In this agreement the following phrases have the following meanings:
1.1 “the/this agreement” means these terms and conditions;
1.2 “Sharenet” means the company Sharenet (Proprietary) Limited, registration number: 1999/005033/07
1.3 “JSE” means the JSE Limited, registration number: 2005/022939/06
1.4 “Member Associates” means any party, including but not limited to stock-brokers, with whom Sharenet has an agreement in terms of which:
1.4. 1 trades may be executed via such Member Associates and may include but is not limited to execution on a securities exchange, again including but not limited to the JSE, and/or
1.4.2 other services offered by such stock broker may be accessed via the Website;
1.5 “Subsidiary” means the term defined as such in section 1 (3) of the Companies Act No. 61 of 1973 of the Republic of South Africa;
1.6 “User” means that person who either:
1.6.1 contracts with Sharenet in terms of these terms and conditions with respect to the purchase of and/or subscription for and/or access to and/or use of a Web Based Product, and/or
1.6.2 any person using the Website who has accepted these terms and conditions;
1.7 “Username” means any username and/or password which Sharenet supplies to a User to enable the User to make use of the Web Based Product which that User in question has bought; subscribed for; uses and/or enrolled for;
1.8 “Web Based Product” means any product or service offered to the general public by Sharenet and/or by Sharenet for and on behalf of, or in conjunction with, any other entity, for use and/or subscription and/or sale and/or enrolment, via the Website. In this respect it is recorded that some of the Web Based Products are utilized via the Website while other of the Web Based Products are utilized separately from the Website;
1.9 “Website” means the website www.sharenet.co.za, or any other domain registered, owned and used by Sharenet which contains these terms and conditions as terms and conditions which must be accepted for the purpose of making use of such site and/or for the purpose of otherwise contracting with Sharenet.
2. USE AT OWN RISK AND DISCLAIMERS
2.1 Sharenet and/or its Member Associates shall not be responsible and disclaims any liability for any loss, liability, damage (whether direct or consequential) or expense of any nature whatsoever which may be suffered by the User or any third party as a result of or which may be attributable, directly or indirectly, to the use of or reliance on any information or service provided through the Website and the User indemnifies Sharenet and its Member Associates in respect of any loss, liability, damage (whether direct or consequential) or expense of any nature whatsoever, which may be suffered by the User or a third party as a result of or which may be attributable, directly or indirectly, to the User's use of this Website, even if same is as a result of the negligent conduct of Sharenet and/or a Member Associate.
2.2 Sharenet does not make any representation that:
2.2.1 Information and/or materials on the Website are appropriate for use in any particular and/or all jurisdictions available on the world wide web, or
2.2.2 that transactions, securities, products, instruments or services offered on the Website are available and/or appropriate for sale or use in any particular and/or all jurisdictions, and/or by any particular and/or all investors and/or other potential clients.
2.3 Those who access the Website do so at their own initiative, and are therefore responsible for compliance with applicable local laws and regulations, and Sharenet shall have no liability for such compliance and the User indemnifies Sharenet accordingly.
2.4 While every effort is made to update the information provided on this Website on a regular basis, Sharenet does not make any representations or warranties, either express or implied, as to the accuracy, completeness or reliability of information contained in the Website and shall not be bound in any manner by the information contained in the Website.
2.5 Before making any decision to use, subscribe for, purchase or enroll with a Web Based Product, it is recommended to the User that the User contact Sharenet to confirm all information contained on these pages prior to placing reliance thereon.
2.6 No research, opinions, information or content contained in the Website shall be construed as advice and is offered for information purposes only.
2.7 Users must not make any investment related or other commercial decisions based on the research, opinions, information or content of the Website without first obtaining professional advice with respect thereto.
2.8 It is recorded that certain of the Web Based Products pertain to securities trading services executed via the Website through a Member Associate. In this respect Sharenet will use reasonable endeavours to transfer all share trade instructions received through the Website to its Member Associates, in a prompt and timely manner. However, neither Sharenet nor its Member Associate shall be responsible, and disclaims all liability for, any claims arising from the late or delayed attendance by Sharenet or its Member Associate to the user's instructions, it being agreed that such instructions are issued through the Website solely at the User's own risk.
2.9 External links in the Website may be provided for the User's convenience, but they are beyond the control of Sharenet and no representation or warranty is made as to their content. Use or reliance on any external links provided is at the User's own risk.
3. APPLICATIONS FOR TRADING SERVICES
3.1 All online trading services offered by Sharenet and/or its Member Associates are subject to the signature of the requisite application forms, mandates and other documentation relating thereto, as required by the Members Associates in question and are governed by the standard terms and conditions of the Member Associates in question, and neither Sharenet nor its Member Associates shall be bound in any manner until such requisite documentation has been signed by the User and accepted by the Member Associate. Member Associates reserve the right to reject in their discretion any application for the services contained on the Website.
4. CREDIT RISK ENQUIRIES
4.1 The user hereby acknowledges and agrees that a credit risk enquiry may be undertaken by either Sharenet or a Member Associate should the User apply to use, subscribe for, purchase or enroll with a Web Based Product.
4.2 Sharenet furthermore reserves the right to:
4.2.1 check the correctness of information supplied by the user when applying for a Web Based Product;
4.2.2 furnish to any credit bureau the details of the User's failure to:
188.8.131.52 comply with any of these terms and conditions and/or
184.108.40.206 comply with any terms and conditions contained in the Website itself, and/or
220.127.116.11 comply with terms and conditions of a Member Associate
with respect to the Web Based Product in question which the User has bought, subscribed for and/or enrolled with, as the case may be, though subject to the terms of prevailing law which regulates the furnishing of information to a credit bureau,. Furthermore, and subject to the said prevailing law, this disclosure may include a disclosure of information which the User disclosed to Sharenet with respect to its use of, purchase, of, subscription for and/or enrolment with a Web Based Product.
5. COPYRIGHT, TRADE MARKS AND LOGOS
5.1 Copyright in all material made available through the Website is either owned by Sharenet; Member Associates; the JSE or by third parties and is protected by both national and international intellectual property laws. Accordingly, any unauthorised copying, reproduction, retransmission, distribution, dissemination, sale, publication, broadcast or other circulation or exploitation of this material will constitute an infringement of that copyright.
5.2 The trademarks, logos and service marks displayed on the Website are the registered and/or unregistered trademarks of Sharenet or its Member Associates. Nothing contained on this website should be construed as granting any license or right to use any such trademarks, logos and service marks to User without the written permission of the owner of same.
6.DISCONTINUATION OF WEBSITE FEATURES
6.1 Sharenet reserves the right at any time to change or discontinue without notice, any aspect or feature of the Website.
7.1 A Username is valid for only one User and for use at one terminal at any one time and no part of the information may be distributed or disseminated to third parties in any way. Should any unauthorized distribution or dissemination take place, whether or not the User is aware of it, the User shall be liable to Sharenet for any loss whatsoever which Sharenet may suffer as a result thereof, including but not limited to lost revenue; claims for breach of contract against Sharenet and any fines or penalties imposed against Sharenet by any governmental authorities or by any contracting counter parties.
7.2 The User may not authorize or permit third persons to make use of their Username. In this respect, the User indemnifies Sharenet from any liability that may arise as a result of the User's failure to comply with this condition.
8. DELIVERY OF DATA MESSAGES
8.1 Sections 21 to 25 of the Electronic Communications and Transactions Act, No 25 of 2002 of the Republic of South Africa shall apply, save that the Section 26 shall not apply and it is agreed by both parties that acknowledgement of receipt of a data message shall be necessary to give legal effect to that message and the receipt shall not take the form of an automated response.
9. WEB BASED PRODUCT SUBSRIPTION SERVICES
9.1 Any withdrawals from a bank account/credit card by Sharenet for Web Based Products which are subscription services shall be treated as though they had been signed personally by the User in question and/or by whoever the User's nominee bank account holder in question is.
9.2 The Sharenet trading online access fee allows the User to access live prices and other Sharenet services. It is charged monthly (discount for quarterly or annual payments) to bank accounts and takes effect from the online registration date.
9.3 Sharenet reserves the right to escalate subscription rates by giving 30 days notice by means of a message placed in a prominent position on the Website.
9.4 Where a Web Based Product utilized by a User involves functionality which allows for financial market price lookups, then Sharenet reserves the right to impose limits on the user if excessive price lookups are detected. What an excessive number of price lookups is shall be determined by Sharenet in its sole discretion and the limitations imposed by Sharenet shall likewise be in its sole discretion.
9.5 Annual subscriptions paid up front are not refundable in the event of the cancellation of the Web Based Product in question during the year subscribed for.
9.6 Sixty days written notice is required for cancellations where the subscription Web Based Product is of an indefinite duration and any subscriptions paid in advance for periods in advance of the notice period shall not be refundable.
9.7 Debit orders for subscription Web Based Products are run on the last working day of each month and are payable in advance.
9.8 Prorate amounts are charged for partial months calculated on the number of days left in the month.
10. DELIVERY TIME
10.1 Any products ordered from Sharenet shall be dispatched within a maximum of 14 days and any services ordered from Sharenet shall be activated within a maximum of 7 days after receiving all necessary details and payments.
11.1 Sharenet will not grant any refunds for services, except in the case where a user has experienced material problems utilising the product and service and the issue was not able to be resolved after following procedures requested by Sharenet's support department within a period of 14 days after first notifying Sharenet of the problem and Sharenet having requested the User to follow its recommended procedures. Such requests for refunds must be submitted in writing within 30 days of the problem being notified to Sharenet to qualify for a refund.
11.2 Section 44 of the Electronic Communications and Transactions Act, No 25 of 2002 of the Republic of South Africa makes provision for a 7 day cooling-off period with respect to certain Web Based Products and clients may give us written notice to this effect should they wish to make use of it.
12. JSE DISCLAIMER
12.1 The User is notified that much information on the Web site is not sourced from the JSE, and furthermore some of it is calculated by Sharenet based on Information received from the JSE and other sources.
12.2 The following paragraph relates only to information supplied by the JSE:
12.2.1 Sharenet is licensed by the JSE to publish the Information on a live or delayed basis. The JSE shall not be responsible for any error or omission in the Information. All copyright and database rights in the Information belong to the JSE. Re-distribution of the data comprising the Information is not permitted without the express prior written consent of the JSE. You agree to acquaint yourself with and comply with any restrictions or conditions imposed upon the use, access, or storage of the Information as may be required by the JSE or Sharenet including the condition that in certain circumstances you will be required to enter into a separate agreement with the JSE or Sharenet.
13.1 The clause headings in this agreement have been inserted for convenience only and will not be taken into consideration in its interpretation.
13.2 This agreement, together with the applicable terms and conditions contained in the Website which were accepted by the User as well as any application form completed by the User and accepted by Sharenet, constitutes the whole agreement between the parties with regard to the subject matter hereof and supersedes all prior verbal or written agreements or understandings or representations by or between the parties regarding the subject matter of this agreement, and the parties will not be entitled to rely, in any dispute regarding this agreement, on any terms, conditions or representations not expressly contained in this agreement.
13.3 In respect to this agreement, Sharenet reserves the right to update it, so as to adapt to the changing legal environment. The decision to act upon this right is at Sharenet's sole discretion and where Sharenet chooses to do so, a message to this effect will be placed in a prominent position on the Website.
13.4 The validity, application and interpretation of this agreement will be governed by the laws of the Republic of South Africa. If any claim or dispute arises in relation to this agreement, the parties agree to submit to the exclusive jurisdiction of the South African courts, save that either party may, at its sole option prior to the commencement of litigation, refer such claim or dispute to arbitration in South Africa before a single arbitrator. The arbitrator shall be appointed on the application of either party to the Chairman of the South Africa Law Association. The arbitrator's award shall be final and binding on both parties. The venue for such Arbitration shall be Cape Town. Furthermore, the parties agree that as a first measure, an application made to a South African court, will be confined to a court located in the Cape of Good Hope Provincial Division.
13.5 In this agreement, unless a contrary intention clearly appears:
13.5.1 words importing any one gender include the other two genders;
13.5.2 words importing the singular include the plural and vice versa; and
13.5.3 reference to natural persons include juristic persons (which includes trusts) and vice versa;
13.6 If any provision in clause 1 and/or 13 is a substantive provision conferring rights or imposing obligations on any party, then notwithstanding that such provision is contained in clause 1 and/or 13, effect shall be given thereto as if such provision were a substantive provision in the body of the agreement.
13.7 No agreement varying, adding to, deleting from, canceling or waiving any right in connection with this agreement and/or the applicable terms and conditions contained in the Website which were accepted by the User any/or any application form completed by the User and accepted by Sharenet shall be effective unless reduced to writing and signed by or on behalf of the parties or if clause 13.3 applies.
13.8 Each and every clause and sub-clause in this agreement shall be severable from the other clauses in this agreement and in the event of any clause or sub-clause being held invalid by any competent court for any reason same shall not affect the validity of the remaining clauses or sub-clauses.
13.9 The rule of interpretation which construes the interpretation of the agreement against the party who prepared it shall not be applicable.
13.10 Any reference to an enactment is to that enactment as at the date of signature hereof and as amended or re-enacted from time to time.
13.11 Where figures are referred to in numerals and in words, if there is any conflict between the two, the numerals shall prevail.
14. DOMICILIUM ADDRESS
14.1 The parties choose as their domicilium citandi et executandi for all purposes under this agreement, whether in respect of court process, notices or other documents or communications of whatsoever nature (including but not limited to the exercise of any option and/or right of first refusal set out in this agreement), the following addresses:
At the physical address stipulated in the Website as being the physical address of Sharenet.
14.3 The User
At such physical and/or postal address as the User supplies to Sharenet when making application for and/or when purchasing; subscribing for; using or enrolling for a Web Based Product.
14.4 Any notice or communications required or permitted to be given in terms of this agreement shall be valid and effective only if in writing but it shall be competent to give notice by telefax or by digitally signed emailed documentation.
14.5 Any party may by notice to any other party change the physical address chosen as its domicilium citandi et executandi vis-a-vis that party to another physical address or its telefax number: Provided that the change shall become effective vis-a-vis that addressee on the fifth working day from the deemed receipt of the notice by the addressee.
14.6 Any document:
14.6.1 sent by prepaid registered post in a correctly addressed envelope to any party at its domicilium citandi et executandi shall be deemed to have been received on the fourth working day after posting (unless the contrary is proved);
14.6.2 delivered by hand to a responsible person during ordinary business hours at its domicilium citandi et executandi shall be deemed to have been received on the day of delivery; or
14.6.3 sent by telefax to its chosen telefax number shall be deemed to have been received on the date of dispatch (unless the contrary is proved);
14.6.4 sent by email, to its chosen email address shall be deemed to have been received on the date of dispatch (unless the contrary is proved).
14.7 Notwithstanding anything to the contrary herein contained a written notice or communication actually received by a party shall be an adequate written notice or communication to it notwithstanding that it was not sent to or delivered at its chosen domicilium citandi et executandi.
15.1 Should either party hereto be in breach of this agreement and should such party remain in breach 7 days after having received written notice from the other party (“the Aggrieved Party”) then the Aggrieved Party shall be entitled, without prejudice to any other remedy in law which such party may have, to terminate this agreement on written notice to the defaulting party.
15.2 A cancellation in terms of clause
15.1 above shall pertain to the contract between Sharenet and a User with respect to that and/or those Web Based Products to which the breach pertains.
15.3 Without prejudice to, and in addition to, clause
15.3.1 above, Sharenet shall be entitled, in its sole discretion, to immediately suspend a User's use of a Web Based Product in the event of the User falling into default with respect to any payment due for the Web Based Product in question and to maintain such suspension until the User pays up all amounts due to Sharenet.