TERMS AND CONDITIONS
1 Scope of Mandate
1.1 I, (the “Client") hereby request and authorise you, TF Global Markets (South Africa) (Pty) Ltd T/A “ThinkMarkets”, registration number 2017/098181/07, an authorised Financial Services Provider with FSP Number 49835, to open and operate an investment account on my instruction, on the terms and conditions of this Mandate (the “Mandate"), entered into between us (the “Parties") in respect of cash any and all other investments which ThinkMarkets is authorised to provide in terms of the applicable laws (as defined below), as ThinkMarkets and I may agree,
1.2 I acknowledge that ThinkMarkets utilizes the services of fully regulated Financial Sector Conducting Authority (“FSCA”) approved intermediary, and all assets and/or investments are held in the name of Velocity Nominees (Pty) Limited Registration No. 2010/015205/07, which is a 100% owned subsidiary of Velocity Trade Financial Services Pty Ltd, registration number 2010/010415/07 a Financial Sector Conducting Authority (“FSCA”) and Strate registered nominee company.
2 Interpretation
2.1 Unless otherwise stated or inconsistent with the context, words and expressions used in any schedule to the Mandate will have the same meaning as are ascribed to them in this Mandate.
2.2 This Mandate comprises of the terms and conditions contained herein together with the terms and conditions contained on various websites comprising the ThinkMarkets website and any schedule to the Mandate. In the event of any conflict between the terms and conditions contained herein and the terms and conditions contained on the website, the terms and conditions contained herein will prevail with regards to any matter/issue relating to Investments, trading, instructions for trading, etcetera. In the event of any conflict between the provisions of this Mandate and any schedule to this Mandate, which relates to any specified Investment, the provisions of such schedule shall prevail in respect of such specified Investment.
2.3 Where the Client is a legal person, all references in the Mandate or in any schedule thereto to the first person shall be properly construed as references to such legal person.
2.4 This Mandate is and will remain subject to the Financial Markets Act 2012 (the “FMA”), Income Tax Act of 1962 (as amended from time to time) (the “ITA”) and all other laws (current or subsequent, replacing, amending or repealing) applicable to the Investments, from time to time ("Applicable Laws").
3 Duration, Termination and Effects of Termination
3.1 This Mandate is effective from the date on which I indicate acceptance of the terms and conditions. By clicking the acceptance button at the end hereof or by virtue of the provision of clause 15.1 I will be confirming acceptance of these terms and conditions, which will be binding on me.
3.2 Either of the Parties may end this Mandate by giving 30 (thirty) days prior written notice to the other, save that in exceptional circumstances, ThinkMarkets, in its sole discretion, may end this Mandate without prior notice to me.
3.3 Unless I otherwise notify ThinkMarkets in writing, ThinkMarkets will not initiate any transaction in any Investments on my behalf after notice to terminate this Mandate has been received from me or given by ThinkMarkets. ThinkMarkets will cancel pending transactions initiated on my behalf prior to the notice and in existence during the notice period. ThinkMarkets will complete any transaction which has been executed when the notice is received by ThinkMarkets unless the transactions are initiated by ThinkMarkets in terms of any pledge and cession in its favour. ThinkMarkets will cancel pending transactions initiated on my behalf prior to the notice and in existence during the notice period. ThinkMarkets will complete any transaction that has been executed when ThinkMarkets receives the notice, even if completion occurs during the notice period or after the expiry of the notice period.
3.4 ThinkMarkets will transfer Investments which it then holds to any other party I nominate in writing, during the termination period of 30 (thirty) days or as soon thereafter as is reasonably possible. I agree that I will be liable for all costs, fees and expenses to transfer my Investments.
3.5 Any such termination shall be subject to the proper settlement of all transactions and any amounts due to ThinkMarkets at the date of termination and shall not affect any warranties, undertakings or indemnities made by me under this Mandate, which shall remain in full force and effect. Any amount due to ThinkMarkets at the date of termination shall become due and payable on demand. In the event of any such termination, ThinkMarkets will as soon as practicable, deliver to me all my Investments as contemplated in clause 1 and cash which it then holds, subject in every case to the prior payment, satisfaction and discharge of all liabilities outstanding from me to ThinkMarkets (including, but not limited to, fees for rematerialising any shares if required).
4 Mandate
4.1 ThinkMarkets has limited discretion to manage my investments. ThinkMarkets is authorised to execute and settle transactions relating to my Investments and exercise rights attaching to Investments, in that ThinkMarkets right to enter into transactions in respect of the Investments on my behalf may only be exercised on:
4.2 my instruction and prior consent or instruction from my authorised representative ("Authorised Representative”) to affect any transaction in any Investment in terms of this Mandate.
4.3 I warrant that the authorised representative is, unless I otherwise advise ThinkMarkets in writing, duly authorised and will continue to be so authorised at the time of giving such instructions.
4.4 Subject to clause 4.1 above, all acts of the authorised representative shall at all times be binding on me and I understand and agree that ThinkMarkets shall have no liability for any losses resulting from or arising out of ThinkMarkets reliance upon and compliance with instructions given or purportedly given by my \authorised representative (regardless whether they have the necessary authority or not, at that time), except where such losses arise directly from ThinkMarkets own fraud, gross negligence or willful default.
4.5 In the event that ThinkMarkets is notified by me that my authorised representative is no longer authorised to give instructions in connection with my Investments, I shall give ThinkMarkets written notice of the termination of such authorised representative.
4.6 I agree that any instruction received by ThinkMarkets from an authorised representative prior to the Termination Date shall not be affected by any such termination and ThinkMarkets shall process such instruction, notwithstanding that any transactions covered by such instruction shall not be completed until after the Termination Date.
4.7 Any instructions (electronically, written or oral - as contemplated in this clause) transmitted by the internet, telephonically, or any other electronic means acceptable to ThinkMarkets, notwithstanding any error in the transmission thereof or that such instructions may not be genuine, shall be conclusively deemed to be valid instructions from an authorised representative and/or me to ThinkMarkets for the purposes of this Mandate. ThinkMarkets or its agents shall not be held liable in relying on or complying with instructions given in such manner or if processed by ThinkMarkets computer based trade processing system, ThinkMarkets may, in its discretion, decline to act upon any instructions where there is insufficient or incomplete, or are not received by ThinkMarkets in sufficient time for ThinkMarkets to act upon or in accordance with such instructions, or where ThinkMarkets has reasonable grounds for concluding that the same have not been accurately transmitted or are not genuine. ThinkMarkets shall not be liable for any losses, liabilities or costs arising directly or indirectly from ThinkMarkets misunderstanding any instructions received either from me and/or my authorised representative, where ThinkMarkets acted in good faith or where ThinkMarkets acting on any oral instruction received either from me and/or my authorised representative which conflicts or is inconsistent with a subsequent electronic, instruction.
4.8 I will create a password and username to access the website. I accept and understand that I am responsible for the security of the password and/or my username. ThinkMarkets shall not be liable for any loss or claim for damages in the event I lose or compromise the security of the password and/or my username. I undertake to keep the password in a secure place. When I become aware that the password and/or my username have been compromised in any way or that any third party knows of it, I shall notify ThinkMarkets immediately.
4.9 I accept and assume full responsibility for use of my password by my authorised representative.
4.10 ThinkMarkets undertakes to render services honestly, fairly, with due skill, care and diligence and in the best interest of the Client.
5 General Powers of ThinkMarkets
5.1 ThinkMarkets is entitled to do all things necessary to give effect to this Mandate, including but not limited to:
5.1.1 sign any document (including, without limitation, forms of acceptance, letters of renunciation and transfer forms) or agreement on my behalf and, to do all things necessary, including the appointment of any third party;
5.1.2 apply and subscribe for Investments in accordance with this Mandate;
5.1.3 perform any act and sign any document needed for holding in safe custody or registering any Investment subject to all applicable laws and regulations;
5.1.4 attend any meeting either personally or by proxy and to vote on my behalf in any way on any resolution or proposal;
5.1.5 collect on my behalf all dividends, interest, bonuses, repayments of capital or distributions;
5.1.6 take up and exercise any rights and privileges on my behalf and to renounce or waive any such rights or privileges;
5.1.7 sign any documents and exercise any rights with regard to any scheme of arrangement, compromise, take-over, splitting or consolidation of any Investments; and
5.1.8 do whatever is necessary, in ThinkMarkets discretion, to protect my rights.
5.2 I hereby consent and authorise ThinkMarkets to act in terms of clause 5.1 above.
6 Powers of Velocity Nominees
6.1. Velocity Trade shall, on behalf of myself, appoint a suitable person or persons to act as Custodian, including Velocity Nominees, to hold in safe custody on my behalf all share certificates or other documents evidencing title to the Transactions from time to time. This person or persons must be approved to perform these services in terms of the Financial Markets Act 19 of 2012 or the FAIS Act or the relevant jurisdictions legislation. All transactions shall be registered in my name or, alternatively, in the name of a security depositary “participant” as defined in the FM Act or its nominee company, or in the name of a nominee company agreed between the Client and Velocity Trade.
6.2 I accept that Velocity Trade will register and hold all cash deposits received from Think Markets on my behalf (including interest, dividends, proceeds from disposals and cash) forming part of my Investment, that it receives for my account in a trust account or nominee trust account in the Custodian’s nominee name on my behalf and for my benefit, subject to any Applicable Law, separate from Velocity Trade assets or those of its Service Provider. The Custodian, or its nominee or agent, will receive and convey to Velocity Trade proxies, notices, reports or other communications relating to the Investment.
7 Corporate Actions
7.1 I accept that it is my sole responsibility to inform ThinkMarkets of any and all decisions I make regarding corporate action elections either via App, email or telephone.
7.2 Any response provided by me to a corporate action notice shall be deemed to have been received by ThinkMarkets upon actual receipt of the email, notification via app or telephone and not at anytime earlier.
7.3 I agree to be bound by the election and accordingly indemnify ThinkMarkets against any losses or claims that may arise out of my election.
7.4 Should I fail to inform ThinkMarkets of my decision in a timeous manner, or fail to inform them at all, I accept that I will automatically be loaded onto the default option of the corporate action.
7.5 Default options may vary from time to time, and I accept that it is my responsibility to ensure I am updated on all corporate action notices and news so as to enable myself to notify ThinkMarkets of my decisions before the corporate action deadline date and time.
7.6 It is specifically recorded my failure to respond timeously may result in me suffering losses, which losses ThinkMarkets shall not be held liable under any circumstances whatsoever.
8 Operation of Client Accounts/ Funds
8.1 I understand that all funds transferred by me into my ThinkMarkets account is held in a segregated client trust account with a registered banking institution in South Africa.
8.2 Any fund transfers made into ThinkMarkets bank account will be transferred to my account provided ThinkMarkets has adequately identified the fund transfer as mine, within 2 (two) business days after receipt of the fund transfer by ThinkMarkets.
8.3 I accept that the ultimate risks and benefits of all deposits into my account remain with me and ThinkMarkets shall not be held liable for any incorrect deposits or errors that may occur in the transfer of funds to my account .
8.4 ThinkMarkets undertakes to keep accurate records of all funds in the trust account mentioned in 7.1 above and will not access these funds unless required for transactions I agree to such as fees, payments for investments and any other agreed transaction.
8.5 I acknowledge and accept that the trust account mentioned above holding my funds, is not an interest-bearing account and therefore I will not earn any interest of any cash balances and neither will ThinkMarkets.
8.6 Any accruals arising from the Investments will be credited to my account as soon as reasonably practical upon receipt thereof, subject to the net cash balance on my account being more than the minimum net balance.
8.7 Should I wish to make a withdrawal on any cash balances in my account, I accept that I will request such withdrawal via App and funds may only be available to me within 48 hours.
9 Authority and Acknowledgements
9.1 Subject to verification by ThinkMarkets, I undertake and agree that ThinkMarkets will only purchase Investments on my behalf once there are sufficient funds available in my Account.
9.2 I was not induced by ThinkMarkets or any subsidiary to purchase and/or sell the Nominated shares.
9.3 I understand and accept that it is my responsibility to ensure that sufficient funds are available in my account and indemnify ThinkMarkets and hold it harmless for any loss(es) I may suffer as a result of shares not being purchased or instructions not being effected due to insufficient funds being available in my Account at the time of the purchase instruction or corporate action deadline.
9.4 I accept that should my account be in a negative balance, ThinkMarkets reserves the right to sell any investments to cover any negative balances within 30 days of such balance being owed. I understand that I will be charged a debit interest rate of prime plus 2% on all negative balances.
9.5 I understand and confirm that ThinkMarkets may act in accordance with clause 8.1 however, ThinkMarkets is at all times authorised to accept any instructions I provide regardless of the quantity of funds in my Account. I, accordingly, hold ThinkMarkets harmless against any claims or losses that I may incur as a result of ThinkMarkets placing reliance on any of my instructions, irrespective of the quantity of funds in Account.
9.6 ThinkMarkets will only sell investments on my behalf when I have delivered them to ThinkMarkets in negotiable form and they have been dematerialised by ThinkMarkets.
9.7 If I do not comply with the obligations set out in clause 8.1 and clause 8.2, ThinkMarkets may upon notifying me and at its sole discretion and without seeking my authority and consent:
9.7.1 in the case of Investments purchased -
9.7.1.1 sell them for my account and claim from me the difference between the purchase and selling prices, plus interest, based on the prime rate at that time; and
9.7.1.2 sell any other Investments held by or in the custody of ThinkMarkets necessary to cover what I owe after the sale of the Investments in clause 8.7.1.1 above.
9.7.2 In case of selling Investments that are not in negotiable form:
9.7.2.1 buy such Investments for my account and claim from me the difference between the selling and purchase prices plus interest, based on the prime rate, at that time; and
9.7.2.2 sell any other Investments held by or in the custody of ThinkMarkets necessary to cover what I owe after the purchase of the Investments in clause 9.7.2.1 above.
9.8 If there are insufficient funds in my account, ThinkMarkets may sell any of my Investments to settle any fees or costs due by me to ThinkMarkets.
9.9 ThinkMarkets may without notice to me record any telephone or electronic conversations with me or with my authorised Representative and any other third party acting or purportedly acting on my behalf and I acknowledge that this is done to resolve disputes about instructions and to assist in monitoring compliance with applicable regulations. The record of any discussions shall be prima facie evidence of such discussions and may be used by ThinkMarkets in the event of any dispute between ThinkMarkets or any member and myself. I agree that ThinkMarkets may use copies or transcripts of any recordings for any purpose it deems desirable and may deliver copies or transcripts of such recordings to any court or regulatory authority.
9.10 I will be able to instruct ThinkMarkets, in advance, to:
9.10.1 purchase or sell a specified or maximum number of Investments at a price chosen by me or my authorised representative, using the app and/or by any telephonic instruction given to ThinkMarkets.
9.10.2 advise me electronically or via app if an instruction given in terms of clause 9.11 is executed by ThinkMarkets
9.11 ThinkMarkets may place instructions in the market at the market price during market hours for listed securities and any other investment product as enabled by ThinkMarkets on the App.
9.11.1 Any unmatched orders I have placed will be cancelled at the end of the business day or which the order is set to expire.
9.12 I shall pay and authorise ThinkMarkets to make any such deduction from my Account, any penalty imposed on ThinkMarkets by the settlement authority if I cause a failed trade, which is a transaction in uncertified securities that fails to settle on the settlement date and shall pay any other penalties levied on ThinkMarkets by the settlement authority as a result of my acts and/or omissions.
9.13 ThinkMarkets will use its reasonable endeavours to carry out all related instructions received from me through the app or telephonically. However, I will not hold ThinkMarkets liable for, and hereby indemnify ThinkMarkets against, any claims arising from the late or delayed processing of my instructions.
9.14 A failed trade will be declared at a specified time on settlement date in accordance with the requirements.
9.15 I will always ensure that ThinkMarkets has my relevant and current contact details (postal and residential addresses, registered address, trading address, email address, cellular numbers, telephone numbers, personal information in terms of the Financial Intelligence Centre Act 2001, “FICA”, (including but not limited to identity number/s, registration number, name, and change in shareholding such as changes to the directors, shareholders, trustees, beneficiaries or partners where applicable). I undertake to notify ThinkMarkets of any changes to my contact details and personal information and shall provide ThinkMarkets with the requisite documentation in support thereof. Should I fail to do so, ThinkMarkets will not be held liable for any losses and/or damages arising from any failure or delay to perform any of its obligations as a result of my failure to notify ThinkMarkets of such change and/or provide ThinkMarkets with such documents. I hereby indemnify ThinkMarkets against any claims, losses, expenses, fees or charges whether direct or indirect arising from any failure to notify ThinkMarkets of any changes to the details set out in the online application and/or provide ThinkMarkets with the relevant documentation.
9.16 ThinkMarkets shall not be required to confirm the authenticity of any instruction received under or by means of my username or password.
9.17 Without detracting from the provisions of the Electronic Communications and Transactions Act, 2002, in the event of a dispute between us (ThinkMarkets and myself), a certificate signed by any director or senior manager of ThinkMarkets, to the effect that a transaction was executed on the trading system shall be prima facie proof that the said transaction was validly executed.
9.18 I consent that ThinkMarkets may bulk any order from me with other clients' orders in terms of the JSE Rules and, I understand and accept that such bulking could be to my advantage or disadvantage in relation to share prices and costs of trading. ThinkMarkets shall not be liable for any claim or damages arising from such bulking.
9.19 I hereby give ThinkMarkets express authority/permission to pass my personal information, which personal information has been provided by me in terms of FICA to the and/or its agents. To the extent necessary, I also give ThinkMarkets permission to verify my personal information from approved and registered third party intuitions, in order for me to comply with the provisions of Applicable Laws (which includes, inter alia, FICA), and the internal requirements.,
9.20 Anti-Money laundering legislation (Prevention of Organised Crime Act, 1998 as amended o, Financial Intelligence Centre Act, 2002, as amended , Prevention and Combating of Corrupt Activities Act, 2004, as amended, Protection of Constitutional Democracy Against Terrorist and Related Activities Act, 2004, as amended) (collectively referred to as “MLL”) obliges ThinkMarkets to report to the relevant authorities any suspicious transactions. I hereby confirm that such legislation and the implication thereof in relation to this Mandate have been brought to my attention. I therefore consent to ThinkMarkets providing any information to the authorities in terms of the MLL. ThinkMarkets shall not be liable to me or any third party in respect of any action or claim for damages arising from provision of information in terms of the MLL. I indemnify ThinkMarkets against any claim or liability arising from providing information as contemplated herein. I hereby confirm that I will not transfer or deposit funds to the credit of ThinkMarkets until the obligations in terms of MLL and/or all Applicable Laws have been complied with. I consent to ThinkMarkets and/or any of its agents monitoring my trading account/s and trading activity for potential incidents of market abuse and financial fraud as contemplated in the JSE Rules and Applicable Laws. I further consent to ThinkMarkets sharing information relating to my trading account/s and activity with ThinkMarkets agents for the purpose of monitoring for market abuse, financial fraud and money laundering.
9.21 In so far as may be permitted under any Applicable Law, ThinkMarkets may have an interest as principal in any transaction aimed at buying or selling my Investments and I hereby consent to ThinkMarkets acting in such capacity from time to time.
9.22 I authorise and consent to ThinkMarkets and/or its agents conducting reference and credit checks (specifically, but not exclusively, ITC checks). I agree that ThinkMarkets may at its sole discretion refuse or deny to open an account, on the strength of a reference check.
9.23 ThinkMarkets will not accept cash deposits and cheque deposits for any amount whatsoever. For the purpose of this mandate, “cash” shall mean coin and paper money of the Republic of South Africa or any other country. Accordingly I agree that all transfers to ThinkMarkets trust bank account will not be in cash and/or cheque but shall be made by way of electronic funds transfer and I indemnify and hold ThinkMarkets harmless from any losses, costs, damages or penalties that may arise should I fail to act in accordance with the provisions of this clause.
9.24 I acknowledge that ThinkMarkets may receive commission, incentives, fee reductions or rebates in return for entering into the Investments as advised in writing by ThinkMarkets from time to time.
9.25 I hereby request and agree that ThinkMarkets shall obtain and transmit any information to me, which a relevant product supplier is obliged to disclose in terms of any law.
9.26 I acknowledge that ThinkMarkets may, in order to render any intermediary services in terms of this Mandate, utilise the services of its own staff or that of another approved financial services provider.
9.27 ThinkMarkets may reverse any erroneous debit or credit made to my account and I hereby acknowledge that I shall be responsible for any direct or indirect costs or liabilities resulting from such reversal not directly attributable to an error on the part of ThinkMarkets.
10 Stop Loss
10.1 Unless otherwise agreed to, ThinkMarkets may execute advance instructions in the market, at the market price during the period commencing after the morning auction up to and excluding commencement of the afternoon auction on days where the market is open for trading.
10.2 I will be able to change, cancel and ascertain the status of all my advanced instructions via the app or telephone.
10.3 The advance order may be sent to market when the price or percentage stipulated by me is traded in the market. ThinkMarkets will not be liable for any difference in price or percentage between the time that the advance instruction is triggered and executed on the market. I will be able to change, cancel and ascertain the status of all my advance instructions via the app or telephone.
10.4 To the extent that my position changes after an advance instruction has been placed by me or my authorised representative, such advance instruction is not automatically cancelled and I hereby acknowledge that it is my obligation to amend the advance instruction accordingly and as such ThinkMarkets shall not be liable for any advance instruction that is not executed as a result of such change. In the event that such advance instruction is to terminate any position it shall not be executed in the event that the resultant position after implementation of such instruction will cross the zero threshold.
10.5 ThinkMarkets may notify me in the event that an advance order has failed or has not been executed for any reason, however ThinkMarkets shall not be liable for any losses, costs or damage that may arise should such notification not be sent by ThinkMarkets.
10.6 Notwithstanding the aforegoing, it is specifically recorded that ThinkMarkets does not guarantee that an advance instruction will be cancelled or executed (as the case may be) when the price or percentage stipulated by me is traded in the market. I acknowledge that it is my responsibility to ensure that I personally monitor and manage my Investments at all times and not rely on such advance instructions provided to ThinkMarkets.
11 Fees and Charges
11.1 I acknowledge and accept that ThinkMarkets is entitled to charge my account fees and charges as set out below together with all other fees and charges that may be necessary.
11.1.1 I agree to pay a brokerage fee of 0.25% with a minimum charge of R30,00 for trades made under R12 000,00.
11.1.2 An Inactive fee of R25,00 if I have not placed a trade with ThinkMarkets in a calender month;
11.1.3 Strate Settlement costs of 0,005787% of the value traded with a minimum charge of R13,49 per brokers note on deals up to R233 000,00, and a minimum charge of R70,02 per brokers note for deals in excess of R1 210 000,00.
11.1.4 An Investor Protection Levy of 0,0002% of the value of shares traded.
11.2 I acknowledge that I will be liable to pay Value Added Tax of 15% on all charges mentioned in 10.1 above,
11.3 I accept that Securities Transfer Tax is charged at 0,25% on the value of share traded on all share purchases.
11.4 I agree to pay or be debited for the fees and charges applicable as set out on the website or as agreed between me and ThinkMarkets when they are due and payable. ThinkMarkets may, on prior notice, change these fees and/or charges from time to time. It is specifically recorded that in addition to the types of fees and charges which are currently applicable, ThinkMarkets may upon providing prior notice to me and acting in its sole discretion, add any further types of fees and/or charges which may include but not be limited to the inclusion of a custody and/or facilitation fee.
11.5 The fee or charges for services rendered for a period, which is less than a month, shall be levied at the full charge applicable for that month.
11.6 I accept that interest is chargeable in case of any late payment or default in payments of fees herein at the prime rate +2% as charged from time to time.
11.7 ThinkMarkets will be entitled to increase the fees and charges, from time to time, payable for the services rendered in terms of this Mandate.
12 Suspension of Account
12.1 ThinkMarkets may temporarily suspend part or all of my trading accounts, upon notice to you, in any one or more of the following circumstances:
12.1.1 if ThinkMarkets reasonably believe that account is being used for illegal purposes, including money laundering or fraud; and/or
12.1.2 if you are unable to provide ThinkMarkets with your updated FICA information and/or documentation pursuant to a request sent by us within the time period stipulated in such request.
12.2 Upon suspension of my account, I will only be entitled to instruct ThinkMarkets to sell my positions and/or stock. I am aware that I will be unable to -
12.2.1 enter into any new positions and/or purchase new stock; and/or
12.2.2 withdraw any funds from my Account.
12.3 I am aware of, and accept the risks associated with the suspension of my account(s) and the onus shall be on me to comply.
13 Acceptance of Risk, Limitation of Liability and Indemnity
13.1 I am aware of, and accept the risks inherent in and associated with the Investments or investing and that of placing instructions through the website, including the risk of loss of any capital amount(s) invested by me due to market fluctuations and have taken independent professional advice that I consider necessary in respect of these risks. I acknowledge and accept that these risks may result in financial loss to me, including the loss of any capital amount(s) invested by me.
13.2 In addition to any other provision set out herein, ThinkMarkets will not be liable for and I indemnify and hold ThinkMarkets harmless against:
13.2.1 any loss or damage incurred by me as a result of any transaction relating to the Investments made by ThinkMarkets in good faith under this Mandate; and
13.2.2 any loss or damage, which ThinkMarkets or any other party may incur as a result of:-
13.2.2.1 the operation of my Investment account in accordance with this Mandate; or
13.2.2.2 any instruction or election from me; or
13.2.2.3 any instruction or conduct of an authorised representative duly appointed by me or any third party purporting to act on my behalf, whether as a result of the action of such party outside the scope of this Mandate from me, or otherwise.
13.3 ThinkMarkets will be liable for loss or damage incurred by me as a result of any fraud or gross negligence by ThinkMarkets or its employees provided the loss or damage is directly attributable to ThinkMarkets fraud or gross negligence.
13.4 ThinkMarkets shall not be liable for any interruption, malfunction, downtime or other failure of the website or any component part for whatever reason.
13.5 ThinkMarkets will not be liable for any indirect, consequential loss, damage or expenses incurred by me or any third party that is or may be caused by any conduct or omission on the part of ThinkMarkets, whether or not such loss or damages was foreseeable. Indirect or consequential loss includes, but is not limited to, loss of profit/revenue, anticipated savings, business transactions or goodwill.
14 Notices
14.1 The address I supply on the online application, or such other address as I may stipulate in writing (whether delivered by hand or post or submitted via the app), is my chosen address where notices may be given and documents in legal proceedings may be served. ThinkMarkets chosen address for such purposes is 61 Katherine Street, Sandhurst, Gauteng, South Africa, 2196
14.2 Any notice given in terms of this Mandate, by either me, my authorised representative or ThinkMarkets, shall be sent on any Business Day during the normal office hours of the addressee and will be in writing and deemed, unless the contrary is proved, to have been received
14.2.1 on the date it was delivered by hand;
14.2.2 14 (fourteen) days after posting;
14.2.3 on the date shown on a fax transmission confirmation; or
14.2.4 at the time of delivery of the electronic mail.
14.3 Except where specifically stated in this Mandate, any reference to in writing shall include message in electronic format.
15 No Representations
The Parties are not bound by any terms, provisions, conditions or representations relating to this Mandate but not contained in this Mandate or in the terms and conditions of the website. In so far as the Parties may have concluded any previous mandate, this Mandate replaces any and all previous mandates and all transactions concluded in terms of the previous dealing mandate would be deemed to be concluded under this Mandate and the current version of the terms and conditions.
16 Changes
16.1 ThinkMarkets is entitled to make unilateral changes to the terms and conditions of this Mandate and any such changes will be posted on the website for viewing or downloading. In the event that I continue to use the services after such notification has been posted on the website, I agree that I will be deemed to have accepted the terms and conditions of the amended Mandate. I accept and understand that it is my duty to regularly check the website and the terms and conditions contained thereon.
16.2 Without detracting from clause 3, I shall be entitled to terminate this Mandate in the event that I do not accept any changes made by ThinkMarkets giving 30 (thirty) days written notice.
17 Confidentiality
17.1 The provisions of this Mandate are confidential. ThinkMarkets shall not disclose any information relating to me except in the course of executing the Mandate or obligations in terms of this Mandate, unless otherwise agreed to by me.
17.2 Without limiting the application of clause 16.1 above, ThinkMarkets will be entitled to disclose any information in or relating to this Mandate if required by law, court order, JSE Rules, Applicable Laws, FSCA or such authorised body or government body.
18 Dispute Resolution
18.1 ThinkMarkets and I agree to resolve any dispute arising from this Mandate amicably. ThinkMarkets will investigate the cause of the dispute with a view to resolve it as soon as it is practically possible, given the nature of the dispute, the availability of supporting information or documents.
18.2 I agree to be liable for any cost for tracing, transcribing and copying of any recordings relating to any dispute.
18.3 ThinkMarkets aims to provide superior customer service, in the event you are dissatisfied with any aspect of our service; please give us the opportunity to investigate and attend to your queries.
If you wish to lodge a complaint:
1. Kindly provide to our offices, in writing the details of your complaint or query together with all supporting documentation.
2. Inform the ThinkMarkets Client Services Team and/or your Account Manager with details of your complaint. You can call us on +27 10 446 5933 or alternatively email us at [email protected]. We will review the situation and will resolve it at this initial level if possible.
3. If the matter is still not resolved to your satisfaction, please ask the staff member that has been dealing with your case to escalate your complaint to their Line Manager to investigate. The staff member should consequentially provide you with their Line Manager's contact details.
4. If your dispute is still not resolved you may refer your case to the Compliance Officer, who will conduct an independent review and contact you directly. Please set out your complaint clearly in writing,
Address:
TG Global Markets (South Africa) (Pty) Ltd
3 Gwen Lane
Sandown
Sandton, 2031
South Africa
Email:
[email protected] (Please mark your email Attention: Compliance Officer).
We aim to resolve your complaint within a period of 6 weeks from the day of the initial complaint, however if your complaint is more complex and takes longer our Compliance Officer will provide a full written response and communicate the reasons for the delay.
If you are not satisfied with the outcome of your complaint you have the right to refer the matter to the Office of the Ombud for Financial Service Providers within 6 months from the date of ThinkMarkets' final response. You should note that the Office of the Ombud for Financial Service Providers will not consider a complaint until we have had the opportunity to address the complaint in full. Contact details for the FAIS Ombud are outlined below:
Physical address
Menlyn Central Office Building
125 Dallas Avenue
Waterkloof Glen
Pretoria 0010
Other
Tel: 012 762 5000
Sharecall: 086 066 3247
Email: [email protected]
Website: www.faisombud.co.za
19 Set Off
I agree that ThinkMarkets is entitled to set off any amount I owe to it or under this Mandate against any amount it owes to me; ThinkMarkets shall be entitled to debit any of my accounts in respect of such indebtedness.
20 Dividend Withholding Tax
20.1 For purposes of this clause and notwithstanding anything contained in the Mandate, “Investments” shall mean “securities which are listed on the JSE”.
20.2 As from 01 April 2012 I acknowledge that I will be liable for Dividend Withholding Tax (“DWT”) in respect of any and all dividends declared and paid on my Investments, which shall be levied at the rate stipulated in the Income Tax Act 58 of 1962 (“ITA”), from time to time, and calculated on the amount of such dividends.
20.3 I hereby consent to and authorize ThinkMarkets through Velocity who is as an authorized regulated intermediary and in terms of the ITA, to deduct DWT from any and all gross dividends declared and paid to my ccount and only pay to me the net amount of such dividends and to pay the DWT to the South African Revenue Services (“SARS”) on my behalf.
20.4 In the event that any of the exemptions as provided for in Section 64F of the ITA are applicable to me, I 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 ThinkMarkets. I acknowledge and agree that the full DWT shall be withheld by ThinkMarkets, in respect of any and all dividends declared and paid to my Account, until the DTD (EX) or DTD (RR) (as the case may be) has been (i) duly completed and signed by me and (ii) received and processed by ThinkMarkets.
20.5 I undertake to inform ThinkMarkets immediately should any circumstances change which would result in any exemption no longer being applicable and ThinkMarkets shall withhold DWT from the date of receipt of the changed status notification. I shall have no claim against ThinkMarkets as a result of my failure to notify ThinkMarkets timeously of such changes in terms of this clause.
20.6 I understand and agree that in terms of the ITA in the event that DWT was withheld in respect of any dividend payment made to me by ThinkMarkets in circumstances where an exemption was applicable, that I may apply to ThinkMarkets for a refund of such DWT, provided that (i) such application is submitted to ThinkMarkets within a period of 3 (three) years calculated from the date of the respective net dividend payment by ThinkMarkets to me and (ii) that I submit the requisite declaration and supporting documentation to ThinkMarkets’ complete satisfaction. ThinkMarkets shall endeavour to refund the amount of DWT withheld within a period of 1 (one) year from the date of the submission of the said application and declaration. It is specifically recorded and agreed that ThinkMarkets shall only accept claims for refunds in respect of DWT which had been previously withheld by it and not by any other third party.
20.7 I hereby give express authority/permission to ThinkMarkets through Velocity to pass any and all of my information and/or documentation to SARS and/or any regulator or similar authority. I acknowledge that ThinkMarkets as an authorized regulated intermediary in terms of the ITA and in terms of Tax Administration Act 28 of 2011 is obligated to submit such information and/or documentation to SARS.
21 Protection of Personal Information
For purposes of this clause:
“Personal Information” Information about an identifiable, natural person and where applicable, a juristic person, including, but not limited to information about: race; gender; sex; pregnancy; marital status; nationality; ethnic or social origin; colour; sexual orientation; age; physical or mental health; well-being; disability; religion; conscience; belief; culture; language; birth; education; medical, financial, criminal or employment history; any identifying number, symbol, e-mail, postal or physical address, telephone number; location; any online identifier; any other particular assignment of the person; biometric information; personal opinions, views or preferences of the person or the views or opinions of another individual about the person; correspondence sent by the person that is implicitly or explicitly of a private or confidential nature or further correspondence that would reveal the contents of the original correspondence; and the name of the person if it appears with other personal information relating to the person or if the disclosure of the name itself would reveal information about the person.;
“Process” means any operation or activity, automated or not, concerning 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 the use of information. Processing and Processed will have a similar meaning
21.1 I consent to ThinkMarkets collecting my Personal Information from me and where lawful and reasonable, from public sources for credit, fraud and compliance purposes, as well as the purposes set out below.
21.2 If I give ThinkMarkets Personal Information about or on behalf of another person (including, but not limited to, account signatories, shareholders, principal executive officers, trustees and beneficiaries), I confirm that I am authorised to: (a) give ThinkMarkets the Personal Information; (b) consent on their behalf to the Processing of their Personal Information, specifically any cross-border transfer of Personal Information into and outside the country where the products or services are provided; and (c) receive any privacy notices on their behalf.
21.3 I consent to the Processing of my Personal Information:
21.3.1 to provide products and services to me in terms of this agreement and any other products and services for which I may apply;
21.3.2 to carry out statistical and other analyses to identify potential markets and trends, evaluate and improve the business (this includes improving existing and developing new products and services);
21.3.3 in countries outside the country where the products or services are provided. These countries may not have the same data protection laws as the country where the products or services are provided. Where ThinkMarkets can, they will ask the receiving party to agree to its privacy policies.
22 Payment/Refunds
22.1 Unless I have instructed ThinkMarkets in writing to the contrary, ThinkMarkets will pay any monies due and payable to me under this Mandate into my designated account.
22.2 I agree that no funds (payable under this Mandate) will be payable to any other person (a third party). To this extent, unless otherwise agreed in writing, I authorise ThinkMarkets to disregard any instruction from me to pay a third party and indemnify it against any claim or liability arising from ThinkMarkets for failing to honour any instruction to pay a third party.
23 Sanctions
23.1 I represent and warrant, on a continuing basis, that:
23.1.1 I am not a Sanctioned Entity,
23.1.2 I will not use or otherwise make available the proceeds of any Investments for the purposes of benefitting and/or financing, directly or indirectly, the activities of any person or entity which is a Sanctioned Entity or in a country which is subject to any sanctions imposed by a Sanctioning Body.
23.2 I hold ThinkMarkets harmless against any loss, damages, claims, costs or any other liability, which may arise as a result of:
23.2.1 The seizure, blocking or withholding of any funds by any Sanctioning Body (whether in relation to me or otherwise),
23.2.2 Payment or settlement of any claim(s) in terms of the Investments should the beneficiary of such payment, or its substantial shareholder(s) become the subject of sanctions established by a Sanctioning Body,
23.2.3 I (and in the case of me being a legal entity any person or entity that owns, holds or controls (directly or indirectly, or derives any benefit (in any manner whatsoever) from me or my country of incorporation) become a Sanctioned Entity and
23.2.4 I (and in the case of me being a legal entity any person or entity that owns, holds or controls (directly or indirectly, or derives any benefit (in any manner whatsoever) from me or my country of incorporation) attempts to use (or otherwise make available the proceeds of) any Investments for the purpose of benefitting and/or financing directly or indirectly, the activities of any person or entity which is a Sanctioned Entity or in a country which is subject to any sanctions imposed by any Sanctioning Body.
23.3 I acknowledge and agree that should ThinkMarkets believe, suspect or be notified by me that I (and in the case of me being a legal entity any person or entity that owns, holds or controls (directly or indirectly, or derives any benefit (in any manner whatsoever) from me or my country of incorporation) becomes a Sanctioned Entity, ThinkMarkets will be entitled to terminate this Mandate with immediate effect.
23.4 For the purposes of this clause:
Sanction List means Specially Designated Nationals and Blocked Persons List of OFAC and/or the UNSC list of persons or entities suspected to be involved in terrorist related activities or the funding thereof and/or any other list of HMT and/or EU and/or FMEFI;
Sanctioned Body means any one or a combination of the following:
(a) the Office of Foreign Assets Control of the Department of Treasury of the United States of America;
(b) the United Nations Security Council;
(c) the European Union’s Common Foreign and Security Policy
(e) the French Ministry of Economy Finance and Industry); and/or
(f) any other sanctioning body recognised from time to time; Sanctioned Entity means a person or entity sanctioned by a
Sanctioning Body; Sanctioned Jurisdiction means a country or territory:
• that is listed in a Sanction List; and/or
• in respect of which there is some form of financial or economic limitation on other persons or countries dealing with or making payments or deliveries to or receiving payments or deliveries from such country or territory, in terms of the applicable laws.
24 Jurisdiction
I consent to the non-exclusive jurisdiction of the Magistrates Court. However, should a Party to this Mandate elect to institute proceedings in the High Court, the Parties consent to the non-exclusive jurisdiction of the High Court of South Africa (Gauteng Local Division, Johannesburg or any successor thereto).
25 Governing Law
The laws of the Republic of South Africa shall govern the validity, interpretation and performance of this Mandate and the courts of South Africa shall have sole jurisdiction.
26 Severability
The invalidity, illegality or unenforceability of any of the provisions of this Mandate shall not affect the validity, legality and enforceability of the remaining provisions of this Mandate.
27 No Waiver
The failure of either Party to insist upon the strict performance of any provision of this Mandate or to exercise any right, power or remedy consequent upon a breach hereof shall not constitute a waiver by such Party to require strict and punctual compliance with each and every provision of this Mandate.
28 Terms and Conditions
I confirm that I have read and understand the terms and conditions included in this Mandate and agree to be bound by them.
29 Rules and Legislation
I acknowledge that it is my sole responsibility to find, research, read and familiarise myself with the relevant Rules and Applicable Laws referred to herein, as to their interpretation and imports in relation to this Mandate and that such Rules and Applicable Laws are binding on me and shall include but not be limited to my authorized representative.