1 I ("the Client") confirm that all information and instructions contained on the face of this form are correct and that I shall have no claim against Nedbank Lesotho Limited ("the Bank") in the event of any of the information or instructions contained herein being incorrect. I further undertake to notify the Bank in writing should any of the said information or instructions change at any time in the future.
2 I am aware that my Bank Profile shall entitle me to use NetBank (“the system”).
3 I acknowledge that:
3.1 I am aware that I may link to my profile only those accounts over which I have direct control. I undertake to produce proof that I hold power of attorney over any other accounts which I ask to be linked to my profile;
3.2 any of the facilities made available by the Bank under the system may be modified, replaced or withdrawn by the Bank at any time without notice to me, in which event the Bank shall incur no liability to me whatsoever;
3.3 the Bank shall not be liable for any breakdown or failure of any equipment or medium of access to the system;
3.4 the Bank shall be entitled to effect an electronic funds transfer in respect of the accounts of which the numbers are provided in a payment instruction subject to the client complying to the regulatory requirements. I acknowledge further that the Bank shall not be obliged to verify the destination account numbers, parties’ names or the accounts involved in any instruction, and, in the event of a discrepancy in such a payment instruction between the destination account number and the name of the party concerned, the destination account number shall prevail;
3.5 should I wish to make use of the system, the password issued to me shall provide access to the system and my accounts and I therefore agree to:
126.96.36.199 change the password issued to me immediately on using the system for the first time (and on a regular basis thereafter) to a password of my choice;
188.8.131.52 ensure the safe-keeping and confidentiality of such password;
184.108.40.206 notify the Bank immediately on becoming aware that my password may have fallen into the hands of an unauthorised person. Any transactions effected prior to receipt of the notification by the Bank shall be for the responsibility of the client;
3.6 the use of the system, shall in no way vary any aspect of the Banker-client relationship between me and the Bank, if any, and in particular, I agree that:
3.6.1 the use of the system shall not entitle me to overdraw on any account, unless prior arrangements have been made with the Bank, and then only in terms of such arrangements. Any unauthorised transaction effected outside the prescribed arrangement by the Bank should not be deemed as acceptance by the Bank that such transactions are regular and do not absolve the client of its responsibilities and obligations therein
3.7 should I make use of the system, I shall:
3.7.1. obtain and maintain the hardware and software (“equipment”) required to access the system at my own expense:
3.7.2 read and take cognisance of the information and recommendations accessible on the system’s internet site about security and my role therein. I acknowledge further that:
220.127.116.11 any failure on my part to follow the recommended security procedures may result in a breach of my Bank Profile's confidentiality and may lead to unauthorised transactions between accounts linked to my Bank Profile.. I further indemnify the Bank against any losses and damages arising out of these transactions.
18.104.22.168 any software downloaded by me from the Internet, whether from the Bank's Internet site or not, is third-party software, the licensing of which shall be subject to such terms and conditions as the licensor of such software may impose. The Bank is not a party to any licence agreement entered into by me and thus makes no warranties relating to such software, including without limitation, warranties relating to suitability for a particular purpose, security features or performance. I understand that the use of such software shall be at my own risk and I hereby absolve and hold the Bank harmless against any loss or damage which I may suffer as a result of the use, abuse or possession of such software.
22.214.171.124 without derogating from the provisions of clause 126.96.36.199, I am aware that the use of such third party software may be illegal in jurisdictions outside Lesotho and/or may infringe certain third party intellectual property rights in such jurisdictions. I understand that, should I use any third-party software outside the boundaries of Lesotho, it shall at all times be incumbent upon me to ascertain the legality of such use and to obtain all necessary licenses and permissions from the relevant parties. I accordingly absolve and hold the Bank harmless against any and all liability which I may incur in this regard.
4. I understand and accept that:
4.1 I may link a business account or an account requiring multiple signatures to my profile only if I submit to the Bank a resolution to this effect.
4.2 Once the Bank has received and implemented an instruction given by me via the system, I shall not be entitled to countermand or amend such instruction.
5. I hereby warrant that every instruction and all information given to the Bank shall be accurate, correct and in accordance with the Bank's prescribed procedures.
6. The Bank shall:
6.1 not be required to inquire into the authority of any person using the system, or any of them;
6.2 be and is hereby authorised to debit my accounts with the amounts of the transactions effected via the system, except amounts in respect of unauthorised use after receipt by any branch of the Bank of written notice by me in terms of clause 3.5.3;
6.3 be entitled to debit my accounts with the amount of any fees payable to the Bank from time to time for the use of the system.
7 I hereby agree to indemnify the Bank against any demand, claim or action against it relating to or in connection with my use of the system, or any of them, whether directly or indirectly, unless such demand, claim or action shall have arisen from the gross negligence or wilful misconduct of the Bank or any of its employees (in which case the matter shall be dealt with on its legal merits).
8 any demand, claim or action arising against the Bank in terms of clause 7 shall be limited to my direct damages and, without limiting the generality of the clause, I agree that the Bank shall not be liable for:
8.1 any amount that is not part of the actual amount of a transaction;
8.2 any indirect, special or consequential damages;
8.3 any loss or damage occasioned by the failure to adhere to these terms and conditions and/or any incorrect information furnished by me, including, without limitation, any failure by me to adhere to the terms and conditions of clauses 3.5 and 3.7;
8.4 any loss or damage occasioned by the failure or unavailability of third parties’ facilities or system or the inability of any third-party to process a transaction. For the purposes of this clause, “third-parties” include, without limitation, all financial institutions where the destination accounts are kept;
8.5 any loss or damage that may arise from the 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;
8.6 any failure or unavailability of the system, or failure by the Bank to perform a transaction as a result of the loss or destruction of data, the deterioration or corruption of storage media, power failures, natural phenomena, riots, acts of vandalism, sabotage, terrorism or any other event beyond the Bank’s control;
8.7 any inability of the financial institution where a destination account is kept to process a transaction;
8.8 any destruction or accessing of my data or any destruction or theft of, or damage to, any of my equipment;
8.9 any unauthorized access to my accounts or any breach of security.
9. I acknowledge that, should I breach any of these terms and conditions, the Bank shall be entitled, without notice, to cancel this agreement and withdraw the facilities under the system with immediate effect, without prejudice to any rights it may have to recover any amounts due to it or any losses or any damages suffered by it in consequence of my breach.
10. I shall be entitled to cancel my Profile at any time, provided that I give the Bank at least 7 (seven) day’s written notice of my intention to do so.
11. I acknowledge that I shall not be entitled to cede, transfer or make over my rights in and to the facilities or the use of the system, to any other person.
12. Should I make use of the system, I acknowledge that I shall be responsible for all steps necessary to acquire access to the Internet and for ensuring the security and confidentiality of such method of access. I acknowledge further the Bank shall not be liable for any loss or damage whatsoever which I may suffer as a result of the use, misuse or abuse of my Internet access.
13. I irrevocably undertake and warrant that I shall not make any claim or institute any action against the Bank should I incur any injury, loss or damage, whether directly or indirectly, arising out of, in connection with or relating to the use, misuse or abuse of my Internet access.
14. Should any dispute arise at any time between the Bank and me relating to any matter arising out of any use of the system, such dispute shall be finally resolved by an arbitrator agreed upon by the Bank and the client.
14.1 In pursuance of clause 14 I do hereby agree that:
14.1.1 either I or the Bank may demand that a dispute be referred to arbitration by giving written notice to that effect to the other party;
14.1.2 this clause shall not preclude either me or the Bank from obtaining interim relief on an urgent basis from a court of competent jurisdiction pending the decision of the arbitrator.
14.1.3 the arbitration referred to in 14 shall be held:
188.8.131.52 in Maseru in the English language; and
184.108.40.206 immediately and with a view to it being completed within 21 (twenty-one) days after it is demanded;
14.1.4 I irrevocably agree that the decision in arbitration proceedings:
220.127.116.11 shall be final and binding upon me;
18.104.22.168 shall be carried into effect;
22.214.171.124 may be made an order of any court of competent jurisdiction.
14.1.5 Any award made by an Arbitrator pursuant to this agreement shall be subject to the limitations and provisions of clause 8 hereof.
14.2 This clause 14 is severable from the rest of these terms and conditions and shall remain valid and binding on me notwithstanding any cancellation by me of my Bank Profile or any withdrawal by the Bank of the system, and/or my Bank Profile.
15. This agreement shall be governed by and construed in accordance with the laws of Lesotho and all disputes, actions and other matters relating thereto will be determined in accordance with such laws.
16. Notwithstanding the foregoing terms and conditions, I acknowledge and accept that the Bank may from time to time amend such terms and conditions, insofar as they relate to my use of the system. In pursuance of the aforegoing, I therefore confirm that:
16.1 I am aware that all such changes shall be reflected in the terms and conditions published on the system's Internet site;
16.2 By entering my profile number and password to gain access to the systems, I thereby bind myself to the terms and conditions in force at that time, as they appear on the system's Internet site.
17. DOMICILIUM AND NOTICES
17.1 The client chooses as its domicilium citandi et executandi for the purpose of legal proceedings and for the purposes of giving or sending any notice provided for or necessary in terms of this agreement, the address given in the application form.
17.2 The bank’s address for the purposes hereof is:
17.3 Physical : Nedbank Building, Kingsway Road, Maseru, Lesotho
17.4 Postal : P O Box 1001, Maseru, Lesotho, 100
17.5 Telefax : 266 22 310 025
17.6 Attention : The Company Secretary
17.7 Provided that a party may change its domicilium to any other physical address or telefax number by written notice to the other party to that effect. Such change of address will be effective seven days after receipt of notice of the change of domicilium.
17.8 All notices to be given in terms of this agreement will:-
17.8.1 be given in writing;
17.8.2 be delivered or sent by telefax;
17.8.3 if delivered, be presumed to have been received on the date of delivery;
17.8.4 if sent by telefax, be presumed to have been received on the first business day following the date of sending of the telefax unless the contrary is proved.
17.9 Notwithstanding the above, any notice actually received by the party to whom the notice is addressed will be deemed to have been properly given and received, notwithstanding that such notice has not been given in accordance with the provisions of this clause.