Introduction

  1. The Trust Investment Switch (hereinafter referred to as “TIS”) is a product of Greyscale Capital (Pty) Ltd trading as Fennec (hereinafter referred to as “Fennec”), a private company duly incorporated under the Company Laws of the Republic of South Africa, with registration number 2015/046950/07.
  2. TIS acts as a data conduit between its professional services clients (hereinafter referred to as “Intermediary” or “Intermediaries”) and its banking partners (hereinafter referred to as “Bank” or “Banks”) by transferring investment, investor and other data between Intermediaries and Banks for purposes of opening and managing investment accounts.
  3. The following terms and conditions are applicable to the use of TIS by persons specifically authorised to do so by the Intermediary (hereinafter referred to as “Users”), whether it is accessed or utilised directly through the TIS website or indirectly via any of its software vendor partners (hereinafter referred to as “SVP”) who host certain functionality on behalf of Fennec.
  4. The Intermediary shall appoint a responsible person who will hold master rights to the system and is able to make changes with regard to among others user rights, e-mail notifications, passwords and also has the ability to authorise specific actions during the process (hereinafter referred to as the “System Supervisor”).
  5. All Users are requested to read through these terms and conditions carefully and ensure that they are familiar with same. Should you have any questions or queries you can contact a TIS representative for further clarity.
  6. The titles of these terms and conditions are for convenience of reference only and are not to be considered in construing this. Unless the context clearly requires otherwise, references to the singular include the plural and vice versa, references the one gender include all genders and “including” has the inclusive meaning frequently identified with the phrase including but not limited to”.

    7. Application and Acceptance of these Terms and Conditions

  7. The terms and conditions come into force and effect at the first instance of the website being accessed, or if utilised through a SVP system at the first instance of a “request to open” account instruction being submitted.
  8. It will remain in force and effect during the entire time that TIS is being accessed and used by any of the Users at the Intermediary.
  9. Fennec reserves the right to unilaterally amend these terms and conditions and shall make every effort to communicate any changes to the Intermediary, but it remains the Intermediary and User’s responsibility to ensure that they are at all times familiar with the content.

    10. User Guidelines

  10. It is the responsibility of the Intermediary and Users to comply with the relevant user guides (if available) to ensure the optimal usage and functioning of TIS.

    11. Software, Hardware and Access

  11. TIS can be accessed via either SVP systems alternatively directly via the dedicated TIS website.
  12. The TIS website requires that Intermediaries have access to a reasonable network with suitable data download speeds to ensure that the product functions optimally. Not having such access can severely impact the performance of the product and Fennec cannot be held responsible for such non-performance due to the lack of suitable software, access and connectivity speeds. It is recommended that TIS be accessed via Google Chrome for optimal results.
  13. Our SVP’s have specific hardware and accessibility requirements of their own and it is recommended that these be adhered to to ensure optimal performance of the product. Fennec has no control over the hardware, software and access requirements of its SVP’s and it is important that Intermediaries consult their SVP to obtain these requirements.
  14. Any data costs incurred as a result of the use of TIS, regardless of communication device used, shall be for the account of the Intermediary or the User.
  15. Fennec cannot be held responsible for any error or delay that may arise as a result, and are also not responsible if you are unable to access the service channels because of your equipment, software or services provided to you by SVP’s.

    16. Usernames and Passwords

  16. Users can be created and removed by the System Supervisor who is the sole responsible party able to manage and regulate all Users.
  17. Each User is issued with a temporary unique Username and Password when first accessing TIS which is thereafter utilised to verify the User at first log in. The Password can be amended by the User once logged in alternatively be reset by a Supervisor. At first log in the User must change his Password to a personally selected one.
  18. The Username and Password gives the User access to TIS, certain confidential client and other information and gives him the ability to perform specific tasks which may place the Intermediary at risk.
  19. It is the User’s responsibility to keep his unique Username and Password secure and to store it in a safe place to avoid unauthorised use of TIS.
  20. When not in use the User must log out of TIS or its SVP system to avoid unauthorised access.
  21. TIS retains the right to refuse any user access to TIS if the Username and Password combination that is entered is incorrect.
  22. Users at all times act as agents of the Intermediary and actions taken or instructions sent is attributable to the Intermediary.
  23. It is the responsibility of the Intermediary or User to immediately advise Fennec if unauthorised use of TIS is suspected.
  24. User rights and access is controlled by the Intermediary and by Users personally, and Fennec cannot assist in revealing Passwords, save for resetting Passwords, which Password shall then be sent to the User at an e-mail address specified by him.

    25. Correct and Complete Information

  25. The Intermediary or its Users are responsible for ensuring that data captured and submitted to the Bank is correct, complete and accurate, and Fennec cannot be held responsible for any losses of any kind that may be suffered as a result of the submission of incorrect data by the Intermediary, or for losses of any kind suffered as a result of inaccurate, incorrect or incomplete information being returned by the Banks.
  26. The Intermediary acknowledges that TIS is a data conduit between the Bank and the Intermediary and that Fennec does not control nor exercise any control over financial transactions where, should there be an error in calculation it leads to an interest or other claims.

    27. Processing Times

  27. TIS acts as a data conduit, and in some instances data may not be passed to the Bank in a fully integrated manner, resulting in the Bank having to perform certain manual operational tasks. Data may also sometimes not reach the Bank for whatever reason timeously, or at all.
  28. Should there be any delays as a result of the Bank not processing data timeously or as a result of system delays, or if data does not reach the Bank or vice versa the Intermediary, then Fennec cannot be held responsible for losses or damages of any kind suffered as a result of such delays or non-submission, unless Fennec acted grossly negligently in its operations.

    29. Data Confidentiality

  29. By accepting these terms and conditions the Intermediary expressly gives permission to Fennec to access, download and store Bank transactional and other data which is under the control of the Intermediary in terms of his mandate from his client.
  30. Data so obtained by Fennec may only be used for purposes of analytics, enhancing the available functionality, populating reports, statements and other key statutory documents or to channel the data to the Intermediary’s accounting software partner to enable auto reconciliation of accounts.
  31. In addition the Intermediary gives permission to Fennec to transmit, receive, store, download, display and manipulate any and all data used in the TIS process of managing investment accounts, whether data is received from the Intermediary, the Bank or any other source connected with the process, but only disclosing such information either to the Intermediary, the Bank or any software provider so approved by the Intermediary, taking into account the need to store such data at a provider as being an exception.
  32. Fennec shall ensure that where data is stored or housed at a third party data storage provider that the data terms of these terms and conditions be adhered to by the data storage partner as far as confidentiality and disposal is concerned.

    33. E-mail addresses on TIS

  33. The User’s Username is his e-mail address. It is the System Supervisor’s responsibility to ensure that e-mail addresses are at all times correct and updated to ensure that key notifications reach the intended recipients.

    34. Different User Types and Separation of Duties

  34. TIS allows for separation of duties, where Users can be given specific rights dependent on their seniority or specific job description. It is the responsibility of the System Supervisor to ensure that the rights afforded to each User is maintained and correctly reflects the hierarchical and operational structure of the Intermediary.

    35. Notifications

  35. TIS has as a feature the ability to send e-mail notifications to selected Users on completion of certain tasks during the investment period of the funds. The purpose of this feature is to keep parties informed when actions are taken in connection with Investments to improve transparency.
  36. These notifications can be manipulated per User by the System Supervisor, whose responsibility it is to ensure that the relevant Users are activated for the correct notifications and Fennec cannot be held responsible for notifications not reaching specific Users as a result of incorrect settings.
  37. It needs to be stressed that these notifications are exactly what they purport to be, notifications only, and Intermediaries and Users cannot solely act or react on receipt of these, and must at all times consult TIS to determine the status of the matter and which specific actions need to be taken.

    38. TIS Availability

  38. TIS and SVP systems (unless otherwise stated by the SVP) can be accessed seven days a week, 24 hours a day. However, at certain times, some or all of the functionality related to TIS, whether in the website or in SVP sites may not be available due to routine maintenance or emergency repairs or because of circumstances outside our control, such as electricity outages/blackouts, or the unavailability of any telecommunication system or networks.

    39. SVP / Third Party Software

  39. Fennec has incorporated TIS into a number of SVP’s, but the use of these SVP’s is done so at the risk of the Intermediary and Fennec makes no warranty about the software whether express or implied. The Intermediary is at all times bound by the license conditions of the SVP.
  40. Fennec undertakes to ensure to the best of its ability that TIS is provided to the Intermediary via the SVP in a secure and reliable manner, and shall take reasonable care to prevent harm and loss to the Intermediary.
  41. Although Fennec takes reasonable care to prevent harm or loss to the Intermediary, it will not be liable for any kind of loss or damage it may suffer, including direct, indirect, special, incidental or consequential damages, because of the Intermediary’s use of, or inability to use, the SPV’s services (also see the General Indemnity provisions below in this regard).

    42. Intellectual Property Rights and Copyright

  42. Fennec shall at all times retain its copyright in or licence to software as well as associated information and documentation belonging to it used in the provision of TIS as well as in respect of any logos, trademarks or service marks used.
  43. The Intermediary or its Users shall not duplicate, reproduce or in any way tamper with the software and associated documents without the prior written consent of the Fennec.
  44. In respect of third-party software, Fennec is not a party to any licence agreement entered into by the Intermediary and the licensor and thus makes no warranties relating to such software, including, without limitation, warranties relating to the suitability for a particular purpose, security features or performance. The Intermediary acknowledges that the use of such software shall be at its own risk and indemnifies Fennec against and holds it harmless from any loss or damage which the client may suffer as a result of the use, abuse or possession of such software.

    45. General Indemnity

  45. The Intermediary hereby waives its rights in respect of and indemnifies Fennec against any demand, claim or action relating to or in connection with TIS, whether directly or indirectly, unless such demand, claim or action arose as a direct consequence of the gross negligence or wilful misconduct of Fennec or any of its employees.
  46. Any demand, claim or action arising against Fennec in connection with the circumstances referred to above shall be limited to direct damages. Special or consequential damages are hereby specifically excluded.
  47. Without limiting the generality of the above, the Intermediary specifically waives all its rights in relation to, and indemnifies Fennec against, any loss or damage brought about by:
  48. delay or failure by Fennec or the Banks to act on any instruction given using TIS;
  49. malfunction, failure or unavailability of any system, hardware, software or equipment;
  50. destruction of any data, power failures or corruption of storage media;
  51. natural phenomena, riots, acts of vandalism, sabotage, terrorism or any other event beyond Fennec’s control;
  52. interruption or distortion of communication links or reliance by any person on incorrect, illegible, inaudible, incomplete or inaccurate information or data contained in any instructions received by Fennec or the Banks;
  53. use, misuse, abuse or possession of any third-party software, including, without limitation, any operating system software, browser software or any other software packages or programs;
  54. breach of security or any destruction or accessing of the Intermediary's data or any destruction or theft of or damage to any of the Intermediary's equipment;
  55. the Intermediary or its Users divulging any confidential information and/or permitting unauthorised persons from having access to and/or using the services;
  56. failure to adhere to any terms and conditions applicable to the services and/or by the supplying of incorrect information or by the failure or unavailability of third-party facilities or systems or the inability of a third party to process a transaction;
  57. confidential information/documentation requested using the services coming to the knowledge of third parties; or
  58. fraudulent, false or altered instructions given using the services.

    59. Dispute

  59. Should any dispute arise at any time between Fennec and the Intermediary relating to any matter arising out of the use of TIS, such dispute shall be finally resolved, once every effort has first been made between the parties to resolve the matter in an amicable fashion, in accordance with the rules of the Arbitration Foundation of South Africa by an arbitrator or arbitrators appointed by that foundation.
  60. The Intermediary agrees that, in pursuance hereof, either the Intermediary or Fennec may demand that a dispute be referred to arbitration by giving written notice to that effect to the other party.
  61. This clause shall not preclude the Intermediary or Fennec from obtaining urgent interim relief from a court with competent jurisdiction pending the decision of the arbitrator.
  62. The arbitration referred to herein shall be held at Johannesburg in the English language and shall be held immediately with a view to be completed within 21 (twenty-one) days after it is demanded. The Intermediary irrevocably agrees that the decision of the arbitrator in the arbitration proceedings:
  63. shall be final and binding on it;
  64. shall be carried into effect; and
  65. may be made an order of court of competent jurisdiction.
  66. This clause is severable from the rest of the terms and conditions and shall remain valid and binding on the Intermediary notwithstanding any cancellation by the Intermediary of its TIS services with Fennec or any discontinuation by Fennec of the services or any of them.

    67. Termination of the Relationship

  67. Fennec has the right to terminate the relationship or refuse its services at any time after having given the Intermediary reasonable notice, which notice shall not be less than 7 (seven) days
  68. Fennec may also terminate the relationship or refuse its services immediately if any one or more of the following happens:
  69. If the Intermediary or any User commit fraud or is suspected of having done so.
  70. If the terms and conditions are breached.
  71. If your account with the Bank is closed for whatever reason.
  72. If the law requires us to do this.
  73. If you don’t use TIS for a period of 3 (three) months or more.
  74. The Intermediary has the right to terminate the relationship by providing us with written notice to suspend the service. Any outstanding fees, where applicable shall remain owing.