BEFORE ACTIVATING THE LIVE FUNCTIONALITY OF THE GROCAPITAL TRADER SMARTPHONE APPLICATION OR THE
SWORDFISH PC DESKTOP PROGRAM PLEASE READ THE GROCAPITAL TRADER TERMS AND CONDITIONS CAREFULLY AS YOUR ACCESS AND USE OF THESE GROCAPITAL APPS WILL BE SUBJECT TO THE GROCAPITAL TRADER TERMS AND CONDITIONS.
PLEASE DO NOT ACCEPT THE GROCAPITAL TRADER TERMS AND CONDITIONS IF:
1. YOU ARE NOT A NON-PROFESSIONAL END USER AS DESCRIBED IN THE JSE MARKET DATA POLICIES AVAILABLE FOR DOWNLOAD FROM THE JSE WEBSITE WWW.JSE.CO.ZA;
2. YOU DO NOT AGREE OR DO NOT UNDERSTAND THE MEANING OF ANY OF THE PROVISIONS, TERMS AND CONDITIONS CONTAINED IN THE GROCAPITAL TRADER TERMS AND CONDITIONS;
3. ANY OF THE PROVISIONS, TERMS AND CONDITIONS CONTAINED IN THE GROCAPITAL TRADER TERMS AND CONDITIONS ARE UNTRUE; AND / OR
4. YOU HAVE NOT BEEN GIVEN ENOUGH TIME TO READ AND COMPREHEND THE MEANING OF BOLDED TERMS OR ANY OTHER PROVISIONS, TERMS AND CONDITIONS THAT MAY BE CONTAINED IN THE GROCAPITAL TRADER TERMS AND CONDITIONS.
1 DEFINITIONS AND INTERPRETATION
1.1 Unless the context indicates otherwise, the following terms shall have the following meanings:
1.1.1 “GroCapital” means GroCapital Financial Services Proprietary Limited, registration number 2003/014468/07;
1.1.2 “GroCapital App” means the GroCapital Trader Smartphone Application or the Swordfish PC Desktop Program as the case may be;
1.1.3 “JSE” means the Johannesburg Stock Exchange;
1.1.4 “NCA” means the National Credit Act No 34 of 2005;
1.1.5 “service” means the GroCapital financial related service accessed and used by a User via the GroCapital App;
1.1.5.1 “transaction” means a commercial transaction to make or take delivery, or to trade derivatives and other instruments on the JSE concluded by means via the GroCapital App and includes but is not limited to the buying and selling of futures and options. “trade” and “trading” will have similar or same meaning;
1.1.6 “User” means a client authorised to use the GroCapital App and includes such person’s duly authorised representative(s);
1.1.6.1 “Username and Password” means a User’s personal GroCapital identification name and password which must be used to access the service;
1.1.6.2 “verification mechanism” means any mechanism, device or process used by GroCapital to verify the identity of a User, including a Username and password or any other mobile authentication message; and
1.1.6.3 “verification criteria” means the minimum requirements that must be met by a User in order to verify a User’s identity telephonically or otherwise, as determined by GroCapital.
1.2 Wording importing:
1.2.1 any one gender includes the other gender; and
1.2.2 the singular includes the plural and vice versa.
1.3 Any reference to an enactment is to that enactment as at the date of the conclusion of a transaction in respect of the service and as amended or re-enacted from time to time.If any definition contains a substantive provision conferring rights or imposing obligations on any party, effect shall be given to it as if it were a substantive provision in the body of these terms, notwithstanding that it is only in the definition clause.
1.4 Words and expressions defined in a sub-clause shall, for the purpose of the clause of which that sub-clause forms part, bear the meaning assigned to such words and expressions in that sub-clause.
1.5 When any number of days is prescribed, same shall be reckoned inclusively of the first and exclusively of the last day.
1.6 Where figures are referred to in numerals and in words, if there is any conflict between the two, the words shall prevail.
1.7 The word ‘including’ is used by way of illustration or emphasis only and shall not be construed as limiting the generality of any of the preceding words.
1.8 The words ‘other’ and ‘otherwise’ shall not be construed eiusdem generis with any foregoing words where a wider construction is possible.
2 APPLICATION
These online trading terms and conditions (hereinafter referred to as the/these “terms”) apply to all GroCapital App and trading activities.
3 SERVICE AND SECURITY MEASURES
3.1 In order to access the GroCapital App, a User must be a Non-Professional End User as described in the JSE Market Data Policies available for download from the JSE website www.jse.co.za.
3.2 The User shall be responsible for all steps necessary to acquire access to the GroCapital App and for ensuring the security and confidentiality of any hardware, software or medium of access (“equipment”) at a User’s expense.
3.3 GroCapital shall be entitled in its sole discretion to terminate a User’s entitlement to access the GroCapital App (without terminating the applicable further terms of a User) with immediate effect should a User fail to abide by these terms, notwithstanding demand.
3.4 GroCapital may publish on its website and/or send a User communication regarding security measures from time to time. The User agrees to implement such measures and/or refrain from any of the activities prescribed by GroCapital from time to time.
4 VERIFICATION
4.1 GroCapital may specify the verification mechanisms and verification criteria required to obtain access to the GroCapital App from time to time.
4.2 GroCapital shall be entitled to refuse a User access to the GroCapital App should a User fail to use the verification mechanism or fail to satisfy the verification criteria, as the case may be.
4.3 Only a User to whom the verification mechanism is allocated shall be entitled to use the GroCapital App.
4.4 If the verification mechanisms and/or verification criteria fail, GroCapital will not be held liable in any manner whatsoever for any loss a User may suffer as a result and a User indemnifies GroCapital accordingly.
4.5 The User undertakes to change the User password on using the GroCapital App for the first time and on a regular basis thereafter.
4.6 GroCapital may, in its sole discretion and for whatever reason, require a User to change his verification mechanism or parts thereof from time to time and a User undertake to comply with such requirement unconditionally.
4.7 The User undertakes to ensure the confidentiality of the verification mechanism at all times, and shall without limitation, ensure that the verification mechanism is neither easily accessible nor disclosed to anyone else. Unless the contrary is proven, storing or recording a Username and Password on a User’s computer, phone, network or any written media shall be presumed to be the proximate or effective cause of an unauthorised person having performed an unauthorised transaction and will be regarded as prima facie proof of negligence on the part of a User.
4.8 Where a User reasonably suspects that the verification mechanism has been or will soon be compromised, a User shall notify GroCapital immediately. On receipt of a User’s notification, GroCapital reserves the right to:
4.8.1 reverse (if possible) all executed transactions with effect from such date and time as GroCapital may reasonably determine the unauthorised use to have commenced; and/or
4.8.2 cancel all active orders submitted through the GroCapital App; and/or
4.8.3 deactivate access to the GroCapital App without further notice to a User.
4.9 Any delay in providing notification as set out in clause 4.8, shall be presumed to be prima facie proof of negligence on the part of a User and a User shall bear the onus of proving the contrary.
4.10 Subject to clause 4.8, if any unauthorised person obtains any verification mechanism in any manner whatsoever, such person shall be regarded as a User’s duly authorised agent with full authority to use the GroCapital App on a User’s behalf, unless such unauthorised person has obtained the verification mechanism due to gross negligence or fraud on the part of GroCapital.
4.11 The User agrees that the verification mechanism used by GroCapital will be sufficient confirmation of a User’s identity and a User indemnifies GroCapital accordingly.
5 TRANSACTIONS
5.1 To initiate and execute trades via the GroCapital App:
5.1.1 the User has to register on the JSE through GroCapital as JSE Member; and
5.1.2 the User is familiar with and comprehends the content of the “JSE Client Agreement and Registration” form completed at registration of a JSE account.
5.2 The User confirms that it is familiar with the “Swordfish” trading system and its workings and is able to initiate, execute or complete all relevant activities necessary on the GroCapital app for trading purposes.
5.3 The User has to comply with all the GroCapital and JSE rules before and while trading. Non-compliance to these rules shall result in the possibility of the User‘s password being blocked or the User being deregistered on the JSE.
5.4 The User has to note and take into account that the risk of potential financial loss arising from trading in futures and options can be substantial. The User should carefully consider whether such investments are suitable in the light of their own particular circumstances and available financial resources.
5.5 The User undertakes to logoff from the GroCapital App in the prescribed manner.
5.6 Failure to logoff could result in unauthorised transactions for which GroCapital will not be held liable.
6 POP-UP NOTICES AND BROWSER SETTINGS
6.1 GroCapital may publish notices to a User of the GroCapital App by way of “pop-up” windows on the internet or mobile phone browser.
6.2 Pop-up notices shall be deemed to be read and accepted irrespective of whether a User has read the notice.
6.3 The User must ensure that his internet or mobile phone browsers permit pop-up notices from GroCapital to be displayed. Failure to do so shall not entitle a User to claim non-receipt of a pop-up notification.
7 AMENDMENTS
7.1 GroCapital may in its sole discretion amend or substitute these terms from time to time without notice to the Client.
7.2 The User agrees to implement and adhere to any procedures and/or restrictions imposed by GroCapital from time to time in respect of the GroCapital App.
7.3 Subject to clause 9.1, GroCapital’s rules, processes and procedures used in the operation of the GroCapital App may be altered, replaced or withdrawn by GroCapital in whole or in part in GroCapital’s full and absolute discretion, at any time.
8 UNAVAILABILITY OF SERVICE
In order to protect a User and GroCapital, GroCapital reserves the right, at any time, to alter, replace or discontinue the GroCapital App in whole or in part, without notice to a User, in which event GroCapital shall incur no liability whatsoever.
9 INTELLECTUAL PROPERTY
Copyright in all materials made available through the GroCapital App is owned by GroCapital and 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 any such material will constitute an infringement of that copyright. The trademarks, logos and service marks displayed on the GroCapital App are registered and unregistered trademarks of GroCapital. Nothing contained in the GroCapital App should be construed as granting any licence or right to use any trademark, logos or service marks without the written permission of GroCapital.
10 TRANSMISSION OF INFORMATION
10.1 The User is discouraged from transmitting to GroCapital any information which may be confidential, proprietary or sensitive unless adequate security arrangements are agreed with GroCapital.
10.2 The User shall bear all risk of transmitting such information in this manner and under no circumstances will GroCapital be liable for any loss, harm or damage suffered by a User as a result thereof.
11 LIMITATION OF LIABILITY, INDEMNITY AND DISCLAIMER
11.1 Subject to the NCA (if applicable) the provisions of this clause 11 are subject to any limitations imposed by section 90 of the NCA.
11.2 GroCapital shall not be responsible and disclaims any liability for any loss, liability, damage or expense of any nature whatsoever which may be suffered by a user or a third party as a result of or occasioned by the failure or unavailability of third-party systems or by the inability of any third-party to process a transaction and a user indemnifies GroCapital accordingly.
11.3 GroCapital shall not be liable to a user for any loss or damage arising from any unauthorised use of the GroCapital app, whether as a result of a user’s representatives exceeding their authority, fraud and/or theft of a user’s equipment or as a result of any compromise to the confidentiality of the verification mechanisms and a user indemnifies GroCapital accordingly.
11.4 The user agrees that the use of the GroCapital app is on a user’s own initiative and at a user’s own risk. GroCapital shall not be liable for any loss, liability, injury, taxes, damage, claim or expense of any nature whatsoever which may be suffered by a user or any third party as a result of or arising directly or indirectly out of any withdrawal, alteration, replacement, breakdown, failure of a user’s equipment and a user indemnifies GroCapital accordingly.
11.5 GroCapital will not be responsible for any failure, malfunction or delay of any networks or electronic or mechanical device used in the acceptance and processing of transactions and any other use of the GroCapital app. GroCapital will not be liable to make good or compensate a user for any damages (whether direct or consequential), losses, claims or expenses resulting therefrom, and a user indemnifies GroCapital accordingly.
11.6 GroCapital makes no warranties, representations, statements or guarantees with regard to the suitability of the GroCapital app for a particular purpose, performance or software and a user indemnifies GroCapital accordingly.
11.7 GroCapital 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 a user or a third party as a result of or occasioned by the failure by GroCapital to perform or process a transaction as a result of the loss or destruction of data, the destruction, hacking or deterioration of storage media, power failures, natural phenomena, riots, acts of vandalism, sabotage, terrorism or any other event beyond GroCapital’s control and a user indemnifies GroCapital accordingly.
11.8 The user indemnifies GroCapital against any loss, damage or liability which may arise from the use or possession of any third-party software and a user undertakes to ascertain the legality of using any third-party software and to obtain all necessary licences.
11.9 GroCapital capital broking shall not be liable for any consequential damages howsoever arising. GroCapital’s total liability shall not, in any circumstances, exceed the actual amount of the transaction or transactions in dispute or R50 000.00 whichever amount is the lessor.
12 ACCESS TO PERSONAL INFORMATION
12.1 The User has the right to access a User’s personal information held by GroCapital.
12.2 GroCapital shall grant a User such access during office hours within a reasonable time after receiving written request for such access.
12.3 The User grants GroCapital (including its agents and contractors) authority to monitor, keep record of and have access to all forms of correspondence received by or sent from GroCapital or any of its employees, agents or contractors.
13 GENERAL
13.1 The User acknowledges and accepts that GroCapital shall be entitled in its sole and absolute discretion to monitor, intercept, record and use as evidence all instructions between a User and GroCapital at any time.
13.2 In effecting any transaction GroCapital shall not act nor shall it be deemed to be acting as a User’s agent nor as the agent of any payee.
13.3 The User shall not cede, assign, make over or transfer to any other person, firm or company any of a User’s rights or obligations in respect of, or arising out of, these terms or the use of the GroCapital App without GroCapital’s prior written consent. GroCapital may cede, assign, make over or transfer any of its rights or both its rights and obligations under these terms and/or in respect of the GroCapital App to any person, firm or company without notice to a User.
13.4 The User warrants that all applicable laws of the RSA will be complied with when using the GroCapital App.
13.5 These terms shall be governed by and construed in accordance with the laws of the RSA without giving effect to any principles of conflict of law.
13.6 The User hereby consents to the exclusive jurisdiction of the High Court of South Africa in respect of any disputes arising in connection with the GroCapital App, or these terms or any matter related to or in connection therewith.
13.7 Where a dispute is heard in the High Court of South Africa a User agrees that any costs awarded against a User be awarded or paid on the High Court Scale.