Foreign Exchange Transactions

Terms and conditions

For your ease, an explanation of certain clauses is provided in [square brackets]. These explanations do not form part of this document.

1. Introduction

1.1 The purpose of the transaction confirmation and these terms and conditions is to set forth the terms and conditions of the transaction(s) referred to therein and entered into on the trade date specified therein the (“contract”) or (“Transaction”) between Nedbank Limited (“Nedbank”) and the addressee (“Counterparty”) or (“the client”) or (“you”). The transaction confirmation constitutes a (“confirmation”) as referred to in the Agreement specified below.  Nedbank and Counterparty agree that with effect from the date of the confirmation, the confirmation and these terms and conditions shall supersede all prior verbal and written agreements or confirmations or understandings or representations by or between Nedbank and Counterparty regarding the subject matter of the confirmation and neither Nedbank nor Counterparty shall be entitled to rely, in any dispute or otherwise regarding the confirmation on any terms, conditions or representations not expressly contained in the confirmation and these terms and conditions.

1.2 The confirmation and these terms and conditions supplement, form part of and are subject to the General Conditions of Contract Relating to the Purchase and Sale of Foreign Currencies and / or the 2002 ISDA Master Agreement as published by the International Swaps and Derivatives Association, Inc. as amended and supplemented from time to time (the “Agreement”) between Nedbank and Counterparty / the client. All provisions contained in the Agreement shall govern except as expressly modified.  If you did not enter into one of the Agreements mentioned above, then the confirmation and these terms and conditions constitutes the Agreement between the parties.

2. The terms of the particular contract(s) / Transaction(s) to which the confirmation relates are detailed therein.

3. Terms and conditions

3.1 Nedbank and Counterparty / the client represent to each other that it has entered into the contract / Transaction in reliance upon such tax, accounting, regulatory, legal and financial advice as it deemed necessary and not upon any view expressed by the other party. Nedbank does not hold itself out as a tax advisor and it is not aware of all the financial circumstances of Counterparty / the client, Counterparty / the client is therefore advised to seek independent tax advice. Counterparty / the client further understands and is able to evaluate the risks involved in entering into the contract / Transaction, including but not limited to contracts / Transactions entered into with respect to active currency management.
[This is a statement of fact which you cannot deny later on. You must check that all of these facts are true and correct.]

3.2 Counterparty / the client represents to Nedbank that it is entering into the contract / Transaction for the purpose of hedging and not for speculative reasons of any kind
[This is a statement of fact which you cannot deny later on.  You must check that all of these facts are true and correct.]

3.3 If applicable, Counterparty / the client hereby undertakes to comply with any Rulings, Regulations and Legislation, in respect of the Currency and Exchanges Manual issued by the South African Reserve Bank (“SARB”) (the “SARB Exchange Control Rulings”).

3.4 Counterparty / the client (i) consents to the recording of telephone conversations between the sales and trading desks, the marketing team and other employees of Nedbank with the Counterparty / the client in connection with the contract / Transaction, (ii) agrees to obtain the necessary consent of, and give the required notice of such recording to, its employees and (iii) agrees, to the extent permitted by law, that recordings may be submitted in evidence in any proceedings.
[Nedbank needs your permission to record your telephone conversations. In this clause you agree to Nedbank recording your conversations and also agree to telling your employees so that they can also consent to Nedbank recording their calls. Nedbank has also asked for your permission to give the telephone recordings to their lawyer to use in court if there is a disagreement between you and Nedbank.]

3.5 Counterparty / the client acknowledge and agree that certain payments may, through the operation of:(i) international law; and / or (ii) the laws and regulations of other jurisdictions; and / or (iii) international or governmental practice, whether or not having the force of law, be prohibited, confiscated, embargoed, withheld or otherwise prevented from being made before such payments have reached the intended recipient(s). Counterparty / the client accordingly waives any rights that it may have to claim against Nedbank which it may suffer or incur, directly or indirectly, as a consequence of any of the aforesaid. Nedbank may, to the extent legally permissible, notify Counterparty / the client if any payment is prohibited, confiscated, embargoed, withheld or otherwise prevented from being made as soon as Nedbank becomes aware thereof.
[Nedbank is required to comply with any sanctions imposed on a country, person or company by international regulators and under South African law. If, for example, money is to be paid to you and the payment is disallowed by law, then Nedbank does not want you to claim for any losses you may have because they are complying with the law. The clause also says that Nedbank may tell you that it is not allowed to pay you, but, if it is not allowed to do so by law, then it will not.]

3.6 Counterparty / the client must ensure that it notifies Nedbank of its payment instructions or any other instructions, at least two (2) business days prior to the Maturity Date. Nedbank reserves the right to extend or cancel any overdue contract / Transaction and to recoup in full any direct or indirect costs of late settlement fees from Counterparty / the client.
[This clause means that Nedbank can charge you for any late settlement fees, even where Nedbank elected to extend or cancel your contract / Transaction.]

3.7 Counterparty / the client hereby represent that the Maturity Date of the contract / Transaction does not extend beyond the due date of the firm and ascertainable underlying commitment or accrual.
[This is a statement of fact which you cannot deny later on.  You must check that all of these facts are true and correct.]

3.8 Should Counterparty / the client fail to notify Nedbank by 12:00pm on the Business Day following the Trade Date that the details set out in the confirmation are incorrect, Nedbank may consider such details to be correct.
[By agreeing to this clause you place yourself at risk, as if the details in the confirmation are incorrect, you will be bound to the incorrect details if you failed to tell Nedbank by 12:00pm on the Business Day following the Trade Date that the details in the confirmation were not correct.]

4. Contact details

Should you have any concerns with the confirmation, kindly contact us on corporateconfirmationswallstreet@nedbank.co.za.