s) to that, to appoint and end the appointment of Administrators and generally to perform any act or do anything prescribed concerning this Agreement and any addendum and/or schedule and/or addition to that on your behalf.

9. 'Effective date' means the date on which the Service started as set out in the Application, or the date on which you began using the Service.

10. 'Intellectual property' means any knowhow (that is not in the public domain), invention, patent, design, trademark, copyright material, goodwill, processes, methodology and all other identical or similar intellectual property that may exist anywhere in the world and any applications for registration of such intellectual property.

11. 'Helpdesk' means the Nedbank Contact Centre, which can be reached through the contact details communicated to you from time to time.

12. 'Parties' means you and us.

13. 'Portal' means the Nedbank website at –

14. 'Service' means the bank-approved beneficiary service described in Section A above, as amended from time to time.

15. 'User' means any person whom the Administrator appoints to access the Service and capture data and/or authorise payment, collection and transfer instructions on your behalf as may be explained more fully in the Application.

2. In the Agreement:

1. Clause headings are for convenience and are not to be used in the interpretation.

2. No provision will be interpreted against a Party by reason of such Party having or being deemed to have structured or drafted such provision.

3. Unless the context indicates a contrary intention, an expression that denotes:

2.2.3.1 any gender includes the other genders;

2.2.3.2 a natural person includes a juristic person and vice versa; and

2.2.3.3 the singular includes the plural and vice versa.

4. Any substantive provision conferring rights or imposing obligations on any of the parties and appearing in any of the definitions in clause 2.1 or elsewhere in the Agreement will be given effect to as if it were a substantive provision.

5. The word 'clauses' refers to clauses of the Agreement.

6. Any reference to 'days' will be interpreted as a reference to calendar days, unless qualified by the word 'business', in which instance the definition of business day will apply. Unless specifically otherwise provided, any number of days prescribed is determined by excluding the first and including the last day or, where the last day falls on a Saturday, Sunday or public holiday, the next business day.

3. Start and duration

1. Unless otherwise agreed, the Agreement will start on the Effective date and will continue for as long as we render the Service to you.

2. Either party may end the Service with 30 days' written notice to the other Party.

4. Service

1. We will render the Service to you depending on the terms and conditions of the Agreement.

2. It is your responsibility to keep up to date with the Service terms and conditions as set out on the Portal.

3. Unless you make a specific enquiry and we answer that enquiry in writing, we do not claim the suitability of any of your information technology systems for receiving, accessing or using the Service.

4. At our sole and absolute election, we are entitled to subcontract any of our obligations below to any other person or entity and may retain third parties to perform the Service. Despite the above, no subcontractor(s) or third party/parties will become a Party/Parties to the Agreement.

5. You must at all times cooperate with us and/or any of our third parties rendering the Service.

6. You may log all Service-related issues with the helpdesk.

7. You will need to give us a copy of your resolution authorising the Designated person(s) and confirming such Designated person's authority to accept the Agreement, which must be in the form and substance specified by us.

8. The Service and the terms of this Agreement will at all times, depending on the application of the Consumer Protection Act, in the instance that you are a consumer for purposes of that act, depend on (and may be amended in line with the requirements of) the Code of Banking Practice and our agreements with South African Bankers Services Company Limited, as well as all applicable legislation and regulations, as may be amended from time to time.

9. We may at our sole and absolute discretion, which will be exercised reasonably, at any time and with reasonable notice to you amend or withdraw the Service, and in such event we will amend the fees and charges for the Service accordingly to take such change into account.

10. We will, where applicable, give you devices, certificates, passwords, user numbers or any other authentication mechanisms, as well as any replacement of these (if applicable), at your request. You acknowledge that you have sole responsibility for and retain all risk in and to all passwords, PINs, user numbers, certificates, devices and/or or any other authentication mechanisms, and neither you nor any other person will have any recourse against us, including any claim for loss, injury or damage, for any reason, relating to or arising from the loss, theft, use or misuse of the password, PIN, user number, certificate, devices and/or or any other authentication mechanisms after delivery of these to you, except if such loss, injury or damage arises as a consequence of our gross negligence or wilful misconduct or that of any person acting on our behalf. You acknowledge that we may retain ownership of some or all of the certificates, devices and/or or other authentication mechanisms and, on our request, you are obliged to return to us such certificates devices and/or or other authentication mechanisms.

11. We will use reasonable commercial endeavours to make sure that the Service is available and that our technology infrastructure is protected to enable us to render the Service to you.

5. Fees and charges

1. You are liable to us for the fees and charges for the Service, and such fees and charges will be due and payable as set out in the pricing letter or fees schedule, as applicable, that we have given. We are mandated and entitled to debit the fees against any of your bank accounts.

2. We will charge interest on all overdue fees and charges at a rate that is equal to the ruling South African Reserve Bank repurchase rate ('the repo rate') from time to time, times two, plus 10%, unless we agree otherwise in writing.

3. Unless otherwise specified, all fees and expenses set out in this agreement are exclusive of value-added tax (VAT) and other statutory fees and charges. You must pay all VAT and other fees and charges that may be payable on such fees and expenses.

4. We will increase the fees set out in the pricing letter or fees schedule yearly after notifying you, in line with our standard rates.

6. Your obligations

1. To receive and access the Service you are obliged to have appropriate connectivity, which may include internet connectivity, and you must maintain and assume full responsibility for all necessary telecommunications lines, hardware, software and consumable materials required for your access to and use of the Service.

2. Where applicable, you must maintain all applicable software licence arrangements directly with the third-party licensor of any software required for you to receive, access and use the Service, and you are liable for the payment of any applicable licence fees for such software. You are also obliged to make sure, at your own cost, that the hardware, middleware and software that you use to receive, access and use the Service are kept upgraded and refreshed from time to time so as to be and remain compatible with the hardware, middleware and software used and/or specified by us from time to time to render the Service.

3. Where applicable, you are also required to:

1. comply with our specifications for the installation and configuration of your information technology systems and the minimum security requirements we set from time to time;

2. maintain a dedicated leased telecommunications line or virtual private network connection between your information technology systems and our information systems, which link must comply with the minimum technical and security requirements as we specify from time to time, and the parties must send and receive data across our prescribed link, being Connect:Direct ('the link'), and, for the link, you acknowledge and agree that:

6.3.2.1 you are granted a non-exclusive and non-transferable (whether by way of assignment, pledge, licensing or otherwise) right of use to use a single copy of the object code version of the link;

6.3.2.2 your right to use the link is limited to –

6.3.2.2.1 your internal use, as it pertains to your personal data;

6.3.2.2.2 your transmittal of data solely to and from us;

6.3.2.3 you may not –

6.3.2.3.1 use the link to process data of any third parties or in connection with the operation of a service bureau;

6.3.2.3.2 copy or distribute the link in whole or in part;

6.3.2.3.3 alter, modify, decompile, disassemble or reverse-engineer the link or apply any process or technique to the link for the purposes of ascertaining the source code;

6.3.2.4 you are getting no title to or ownership of the link or any other material(s) received because of that;

6.3.2.5 you must make sure that trade secrets, copyright, patent rights, trademarks, and other intellectual property rights in and to the link (including all materials that may be given to you in connection with maintenance support of the link) remain with the titleholder of that, and you may not transfer or disclose the above to any other person, firm or corporation; and

6.3.2.6 we will be responsible for maintenance support for the link.

4. You must give us all data we may request to enable us to prepare a client profile and you must update such data electronically as and when we require and promptly as and when such data changes.

5. You must at all times:

1. adhere to the operating, maintenance and security requirements and procedures (including encryption standards) we require from time to time and make sure that your information technology systems are free from destructive programs including, without limitation, any viruses, worms and spyware;

2. make sure of the integrity, safekeeping and confidentiality of all communication lines, data and other confidential information (such as devices, certificates, passwords and PINs);

3. where applicable, take adequate steps to make sure that your employees do not share devices, certificates, passwords or PINs with other persons, including other of your employees; and

4. make sure that the services are not accessed or used, and that no other relevant functions are performed by anyone other than a person authorised by you to do so.

6. You must, on becoming aware of any breach of the confidentiality or security obligations below or the loss or theft of any devices, certificates, PINs or passwords, immediately tell us of that in writing.

7. The use of the Service also depends on the terms and conditions applicable to your and/or any third-party bank accounts and facility agreements pertaining to such bank accounts held at the Bank in so far as you and/or a third party use(s) the Service to carry out banking transactions. If there is any conflict between the terms and conditions as they relate to your banking transactions, the terms and conditions applicable to your and/or a third party's relevant bank account(s) and any facility agreement, such bank accounts will prevail over the terms of this Agreement.

8. You may not (whether acting personally or through Administrators, users or any other person mandated by you to act on your behalf) transact in a manner that exceeds the Available balance on a bank account at any given time, unless you have made prior arrangements with us and then only in line with those arrangements.

9. You hereby indemnify us against and hold us harmless from any losses suffered or damage incurred as a result of the breach of any undertaking and/or obligation in this clause 6.

10. You must perform your obligations in terms of the Agreement at your own cost.

7. Intellectual property rights

1. We will at all times retain any and all Intellectual property rights to the Service as well as software and documents used to render the Service.

2. You may not duplicate, reproduce, decompile, reverse-engineer, create derivative works from or in any way tamper with any of our intellectual property or any device, certificate, software or documents that we may supply to you.

3. You represent and warrant that you will at all times access and use the Service and perform its obligations under this Agreement in a manner that does not form an infringement or misappropriation of any Intellectual property or other proprietary rights of ours or any third party.

8. Warranties

1. The Parties warrant and represent that:

1. they have the legal capacity and have taken all necessary corporate action required to empower and authorise them to enter into the Agreement;

2. the Agreement constitutes an agreement valid and binding on them and enforceable against them in line with its terms;

3. they will, for the duration of the Agreement, comply with all relevant legislative, regulatory or documentary requirements (including, but not limited to, South African exchange control regulations) and hold all necessary licences, certificates, authorisations and consents required under the laws of the RSA or in terms of the Agreement, as may from time to time be applicable to the Service and the use of that.

2. You warrant that:

1. all information given to us by you or anyone on your behalf concerning you or your business is true and correct in all material aspects;

2. if you represent or act on behalf of any third party (including a participant) for the purposes of the Agreement, you have the relevant legal authority to do so and hereby indemnify us against and hold us harmless from any loss or damage that we may incur, suffer or sustain, including any claim that may be made or instituted against us by you or any third party, arising out of:

8.2.2.1 any lack of or defect in authority by you to represent or act on behalf of any third party for the purposes of the Agreement;

8.2.2.2 your acting outside of the mandate of a third party's authority (including a participant); and

8.2.2.3 any failure to get consent to access a third party's bank account(s) and other information held with us;

except if such loss or damage arises as a consequence of our gross negligence or wilful misconduct or that of any person acting on our behalf.

3. You acknowledge that we will not be obliged to reverse any action you take following any instruction you gave us, although we may, at our discretion, use reasonable attempts to do so if the circumstances permit and justify such action.

4. Except for clause 8.1.3, we hereby exclude and disclaim all warranties, whether expressed, implied or tacit, about the service, including any implied warranties of satisfactory quality and fitness for a particular purpose.

9. Confidentiality undertaking

1. The Parties hereby acknowledge that they are aware that, to provide and access the Service, they will make available to one another information that may be regarded as secret and confidential.

2. Each Party must therefore treat as strictly confidential all information that: (a) they disclose in confidence; or (b) reasonably can be identified as confidential and/or proprietary to the Party that disclosed such information; or (c) is received or obtained as a result of entering into or performing in terms of the Agreement, which relates to:

1. the provisions of the Agreement;

2. the negotiations relating to this Agreement;

3. the subject matter of the Agreement; and/or

4. the other Parties.

3. Any of the Parties may disclose information that would otherwise be confidential if and to the extent required by law;

1. required by any securities exchange or regulatory or governmental body to which any Party is subject, wherever situated, whether or not the requirement for information has the force of law;

2. disclosed to the professional advisers and auditors of any of the Parties;

3. the information comes into the public domain through no fault of that Party; or

4. the affected Party has given prior written approval for the disclosure, which approval may not be unreasonably withheld or delayed;

provided that any information, to the extent permitted by law or any binding order of any court, so disclosed is disclosed only after written notification to the other Parties.

10. Events beyond the control of the parties (also called force majeure)

1. The Parties are not liable for delays or failure to perform any of their obligations under the terms of the Agreement resulting from acts beyond the reasonable control of the Parties. Such acts include, without limitation, acts of God, strikes, lockouts, riots, acts of war, civil disorder, rebellions or revolutions in any country, epidemics, acts of terrorism, vandalism or sabotage, governmental regulations imposed after the fact, communication line failures, power and telecommunications failures, earthquakes, fire, floods or other disasters ('a force majeure event').

2. If any Party is affected by a force majeure event, the affected party must, where possible, notify the other parties of that.

11. Indemnity

1. You hereby indemnify us and our employees against and hold them harmless from any and all losses suffered or damage incurred as a result of the breach of the provisions of the agreement by you acting personally or through Administrators, users or any other person mandated by you to act on your behalf) for any loss caused by any theft, fraud or other unlawful activity or any negligent, wilful or fraudulent misconduct of yours unless such loss or damage arises as a consequence of our gross negligence or wilful misconduct.

2. Any demand, claim or action arising against us in connection with the agreement and/or the service (whatever the basis of the claim) will be limited to claims for direct damage only, to the extent permissible in law. We are not liable for any special, indirect or consequential damage of any nature, to the extent permissible in law.

3. You specifically indemnify us against and hold us harmless from all demands, claims, actions, losses and damage of any nature that may be brought against us or that you or us may suffer or incur arising from:

1. any instruction you gave us, including, without limitation, any incorrect, illegible, incomplete or inaccurate information or data;

2. any inadvertent delays in accessing or using the Service, any Service interruptions, the malfunction, distortion, failure, interruption or unavailability of any hardware, software, communication links, equipment, third-party facilities or systems, or any security breaches caused by you or a third party or the inability of a third party to process a transaction;

3. any use, misuse, abuse or possession of any software used to access the Service, including, without limitation, any operating system software, browser software, third-party software or any other software packages or programs;

4. any unauthorised or unlawful access to your accounts or data or any loss, destruction or theft of or damage to any of your or our data or equipment;

5. any fluctuation in exchange rates, interest rates or values applicable to foreign exchange transactions, money market transactions or any other transaction conducted through the use of the Service; and

6. your failure to comply with any of your obligations set out in the Agreement, together with any banking and security procedures we specified, including our security and technical procedures and requirements;

except if such demands, claims, actions, losses or damage arose as a direct or indirect consequence of our gross negligence or wilful misconduct or that of any person acting for or on our behalf.

4. You have chosen to use the Service based on your, our and third parties' electronic infrastructure, which necessitates the electronic transfer of confidential data through the internet, email and/or fax. You indemnify us against and hold us harmless from all demands, claims, actions, losses and damage of any nature resulting from the delay, interception, miscommunication, malfunction, distortion, disclosure, loss and/or fraudulent abuse of such data, before, during and after transmission, except if such demands, claims, actions, losses or damage arose as a consequence of gross negligence or wilful misconduct on our part. We are not obliged to confirm receipt of an instruction from you sent to us by such means, and such instruction will be deemed to have been validly sent by you.

5. Any demand, claim or action arising against you concerning the agreement (whatever the basis of the claim) will be limited to claims for direct damage only. You are not liable for any special, indirect or consequential damage of any nature.

12. Returned debit authorisation

1. You acknowledge that you may instruct us from time to time, against the debiting of bank accounts conducted by a debtor of yours, to:

1. pay certain amounts into your bank account; or

2. credit your bank account on payment instructions issued by you.

2. You warrant that:

1. you are entitled to debit the debtor's account; and

2. the debtor has waived the right to reverse the transaction, provided that the aggregate amount of daily transactions does not exceed the debtor's daily limit notified to us from time to time.

3. You agree that we are not responsible for checking the amounts or account numbers referred to in the instructions received from you. You acknowledge that a limit is applicable for the amounts that we may be debit on each debtor's account daily. We may request a copy of each debtor's authorisation regarding the debiting of such debtor's account. You indemnify us against any loss arising out of any failure on your part to get a valid and correct authorisation or mandate from your debtors.

4. You agree that if you are liable for any direct damage that we may suffer as a result of:

1. any breach by you of the warranties set out in this Agreement;

2. any payment made by us on your payment instructions;

3. the failure by us for any reason to carry out your payment instructions, unless such failure is a result of wilful misconduct or gross negligence on our part; and/or

4. any debit transaction for any third-party account initiated by us on your instruction.

5. In particular, without detracting from the generality of the above, you authorise us to debit the account originally credited with the amount of any transaction that has been returned by a debtor or a debtor's banker. We are not responsible for checking the correctness or validity of such a return.

6. You hereby indemnify us against and hold us harmless from any losses suffered or damage incurred as a result of our own actions and/or breach of any of our undertakings and/or obligations in this Agreement and any obligations and warranties in this clause 12.

13. Breach

1. Either Party may terminate the Agreement if the other Party commits a material breach and fails to remedy the breach within 14 days of receiving a written notice to do so. Terminating it will be without prejudice to any other of the aggrieved Party's rights.

2. The following events or circumstances, primarily but not exclusively, will be deemed to constitute a material breach of the Agreement:

1. You fail to pay any amount due by you concerning the agreement on the due date.

2. You fail to comply with any provision of the Agreement.

3. You commit an act that is or would be (if committed by a natural person) an act of insolvency (ie conduct that indicates by its nature that you are unable to pay your liabilities in the ordinary course of your business), including those events defined as acts of insolvency in the Insolvency Act, 24 of 1936, or commit an act contemplated in section 344 of the Companies Act, 61 of 1973 and/or section 68 of the Close Corporations Act, 69 of 1984 or any successor legislation, or are placed in business rescue or steps are taken to place you in business rescue, or you suggest any compromise as contemplated in section 155 of the Companies Act, 71 of 2008, as the case may be.

14. Termination as a result of change in law or change in your financial position

The Agreement, despite anything to the contrary in that, may be terminated at any time by us with 48 hours' written notice to you if there is any change in any law that is applicable to the Agreement or the application of that or a change in your financial position that would have the effect of prejudicing us if we continue to render the Service to you.

15. Dispute resolution

1. If any dispute relating to the Agreement, or any matter arising out of the use of the Service, arises at any time between you and us, such dispute will be resolved finally in line with the rules of the Arbitration Foundation of Southern Africa by an arbitrator(s) appointed by the foundation. The Parties agree that, in response to this, any of the Parties may demand that a dispute be referred to arbitration by giving written notice to that effect to the other Party.

2. This clause 15 does not preclude any of the Parties from getting urgent interim relief from a court with competent jurisdiction, nor does it preclude you from exercising any rights of enforcement that you may have in terms of the Consumer Protection Act.

3. Any branch manager of ours, whose authority and position need not be proved, may certify statements of, the balance of, the interest rate of and the amount of such interest on your (or any third party's) accounts, which constitute prima facie proof of the information in that.

4. The arbitration referred to here will be held in Johannesburg with a view to being completed within 21 days after it is demanded. You irrevocably agree that the decision of the arbitrator(s) in the arbitration proceedings:

1. is final and binding on it;

2. will be carried into effect; and

3. may be made an order of court of competent jurisdiction.

5. This clause 15 is severable from the remainder of the terms and conditions and remains valid and binding on you despite any cancellation by you of any of the Services or the withdrawal by us of any of the Services.

16. Addresses for delivering correspondence, legal notices and process (also called domicilium citandi et executandi)

1. The Parties choose the following as their respective addresses for the Service of all notices and processes and execution in connection with this agreement, which addresses may be changed to any other physical address in South Africa by not less than five business days' written notice to the other Parties:

1. The Bank: Nedbank Limited, 135 Rivonia Road, Sandown, Sandton, 2196 Marked for the attention of: The Divisional Director: Corporate Banking/Business Banking

2. You, at the address given to us in the application;

2. All notices addressed to any of the Parties at their latest address notified by them to the other parties will be deemed to have been received, unless the contrary is proved:

1. 1on the date of delivery if delivered by hand; or

2. five business days after the date of posting if sent by prepaid registered post.

3. Legal notices may not be sent by fax or email.

17. General

1. You are not entitled to assign or transfer the benefits or obligations of all or any part of the Agreement to any other party without getting our prior written consent, which consent will not be unreasonably withheld.

2. The terms of the Agreement are deemed to be, in respect of each part, entire, separate, severable and separately enforceable in the widest sense from the rest of the Agreement. If any provision of the Agreement is found by any competent court to be defective or unenforceable for any reason, the remaining provisions of the Agreement will continue to be of full force and effect.

3. We may amend the terms and conditions of the Agreement, with prior written notice to you.

4. No failure or delay by us in exercising any right, power or privilege under the agreement will operate as a waiver of that, nor will any single or partial exercise of any right, power or privilege preclude any other or further privilege of that or the exercise of any other right, power or privilege.

5. The Agreement is governed by and must be interpreted in line with the laws of South Africa, and all disputes, actions and other matters relating to that will be determined in line with such laws.

6. Any provision of the Agreement that contemplates performance or observance of any of the Parties' obligations contained here subsequent to any cancellation or termination of this Agreement will survive any cancellation or termination of the Agreement and will continue to be of full force and effect.

7. The Agreement forms the whole of the agreement between the Parties relating to the Service.