Arbitrage - Terms and Conditions

  1. Introduction
    1. Future Forex SA (Pty) Ltd (FF) inter-alia manages, assists, advises, trades and/or purchases Crypto Assets as your agent for and on your behalf (Service) and owns and operates the website www.futureforex.co.za (Website). FF also acts as principal purchaser of Crypto Assets from you locally (Sale). Accordingly, it acts in a dual capacity on the terms set out herein.
    2. By using the Service and the Website, you agree to the Sale and to be bound by the following terms and conditions set our herein (the Terms), the terms and conditions set out in the discretionary mandate as well as our foreign exchange terms of service made available on the Website: www.futureforex.co.za/forex-terms-of-service/ (Terms of Service). You must read the Terms very carefully. If you do not want to be bound by the Terms you must not use the Service or the Website. You may opt out of the discretionary mandate in terms of clause 4, provided that you do so in writing to FF.
    3. These Terms apply to Clients who are defined as “consumers” for purposes of the Consumer Protection Act, No 68 of 2008 (CPA). There are clauses in these Terms that require your careful consideration. To assist you, those terms where you are required to assume a risk, which may limit any of your rights, which provide for specific acknowledgements of fact or warranties required by or from you or which limit or exclude our liability, or indemnify us, appear in bold font below. You acknowledge that you have read and appreciate the importance of all of the provisions in these Terms, including without limitation, the clauses in bold font. Nothing in these Terms is intended to unlawfully restrict, limit or avoid any rights or obligations created in terms of the CPA, to the extent that such legislation is applicable. Please seek independent professional advice if you do not understand any provisions of these Terms.
    4. FF may change these Terms at any time by following the process set out in clause 11.3. You agree to visit the Website regularly to review the Terms made available on the Website. 
    5. FF’s privacy policy is set out in clause 16.
  2. Definitions and interpretation
      In these Terms, unless the context shows otherwise –

    1. Applicable Laws means, in relation to you, all statutes, regulations, rules, policies, circular, guidance notes and the like of any governmental authorities, the common law, the decision of governmental authorities or courts, and other similar provisions, from time to time, compliance with which is mandatory for you, including the Financial Intelligence Centre Act, No 38 of 2001 (FICA), the Prevention of Organised Crime Act, No 121 of 1998, the Prevention and Combating of Corrupt Activities Act, No 12 of 2004, Consumer Protection Act, No 68 of 2008 and all tax laws and exchange control statutes and regulations published under the Exchange Control Regulations, 1961 made in terms of the Currency and Exchanges Act, No 9 of 1933 (Exchange Control / Excon Regulations);
    2. Crypto Asset has the meaning set out in General Notice 1350 of 2022 issued in terms of FAIS, and, as at the date hereof, means a digital representation of value that:
      1. is not issued by a central bank, but is capable of being traded, transferred or stored electronically by natural and legal persons for the purpose of payment, investment and other forms of utility;
      2. applies cryptographic techniques; and
      3. uses distributed ledger technology;

      provided that should the definition be amended in FAIS, any further declaration of notice in terms of FAIS, or any related legislation, crypto asset shall refer to such amended definition;

    3. Discretionary Mandate means the electronic discretionary mandate concluded between you and FF in terms of which you have authorised FF to exercise specified limited discretionary in respect of the Minimum Return, Services and the Sales on the terms and conditions set out therein, as read with these Terms;
    4. Fiat Funds means fiat currency funds (in ZAR) belonging and/or accruing to you during the course of you making use of the Services;
    5. Financial Services Laws means the Collective Investment Schemes Control Act, No 45 of 2002, the Credit Rating Services Act, No 24 of 2012, the Financial Advisory and Intermediary Services Act No 37 of 2002 (FAIS), the Financial Institutions (Protection of Funds) Act, No 28 of 2001), the Financial Markets Act, No 19 of 2012, the Financial Sector Regulation Act, No 9 of 2017, the Banks Act, No 94 of 1990, National Payment System Act, No 78 of 1998, and includes any like legislation;
    6. include means to include with no limitation;
    7. Mandate means the Discretionary Mandate, unless you have elected, in writing, to set the Minimum Return yourself, in which case this term will refer to the mandate concluded between you and FF for the provision of non-discretionary Services in terms of clause 4;
    8. Minimum Return means the expected net profit sought by you, expressed as a percentage of the investment amount, and which is used to determine the price at which it will be deemed suitable for you to trade. The expected net profit is calculated by taking all fees involved in the trading process into account;
    9. Sale means the deemed sale by you to FF of the Crypto Assets, in terms of clause 6;
    10. person includes a company, corporation, trust, partnership and other entity whether or not having separate legal personality; 
    11. Third-Party Fees means all fees and costs charged by third-party services providers and sub-contractors in terms clause 4.2.8 for which you are liable;
    12. you or client means the individual (natural person) who uses the Service or the Website, as principal; and
    13. different grammatical forms of the same word have a like meaning.
  3. Service and Sale
    1. For the duration of these Terms, you appoint FF as your agent to provide the Services and implement the Sale on your behalf in terms of the applicable Mandate. Against completion of the Services, you hereby sell to FF the Crypto Assets purchased on your behalf, on the Terms set out herein.
    2. Despite any other provision of these Terms, FF reserves the right to decline any instructions received from you pursuant to these Terms and FF may elect in its sole and absolute discretion to discontinue the Services at any time, or may elect not to proceed with any transaction or Service contemplated under these Terms, including without limitation, to refrain from purchasing, selling or holding any Crypto Assets at any time.
  4. Services Mandate
      The Services will be subject to the Discretionary Mandate, unless you have elected in writing to set the Minimum Return yourself, in which case the services to be rendered by FF will be subject to the mandate granted in terms of this clause 4.1.

    1. Non-discretionary Services Mandate
      1. If you have elected to set the Minimum Return, and have notified FF in writing accordingly, you hereby authorise and mandate FF (and any of its office bearers, employees, agents and subcontractors) to provide the following services on a non-discretionary basis, acting as your agent and on your behalf, subject to your Minimum Return and in each instance as instructed by you:
        1. purchase foreign currency on your behalf in the spot foreign exchange market from an Authorised Dealer in Foreign Exchange;
        2. purchase Crypto Assets on your behalf from an Offshore Exchange or Local Exchange;
        3. hold on your behalf, in trust or authorise on your behalf a non-resident third party (if held offshore) to take custody of, or hold in trust on your behalf, the Crypto Assets purchased (Your Crypto Assets);
        4. transfer the Crypto Assets on your behalf from an Offshore Exchange to Local Exchange;
        5. sell or trade your Crypto Assets on your behalf on a Local Exchange to FF in terms of clause 6;
        6. submit and follow-up on FIA (Foreign Investment Allowance) applications on your behalf via SARS eFiling;
        7. with your prior approval, subcontract any or all of FF’s obligations to authorised third parties as FF deems fit and you agree to be bound by the terms and condition applicable to the services provided by such third-parties including the payment of any Third-Party Fees; and
        8. utilise Fiat Funds held by FF in trust to pay, on your behalf, all Third-Party Fees due by you subject to the conditions set out in Annexure A.
      2. You acknowledge and agree that:
        1. the ownership of Crypto Assets purchased on your behalf shall vest with you at all times and shall at no point pass to FF; and
        2. while Crypto Assets purchased on your behalf may, operationally, if required, be held in an FF Offshore Exchange Trust Account or FF Local Exchange Trust Account, it will at all times be held on your behalf and for your benefit in terms of the custody mandate authorised by you under clause 4.2.3, with no benefit therein accruing in favour of FF.
      3. To the extent applicable, FF guarantees to you the transfer of all Fiat Funds realised through the selling or trading of Your Crypto Assets from time to time to your Bank Account in accordance with paragraph 6.1.3, provided that the maximum amount receivable from FF shall always be limited to the net proceeds of recovery on enforcement by FF of FF’s rights and remedies against any third party in connection with the transfer of such Fiat Funds and any security granted in respect of their obligations, save that FF’s liability pursuant to this paragraph shall never exceed the amount of Fiat Funds payable to you.
  5. Profits and Losses
    1. For certainty, the profits (Profit) and losses (Losses) realised by you in trading, buying or selling of your Crypto Asset under the applicable Mandate, accrue to you and not to FF or any other third party.
  6. Sale of Crypto Assets
    1. You hereby acknowledge and agree that once the Crypto Assets have been transferred on your behalf from an Offshore Exchange to Local Exchange, into the Local Exchange Trust Account of FF, such Crypto Assets shall be deemed to be sold by you to FF on the following terms and conditions:
      1. the effective date of the sale shall be a nano-second after the Crypto Assets have arrived in the Local Exchange Trust Account of FF, from which time, all risk and benefit in the Crypto Assets shall be deemed to have passed from you to FF;
      2. the purchase consideration due to you in respect of the Sale shall be as quantified in accordance with Annexure A hereto;
      3. payment of the purchase consideration shall take place into your nominated local bank account within 2 business days of the Sale;
      4. delivery of the Crypto Assets shall be effected by FF taking transfer of the Crypto Assets out of the Local Exchange Trust Account into its own name or that of a 3rd party.
    2. The Sale by you to FF is done in a principal capacity. All and any profits FF realises on the Crypto Assets post the deemed sale shall be for the exclusive benefit of FF.
  7. Taxes
    1. You are solely responsible for all taxes, withholding taxes, levies, imposts and other like applicable amounts for the use of the Service and pursuant to the Sale. You must declare all income and capital gains earned on your trading to the South African Revenue Services in accordance with tax law and practice. FF is not responsible for notifying you of a change in tax law or practice and you should seek professional advice as to your personal tax situation.
    2. FF is entitled to deduct or withhold any tax as may be required by law to be deducted or withheld from any payment made under these Terms or any transaction or from any amount of money credited your Bank Account. 
    3. All amounts charged in relation to Services exclude value-added tax.
  8. Disclaimers and indemnities

    You acknowledge and agree that –

    1. you have read, and you understand, these Terms, the Mandate as well as the Terms of Service;
    2. by using the Service and the Website, you are bound by these Terms, the Mandate and the Terms of Service including the Sale of the Crypto Assets to FF;
    3. you have sufficient knowledge of Crypto Assets to enter into transactions, and understand that you are solely responsible for determining the nature, potential value, suitability, and appropriateness of the Service;
    4. trading in Crypto Assets are regarded by some as being high-risk;
    5. Crypto Asset markets can be volatile and prices can fluctuate significantly, which could result in sudden and significant increases or decreases in the value of your Crypto Assets;
    6. the Services do not in any way constitute the remission or transfer of money;
    7. you have carefully assessed whether your financial situation and risk tolerance is suitable for buying, selling or trading Crypto Assets and acknowledge that FF has not advised you in this regard;
    8. you are solely responsible for any decision related to the use of the Services and the terms of the Sale and acknowledge that FF has not induced or solicited you to enter into any transaction in respect of Crypto Assets;
    9. the decision to use the Service and enter into the Sale is entirely at your own risk;
    10. you are solely responsible for ensuring that you are fully aware of, and compliant with, all laws applicable to the use of the Service and the Sale, including those related to taxes and Exchange Control Regulations;
    11. in terms of Exchange Control Regulations, all allowances utilised for the purposes of making use of the Services and the Sale cannot be re-externalised
    12. past returns and expected profit indications are not guaranteed in any manner;
    13. you have been free to get independent professional advice (including legal, financial and tax advice) about the nature and effect of the Terms and the Terms of Service, trading in Crypto Assets, and the use of the Service and Sale;
    14. FF has not provided you with any advice relating the buying, selling, trading or otherwise holding or dealing with Crypto Assets, your Bank Account or any financial product or foreign currency and these Terms, the Mandate and the Terms of Service in no way constitute advice of any kind whatsoever;
    15. FF does not warrant, guarantee or represent that you will realise profits, or that you will realise a minimum amount of profits or a maximum amount of losses;
    16. FF, and its office bearers, employees, agents and subcontractors will not be liable to you or anyone else for any damages, losses or costs of any nature (whether direct, indirect, punitive, incidental, special or consequential) (together Damages) howsoever arising out of or in any way connected with use of the Services, the Website or the Sale, and whether or not such Damages are based on contract, delict, strict liability or otherwise;
    17. FF’s liability to you or anyone else for Damages will be limited to Service Fees charged on the specific transaction which gave rise to the cause of action for the Damages which have occurred;
    18. subject to the applicable laws, you indemnify and hold harmless FF, and its office bearers, employees and agents, from and against any Damages, losses or costs of any nature howsoever arising out of your use of the Service or the Website or the Sale, the services provided by any subcontractor or third-party service provider and/or your breach of these terms;
    19. subject to the applicable laws, you indemnify and hold harmless FF, and its office bearers, employees and agents, from and against any Damages, losses or costs of any nature howsoever related to or as a result of any act or omission of FF which causes you to be in default of any of its obligations under any agreement, terms and conditions applicable to services provided by subcontractors or third-party service providers in terms of clause 4.2.8;
    20. FF may, without notice and in its sole discretion, terminate, suspend or restrict the Service if FF suspect that you may be using the Service in a manner that is inconsistent with the letter or spirit of these Terms and the Terms of Service.
  9. Your warranties

    You warrant that –

    1. when using the Service, remitting money, or when exercising your rights and when complying with your obligations, you will at all times comply with all Applicable Laws, including exchange control laws;
    2. you are above the age of 18 and have the lawful capacity to agree to, and be bound by, these Terms and the Terms of Service;
    3. your Single Discretionary Allowance and/or your Foreign Investment Allowance per calendar year (Excon allowances) utilised for the Services have been applied for strictly in accordance with the Exchange Control Regulations, and when taken together with your other foreign investments, your transactions under these Terms will not exceed your allocated Excon allowances in any given calendar year;
    4. you have not taken transfer of, nor are you attempting to use the Excon allowance of any other person;
    5. you have not entered into a loan agreement or otherwise borrowed money for purposes of entering into transactions as contemplated in these Terms and you warrant that all assets or monies used to fund your Bank Account, Your Offshore Exchange Account and/or Your Local Exchange Account represent your personal assets or monies obtained from lawful sources and in accordance with Applicable Laws and do not constitute the assets or monies of another person;
    6. by entering into these Terms, you will not establish any simulated transactions, nor will you circumvent the Excon Regulations, Applicable Law or the Financial Services Laws;
    7. you have entered into these Terms of your own volition and have not been induced or unduly pressured to execute transactions under these Terms, and in particular you warrant that you instruct FF to execute your investment decisions by authorising FF to act in accordance with the Mandate;
    8. you are not a United Nations “Specially Designated National” and/or on the United Nations’ “Blocked Persons List” and/or are not confirmed by any government or other national authority to be a person or entity who has any restrictions on their capacity to trade freely and/or internationally, for whatever reason;
    9. you will, upon request by FF or its agents and subcontractors, provide FF or its agents or subcontractors with all such information and documents as they may require to provide the Service or to confirm your compliance with these Terms;
    10. all information and documents you provide to FF or its agents and subcontractors will be true, accurate and complete in all respects;
    11. you are not a national or resident of the United States of America;
    12. you will not use the Service for or in relation to any –
      1. violation of any Applicable Laws;
      2. undertaking, facilitating or supporting criminal activity of any kind, including money laundering, terrorist financing, illegal gambling operations or malicious hacking;
      3. abusive activity, including taking any action that may negatively affect the performance of the Service or FF’s reputation;
      4. attempting to gain unauthorised access to any account;
      5. paying in to or otherwise supporting pyramid schemes, Ponzi schemes, matrix programmes, “get rich quick” schemes, multi-level marketing programmes or high-yield investment programmes;
      6. fraudulent activity, including taking any actions that defraud FF or any other customer of FF, or the provision of any false, inaccurate, or misleading information to FF or its agents or subcontractors;
      7. transactions involving items that may help facilitate or enable illegal activity; 
      8. transactions involving gambling;
      9. sale or purchase of narcotics or controlled substances; or
      10. intellectual property infringement.
  10. Communications

    You agree that –

    1. any communications, agreements, notices and/or any other documents (together relating to your use of the Service and the Sale will be provided to you by email to the email address you have provided to FF, or through any other form of electronic communication; and
    2. you will advise FF of your current email address from time to time.
  11. Termination, suspension or restriction of Service
    1. Subject to the terms of the Discretionary Mandate (if applicable), FF may, in its sole discretion, and without notice or liability to you, terminate, suspend or restrict the Service or your use of the Service for any reason.
    2. If FF terminates the Service, it will, subject to the applicable laws pay to you all funds held by FF on your behalf into your Bank Account, less Third-Party Fees, disbursements, and Service Fees due by you
    3. FF may, in its sole discretion, amend these Terms by giving you 5 business days written notice. If you do not agree with the changes we send to you, you may terminate the Terms and the applicable Mandate with us. We will send the notice of amendment to the email address which you disclosed to us when you accepted these Terms. If you do not terminate the Terms and the applicable Mandate, you indicate to us that you agree to the amendment of these Terms.
  12. Uncontrollable events
    FF is not liable to you for any failure to fulfil its obligations under these Terms or the Mandate if and to the extent that the failure is caused by new law or any force majeure, including circumstances beyond its reasonable control, flood, fire, earthquake, war, government restrictions, acts of god, general power outages or interruption of telecommunications, the suspension of trading on the Offshore Exchange or Local Exchange, or a pandemic or steps taken to curb the spread of the pandemic.
  13. Intellectual Property rights
    1. All intellectual property owned by FF or held by FF under any licensing or similar agreement with any third party, remains the sole property of FF or that third party.
    2. You may not use any of FF’s intellectual property without FF’s prior written approval in each case.
  14. FICA
    1. You undertake to provide whatever information and documentation we may require from you in order to determine and verify your identity, your source of funds and contact details, and you will take all steps necessary to ensure that we are able to fulfil all of our obligations (including without limitation, reporting obligations) which may arise in terms of FICA or any applicable anti-money laundering legislation to which you or FF may be subject from time to time.
  15. FAIS
    1. FF holds a FAIS license (FSP No. 51884) to:
      1. under its Category I license provide intermediary services in respect of your Bank Account, deposits and foreign currency deposits; and
      2. [under its Category II license provide discretionary intermediary services in respect of Your Crypto Assets].
  16. Privacy policy

    FF respects your privacy and your personal information, and will take reasonable measures to protect it, as detailed in FF’s Privacy Policy (https://www.futureforex.co.za/privacy-policy/).

  17. Breach of Terms

    If you breach any of these Terms or any provisions of the Discretionary Mandate, FF may, at its choice and without prejudice to any other rights that FF may have in law, either claim specific performance, or terminate, suspend or restrict the Services or Website immediately without notice to you, and, in either case, claim damages from you.

  18. Governing law, jurisdiction, and resolution of disputes
    1. These Terms will be construed in accordance with and governed by the laws of South Africa, regardless of conflict of law principles. 
    2. The parties irrevocably and unconditionally agree to the exclusive jurisdiction of the Western Cape division of the High Court of South Africa in respect of all disputes (Disputes) arising from or in connection with your use of the Service or the Website or the Sale or these Terms. 
  19. General
    1. Clause headings are for ease only and are not used to interpret these Terms.
    2. A reference to a gender includes the other genders, a natural person includes a juristic person, and the other way around, the singular includes the plural, and the other way around.
    3. These Terms, the Terms of Service (where applicable) and the Mandate constitute the entire agreement between FF and you regulating the services which FF has agreed to provide to you and your business relationship with FF.
    4. FF gives no warranties, and makes no representations which are not contained in these Terms.
    5. These Terms may only be modified by a written amendment signed by an authorized executive of FF, or by FF changing the Terms in the manner set out in paragraph 11.3.
    6. Any extension of time or indulgence which FF may grant you is not a waiver of any of the rights of FF, who may exercise any rights against you which may have arisen in the past or which might arise in the future.
    7. All paragraphs and clauses are severable from each other, despite the way they have been grouped together or linked grammatically.
    8. You and FF are independent contractors. These Terms are not interpreted to put you and FF in another relationship, specifically not in any partnership or joint venture relationship.
  20. Information about FF
    1. Name: Future Forex SA (Pty) Ltd
    2. Registration number: 2020/032430/07
    3. Financial Services Provider number: 51884
    4. Telephone number: 021 518 0558
    5. Email address: [email protected]
    6. Website address: www.futureforex.co.za
    7. Physical address: 66 Roeland Street, Gardens, Cape Town 8001
    8. Postal address: 66 Roeland Street, Gardens, Cape Town 8001
    9. Registered address: 66 Roeland Street, Gardens, Cape Town 8001

    © Future Forex SA (PTY) Ltd 2020

Annexe A

  1. Deemed Sale Price & Third-Party Fees

    FF will purchase the Crypto Asset at the Deemed Sale Price (defined below) in accordance with these Terms and Conditions. The formula for calculating the Deemed Sale Price is as follows:

    Deemed Sale Price = (Local Price – Offshore Price) × (1 – Spread) + Offshore Price

    In this formula, unless the context shows otherwise:

      1. Deemed Sale Price means the purchase consideration payable to you in terms of clause 6.
      2. Local Price means the price of the Crypto Asset as quoted by a FF third-party Local Exchange just prior to the USD being purchased
      3. Offshore Price means the price of the Crypto Asset as quoted by a FF third-party Offshore Exchange just prior to the USD being purchased in ZAR terms assuming the identical buy rate of the USD via the Authorised Dealer at the time of purchase of the USD.
      4. Spread means the percentage to be applied as set out below dependent on the ZAR value for the provision of the Service (“Investment Amount per Cycle“).
        Table 1 – Spread Tiering
        Investment Amount per Cycle Spread
        R100,000 – R149,999 35%
        R150,000 – R199,999 33%
        R200,000 – R299,999 30%
        R300,000 – R399,999 28%
        +R400,000 25%

         

    All Third-Party Fees will be split in accordance with Table 1, such that FF will pay a percentage of these fees equal to the Spread (as per the Investment Amount per Cycle), and the Client will pay the remainder.

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