Made and entered into by and between Mercantile Bank Limited, (“Mercantile”) Reg.No.:1965/006706/06
of / 142 West Street, Sandton, 2146(Domicilium Citandi et Executandi) andthe person or entity who uses Mercantile’s Internet Banking Services (“the Client”).
1 / Terms and conditions of agreement
The terms and conditions set out herein, constitute the agreement between the parties hereto ("the Agreement") relating to Mercantile's internet banking services facility ("Internet Banking").
2 / Provision of Internet Banking
2.1 / Subject to the provisions of this Agreement, Mercantile shall make available to the Client those of Mercantile's internet banking facilities and services (“the Services”) as are from time to time available through Internet Banking and are subscribed for by the Client, provided such subscription has been accepted by Mercantile by allowing the Client access to Internet Banking.
2.2 / The Client acknowledges that the use of Internet Banking and the Services shall, in addition to the terms and conditions of this Agreement, be subject to such further terms and conditions as may from time to time be imposed by Mercantile and notified to the Client.
2.3 / Mercantile shall be entitled at any time to modify, replace or withdraw Internet Banking and/or the Services, or any of them.
3 / Duration
3.1 / This Agreement shall commence on and shall be of force with effect from the date of receipt of the Agreement by the Client or the date on which the first transaction is effected through Internet Banking (whichever occurs first) and shall continue until such time as it is terminated by either the Client or Mercantile as follows:
3.1.1 / the Client shall be entitled to terminate this Agreement at any time by giving Mercantile one calendar month’s written notice of the Client’s intention to do so;
3.1.2 / Mercantile shall be entitled to terminate this Agreement at any time by written notice to the Client, without being required to furnish any reason for such termination.
3.2 / The termination of this Agreement shall not affect any liability of the Client under this Agreement which arose prior to such termination.
4 / Equipment and medium
4.1 / The Client shall provide, upgrade and maintain at his/her/its own costs, hardware, software and all consumable materials required for the use of Internet Banking and the Services aforementioned. Mercantile makes no representations as to the suitability of any of the Client's hardware, software or consumable materials for the use of Internet Banking and the Services.
4.2 / In order to obtain access to Internet Banking the Client must register with an internet service provider and/or use an internet-enabled device to access the internet. Internet Banking may not be accessed from a service provider such as Internet Café or a similar service provider, as this may compromise the Internet Banking system and the Client’s accounts.
4.3 / The Client will be solely responsible for the acquisition, installation, upgrades and maintenance of the connection to the internet and/or any application and any related costs or expenses will be borne by the Client.
4.4 / Should the internet- and/or application software and hardware requirements be modified with a view to improving or upgrading the internet and/or application and/or Internet Banking and/or the Services, the resultant cost of any hardware, software or internet connection will be for the Client’s own account.
4.5 / Should the Client experience problems with the internet and/or the internet connection and/or the application connection, it is the Client’s responsibility to resolve the problems with the internet service provider and/or the application service provider.
4.6 / The Client shall at his/her/its own costs, ensure that appropriate and effective anti-virus software is installed on the hardware of the Client and that such anti-virus software is updated regularly. The Client shall do regular virus checks and shall take all reasonable steps to ensure that the Client’s hardware and software remain virus free.
5. / Access Codes
5.1 / For security, identification and verification purposes, a variety of access codes and/or devices will be used, such as your Login Identification ("Login ID"), Password, security question and answer and/or such other methods or mechanisms as determined by Mercantile from time to time,(collectively referred to as "access codes").
5.2 / The Client is responsible for maintaining the confidentiality and secrecy of the access codes. Only the Client and his/her/its authorised representatives may use the access codes. The Client shall not disclose or allow unauthorised persons access to the access codes.
5.3 / Mercantile’s records of the Client’s transactions will be prima facie proof of any instruction given by the Client, unless the Client can prove the contrary.
5.4 / The Client must take all reasonable precautions to prevent unauthorised access to and/or use of Internet Banking and unauthorised access to the Client’s account/s.
5.5 / If any unauthorised person obtains the access codes in any manner whatsoever, such a person will be regarded as the Client’s duly authorised agent with full authority to use Internet Banking and/or the Services and to execute transactions on the Client’s behalf, unless the Client is able to prove that the person has obtained the access codes due to Mercantile’s negligence or wilful actions.
6. / Presumption of authority
6.1 / Mercantile shall not be obliged to enquire into, or to prove the authority of any person who has obtained access to, or who has initiated any transaction on any account of the Client via Internet Banking.
6.2 / The Client warrants to Mercantile that any person who will obtain access to, or who will perform any function and/or initiate any transaction on any account of the Client via Internet Banking has the authority, knowledge, ability and integrity to obtain such access, perform such function and/or initiate such transaction.
6.3 / Any act performed, thing done, obligation undertaken or omission made by any person other than Mercantile, in connection with or arising from Internet Bankingand/or the Services shall be deemed to have been performed, done, undertaken or made by the Client.
6.4 / The Client may mandate a person/s (Super User/s) to access Internet Banking on behalf of the Client.
6.5 / If the Client chooses to allow more than one user to operate Internet Banking, the Super User/s will be responsible for selecting the operating abilities of and the functionalities to be performed by each sub-user nominated by the Super User/s. In the event of the Client electing to have a dual Super User profile:
6.5.1 / in respect of set up and user management all setup and user management selections created by a Super User will only be effected once authorised by another Super User;
6.6. / In respect of financial transactions, all financial transactions will only be effected according to setup and user management selections as created and authorised by the Super User referred to in 6.5 or Super Users referred to in 6.5.1.
6.7 / The Client acknowledges and accepts that all the accounts of the Client will be accessible on Internet Banking and that control of access to the accounts by sub-users shall be the responsibility of and regulated by the Super User/s.
6.8 / The Client may revoke a Super User’s access to Internet Banking at any time by giving Mercantile written notice (including by way of a secure message on Internet Banking and/or other electronic message acceptable to the Bank) of the revocation.
6.9 / The Super User may revoke a sub-user’s access to Internet Banking at any time by deleting the sub-user under the Management and Maintenance option on the system.
6.10 / The Internet Banking system will issue a default password to a sub-user when the sub-user is created by the Super User/s. The Super User/scan reset a password of a sub-user, should the sub-user be locked out of the system or have forgotten his/her password. The first default password and/or the reset password will have to be changed by the sub-user in order to access Internet Banking.
6.11 / Customers that use the Individual Profile type will not have the functionality to appoint a Super User or sub-users on the profile, but they may request for another person to be the main user on the profile.
7 / Client’s Obligations
The Client:
7.1 / shall be obliged to settle any payment obligations to Mercantile in accordance with the instructions issued to Mercantile through Internet Banking;
7.2 / shall not in any way overdraw any account or exceed any limits allocated to the Client’s account, unless prior arrangements have been made with Mercantile and then only in terms of such arrangements;
7.3 / declares and warrants that all information provided in the application form, any information to be given in the future in terms hereof and information to be contained in each instruction processed electronically through Internet Banking and/or the Services are and will be correct in all respects;
7.4 / records that he/she/it shall be obliged to inform Mercantile of any change in the information provided by the Client and that he/she/it shall have no claims against Mercantile in the event of any information provided by the Client to Mercantile being incorrect;
7.5 / shall follow the security procedures notified to the Client by Mercantile from time to time or such other procedures as may be applicable to Internet Banking and/or the Services from time to time;
7.6 / acknowledges that any failure on the part of the Client to follow the recommended security procedures may result in a breach of the Client’s profile confidentiality and may lead to unauthorised transactions on accounts of the Client;
7.7 / shall in his/her/its sole discretion determine who has access to Internet Banking, the Clients’ accounts and the Client shall ensure that Internet Banking and/or the Services are not used or the instructions are not issued or the relevant functions are not performed by anyone other than a person authorised to do so;
7.8 / shall notify Mercantile immediately on the Client becoming aware that an access code has been compromised, lost or may have been disclosed to or are available to an unauthorised person;
7.9 / understands and accepts that business accounts or an account requiring multiple signatures may only be linked to the Client’s profile on submission to Mercantile of a proper resolution to this effect in this regard the onus is on the Client to ensure that the mandates given in respect of Internet Banking correspond with other mandates submitted by the Client to Mercantile and Mercantile is herewith absolved from any liability should such mandates differ;
7.10 / confirms and agrees that once Mercantile has received and implemented an instruction given by the Client via Internet Banking, the Client shall not be entitled to countermand or amend such instruction;
7.11 / warrants that every instruction and all information given to Mercantile shall be accurate, correct and in accordance with Mercantile's prescribed procedures;
7.12 / shall ensure that the Client logs-off from Internet Banking and the internet and/or the application once finished using Internet Banking and/or the Services. Failure to do so could result in unauthorised transactions for which Mercantile will not be held liable;
7.13 / accepts the financial limits imposed on transfer of funds, which limits may be altered at any time as agreed between the Client and Mercantile;
7.14 / shall elect whether the default Password of the Super User be e-mailed or sent via short message service (“SMS”) to the Super User/s. The Super User shall on receipt of the default Password immediately change the default Password to a Password selected by the Super User. Mercantile shall not be liable should the Super User fail to change the Password;
7.15 / may elect whether the Client or his/her/its nominee should be notified by e-mail or via SMS in the event of debit or credit transactions exceeding an amount stipulated by the Client being processed; however, Mercantile shall not be liable in the event of the Client not receiving such notifications or any delays in the delivery thereof;
7.16 / may elect to have a proof of payment sent automatically to a beneficiary either by e-mail, SMS or facsimile; however, Mercantile shall not be liable in the event of the beneficiary not receiving such notifications or any delays in the delivery thereof;
7.17 / must keep secret and confidential all information regarding Internet Banking, including but not limited to, information pertaining to log-in ID, set-up of profiles, super users, users and sub-users (including creation thereof), passwords (including temporary passwords), access to functions on and use of Internet Banking, designations as well as the authorisation requirements on accounts (known as signature levels on Internet Banking), beneficiaries on Internet Banking (including creation and maintenance thereof), in his/her/its possession and/or provided to him/her/it by Mercantile in writing (including by way of letter, e-mail, sms, or secure message), telephonically or otherwise, and may not disclose it to anyone else except as specifically envisaged in this Agreement;
8 / Other agreements
8.1 / Nothing in this Agreement shall vary any aspect of the existing or any other banker/Client relationships, or agreements, or any other agreement or arrangement between Mercantile and the Client.
8.2 / Any transactions generated through Internet Bankingwhich constitute a departure from any agreement or arrangement between Mercantile and the Client may be rectified by Mercantile, which shall be entitled, but not obliged, upon such notification to the Client as Mercantile considers reasonable in the circumstances, to generate otherwise than through Internet Banking such debit or credit entries as may be required to rectify or regularise any accounts thereby affected and to restore those accounts to comply with the limits applicable thereto or with any other terms of any such agreement or arrangement.
8.3 / Without derogating from the generality of the provisions of clause 8.1, this Agreement shall not vary the provisions of any clearing or settlement mechanisms within the South African banking system and Mercantile’s obligations within such system shall take precedence over, and override any obligations which Mercantile may owe to the Client in terms of this Agreement.
9 / Risk
9.1 / Information that is transmitted over the Internet or via other networks (wireless or otherwise) may be subject to interception. In this regard, the Client must acquaint himself/herself/itself with Mercantile’s Privacy Policy and security information Mercantile may publish from time to time on its website. While Mercantile will take all reasonable precautions to ensure that Internet Banking is secure, Mercantile shall not be liable for any loss or damage the Client suffers as a result of the use of Internet Banking.
9.2 / It is essential that the Client takes every possible precaution to ensure that the account numbers used are accurate. Incorrect but valid account numbers may pass through validation routines. There is no onus on Mercantile to ensure that account numbers are, in fact, correct.
9.3 / The Client accepts all risk, loss or damage arising out of or connected with the accessing of and/or operation on his/her/its accounts via Internet Banking and, in particular, but without limiting the generality of the aforegoing, the Client agrees that Mercantile shall not be liable for, or in respect of, direct or consequential loss or damage arising from any:
9.3.1 / failure of Internet Banking or the Services, which shall include inter alia, any total or partial inaccuracy, breakdown or failure of the Services, the loss or destruction of any data, any loss occasioned by any system malfunction, the deterioration of storage media, the failure, interruption or distortion of communication links, any destruction of facilities caused by power failure or similar occurrences, any loss or damage caused by natural disaster, riot, acts of vandalism or terrorism and the like or because of the failure or unavailability of telephone links or otherwise, any inability of the Client to gain access to or to use Internet Banking or the Services;
9.3.2 / transaction being delayed for any reason (including any aforementioned failure of Internet Banking or the Servicesprovided that Mercantile shall endeavour to adjust the transaction as if it had taken place on the proper day;
9.3.3 / act or transaction carried out, generated or effected directly or indirectly through of Internet Banking and/or by any person acting without the authority of the Client;
9.3.4 / non-adherence to procedures prescribed by Mercantile; or
9.3.5 / destruction of data, any accessing of data by any unauthorised person, or any destruction or theft of, or damage to any hardware or software.
9.4 / Straight Through Processing is a process through which Mercantile is able to facilitate the transfer of funds electronically from one account to another account without any human intervention by way of automatic processing of a payment request by the Client via the inter bank clearing and settlement system. Mercantile is further able to facilitate the transfer of funds internally from one account held at Mercantile to another account held at Mercantile, on request of the Clientand therefore the Client agrees and acknowledges:
9.4.1 / Mercantile relies solely on the account number of the beneficiary supplied by the Client if a funds transfer is effected by way of Straight Through Processing or otherwise as mentioned in 9.4 above;