FIRSTRAND PRIVATE WEALTH MANAGEMENT INTERNATIONAL ADVISORY SERVICES
TERMS OF BUSINESS
The following Terms of Business (TOB) shall apply between the Contracting Party in respect of its International Advisory Services (IAS) and the Client for any current or new instruction, as well as any future business transacted between the parties unless agreed to the contrary, and the formation of this agreement, unless specifically agreed to the contrary, will be effected through electronic communication:
1. Definitions
“Advice” means any suggestions, recommendations, proposals, structures, consultations or introductions provided to a Client in respect of the legal, taxation and exchange control aspects of managing their personal financial affairs as well as assistance in property transactions and access to finance.
“Client” means any person including any legal entity or person that is advised by IAS or to or for whom IAS performs any service, introduction or arrangement, including any person or legal entity or person related to the Client or who is part of a group of legal entities or is managed by or has any relationship whatsoever to the Client, including any representative or agent.
“Contracting Party” means the legal entity in the covering letter of these terms of business or the legal entity the Client engaged with and will be either a) FirstRand Private Wealth Management Limited b) RMB Private Bank or c) FNB Private Clients; b) and c) both being divisions of FirstRand Bank Limited.
“Employees” means and includes the Officers, Directors, Staff and Consultants in the FirstRand Group and employed or contracted by the Contacting Party.
“Experts” means any independent service provider who is utilised or contracted by the Contracting Party to provide any services to the Client.
FirstRand Group means all entities that form part of the FirstRand Group internationally.
“IAS” means International Advisory Services which is the trading name for certain activities of the Contracting Party.
“Introduction” and “Introductory commission” mean any assistance in identifying, sourcing, introducing or any other assistance to a Client on his request, and the charges raised by the IAS therefore.
“Services” means any acts done or performed on behalf of a Client, including all Advice.
Words importing the singular shall include the plural and the masculine gender shall include the feminine and the neuter and vice versa in each case and words importing persons shall include bodies of persons whether corporate or unincorporated.
2. Objective
The objective of these TOB is to regulate the agreement for the provision of Advice and Services by the IAS to the Client, and to agree the terms under which it shall be provided. The scope of Services to be rendered will be as requested by the Client or his representative. The IAS will supply the Advice and Services as set out in paragraph 1 above. The IAS will not review or comment on any formal opinion given by any third parties to the Client.
3. Fees, Disbursements and other costs
Fees for any Advice or Services will be calculated on a time based fee structure and the relevant fee structure will be available on request to the Client. This fee structure may be reviewed and adjusted from time to time, and the Client will be notified of such adjustment should there be any work in progress for the Client at such time. On certain transactions the IAS may levy ad valorem fees on the value added by the Advice, Services or Introductions, or calculated on the value of the assets or investment advised upon. All applicable taxes will be added to the invoice.
Fees for all non time based Advice or Services will be charged on a percentage based scale. Introductory commissions will be charged on the value of the property, finance amount or value of the transaction. All costs and expenses related to the Advice or Service will be charged to the Client, such to include but not limited to telephone calls, courier services, copies, fax costs, travelling and subsistence costs and fees payable to third parties. The IAS will also charge fees for all additional Services requested above and beyond the original instructions.
All disbursements made on behalf of a Client will be repaid by the Client on demand, inclusive of but not limited to, expert advice, professional advice and structuring fees. Payment will be made by the Client without any deductions or withholding whatsoever and in the currency as nominated on the invoice. Invoices will be issued on completion of an assignment or, for longer term cases, on a monthly basis and will be payable on demand, but no later than 30 days after date of bill. Interest will be payable on all overdue amounts at a rate of 2% per month.
The Client will be liable for all legal costs should it be necessary to revert to legal steps to recover any outstanding and/or overdue amounts. The IAS will retain a lien over all documents drafted by it or in its possession until all outstanding amounts have been paid by the Client.
The provisions as set out herein will also apply to all incomplete work and in the event of cancelled instructions, and the IAS is hereby authorised by the Client to charge fees up to the time of cancellation or cessation of the instructions or mandate for work done or introductions made.
4. Instructions
The IAS will take instructions from the Client, or where appropriate, from any nominated person authorised by the Client. Where instructions are communicated via any Employee of the FirstRand Group, such Employee shall never act or be deemed to act as agent or representative of the Client. In the case where the Client is a company or other legal entity, and instructions are issued by any representative of the Client where such representative acts in such a way that it creates the impression that he is authorised to give such instructions, then the Client shall be bound to this agreement and will be obliged to pay the fees and other costs as set out herein. Where the IAS is instructed by joint parties, a company or association, the IAS will be entitled to rely on the instructions of any one of such parties or any officer of the company or association unless otherwise notified in writing.
The IAS will always exercise care to interpret the instructions received correctly and to provide the Advice, Services or Introductions as requested, but will accept no responsibility or liability for any losses or damages suffered due to the interpretation or provision of the Advice, Services or Introduction or failure to do so. The IAS will endeavour to provide the Advice, Services or Introductions in a reasonable and timely manner, but will accept no liability for any losses or damages suffered due to a delay therein.
The Client confirms and gives the assurance that all information provided by the Client or any of his representatives will be correct and true, and the IAS will accept no responsibility and makes no representations regarding the correctness or completeness of any information provided by or on behalf of the Client, or the Advice or Services provided based on incorrect, incomplete or false information.
The IAS will refer the Client to associated businesses in the FirstRand Group as a normal business practice, and all business conducted between the Client and such business shall have no effect on or recourse to the IAS.
5. Information and Confidentiality
Information provided to the IAS regarding a Client for purposes of rendering Advice or Services to such Client will be treated as confidential and will not be made public unless it is already in the public domain or for purposes of instructing independent advisers, required for insurance purposes or if required by law, and then only to such extend as reasonably required. The foregoing shall not be applicable to any information that is required or requested to be disclosed by (i) any regulatory authority having jurisdiction over any of the parties; (ii) any auditor of the parties hereto; (iii) judicial or administrative process; (iv) statute; (v) legal advisors or insurers of the IAS; or (vi) otherwise by applicable law or regulation. In such event, the affected party shall notify the other of the request it has received to release information pertaining to the terms and conditions of this Agreement.
The Client is hereby reminded and notified that no legal privilege will apply to documentation in the possession of the IAS, and that such documentation can be accessed by a court order. The IAS will notify the Client on receipt of any request or application for access to information regarding the Client to enable the Client to take such steps it may deem necessary, and will assist the Client within reasonable legal means and on payment of the reasonable cost structure of the IAS if requested to do so.
In compliance with Anti-Money Laundering prevention legislation, the IAS may need to make and retain copies of a Client’s identification documents. It may also make searches regarding the Client which may include material for the purpose of verifying his identity and address, some of which may include records held by fraud prevention agencies. The IAS will record these searches. In order that the IAS may carry out instructions accurately, and to help it improve its services and in the interests of security, it may record its telephone calls with Clients. All such recordings will be the sole property of the FirstRand Group. Subject to applicable law, a Client has a right to request access to their personal data held by the IAS and to require personal data to be corrected if inaccurate. In order to provide its services, the IAS may transfer data to other members of the FirstRand Group and/or third parties, in jurisdictions inside or outside the European Economic Area where there may be less stringent Data Protection laws. If the IAS receives a request from another expert in order to provide related or required services in relation to the Client’s affairs, it may provide this information without reference to the Client.
Information and documentation will be stored by the IAS in such manner and for such periods as required by legal and regulatory obligations. The IAS is hereby authorised to disclose information to entities in the FirstRand Group regarding business or delivery of further services by FirstRand Group entities to the Client, unless instructed in writing to the contrary by the Client. The use of any Advice or Services rendered by the IAS will be restricted to the Client and for the specific purpose that it was issued for, and shall not be made public or used for any other purposes whatsoever.
6. Intellectual Property Rights
The IAS will retain all copyright and other intellectual rights in all documents and Advice prepared and drafted by the IAS and/or its Employees or such Service Providers as instructed by the IAS.
7. Risk and Liability
All deliveries of documentation and transfers of funds are made at the risk of the Client and the IAS will accept no responsibility or liability for any loss, damage or delays caused in the process of sending or transferring documentation or funds.
The IAS shall accept no responsibility for any failure or delay in the performance of its obligations caused by force majeure including, but not limited to, acts of God, earthquakes, fires, floods, wars, civil or military disturbances, sabotage, terrorism, epidemics, riots, interruptions, loss of or malfunctions of utilities, computer hardware and software or communication services, accidents, labour disputes, acts of government and delays in transport. The Client hereby agrees unconditionally that no claims will be made against any individual, consultant or employee of the IAS, and that all potential claims may only be brought against the Contracting Party as a legal entity.
The liability of the IAS regarding any claims whatsoever including interest and costs will be limited to a total amount of not more than twice the fee charged for the specific Services or Advice to the Client. This limit will apply as total liability exposure even where more than one party are involved and not as a limit for each party. The IAS also gives no guarantee that the relevant Authorities in any jurisdiction will accept or agree with the technical analyses and the consequences of any transaction, and does not accept any liability for such difference in interpretation.
Any liability of the IAS to the Client will be limited to breach of contract or gross negligence, and the IAS will accept no other damages or responsibilities, and will also not be liable for any consequential or indirect damage whatsoever. Whilst the advice or services rendered by the IAS may be a factor in decisions made by the Client, the Client will remain responsible for all commercial decisions or transactions made by the Client, and the IAS will accept no liability regarding the consequences of such decisions. Any Advice given should be reviewed if there is any delay in implementation thereof, to account for any possible regulatory changes.
8. Entire Agreement
This agreement constitutes the entire agreement between the parties and no deletion of any part thereof, addition thereto or amendment thereof will have any force and effect or be binding on the parties unless reduced to writing and signed by both parties.
9. Governing Law
This agreement shall be governed by the laws of the country in which the Contracting Party is domiciled, and the parties agree to the non exclusive jurisdiction of the courts of such country and waive the right to object to an action brought in such courts on the basis of an action brought in an inconvenient forum.
10. Dispute Resolution
The Parties may agree to refer any dispute first to mediation, and if such mediation does not result in a mutually acceptable solution, then to arbitration on such terms and conditions they may agree upon. If no agreement regarding the arbitration can be reached within fourteen days after notification regarding the request for arbitration by one of the parties to the other, the arbitration clause will lapse. The mediator or arbiter will be appointed by way of consensus and should have the necessary knowledge and experience regarding the subject matter of the dispute. Failing such consensus, the Chairman of the Law Society of the relevant territory or country will be requested to nominate the mediator or arbiter.
11. Compliance
The Client hereby agrees and acknowledges that IAS will have obligations regarding applicable Financial Services regulations and agrees to provide to IAS such information and documentation as required for the IAS to fulfil such obligations.
12. Notices
All notices required or permitted to be given under this Agreement shall be effective only if in writing and delivered personally, by facsimile transmission, electronic mail, postage prepaid, return receipt requested and addressed to the addresses as set out in the covering letter.
The address details can be changed by either party by giving fourteen days notice in writing to the other party. Notice given personally shall be deemed given at time of delivery. Notice sent by first class post or airmail shall be deemed given at the commencement of business of the recipient on the third business day after its posting. Notice sent by E-Mail or facsimile shall be deemed given at the commencement of business of the recipient on the next day after transmission.
The terms and conditions of this agreement are hereby accepted by the Client by his signature hereunder, or by confirming his acceptance by electronic mail to the Contracting Party, and such acceptance will effect the formation of a binding agreement. The agreement will be deemed to be binding on receipt of the acceptance by the Contracting Party from the Client and will further be deemed to be formed in the country of domicile of the Contracting Party.
Signed at ________________________on _______________________.
_____________________
Client
_____________________
Witness
