Terms and Conditions for the Shyft App
The words below have the meanings set out next to them unless the context indicates a different meaning. Defined words and expressions are in italics in the terms.
| Word | Meaning |
| account | A valid, active current or savings account, held in the country where you are a permanent or temporary resident, that can be used to fund your wallet in the Shyft App for the purpose of buying foreign currency. |
| affiliate | Any of your subsidiaries, your holding company or any subsidiary of your holding company and all of its subsidiaries. |
| App Store | The application store you use to download the Shyft App. The App Store is run by the manufacturer of the device you use, for example Apple or Google Play (Android). |
| applicable laws | All national, provincial, local and municipal legislation, regulations, statutes, by-laws, consents or other laws of any relevant governmental authority and any other instrument having the force of law that may be issued and in force from time to time in respect of the activities covered by the terms. |
| BOP | Balance of Payments. |
| BOP Category Codes | Codes prescribed by the SARB to categorise the type or purpose of an international payment. |
| BOP Reporting | The process of reporting known as balance of payments reporting, which is required by the SARB for international payments. |
| business day | Any day other than a Saturday, a Sunday or an official bank holiday or public holiday in: · South Africa; · the country (i) in which the applicable foreign bank and the beneficiary receiving the international payment are based; or (ii) to which the applicable foreign currency relates; and/or · any jurisdiction which is relevant to the international payment or foreign currency, whether in terms of currency conversion or otherwise. |
| business hours | 9am to 5pm, Mondays to Fridays. |
| CMA | The Common Monetary Area, consisting of South Africa, the Republic of Namibia, the Kingdom of Lesotho and the Kingdom of eSwatini. |
| Card | A Shyft card, a Shyft ZAR card or a virtual card. |
| Card PIN | The personal identification number that applies to your Card. It is only known to you. |
| CFD | A Contract for Difference which is an OTC Derivative Instrument |
| Close-Out | The cancellation of a position in one direction with an equal and opposite position or by way of any other method as deemed appropriate by Standard Bank. |
| device | The mobile phone, tablet or similar technology that you use to access the Shyft App. |
| ECTA | Electronic Communications and Transactions Act, 25 of 2002, as amended, supplemented or substituted from time to time |
| exchange rate | The rate of exchange that we determine and that is available at the time the relevant foreign currency is bought or sold or the international payment is made. |
| FAIS | The Financial Advisory and Intermediary Services Act, 37 of 2002, as amended, supplemented or substituted from time to time. |
| FICA | The Financial Intelligence Centre Act 38 of 2001, as updated from time to time and all the legislation (laws) that falls under it. |
| FinSurv | The Financial Surveillance Department of the South African Reserve Bank, which is responsible for the administration of exchange control in South Africa. |
| FinSurv Reporting Categories Codes | Codes prescribed by the FinSurv to categorise the type or purpose of an international payment. |
Financial Markets Act | The Financial Markets Act, 19 of 2012, as amended, supplemented or substituted from time to time |
| foreign currency | A currency other than the currency that is legal tender in the country where you are a permanent or temporary resident. |
| foreign national | A natural person who is a permanent resident outside the CMA and who has taken up temporary residence in South Africa in terms of a valid permit. |
| Group | Standard Bank Group Limited, its subsidiaries and all of their subsidiaries. |
| international payment | A payment to a beneficiary holding a bank account in a different country or a payment to your wallet from a different country. |
| merchant | A person or entity that is authorised to accept card payments for their goods or services. |
| non-resident | A person (a natural person or a legal entity) whose normal place of residence, domicile or registration is outside the CMA. |
| password | Any confidential code, user name and password, card PIN, security token or other information that you must use to confirm your identity when you access the Shyft App or make a payment with your Card. |
| Card PIN | The personal identification number that applies to your Card. It is only known to you. |
| processing | Any operation or activity, automated or not, relating to Personal Information, including alteration, blocking, collation, collection, consultation, degradation, destruction, dissemination by means of transmission, distribution or making available in any other form, erasure, linking, merging, organisation, receipt, recording, retrieval, storage, updating, modification or use, and process and processed will have a similar meaning. |
| profile | The profile we give you so we can identify you when you sign up for the Shyft App. |
| prohibited activities | Illegal or terrorist activities, money laundering or any activities that are subject to sanctions or do not comply with applicable laws. |
| regulations | The Exchange Control Regulations of 1961 as promulgated by Government Notice R.1111 of 1961. |
| Resident | A resident of South Africa who holds a valid South African green identity document or a Smart ID card. |
| SBG Sec | SBG Securities Proprietary Limited with company registration number: 1972/008305/07 |
| SARB | The South African Reserve Bank. |
| SARS | The South African Revenue Service. |
| SDA | The Single Discretionary Allowance, specified by the FinSurv, that residents who are 18 years old or older may use per calendar year. |
| Shyft App | An application we provide to you for buying and selling foreign currency, making international payments, creating Virtual Cards and ordering Shyft Cards. |
| Shyft card | A physical, prepaid travel wallet card that we issue to you and that can be loaded with foreign currency. |
| Shyft support | The in-app chat facility that Shyft App users will be able to access by clicking on the Intercom icon in the Shyft App during business hours, the “request a call back” function on the Shyft App, or the email address to which Shyft App users may send their queries or requests for assistance. |
| Shyft ZAR card | A physical, prepaid card that we issue to you and that can be loaded with South African Rand. |
| Site | The Shyft App website, with the following link: (http://www.shyft.co.za) |
| SMS | Short message service. |
| South Africa | The Republic of South Africa. |
| Standard Bank, we, us or our | The Standard Bank of South Africa Limited (Registration Number 1962/000738/06) and its successors or assigns. |
| SWIFT | The Society for Worldwide Interbank Financial Telecommunications. |
| TAA | The Tax Administration Act, 28 of 2011, as amended, supplemented or substituted from time to time |
| transaction | An instruction or order we execute on your behalf, such as buying and selling foreign currency or making international payments. |
| virtual card | A prepaid virtual card that we issue to you and that you can load with currency and use for making purchases through the internet, over the telephone or by mail order at any merchant that accepts card-not-present transactions. |
| wallet | An electronic wallet in which you can store foreign currency or the currency of the country where you are a permanent or temporary resident. |
| You, Client or your | Referring to the person who has an account and signs up for and uses the Shyft App. |
| ZAR or Rand | South African Rand. |
We have included hyperlinks in these terms to other information that may apply to you. To view the information you will need to copy the entire web address (starting with "http://" or “https://” and ending with ".html" or ".co.za") and paste it in your browser. You must read any information that applies to you, because it forms part of these terms. If you cannot read any linked information, please contact us through Shyft support.
We will not be responsible for any losses you may suffer if the bank where the receiving bank account is held rejects or delays any payment you make to such bank.
You can use the Shyft App and/or Site to use the Shyft Investments product. The terms in Schedule 2 of the terms apply to Shyft Investments.
You can use the Shyft App and/or Site to use the Shyft Trader product. The terms in Schedule 4 of the terms apply to Shyft Trader.
You will not buy foreign currency with funds that you brought into South Africa or that are ring-fenced. Only funds that you have received or earned in South Africa will be used.
You will only buy foreign currency during the period for which you hold a valid work permit and in accordance with the applicable limits, as calculated at the time you opened the account.
You must promptly tell us if your contact details (including your email address and telephone number) change and ensure that we always have complete, accurate and up-to-date contact details for you. If you do not do this, it may impact your rights under these terms. For example, we may not be able to send you security tokens or send you fraud notifications or other important information, such as changes to the terms or any security guidelines relating to the use of the Shyft App and your card. We are not liable if circumstances beyond our control prevent you from receiving communications or security tokens, for example if your mobile network provider is having technical issues, your email address has been compromised or you are a victim of a SIM swap.
Defining intellectual property
In these terms, intellectual property means works of copyright, trademarks (statutory and common law), logos, images, multimedia, patentable inventions, patents, protectable design subject matter, designs and domain names, storage media, and includes applications, registrations and unregistered forms of these works and all other intellectual property rights (registered or unregistered) and the right to apply for these works in any country.
We and our third-party licensors own the intellectual property rights
The intellectual property and all content on the Shyft App belongs to us or our third-party licensors. Nothing on the Shyft App gives anyone the right to use our intellectual property without our written permission.
Prohibitions on the use of intellectual property
You may not do any of the following in relation to our or our third-party licensors’ intellectual property:
You will cover (pay for) any loss or damages that we may suffer on your behalf if:
USING A SHYFT CARD, SHYFT ZAR CARD OR VIRTUAL CARD
When the card is used in a transaction, we assume that this transaction has been authorised by you, even if it took place without your knowledge or consent or was not authorised by you. This means that unless you notified us beforehand of any unauthorised access to or use of your card or passwords, or your card is compromised (someone uses your card without your knowledge or permission), you are liable for all losses in connection with that transaction.
If someone manages to steal or compromise your card and they also have your passwords, they could use the card to do transactions up to the maximum limits that apply and transfer all the money out of your card account.
SHYFT INVESTMENTS
In order to use the Shyft Investments product available on the Shyft App and/or Site you agree to the following terms and conditions, which will supplement and form part of the terms. These additional terms and conditions will be read together with the terms as part of one agreement.
Standard Bank will submit orders for execution at your request and recommends that you use the trading platform when trading securities as this provides for swift client identification and thus faster processing of your orders. If you submit an order in another manner, Standard Bank manually verifies the basis of the relevant order before processing and this may result in an extended processing time.
Under exceptional circumstances (as set out in clause 24) and to ensure market integrity a relevant stock exchange may cancel any trade if required.
In exceptional market conditions, Standard Bank reserves the right not to submit an order for execution. Exceptional market conditions may occur where there is a significant deviation between bid and offer prices, where market prices are unavailable for the relevant security or in the event of sudden uncertainties in the global market, or any error that is not subject to any doubt, or an incident caused by a technical or manual mistake at the stock exchange, at Standard Bank or by you, a significant and indisputable violation of legislation or directions or the rules of the relevant stock exchange or any technical disruption in trading and/or clearing systems that is beyond the control of Standard Bank.
You are hereby made aware and acknowledge that in voluntary corporate actions where the alternative to a cash settlement is the settlement in a security that is not supported by Standard Bank, its affiliate, third-party dealer or the relevant market participant, you will not have the option to choose but will be given the cash settlement.
Standard Bank may charge commission and fees in respect of corporate actions. The prevailing trading costs are available on the commissions charges schedule on the Shyft App and are set out in an addendum to the terms.
Taxes and fees may also occur on corporate actions in addition to those that apply to cash dividends, such as fees on a stock dividend or tax on a merger. When such taxes and fees occur, Standard Bank will debit your trading portfolio or wallet accordingly.
You acknowledge and accept that due to the structure of the custodial relationship between Standard Bank and its affiliate, third-party dealers or market participants, it is not practical for you to instruct and exercise any voting rights in respect of any securities held in your trading portfolio.
Standard Bank is, in accordance with the best execution policy, entitled to aggregate your orders with its own orders and the orders of any of its affiliates and/or persons connected with Standard Bank including employees and other clients. Furthermore, Standard Bank may split your orders when executing them. However, the orders will only be aggregated or split if Standard Bank reasonably believes it to be in your best interests. On some occasions, aggregation and splitting of your order may result in a less favourable price for you than if the order had been executed separately or mutually.
Standard Bank, its affiliates or other persons or companies connected with Standard Bank may have an interest, relationship or arrangement that is material to a transaction carried out or advice provided by Standard Bank, under the terms, that may be in conflict or in competition with your interests. By accepting the terms and Standard Bank's code of ethics, you agree that Standard Bank may transact such business in terms of its conflict of interest policies and management procedures.
Standard Bank and you undertake, on termination of the agreement, to complete all transactions that are already entered into or under execution and the terms will continue to bind both parties in respect of such transactions. Standard Bank is entitled (i) to deduct all amounts due to it before transferring any credit balances on any of the trading portfolios or wallets to you, (ii) to postpone such until all transactions are completed and settled and (iii) to require you to pay any charges it incurred in transferring your investments.
SHYFT VAULT
This product is covered by the Corporation for Deposit Insurance (CODI). If Standard Bank cannot repay its clients their deposit for any reason, you will have access to the funds deposited in your products that are covered by CODI, up to the limit set out in the Deposit Insurance Regulations made in terms of the Financial Sector Regulation Act. You can find out more this on the CODI website.
To use the Shyft Trader’s product available on the Shyft app and/or site, you agree to the following terms and conditions, which will supplement and form part of the terms. These additional terms and conditions will be read together with the terms as part of one agreement.
To use the Shyft Trader’s product available on the Shyft app and/or site, you agree to the following terms and conditions, which will supplement and form part of the terms. These additional terms and conditions will be read together with the terms as part of one agreement.
PART A: GENERAL TERMS AND CONDITIONS
DEFINITIONS AND INTERPRETATION OF SHYFT TRADER TERMS
Standard Bank is, in accordance with the best execution policy, entitled to aggregate your orders with its own orders and the orders of any of its affiliates and/or persons connected with Standard Bank, including employees and other clients. Furthermore, Standard Bank may split your orders when executing them. However, the orders will only be aggregated or split if Standard Bank reasonably believes it to be in your best interests. On some occasions, aggregation and splitting of your order may result in a less favourable price for you than if the order had been executed separately or mutually.
Standard Bank, its affiliates or other persons or companies connected with Standard Bank may have an interest, relationship or arrangement material to a transaction carried out or advice provided by Standard Bank, under the terms, that may be in conflict or in competition with your interests. By accepting the terms and Standard Bank's code of ethics, you agree that Standard Bank may transact such business in terms of its conflict of interest policies and management procedures.
Standard Bank and you undertake, on termination of the agreement, to complete all transactions that are already entered into or under execution, and the terms will continue to bind both parties in respect of such transactions. Standard Bank is entitled (i) to deduct all amounts due to it before transferring any credit balances on any of the trading portfolios or wallets to you, (ii) to postpone such transfer until all transactions are completed and settled and (iii) to require you to pay any charges it incurred in transferring your investments.
The provisions of Clause 442 in Schedule 2 to the terms will apply to this section as well, with any changes necessary to make it appropriate for this context.
Standard Bank will submit orders for execution at your request and recommends that you use the trading platform when trading securities, as this provides for swift client identification and thus faster processing of your orders. If you submit an order in another manner, Standard Bank manually verifies the basis of the relevant order before processing, and this may result in an extended processing time.
Under exceptional circumstances (as set out in Clause 23) and to ensure market integrity, a relevant stock exchange may cancel any trade if required.
In exceptional market conditions, Standard Bank reserves the right not to submit an order for execution. Exceptional market conditions may occur where there is a significant deviation between bid and offer prices, where market prices are unavailable for the relevant security or in the event of sudden uncertainties in the global market; any error that is not subject to any doubt; an incident caused by a technical or manual mistake at the stock exchange, at Standard Bank or by you; a significant and indisputable violation of legislation or directions or the rules of the relevant stock exchange; or any technical disruption in trading and/or clearing systems that is beyond the control of Standard Bank.
You are hereby made aware and acknowledge that in voluntary corporate actions where the alternative to a cash settlement is the settlement in a security that is not supported by Standard Bank, its affiliate, third-party dealer or the relevant market participant, you will not have the option to choose but will be given the cash settlement.
Standard Bank may charge commission and fees in respect of corporate actions. The prevailing trading costs are available on the commissions charges schedule on the Shyft app and are set out in an addendum to the terms.
Taxes and fees may also occur on corporate actions in addition to those that apply to cash dividends, such as fees on a stock dividend or tax on a merger. When such taxes and fees occur, Standard Bank will debit your trading portfolio or wallet accordingly.
The client acknowledges, confirms and consents that Standard Bank may record all telephone calls. With respect to such telephone calls, the recording may be admissible in any dispute resolution proceedings as contemplated herein.
You acknowledge and accept that due to the structure of the custodial relationship between Standard Bank and its affiliate, third-party dealers or market participants, it is not practical for you to instruct and exercise any voting rights in respect of any securities held in yourtrading portfolio.
Standard Bank is, in accordance with the best execution policy, entitled to aggregate your orders with its own orders and the orders of any of its affiliates and/or persons connected with Standard Bank, including employees and other clients. Furthermore, Standard Bank may split your orders when executing them. However, the orders will only be aggregated or split if Standard Bank reasonably believes it to be in your best interests. On some occasions, aggregation and splitting of your order may result in a less favourable price for you than if the order had been executed separately or mutually.
Standard Bank, its affiliates or other persons or companies connected with Standard Bank may have an interest, relationship or arrangement that is material to a transaction carried out or advice provided by Standard Bank, under the terms, that may be in conflict or in competition with your interests. By accepting the terms and Standard Bank's code of ethics, you agree that Standard Bank may transact such business in terms of its conflict of interest policies and management procedures.
In some jurisdictions, firms are permitted to effect off-exchange transactions. The party with which you deal may be acting as your counterparty to the transaction. It may be difficult or impossible to liquidate an existing position, to assess the value, to determine a fair price or to assess the exposure to risk. For these reasons, these transactions may involve increased risks. Off-exchange transactions may be less regulated or subject to a separate regulatory regime. Before you undertake such transactions, you should familiarize yourself with applicable rules and attendant risks.
Standard Bank has identified the following circumstances that may give rise to a conflict of interest:
These Terms are applicable from 1 September 2015 or the date of acceptance of these Terms (whichever is the earlier) and will remain effective until a more recent version is released. The prevailing version of the Terms is always available on the site.
each word or expression used in this Part B bears the meaning assigned to it in Clause 2 below;
this Part B must be read in conjunction with the terms and the relevant agreements governing the OTC derivative instruments;
the singular includes the plural and vice versa;
a reference to a person includes a juristic person;
one gender includes the other and neuter; and
"Clause" means a separate numbered provision of this Agreement.
The rule of interpretation that this Part B must be interpreted against the party responsible for its drafting does not apply to this Part B.
DEFINITIONS
"Part B" means this Part B to Schedule 4 of the Shyft Terms and Conditions (terms).
"Available trading funds' means the sum of the cash balance and the daily P&L amount, as displayed in the Client’s account on the Shyft App and/or Site .
"CFD" means a contract for difference, which is an OTC derivative instrument.
“Close-out” means the cancellation of a position in one direction with an equal and opposite position or by way of any other method as deemed appropriate by Standard Bank.
“Corporate event” means any action by an issuer of an underlying asset affecting the holder’s entitlement to the benefits relating to that underlying asset. This includes, but is not limited to, dividends (whether in cash or in securities) or any subdivision, consolidation, reclassification, unbundling, takeover, merger, tender offer, spin-off, capital reduction, rights issue, share conversion or share redemption.
“Daily P&L amount” means, at any time of the day, the sum of the Client’s profits and losses on all the Client’s margined positions.
“DWT” means dividend withholding tax.
“ECTA” means Electronic Communications and Transactions Act 25 of 2002, as amended, supplemented or substituted from time to time.
“FAIS statutory disclosure” means the statutory disclosure in terms of FAIS that is available on the Shyft App and/or Site, as amended, supplemented or substituted from time to time.
“Fee schedule” means the fee schedule available on the Shyft App and/or Site, as amended, supplemented or substituted from time to time.
“Independent Amount” means the amount payable by the Client to Standard Bank in terms of the Credit Support Annex to the ISDA Master Agreement, in respect of any OTC derivative instruments.
"ISDA Master Agreement" means the 2002 ISDA Master Agreement as published by the International Swaps and Derivatives Association, Inc, including all schedules and annexes thereto, which is concluded between the Client and Standard Bank.
"ITA" means the Income Tax Act 58 of 1962, as amended, supplemented or substituted from time to time.
"JSE" means the JSE Limited t/a The Johannesburg Stock Exchange, a company duly registered and incorporated with limited liability in terms of the company laws of the Republic of South Africa, licensed to operate an exchange under FMA.
"Long position" means one or more OTC derivative instruments acquired by the Client in terms of which:
in relation to CFDs,
where the price of the underlying asset has appreciated, the Client agrees to receive the difference between the opening and closing value of the underlying asset over a period of time; or
where the price of the underlying asset has depreciated, the Client agrees to pay the difference between the opening and closing value of the underlying asset over a period of time; or
in relation to other OTC derivative instruments, the Client has the right or obligation to buy or sell the underlying asset at the agreed price on or before a future date in accordance with the terms and conditions of the relevant OTC derivative instrument.
"OTC derivative instrument" means an over-the-counter derivative instrument acquired by the Client or Standard Bank or an over-the-counter derivative transaction or contract concluded between the Client and Standard Bank, the terms of which are governed by the ISDA Master Agreement and may include CFDs or other over-the-counter derivative transactions or contracts, such as options, forwards and swaps.
"Position" means either a long position or a short position.
"Premium" means the amount payable to Standard Bank in accordance with the terms of an OTC derivative instrument.
"Short position" means one or more OTC derivative instruments acquired by the Client in terms of which:
in relation to CFDs,
where the price of the underlying asset has appreciated, the Client agrees to pay the difference between the opening and closing value of the underlying asset over a period of time; or
where the price of the underlying asset has depreciated, the Client agrees to receive the difference between the opening and closing value of the underlying asset over a period of time; or
in relation to other OTC derivative instruments, the Client has granted the right or obligation to another person to buy or sell the underlying asset at the agreed price on or before a future date in accordance with the terms and conditions of the relevant OTC derivative instrument.
"STT" means securities transfer tax in terms of the STT Act.
"STT Act" means the Securities Transfer Tax Act 25 of 2007, as amended, supplemented or substituted from time to time.
"TAA" means the Tax Administration Act 28 of 2011, as amended, supplemented or substituted from time to time.
"Underlying asset" means any security or index as defined and contemplated in the FMA or any other underlying instruments, agreements or contracts expressly agreed to between Standard Bank and the Client.
"Value available before auto close-out” means the sum of the available trading funds, the additional margin amount as described in Clause 8 and any other funds being withheld on unconfirmed orders in respect of any instruments or transactions.
AGREEMENTS BINDING
The Client accepts this Part B electronically in accordance with the ETCA as provided for at the end hereof and acknowledges and confirms that he/she/it has read and understands and will be bound by the respective agreements, including without limitation the ISDA Master Agreement.
By accepting this Part B as contemplated above, the Client represents and warrants that he/she/it has read the FAIS statutory disclosure on the Shyft App and/or Site and that he/she/it is aware that it may be updated, supplemented or substituted from time to time. And when provided with any notice of its amendment or update, the Client will be deemed to have read such amended or updated FAIS statutory disclosure.
By accepting this Part B as contemplated above, the Client represents and warrants that he/she/it has read the fee schedule on the Shyft App and/or Site, and that the fee schedule may be amended, supplemented or substituted from time to time in accordance with the provisions of the terms. When provided with any notice of its amendment or update, the Client will be deemed to have read and agreed to such amended or updated fee schedule.
APPOINTMENT (NON-DISCRETIONARY)
The Client appoints Standard Bank, and Standard Bank accepts the appointment, to trade in OTC derivative instruments without discretion and only in response to an order from the Client, or if required to do so in terms of the provisions of this Part B.
CONDITIONS PRECEDENT
This Part B will be of no force and effect until the Client has accepted the terms of the ISDA Master Agreement prior to being authorised to trade through the Shyft App and/or Site. This Part B will be of no force and effect until the Client has been registered on the Shyft App and/or Site and, if applicable, has paid any amount required in terms of this Part B or the ISDA Master Agreement.
RISK ACKNOWLEDGEMENT
The Client acknowledges and warrants that he/she/it:
has read the OTC Risk Disclosure Statement attached hereto as Annexure A and fully understands the contents thereof,
understands that Standard Bank, with whom the Client may trade, determines its prices at its sole and absolute discretion,
understands the manner in which OTC derivative instruments are priced, and that factors that influence prices, such as, but not limited to, liquidity, securities borrowing rates, interest rates, ordinary dividends, special dividends, capital reductions and other corporate events of whatever nature and commissions, taxes and levies, may change without notice, thus affecting the price or other terms of OTC derivative instruments and hence the positions held by the Client, and
understands that certain corporate events, such as, but not limited to, capital reductions, special dividends, unbundling, spin-offs, share splits, mergers, acquisitions and share consolidations may affect the quantity or other terms of the OTC derivative instruments and hence the positions held by a Client subsequent to such corporate events, and
understands that Standard Bank has the sole and absolute discretion as to the determinations and calculations of any adjustments to be made to prices or other terms of the OTC derivative instruments as Standard Bank determines in its sole and absolute discretion as appropriate to account for the economic effect that any of the above factors or events referred to in Clauses 6.3 and 6.4 may have on the OTC derivative instruments and/or to preserve as nearly as practicable the economic terms of the relevant OTC derivative instruments, whichever may be in Standard Bank’s sole and absolute discretion the appropriate action to take.
OBLIGATIONS OF STANDARD BANK
Standard Bank:
will endeavour, but is not obliged, to confirm to the Client that any instruction has been executed and will not be responsible for any accidental delay or inaccuracy in the execution of the Client’s instructions;
may report to the Client in writing by electronic messaging system or by electronic mail (“email”) whenever a trade is done, and such report may include details of the OTC derivative instrument, the price, the number of OTC derivative instruments, the time of the instruction to trade, the time at which the trade was done, the fees and commissions payable and other details relevant to the trade; and
will maintain records of any trading and of the Client’s positions and will take all reasonable steps to provide the Client with any information that the Client acting in good faith and in a commercially reasonable manner requires relating to the positions of the Client. However, the primary obligation to monitor the OTC derivative instruments and his/her/its positions on the Shyft App and/or Site remains solely that of the Client.
Standard Bank is authorised to withdraw from the Client’s account any Independent Amount, any premium, any additional margin (as contemplated in Clause 8.2 below), any debit interest (as contemplated in Clause 8.3 below) and any such other amounts as are required from time to time to settle any amounts due in the course of acquiring, disposing or maintaining any OTC derivative instruments and hence the Client’s positions on behalf of the Client, and to effect such other payments as are necessary in the operation of the Client’s account.
In addition, the Client shall pay to Standard Bank an amount of additional margin equal to a factor of the Independent Amount. This factor will be disclosed to the Client on the Shyft App and/or Site, from time to time, and may be changed by Standard Bank in its sole and absolute discretion without notice to the Client.
The Client acknowledges and accepts that, from time to time, as a result of the withdrawals contemplated above, the cash balance in the Client’s account may become negative and would commence incurring debit interest at the prevailing debit interest rate applied by Standard Bank, as notified from time to time. If the Client does not forthwith make a payment equal to the negative cash balance to settle the negative amount, Standard Bank will be charging debit interest to the Client, which the Client accepts to be immediately due and payable.
CAPACITY – ACTING AS PRINCIPAL
The Client hereby acknowledges and confirms that he/she/it understands that any OTC derivative instrument will be acquired by Standard Bank and the Client in their respective principal capacities, and the Client may not act as agent for any unnamed or undisclosed principal. The Client will, at all times, be liable as principal to Standard Bank, notwithstanding the fact that the Client may have acted as an agent for an undisclosed or unnamed principal.
TRADING LIMITS AND POSITION LIMITS
Standard Bank will advise the Client of any trading limits or position limits that may, from time to time, be imposed by Standard Bank in the sole and absolute discretion of each of these entities. Standard Bank will not be required to provide any reasons to the Client or any authorised representative of the Client for the imposition of the relevant trading limits or position limits. The Client will, without further ado, comply with the relevant trading limits and position limits, failing which Standard Bank has the right to forthwith close out any positions in excess of the relevant trading limits or position limits by way of a close-out as defined above.
EXPIRY OF OTC DERIVATIVE INSTRUMENTS (EXCLUDING CFDs)
If the Client holds a long position at the close of business on the expiry date of an OTC derivative instrument, Standard Bank will only take delivery of the underlying assets on behalf of the Client if:
in the case where the OTC derivative instrument is an option, the Client has informed Standard Bank in writing in advance of his/her/its intention to exercise the option (but, where such option is exercised automatically, no such notice is required), and
(i) in the case where the OTC derivative instrument is an option and Standard Bank has been informed or automatic exercise is applicable, or (ii) where the relevant OTC derivative instrument is a derivative transaction or derivative contract other than an option and, in both instances, Standard Bank has agreed to take delivery of the underlying asset; and
11.1.3. the Client has enough money available in the trading account by 12:00 noon on the business day that is two (2) business days prior to the expiry date of the option or the delivery date of the other derivative transaction or derivative contract to cover the cost of acquisition of such underlying assets, including without limitation all commissions, levies, costs and taxes applicable to the delivery, transfer and settlement of such underlying assets.
11.2. The Client irrevocably authorises Standard Bank to make delivery of and transfer the underlying assets if the Client holds a short position at the close of business on the expiry date or valuation date of an OTC derivative instrument.
11.3. Any profits or losses and costs incurred on the Client’s account by actions of the Standard Bank in terms of this Clause 11, and Clause 13 of Part A to Schedule 4 (Automatic close- out and cancellation of pending orders) will be for the account of the Client and will be immediately due and payable by the Client to Standard Bank.
TELEPHONE CALLS
The Client acknowledges, confirms and consents that Standard Bank may record all telephone calls. With respect to such telephone calls, the recording may be admissible in any dispute resolution proceedings as contemplated herein.
FEES
Standard Bank will levy fees for services rendered in accordance with the provisions displayed on the Shyft App and/or Site. The Client hereby undertakes to pay such amount on the due date for the payment thereof.
DISCLOSURE TO THIRD PARTIES
Standard Bank undertakes not to disclose confidential information relating to the Client except where such disclosure is:
made to a regulatory body with competent jurisdiction;
made under compulsion of law;
in compliance with a duty to the public to disclose;
necessary to further the legitimate interests of Standard Bank; or
made with the consent of the Client, which consent the Client will not unreasonably withhold.
The Client warrants that the information set out in this Part B and in the Client details as completed on the Shyft App and/or Site are in all respects true and correct.
The Client undertakes to keep Standard Bank informed of any changes in the information furnished in terms of Clause 15.1.
The Client acknowledges that Standard Bank will, at all times, act on the information and Client details available on the Shyft App and/or Site at the time of Standard Bank’s conduct or action, and that Standard Bank will not be liable for any action taken or conduct based on incorrect information or details.
BREACH BY CLIENT
Time is of the essence, and will in future be of the essence, for the performance by the Client of any obligation under this Part B and the ISDA Master Agreement.
The Client acknowledges that he/she/it will be liable for all DWT in respect of any and all dividends (other than a dividend in specie) ceded to him/her/it in respect of any OTC derivative instruments, which will be levied at the rate stipulated in the ITA from time to time and calculated on the amount of such dividends.
The Client hereby consents to and authorises Standard Bank, as an authorised regulated intermediary and in terms of the ITA, to deduct DWT from any and all gross dividends ceded and paid to him/her/it in respect of any OTC derivative instruments that incorporate a cession of dividends, and to only pay to him/her/it the net amount of such dividends and to pay the DWT to SARS on his/her/its behalf.
If any of the exemptions as provided for in Section 64F of the ITA are applicable to the Client, he/she/it will complete the Beneficial Owner Declaration of Status (“DTD (EX)” or “DTD (RR)”), as prescribed by SARS, and deliver the fully completed and signed declaration (together with the supporting documentation thereto) to Standard Bank. The Client acknowledges and agrees that the full DWT will be withheld by Standard Bank, in respect of any and all dividends ceded and paid to him/her/it, until the DTD (EX) or DTD (RR) (as the case may be) has been (i) duly completed and signed by the Client and (ii) received and processed by Standard Bank.
The Client undertakes to inform Standard Bank immediately should any circumstances change that would render any exemption no longer applicable, and Standard Bank will withhold DWT from the date of receipt of the changed status notification. The Client will have no claim against Standard Bank as a result of his/her/its failure to notify Standard Bank timeously of such changes in terms of this Clause.
Notwithstanding Clause 17.6 above, the Client understands and agrees that, in terms of the ITA, if DWT was withheld in respect of any dividend payment made to him/her/it in respect of any OTC derivative instruments that incorporate a cession of dividends by Standard Bank in circumstances where an exemption was applicable, the Client may apply to Standard Bank for a refund of such DWT, provided that (i) such application is submitted to Standard Bank within a period of three (3) years calculated from the date of the respective net dividend payment by Standard Bank to him/her/it and (ii) the Client submits the requisite declaration and supporting documentation to Standard Bank’s complete satisfaction. Standard Bank will reasonably endeavour to refund the amount of DWT withheld within a period of one (1) year from the date of the submission of the said application and declaration. It is specifically recorded and agreed that Standard Bank will only accept claims for refunds in respect of DWT that has been previously withheld by it and not by any other third party.
The Client hereby gives express authority/permission to Standard Bank to pass any and all of his/her/its information and/or documentation to SARS. The Client acknowledges that Standard Bank, as an authorised regulated intermediary in terms of the ITA and in terms of the TAA, is obligated to submit such information and/or documentation to SARS.
DURATION
This Part B is effective as from the time the conditions in Clause 5 have been fulfilled until it is terminated as provided for under this Part B. A party may terminate this Part B by giving written notice to the other party in the manner provided in this Part B, provided that such termination will not:
affect the rights or obligations of the parties in terms of this Part B that may have arisen or are in existence at the date of such notice or at the date of termination of this Part B; or
entitle the Client to claim or withdraw from the account referred to in Clause 8 any money held to secure the obligations of the Client, until such obligations have been settled.
Standard Bank and the Client will endeavour to resolve any dispute arising from this Part B amicably. Standard Bank will investigate the cause of the dispute with a view to resolving it as soon as practically possible, given the nature of the dispute and the availability of information, capacity and documents.
Failing amicable resolution in terms of Clause 19.1, and provided that the dispute concerns an OTC derivative instrument involving the JSE or relates to JSE-authorised investments, the dispute will be referred to the JSE Surveillance Department and finally determined by mediation or arbitration as contemplated in the rules of the JSE.
In all other cases, failing amicable resolution, the dispute will be referred to and resolved by arbitration. The arbitration will be conducted in terms of the then prevailing Commercial Rules of the Arbitration Foundation of Southern Africa (“AFSA”). The seat of the arbitration will be Sandton. The arbitration will be conducted in English. The parties to the dispute will agree on an arbitrator, which will be a practising or non-practising lawyer with at least fifteen (15) years’ experience in legal work relating to the financial markets, securities trading, derivative instruments and derivative contracts. If the parties cannot agree on an arbitrator, the arbitrator will be appointed by the Registrar of AFSA.
LAW
This Part B is governed by and must be construed in accordance with the laws of the Republic of South Africa. To the extent that an action or legal process is not covered by the dispute resolution provisions above, the parties submit to the non-exclusive jurisdiction of the High Court of South Africa, (Gauteng Local Division, Johannesburg, or any successor thereto).
RELAXATION
No latitude, extension of time or other indulgence that may be given or allowed by a party to the other party in respect of the performance of any obligation under this Part B or the enforcement of any right arising from this Part B, and no singe or partial excercise of any right by any party, will under any circumstances be construed as an implied consent by such party or operate as a waiver or a novation of or otherwise affect the rights of any party under this Part B or prevent such party from enforcing strict and punctual compliance with each and every provision or term hereof.
VARIATION
No addition or variation, consensual cancellation or novation of this Part B and no waiver of any right arising from this Part B or its breach or termination will be of any force or effect unless reduced to writing and signed by both the parties or their duly authorised representatives or accepted electronically on the Shyft App and/or Site through a click-wrap agreement.
Save for Clause 22.1 above, Standard Bank may make unilateral changes to this Part B and terms, and any such changes will be posted on the Shyft App and/or Site for viewing or downloading. If the Client proceeds to use the services after such notification has been posted on the Shyft App and/or Site, the Client will be deemed to have accepted the amended Part B and terms.
The Client may update his/her/its contact details by completing the required fields on the Shyft App and/or Site.
Notice of any addition or variation, consensual cancellation or novation made in terms of any of the Clauses 22.1 to 22.3 above will be indicated to the Client on the Shyft App and/or Site or by email or in writing.
WHOLE AGREEMENT
This Part B, read with any approved occurrences referred to in Clause 22, contains the entire Agreement between Standard Bank and Client, and neither of them will be bound by any undertakings, representations or warranties not recorded herein.
The parties choose as their domicilia citandi et executandi their respective addresses set out in this Clause for all purposes arising out of or in connection with this Part B, at which addresses all processes, communications and notices arising out of or in connection with this Part B, its breach or termination may validly be served upon or delivered to the parties.
For the purposes of this Part B, the address of the Client is the address as supplied or amended from time to time by the Client on the Shyft App and/or Site.
For the purposes of this Part B, the address of Standard Bank is its principal place of business currently:
Standard Bank Centre, 1st Floor, East Wing, 30 Baker Street, Rosebank, 2196, Johannesburg or any such future address as is notified to the Client from time to time by giving notice to the Client in writing and/or as furnished on the Shyft App and/or Site.
Any notice given in terms of this Part B will, unless sent by electronic means, be in writing and will be deemed, until the contrary is proved, to have been received:
at the time of delivery, if delivered by hand during normal business hours at the addressee's registered address;
by no later than the seventh day after the date of posting, if posted by pre-paid registered post from an address within the Republic of South Africa (i) to the Client at his/her/its postal address as recorded on the Shyft App and/or Site or (ii) to Standard Bank at its postal address as indicated on the Shyft App and/or Site from time to time;
on proof of transmission, if transmitted by electronic means.
Notwithstanding anything to the contrary contained in this Part B, a communication actually received by one of the parties from another will be adequate written notice or communication to such party.
ANNEXURE A
OTC Risk Disclosure Statement
The risk of loss arising from trading in OTC derivative instruments can be substantial. You should carefully consider whether such investments are suitable for you in the light of your circumstances and financial resources. You should be aware of the following points:
If the market moves against your position, you may, in a relatively short time, sustain more than a total loss of the funds placed by way of margin, Independent Amount, premium or deposit with Standard Bank. You may be required to deposit a substantial additional sum, at short notice, to maintain your margin balances. If you do not maintain your margin balances, your position may be closed out at a loss, and you will be forthwith liable for any resulting deficit, which will be immediately due and payable to Standard Bank.
Under certain market conditions, it may be difficult or impossible to close out an OTC derivative instrument position. This may occur, for example, where trading in the underlying assets is suspended or restricted at times of rapid price movement.
Where permitted, placing a stop-loss order will not necessarily limit your losses to the intended amounts, for market conditions may make it impossible to execute such orders at the stipulated price.
Markets can be highly volatile, and investment in them carries a substantial risk of loss. The high degree of "gearing" or "leverage" that is often associated with OTC derivative instruments such as CFDs stems from the payment of what is a comparatively modest deposit or margin when compared with the overall contract value. As a result, a relatively small market movement can, in addition to achieving substantial gains where the market moves in your favour, result in substantial losses that may exceed your original investment where there is an equally small movement against you.
OTC derivative instruments are not acquired or disposed of on any exchange, and accordingly, the protection offered in respect of such exchange-traded contracts is not available in respect of OTC derivative instruments. It is therefore important to understand that the risk in such OTC derivative instruments is to the other party to such trades, in this instance Standard Bank.
Your financial adviser should explain to you the meaning of various terms set out herein and in the Part B so that you are fully aware of their significance.
If you have any doubts or concerns regarding the risks in trading OTC derivative instruments, you must contact your financial adviser for more detailed information before signing or accepting this statement.
Corporate events on underlying assets can have a material effect on the quantity and/or value and/or other terms of an OTC derivative instrument. You are responsible for making the necessary enquiries to ensure that you make an informed decision regarding investment in the OTC derivative instrument and specifically, but not limited to, any corporate events affecting, or which could affect, the underlying assets. A corporate event could increase the risk associated with investment in the OTC derivative instrument.
You are responsible for obtaining the necessary approvals and making the relevant disclosures required in terms of the Listing Requirements of the JSE in respect of any OTC derivative instruments where you are a director (as defined in the Listing Requirements) of the issuer of the underlying assets.
This brief statement cannot disclose all risks of investment in OTC derivative instruments. They are not suitable for many members of the public, and you should carefully study such investments before you commit funds to them. They may also have tax and other consequences, and on this, you should consult your lawyer, accountant or other tax adviser.
You can view the ISDA Master Agreement here: https://d2vgzkmif8565m.cloudfront.net/ISDA_Offshore_Master_Agreement_pdf_a3df55fb81.pdf