Terms and Conditions
MatchPlace FX – Terms of Use
1. OVERVIEW
We operate a proprietary payment engine that automates the payment lifecycle from receipt of funds through currency conversion and payment. The Services we provide comprise the Payment Engine Services which are provided by TCCS and the Account Services, Payment Services, Foreign Exchange Services and Branded Payment Engine Services which are provided by TCC. TCC is authorised by the Financial Conduct Authority (the “FCA”) under the Regulations for the issuing of electronic money and the provision of payment services with FCA register number 900199. Each of the Services is described in the document entitled “Description of Services – Terms of Use” for illustrative purposes but such descriptions shall not form part of these Terms of Use. These Terms of Use govern your use of the particular Services for which you register including without limitation your access to the Payment Engine.
2. USE OF THE PAYMENT ENGINE AND THE SERVICES
2.1 Ownership and use. We (i) own all right, title and interest in and to the Payment Engine and our proprietary technology, including our software (in source and object forms), algorithms, user interface designs, architecture, and documentation (both printed and electronic), network designs, know-how, and trade secrets, and including any modifications, improvements, and derivative work thereof (the “TCC Technology”) and (ii) have the right, at any time, to amend our operating procedures effective immediately, where appropriate in our determination. These Terms of Use do not transfer from us to you any license or ownership rights in the Payment Engine or the TCC Technology. You may only use the Payment Engine for the receipt of the Services and in a manner consistent with these Terms of Use and you shall not interfere with, disrupt, or cause damage to users of the Services, the Payment Engine or any of our equipment.
2.2 Security. It is your responsibility to ensure that the Payment Engine and the Account is only accessed by you and that you keep your login details, password or other security features associated with your access safe and secure. If you have any knowledge or any suspicion that any of these security features have been stolen or misappropriated or used without authorisation or otherwise compromised you must contact Client Support without delay. Any undue delay in notifying us may affect the security of your Account and /or result in you being liable for any losses as a result.
2.3 Suspension of Access. We may suspend your Account and/or your access to the Payment Engine and/or otherwise restrict functionality on reasonable grounds relating to: (i) the unauthorised or fraudulent or illegal or disruptive use or security of the Account or the Payment Engine; (ii) full or partial Payment Engine failure, including failure of the technology constituting the Payment Engine; (iii) a material breach by you of your obligations under the these Terms of Use; or (iv) in order to comply with applicable law. We will notify you of any suspension or restriction and our reasons for doing this (if possible in advance) and unless notifying you would be unlawful which suspension or restriction shall continue for such time as we shall reasonably determine this to be necessary.
2.4 Equipment. You must provide and/or obtain any equipment or telecommunications lines and links that may be necessary for you to use the Payment Engine and you acknowledge that certain software and equipment used by you may not be capable of supporting certain features of the Payment Engine.
2.5 Principal only. You hereby (i) confirm, represent and warrant to us at all times that that you are acting on your own account and not on behalf of any other person and (ii) acknowledge that we shall not be a principal to any transaction or be responsible for or otherwise guarantee the performance of any transaction entered into by you with an End Customer.
2.6 End Customers Responsibilities. You will be solely responsible for all services provided to End Customers including without limitation (i) all dealing services provided to End Customers, the correct inputting of trade details including trades executed via another liquidity partner (ii) End Customer limits default, spreads and permissions and the setting of trading limits, products, default spreads and user permissions for End Customers (iii) all Know Your Customer (KYC) requirements relating to End Customers and on-boarding of End Customers (iv) all operational matters relating to End Customers including inputting any manual End Customers payment details, chasing End Customers for payment details, any late arrival of funds arrival, settlement with End Customers and monitoring the open positions of End Customers (v) all sales, marketing and account management in relation to End Customers including the promotion and marketing of FX deliverable services and/or international payments services to End Customers, End Customer account management and execution of trades over the phone to End Customers and training End Customers on the use of the Branded Payment Engine Services.
3. DATA PROTECTION LEGISLATION
3.1 Personal data. By asking us to provide you with the Services you will be providing us with information which includes information that may be personal data within the meaning of the Data Protection Legislation which we as a data controller, collect, store and process in accordance with the Data Protection Legislation. We will only use any personal information to allow us to provide you with the Services and to assess our risks in doing so. We may send your personal data outside the European Economic Area but only to our Group Companies.
3.2 Identity. We may conduct searches through an identity-referencing agency and through other sources of information and use scoring methods both to allow us to provide you with the Services and to assess our risks in doing so including credit standing and compliance with all Know Your Customer (KYC) requirements. A record of this process will be kept and may be used to allow our Group Companies to similarly provide you with services and to assess our risks in doing so. Information may also be passed to other organisations or persons to prevent fraud.
3.3 Privacy Policy. Details on how we use, collect and share your information and the steps we take to protect your information are set out in our Privacy Policy. By accepting these Terms of Use, you also agree to the terms of our Privacy Policy. You should print and keep a copy of the Privacy Policy together with these Terms of Use.
3.4 Data lawfully obtained. You confirm to us that any personal data which you or any of your officers, employees, agents or sub-contractors, supply to us at any time, has been lawfully obtained and will be lawfully supplied to us in accordance with the Data Protection Legislation and that all relevant consents have been obtained from End Customers.
3.4 Responsibility for Data. You are solely responsible for (i) the content, quality, accuracy and completeness of End Customer data and (ii) any other data transmitted by you or on your behalf via or in connection with the use of the Payment Engine and the Services.
4. FEES AND AMOUNTS TO BE PAID
4.1 Fees. Transaction fees and service fees for the Services shall be as set out in the relevant Commercial Agreements and may be increased by us in accordance with the terms of the relevant Commercial Agreement. Pre-paid transaction and service fees are non-refundable.
4.2 Taxes. All Fees are stated exclusive of all taxes and similar fiscal charges now in force or enacted in the future, all of which you will be responsible for and must pay in full, except for taxes based on our net income.
4.3 Default Interest and reconnection. If you do not promptly pay any amount properly due to us under these Terms of Use we may: (a) charge you interest on the overdue amount at the rate of 5% per year above the base rate of Barclays Bank Plc from time to time (which interest will accrue daily and be compounded quarterly as well after as before judgment or any Insolvency Event); and/or (b) if the amount is due but unpaid for thirty (30) calendar days or more suspend, interrupt, or terminate your access to the Payment Engine and/or your use of the Services. In the event of disconnection, you must pay us a reconnection fee of £200 as a condition of reactivation of access to the Payment Engine in addition to full payment of all amounts due under these Terms of Use. Reactivation of service will only be performed during our regular business hours.
4.4 Set off. You agree that we may set off any amount you or any of your Group Companies owe us or any of our Group Companies against any sums owed by us or any of our Group Companies to you or any of your Group Companies.
5. CLIENT HELP CENTRE AND SERVICE LEVELS
5.1 Client Help Centre. Currencies available for conversion, settlement schedule, payment cut-off times, and failed payment procedures are described in the Client Help Centre and the Services will be provided subject to and in accordance with the terms set out in the Client Help Centre. We will also in accordance with the Regulations communicate to you the maximum execution time for a payment, the charges payable by you in respect of a payment, the cut-off time for the payment system we use to transmit your payment and (where applicable) a breakdown of the amounts of any charges.
5.2 Telephone Conversations. Any telephone conversations we have with you may be monitored and recorded by us and we may also maintain records of emails sent by or to you and your Authorised Person. You agree that we may use these telephone recordings and any transcripts or email records for training and quality control purposes or to resolve any disputes and also in the prevention and detection of crime. However we may not make or maintain such recordings or records or be able to make them available to you.
5.3 Service Levels. The service level requirements for the provision of the Services are:
Uptime Commitment: We shall use all reasonable endeavours to ensure that the Payment Engine is available 99.5% of the time during each calendar month (“Availability”). Availability excludes unavailability due to scheduled maintenance or a force majeure event.
Help Desk: You may report incidents requiring our help by contacting Client Support by telephone or by sending an email which will be acknowledged by email or telephone during UK office hours within one (1) hour of the incident report. Reported incidents will be assigned to a Client Support representative, who shall coordinate support efforts with you through resolution of the reported problem.
Limits on Support Services: We shall have no obligation under these Terms of Use to provide support services in respect of any fault or error caused by (a) the improper use of the Payment Engine, or (b) use of the Payment Engine otherwise than in accordance with these Terms of Use.
Scheduled Maintenance: We suspend access to the Payment Engine each evening at 10 p.m. (GMT) for ninety (90) minutes in order to carry out scheduled maintenance. In addition, every two weeks outside of business hours we suspend access to the Payment Engine for no more than fifteen minutes to upgrade the Payment Engine. We will provide you with at least 24 hours’ written notice of any other scheduled maintenance, including full details of the expected Payment Engine downtime. Payment Engine downtime during scheduled maintenance carried out by us in accordance with this paragraph shall not be counted as downtime for the purposes of Availability.
6. CONFIDENTIAL INFORMATION
6.1 Nondisclosure of Confidential Information. Each party agrees (i) that it will not use in any way, for its own account or the account of any third party, except as expressly permitted by, or required to enable it to perform its obligations under, these Terms of Use, nor disclose to any third party (except as required by law or to that party’s advisors as reasonably necessary), any of the other party’s Confidential Information and (ii) will take reasonable precautions to protect the confidentiality of such information, at least as stringent as it takes to protect its own Confidential Information. In addition, each party may reveal the other party’s Confidential Information only to its agents, representatives and employees who have a “need to know” such information in connection with these Terms of Use, who are informed of the confidential nature of such Confidential Information and who shall agree to act in accordance with the terms and conditions of this section. Each party agrees that the obligations under this section will survive any expiration or termination of these Terms of Use.
7. OUR AGREEMENT WITH YOU
7.1 Our acceptance of you as a client. Our obligations under these Terms of Use are conditional upon our acceptance of you as a client which is at our sole discretion and we reserve the right to decline to provide the Services or open an Account for you without specifying a reason. You acknowledge that that all regulatory requirements need to be met before any Services are provided.
7.2 Your Representations and Warranties. You hereby represent and warrant to us at all times that (i) you will comply with these Terms of Use and all applicable laws, rules and regulations regarding your use of the Payment Engine and End Customer data and the Services (ii) you will use the Payment Engine and the Services only for lawful purposes (iii) you have full power and authority to enter into and comply with these Terms of Use (iv) title to all money and assets transferred to us under these Terms of Use will vest absolutely in us and not be subject to any charge or other rights of third parties (v) you are compliant with all applicable laws in all jurisdictions in which you operate (vi) you are not buying currency for the purposes of investment or speculation and (vii) all information supplied to us by you is complete, accurate, up to date and truthful in all material respects.
8. LIABILITY
8.1 Instructions and Agreed Orders. We are entitled to act on instructions and rely on agreed Orders which are received from or made with you or an Authorised Person or appear so to be. You agree to indemnify us for all losses arising from our doing so and from any losses we may incur resulting from any errors made by you or an Authorised Person in providing instructions to us or concluding Orders with us (whether verbally or in writing) unless these arise due to our negligence, willful default or fraud. We shall not be liable to you for the non-execution of a payment or for the defective execution of the payment if the information you provide is incorrect. However, we will make reasonable efforts to recover the funds involved in the payment. You will be responsible for the costs incurred by us for any such recovery.
8.2 Non Exclusion.Nothing in this Agreement excludes our liability for fraudulent misrepresentation, death or personal injury caused by our negligence or the negligence of our employees or agents or any other liability that cannot be excluded by law.
8.3 Unauthorised or incorrectly executed payments. Under the Regulations you may be entitled to redress for any unauthorised or incorrectly executed payments. In the case of an executed payment not authorised by you or an Authorised Person we will refund the amount of the unauthorised payment to you and where applicable, restore the debited payment account to the state it would have been in had the unauthorised payment not taken place. If we fail to execute, or incorrectly execute, a payment unless we can establish that the beneficiary’s payment service provider received the amount of the payment transaction, we will refund to you the amount of the non-executed or defective payment transaction and, where applicable, restore the debited payment account to the state in which it would have been had the defective payment transaction not taken place. We will also refund to you with any direct charges for which you are responsible and any interest which you must pay as a consequence of the non-execution or defective execution of the payment transaction. Beyond this, we have no further liability to you any unauthorised or incorrectly executed payments.
8.4 Aggregate liability. Our aggregate liability to you (either directly or as a third party defendant in any action or proceeding) with respect to these Terms of Use shall not exceed the amount of fees paid by you to us under these Terms of Use within one year preceding the date you make your claim. However, our maximum liability, whether arising in contract, tort or otherwise, shall in no circumstances exceed an amount equal to the currency sold by us under the relevant Contract. In no event shall we be liable for any loss of data, loss of profits, cost of cover, or any other special, incidental, consequential, indirect or punitive damages.
8.5 Payee/beneficiary bank failure.We will not be liable if the payee/beneficiary bank fails to process the payment correctly.
8.6 Our Negligence.If a loss is incurred due to our negligence, we will attempt to correct the error. If we are unable to do so, we will be liable for any direct losses such as bank fees and interest incurred as a result of our negligence. In no circumstances will we be liable for any indirect, unforeseeable or incidental losses incurred such as loss of opportunity by you or any action for damages made against you by a beneficiary
8.7 Your Indemnities. You agree to defend any claim against us (i) that your actions in connection with your use of the Payment Engine or the Services violate any third party’s rights of privacy, or violate any privacy laws; and (ii) arising from or relating to End Customer data. You will, in either case, indemnify us (and our directors, employees and agents) against all damages awarded against us or agreed to in a written settlement agreement signed by you arising out of such claim. In addition, with regard to Contracts, you shall, on our demand, indemnify us from and against all liabilities, damages, losses and costs (including reasonable legal costs), duties, taxes, charges, commissions or other expenses incurred by us (including losses and expenses from any action we take to seek to cover or reduce our exposure under any Contracts) as a result of: (i) our acting on a written, oral, telephone, fax or electronic Order which reasonably appeared to us to be from you or an Authorised Person; or (ii) our exercising our rights to Close Out all or any part of any Contract.
9. TERMINATION
9.1 Term. These Terms of Use shall remain in effect so long as any Commercial Agreement is in force or for so long as we are providing any Services to you.
9.2 Termination for Cause. Either of us may terminate a Commercial Agreement if: (i) the other party breaches any material term or condition of these Terms of Use and fails to cure such breach within thirty (30) days after receipt of written notice of the same, (ii) the other party becomes the subject of a voluntary or involuntary petition in bankruptcy or any proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors, if such petition or proceeding is not dismissed within sixty (60) days of filing.
9.3 Additional Grounds for Termination. We may suspend Services and terminate your Commercial Agreement at any time without prior notice if: (i) a financial regulator, regulatory agency, or law enforcement agency posts a warning with regard to you: (ii) any governmental, regulatory, or judicial authority directs us to suspend or terminate your Commercial Agreement; (iii) a banking partner of ours requests that we terminate your Commercial Agreement; or (iv) we have reason to believe that you are engaged in fraud, money laundering, or terrorist financing.
9.4 Effect of Termination. Upon the effective date of termination: (i) you will immediately cease all use of the Payment Engine and return any and all copies of any documentation, notes and other materials comprising or regarding the Payment Engine; (ii) all of your payment obligations under these Terms of Use for Services will immediately become due and payable; and (iii) within thirty (30) days of such termination of your Commercial Agreement, each party will return all Confidential Information of the other party in its possession and will not make or retain any copies of such Confidential Information except as required to comply with any applicable legal or accounting record keeping requirement.
9.5 Survival. The following provisions will survive any expiration or termination of your Commercial Agreement: section 6.1 and any other provision that by their nature are intended to survive termination of your Commercial Agreement. Any sums owed by you to us under these Terms of Use shall become immediately due and payable on the expiration or termination of your Commercial Agreement.
10. MISCELLANEOUS
10.1 Independent Contractor. Our relationship under these Terms of Use is that of independent contractors and not partners, joint ventures, or co-owners as participants. Neither party has authority to contract for or bind the other.
10.2 Changes to the Payment Engine. We reserve the right to modify the Payment Engine at any time as it deems necessary to comply with applicable laws and regulations or business needs, provided that such modification shall not thereby substantially degrade the functionality of the Payment Engine.
10.3 Assignment.You consent to us assigning our rights under these Terms of Use at any time to (i) one of our Group Companies and/or (ii) any person pursuant to a merger, consolidation or sale of any substantial portion of our business to which this these Terms of Use relate. You may not assign your rights under these Terms of Use without our prior written consent.
10.4 Governing Law and Forum.These Terms of Use (and any non-contractual obligations arising out of or in connection with the same) shall be governed by and interpreted in accordance with the laws of England and the courts of England shall have exclusive jurisdiction to settle any dispute or claims which may arise in connection with these Terms of Use and/or the Services provided hereunder (including in relation to any non-contractual obligations).
10.5 Advertising.We may include your name, logo and contact information in directories of our service subscribers and other general promotional materials for the purpose of promoting the use of the Payment Engine generally. Neither party shall issue a press release relating to their business relationship without the written consent of the other party. Neither party may use the trademark or trade name of the other party without the written consent of such party.
10.6 Entire Agreement and Waiver.These Terms of Use constitute the entire agreement between you and us with respect to the subject matter hereof. All prior agreements, representations, and statements with respect to such subject matter are superseded. Any failure of either party to exercise or enforce its rights under these Terms of Use shall not act as a waiver of subsequent breaches.
10.7 Severability.The provisions of these Terms of Use are severable and the invalidity or unenforceability of any provision herein shall not affect the validity or enforceability of any other part of these Terms of Use.
10.8 Non-Solicitation. During the term of your Commercial Agreement and for a period of one (1) year thereafter, you shall not solicit or hire the services of any employee or subcontractor of us, without our prior written consent.
10.9 Amendments. We reserve the right to amend these Terms of Use by giving you no less than 2 months’ notice and sending you revised terms and conditions by post or e mail or other electronic means. Such amendments will become effective on the date specified in the notice and unless otherwise agreed by us in writing, an amendment will not affect any legal rights or obligations which may have already arisen prior to the date specified in the notice.
10.10 Force Majeure. In the event that either party hereto shall be delayed or hindered or prevented from the performance of any act required by reason of strikes, lock-outs, labour troubles, inability to procure materials or services, failure of power, riots, insurrection, war, mud-slide, fire, earthquake, tsunami, or other similar reasons of a like nature not the fault of the party delayed in performing work or doing acts required under these Terms of Use, such party shall immediately provide notice to the other party of such delay, and performance of such act shall excused for the period of the delay and the period for the performance of any such act shall be extended for a period equivalent to the period of such delay.
10.11 Third Party Rights. Nothing in these Terms of Use confers or is intended to confer a benefit enforceable by a person who is not a party to it and no term of this Agreement is enforceable under the Contracts (Rights of Third Parties) Act 1999 by a person who is not a party to these Terms of Use. Without prejudice to the generality of the foregoing you (and not any End Customer) will be the counterparty to a Contract and the recipient of the Services including without limitation the Branded Payment Engine Services.
10.12 Notices and Communications. Any notice required to be given under these Terms of Use shall be treated as having been served on delivery if by hand, 48 hours after posting (disregarding days which are not Business Days) and on completion of transmission if sent by or e mail or other electronic means. All communications in relation to these Terms of Use and the services contemplated hereunder, whether verbally or in writing, must be in the English language. All communications may be made by any reasonable means, including but not limited to, telephone, letter, electronic mail or other electronic means. We reserve the right to request that you confirm in writing any verbal communications that you may give us.
10.13 Complaints. If you feel that we have not met your expectations in the delivery of our services or if you think we have made a mistake, please let us know. We have internal procedures for handling complaints fairly and promptly in accordance with the FCA requirements. A copy of our complaints procedure is available upon request and on the Website. If you are an eligible claimant you can take your complaint to the Financial Ombudsman Service should you not be satisfied with our final response. Eligibility criteria and the procedures involved, are available from the Financial Ombudsman Service, Exchange Tower London E14 9SR.
SCHEDULE 1
PAYMENT SERVICES AND E MONEY ACCOUNT OPERATION
The following provisions will apply to the Account Services and the Payment Services
1. Rights and obligations. These Terms of Use set out important rights and obligations including our liability to you under the Regulations when you open an Account and ask us to provide Payment Services.
2. Scope of the Regulations. The Regulations do not apply to Foreign Exchange Services or to payments made to or from a bank account in your name including withdrawals from your Account. However payment falling outside of the Regulations will be dealt with in accordance with these Terms of Use.
3. Account Status. Your Account is an electronic money account (denominated in a currency of your choice as selected by you from the available currencies) which enables you to send and receive electronic payments. The electronic money on your Account is issued in accordance with the Regulations and other applicable law. You cannot change the currency of your Account once you have attempted to process a payment and subject to closing your Account as described below the electronic money held on your Account does not expire but it will not earn any interest.
You have the right to withdraw funds from your Account at any time. However, you may be required to confirm your identity beforehand. There is no minimum withdrawal amount but the funds on your Account must be sufficient to cover any applicable withdrawal fee.
You acknowledge that electronic money accounts are not bank accounts and accordingly the UK’s Financial Services Compensation Scheme (FSCS) does not apply to your Account. We strictly adhere to the legal requirements under the Regulations which are designed to ensure the safety and liquidity of funds deposited in electronic money accounts however in the unlikely event that we become insolvent; you may lose the electronic money held in your Account. For further information on how we safeguard client funds, please contact Client Support.
The electronic money on an Account belongs to the person registered with us as the holder and no person other than the holder has any rights in relation to the funds held in an Account and you may not assign or transfer your Account to a third party or otherwise grant any third party a legal or equitable interest over it.
Your Account may be subject to upload, payment and withdrawal limits due to security and legal requirements as determined by us from time to time at our sole discretion and you may be asked to answer security questions or to complete other activities that we may reasonably require in relation to any upload, payment or withdrawal transaction.
We reserve the right in our sole discretion to carry out all and any necessary money laundering, terrorism financing, fraud or other illegal activity checks before processing any upload, payment or withdrawal transaction.
Upload, payment and withdrawal transactions may be subject to fees and currency conversion fees.
4. Opening an Account. In order to use Payment Services you must first open an Account with us.
By opening an Account with us, you are also confirming that you (i) have regular access to the internet and email and (ii) are able to store information sent to you by email and other electronic means including the Portal in a Durable Medium by printing out or otherwise retaining for future reference all electronic communications sent and information made available to you by us (via the Portal or by email or telephone). It is for you to ensure that your contact details are up to date and that you are able to access any such communications and information at all times
5. Maintaining an Account. You must ensure that the information recorded on your Account is always complete, accurate and up to date and we shall not be liable for any loss arising out of your failure to do so. We may ask you at any time to confirm and/or provide documents or other evidence as to the accuracy of this information.
We may contact you via the Portal or by email with information or notices regarding your Account and Payment Services. It is your responsibility to regularly check the proper functionality of your e-mail account or other methods of communication that you have registered with your Account and to retrieve and read messages relating to your Account and Payment Services promptly. We shall not be liable for any loss arising out of your failure to do so.
Fund uploads, payments received, payments sent and fund withdrawals are displayed in your Account and you should check your Account balance and transaction history regularly. You should report any irregularities or clarify any questions you have as soon as possible by contacting Client Support.
6. Closing an Account. You may close your Account at any time by contacting Client Support and withdrawing any balance held at that time.
7. Uploading to an Account. The balance of the sold currency will be paid into your Account and you can upload funds but we do not guarantee the use of any particular upload method and may make changes to or discontinue the acceptance of any particular upload method at any time. We shall not be responsible for the upload payment until the uploaded funds are received by us.
Uploaded funds will be credited to your Account after the funds have been received by us and have not been subject to any reversal in which case we will deduct such reversed transaction from the balance of your Account. If your Account balance is insufficient, we reserve the right to require repayment from you.
8. Sending Payments. You must notify us by telephone or in writing as soon as possible after you become aware of any unauthorised or incorrectly executed payments, otherwise we may not be liable to you and in order to claim a refund for an unauthorised or incorrectly executed payment transaction on your Account you must notify us without undue delay after becoming aware of the unauthorised or incorrect transaction and in any event no later than thirteen (13) months after the debit date of the transaction.
It is your responsibility to ensure that accurate and complete payment instructions for the beneficiary of a payment are provided to us. You are required to provide us with any additional information that we request with regard to a payment within two (2) Business Days of our request. You consent to our including your full name, address and account number (and any other details as are required to enable us to comply with our anti money laundering procedures) on the payment details to be sent to the beneficiary’s bank or payment service provider to comply with anti-money laundering regulations
If you instruct us to make payment to a new or an existing beneficiary, and your beneficiary account details are provided via an oral Instruction (such as by telephone, video conferencing or other similar means) or otherwise by a communication that is not in writing then we will send you an e mail containing the beneficiary account details you have provided. If you provide incorrect beneficiary details or you confirm incorrect beneficiary details contained in the this e mail we will not be liable for any loss you incur, although we will use reasonable efforts to assist you in the recovery of your payment; we reserve the right to charge you a fee to cover our reasonable costs for doing this.
To send a payment we may use third party intermediariesto complete the money transfer to a recipient if the recipient does not have an Account and the intermediary shall then be responsible for ensuring the onward transmission of the payment to the recipient and our obligations under these Terms of Use for the onward transmission of funds shall be complete once such funds have been credited by us to the account of the relevant intermediary. We will not be liable for losses that result from such third party charges or fees being applied to your payment
Subject to the Regulations we may refuse your payment Instruction because for example you have not satisfied your obligations under these Terms of Use or we reasonably believe the payment to be unlawful. In these circumstances we shall promptly notify you using your supplied contact details, stating wherever possible the reasons for our refusal, and the procedure for rectifying any payment detail errors that led to the refusal but we reserve the right to charge you a fee to cover our reasonable costs for doing this. We are not obliged to notify you of our refusal to execute the proposed transaction where we reasonably believe that such a notification would be unlawful.
If we receive a payment Instruction by 4.30pm on a Business Day, your payment Instruction will be deemed to have been received by us on that Business Day. If your payment Instruction is received after by 4.30pm or on a day that is not a Business Day, your payment instruction will be deemed to have been received on the next Business Day. Your payment instruction will be acted on the earliest possible payment date available once the Contract has been performed unless you have requested a specific future date.
9. Receiving Payments. If you receive funds into your Account, we will send you a notification e-mail and display the payment in your transactions history. You should regularly reconcile incoming payments with your own records.
You should be aware that receipt of funds to your Account does not necessarily mean that these transactions cannot be reversed. We reserve the right to reverse a payment in case the payer or the payer’s bank or payment service provider has reversed (or is reasonably likely to reverse) an upload or other payment which was used to fund the payment to you.
10. Prohibited Payments. We reserve the right, in our sole discretion to impose ‘acceptable use’ terms in relation to the operation of your Account and the provision of any payment service including the prohibition of certain categories of payment transactions for example payments in relation to the gaming, bitcoins and virtual currencies sectors by specifying these on the Website.
You must not use your Account for any illegal purposes including without limitation fraud and money laundering. We will report any suspicious activity to the relevant law enforcement agency.
If you conduct or attempt to conduct any transaction in violation of the prohibitions contained in this section we reserve the right to reverse the transaction, and/or close or suspend your Account and/or report the transaction to the relevant law enforcement agency and/or claim damages from you.
11. Withdrawing Funds. You can request a withdrawal of all or part of the funds held in your Account at any time by logging into your Account and following the relevant instructions. We do not guarantee the use of any particular withdrawal method and may make changes to or discontinue the acceptance of any particular withdrawal method at any time as long as there is at least one withdrawal method available to you.
You may only make a withdrawal to a bank account and where you are the named holder of such bank account. For the purposes of a withdrawal transaction, we are a payer and not a payment service provider.
You must ensure that the payment details you enter when withdrawing funds are correct and complete. We will not be liable for funds being sent to the wrong payment instrument where this is due to you providing incorrect payment details. If you have withdrawn funds to the wrong payment details payment instrument, you may request that we assist you in reclaiming the funds, however, we will charge you an administration fee and we cannot guarantee that the reclaim efforts will be successful.
12. Safeguarding.Funds received in accordance with a payment instruction will be subject to the segregation requirements as set out in the Regulations and are referred to as “Relevant Funds”.
For the purposes of this clause “Relevant Funds” means sums received from you or for your benefit from a payment service provider such as a bank for the execution of Payment Services on your behalf. Relevant Funds are held in segregated bank accounts which are independent of our business bank accounts. The purpose for so holding funds is to ensure that in the event of our insolvency, or if a financial claim is made against us, no creditor or claimant should be able to claim funds held in these accounts. This is because no other person or institution may have any rights or interest over the funds held in these accounts such as a lien over funds in these accounts. Relevant Funds are not covered under the Financial Services Compensation Scheme.
Relevant Funds do not include funds received from or to you or on your behalf in settlement of a Contract. When you transfer funds to us to pay Margin Call(s) full ownership and title to these funds transfers to us absolutely and such funds are considered as our funds. They will not be Relevant Funds and so they will placed into our business bank account and will not be afforded protection under the segregation rules of the Regulations.
Pursuant to the Regulations, we will not pay interest on funds paid to us including balances held in segregated or client bank accounts and we may retain, for our own benefit, any interest which accrues from funds held in any accounts
SCHEDULE 2
FOREIGN EXCHANGE SERVICES AND BRANDED PAYMENT ENGINE SERVICES –CONTRACTS
The following provisions will apply to the Foreign Exchange Services and Branded Payment Engine Services and to all Contracts
1. Individual contracts. Each Contract shall be an individual contract and we may at any time and at our sole discretion refuse to offer terms for any Contract.
2. No Advice.We shall not provide you with any advice in connection with the Services or in respect of a Contract such as whether to proceed or not to proceed with a transaction or in respect of timing of a transaction or the legal, regulatory, tax, business, financial, accounting or other consequence of a transaction. All Services are provided by you to us on an execution only basis. Any decision to transact is always your decision and we cannot be liable for any loss including loss if exchange rates move before or after you transact. Any market information we provide is not provided as advice and you should not infer anything from the information. Foreign exchange conditions are very complex and volatile and subject to fluctuations outside of our control and as a result we cannot accept responsibility for your decision to enter a transaction under these Terms of Use.
3. Purpose. We buy and sell currency to support personal and/or commercial purposes including, but not limited to, the buying of goods and services or property and therefore you should not use any Contract or the Services for investment or speculative purposes such as by trying to profit from fluctuations in foreign exchange rates and you should tell us if that is your intention. We may decline to deal with you if we have reason to believe that you are using any Contract or the Services for investment or speculative purposes and we shall not be liable to account to you any gains following any Close Out of a Contract or further Contract entered into by us pursuant to paragraph 6 below.
4. Instructions and Orders.You may give us electronic or verbal instructions relating to a transaction for the purchase or sale and delivery of currency and we will at our sole discretion offer the commercial terms of a proposed Contract. Once you accept the commercial terms of the Contract (by electronic or verbal or by any other means), you will become legally bound to perform the contract in accordance with the terms of the Order. Following receipt of an Order, we shall subsequently transmit electronically to you a contract note, which will confirm the details of the Order. Once we have agreed an Order, you may not amend or cancel the Contract if we expressly agree (and any such amendment or cancellation shall be on the conditions specified by us). We may require further confirmation or information from you or an Authorised Person of any Order.
5. Limit order. We may accept your instructions which include a limit order and we will use our reasonable endeavours to execute such an Order but if market conditions prevent us from executing your instruction(s) in full or at all, then we have no liability in respect thereof.
6. No Cancellation.Each Contract constitutes an irrevocable and legally binding agreement by you to purchase or buy (as the case may be)the relevant currency and as such you will have no right to cancel a Contract. However you may prior to the Maturity Date request that we Close Out a Contract or enter into a further Contract to (as the case may be), sell the currency you agreed to buy or purchase the currency you agreed to sell but we shall have sole discretion as to whether we enter into such further Contract or Close Out the Contract.
7. Funding a Contract. You must pay all funds specified by us as required to pay to us in connection with a Contract (including any applicable transfer charges by electronic transmission) in full and in cleared funds into a client account specified by us. Payment must be made on or before the Maturity Date or such earlier date as we may specify and for the full value of the currency to be sold by you under the Contract and will hold and operate such account as a client-specified account. We may deduct from any payment any fees, costs, taxation liabilities, or charges incurred by us in respect of any transaction. You should be aware that receipt of funds from us into your nominated/beneficiary bank account may result in charges being applied by the beneficiary/receiving bank which are your responsibility. We are entitled to apply default interest pursuant to these Terms of Use if you fail to make any payment when it falls due. Please see the daily cut-off times available at http://help.currencycloud.com for settlement times. If funds do not arrive we may at our discretion roll the trade to the next settlement day and apply a charge in accordance with the provisions of the Commercial Agreement.
8. Disputes.If a dispute arises between you and us relating to the existence or terms of any Contract (a “Disputed Contract”), we may at our sole discretion Close Out the Disputed Contract pending settlement of the dispute. We will notify you (orally or in writing) of such action as soon as practical but if we do not the validity of any action by us shall not be affected.
9. Default & Refusal to Perform. We may at our sole discretion refuse to perform or Close Out a Contract with or without giving prior notice to you, upon or at any time after any of the following events:
9.1 You fail to make any payment when due;
9.2 An Insolvency Event occurs or you take step to or suspend payment of your debts;
9.3 You fail in any respect to fully and promptly comply with any obligations owed to us, or if any information supplied by you or any representations made by you are or become materially inaccurate;
9.4 It becomes or may become unlawful for us to maintain or to provide any of the Services or if you or we are requested not to perform or to close out a Contract (or any part thereof) by the FCA and any governmental or regulatory authority whether or not that request is legally binding; or
9.5 We consider it necessary to do so for our own protection including (without limitation) in the following circumstances: (i) protection from fraud; (ii) protection from your default; and (iii) protection from broad-based market failure.
If you become aware of the occurrence of any such event or any circumstances that mean that any such event is likely to occur you must notify us immediately.
If any event referred to above takes place, we shall, at our discretion, be entitled to cancel any Contract then outstanding and charge you with all of the costs, expenses and losses that we may incur (including any action we may take to cover or reduce our exposure). Any excess amount held by us in respect of Contracts shall be returned to you after deducting all other sums due to us. We shall not be responsible in any way for any delay in payment by us under this schedule 2 caused by you or any other third party.
10. Close Out. You will become liable on demand for all costs, expenses and losses that we may incur as a result of any Close Out of a Contract pursuant to these Terms of Use together with interest at the rate provided for in these Terms of Use on any sums due to us but unpaid and we will have no liability for any losses that may be sustained by you as a result of a Close Out nor shall we be liable to account to you any gains.
11. Forward Contracts. For a Forward Contract we shall require immediate payment to us in cleared funds of Margin whether from the balance of the sold currency or otherwise funded by you and in all cases by payment into an account nominated by us and in amount(s) specified by us from time to time. In addition we will be entitled to require you to provide additional Margin in such amount(s) as we shall specify in the event of exchange rate fluctuations at any time prior to the Maturity Date. We also reserve the right to change the Margin requirement from time to time upon notification to you. All requests for additional Margin and increased Margin must be paid within 1 Business Day of our request. Please see the document entitled “Margin Operation Illustration – Terms of Use” for information on the operation of the Margin (including illustrations of position netting, position mark to market, pre-trade margin requirements and margin calls) which is provided for illustrative purposes but shall not form part of these Terms of Use.
12. Payment of Margin. If our Margin requirements have not been met in full Services cannot commence or continue and the Trade will not be executed and we reserve the right to Close Out the Contract if any payment of Margin is not made by the due date.Full ownership and title to all funds sent to us as Margin shall transfer to us absolutely and you shall have no interest in such funds which we will be entitled to deal with in our own right. You will have the right to be repaid any Margin held by us in excess of the minimums specified below.
13. Drawdown. With our written consent, you may draw down against a Forward Contract at any time prior to its Maturity Date. We may agree at any time prior to the Maturity Date to roll forward all or part of a Forward Contract until a later date upon agreement as to the terms and amounts payable by you to us.
14. Beneficiary details. You will need to notify us not less than 24 hours before the earlier of the Maturity Date of any Forward Contract or the date of any agreed draw down prior the Maturity Date with the details of the beneficiary, the payment means, and delivery instructions.
15. End Customers. We deal with you as Principal only and assume no obligations to End Customers and full ownership and title to all funds sent to us as Margin shall transfer to us absolutely. All and any part of Margin may be applied across all and any Contracts and we reserve the right to select which Contracts are subject to Close Out irrespective of any End Customer including without limitation in circumstances where an End Customer has made a payment of Margin direct to us. However, we will make reasonable efforts to contact you before Close Out of any Contract.
