THIS IS OUR CLIENT AGREEMENT UPON WHICH WE INTEND TO RELY. FOR YOUR OWN BENEFIT AND PROTECTION YOU
SHOULD READ THESE TERMS CAREFULLY BEFORE AGREEING TO THEM. IF YOU DO NOT UNDERSTAND ANY POINT PLEASE ASK FOR FURTHER INFORMATION.
Whereas the Client requests that CURRENCY MATTERS LIMITED (THE COMPANY) agree to provide facilities for the CLIENT to:
Buy and sell foreign currencies for the purpose of trade or other commercial activity and / or make payments for the purpose of trade or other commercial activity.
IT IS AGREED HEREWITH:
The sections forming this AGREEMENT consist of:
A. The Terms and Conditions
3) Duration & Termination
4) Client Instructions
5) Financial Provision
7) Liability & Indemnity
8) Electronic Delivery or Communication Channels
9) Anti Money Laundering
10) Payment Services Regulations
11) Data Protection
12) Capacity & Warranties
13) Nature of Agreement
The date of this AGREEMENT shall be the date as executed by an authorised signatory of the COMPANY.
The CLIENT agrees to the Terms and Conditions included in this contract.
In exchange for The Company and such other subsidiaries or affiliates of the Company as may from time to time hereafter come into existence and any successors or assignees of these companies (each known as “the Company”) agreeing to accept instructions in accordance with this Agreement, given from time to time to the Company office noted above (the “office”), it is agreed as follows:
A. TERMS and CONDITIONS
1.1 The Company agrees to provide facilities for the CLIENT to buy and sell foreign currencies for the purpose of trade or other commercial activity only.
1.2 The Company will not accept any instruction which the Company, at its own discretion, believes to be for speculative purpose, or other than a trade other purpose or commercial purpose.
1.3 The COMPANY will not provide advice as to the merits or otherwise of proposed transactions and the CLIENT shall rely upon their own judgement alone when entering into any transaction.
1.4 The COMPANY may, however, provide general information to the CLIENT relating to the Foreign Exchange markets.
2.1 Documents, and any other communication may be despatched from the Company by post, facsimile or by email, and proof of despatch will be deemed to be proof of receipt.
2.2 For Foreign Exchange transactions; The COMPANY will provide to the CLIENT a Contract Note/FX Confirmation which will specify the agreed currencies, the amounts, the delivery date, and the payment details and requirements for the CLIENT’s payment to the Client Account at the COMPANY.
2.3 The Contract Note/FX Confirmation will be sent either by facsimile or email, and will not prejudice the rights of either party.
2.4 Any errors or omissions within the Contract Note/FX Confirmation issued by the COMPANY must be related to the COMPANY immediately, otherwise the CLIENT shall be deemed to be in acceptance of the particulars of such document.
3 DURATION AND TERMINATION
3.1 This AGREEMENT may be terminated forthwith by either party giving written notice to the other party if:
3.1.1 The other party is in breach of any of the terms of this AGREEMENT, and in the case of a breach capable of remedy, fails to remedy the breach within 14 days after issuance of written notice giving full particulars of the breach and requiring it to be remedied.
3.1.2 Either party goes into liquidation, administration or commits an act of insolvency, as defined by the Companies Act 1985 and amended as at date of this AGREEMENT.
3.2 The right to termination of this AGREEMENT shall be without prejudice to any remedy or other right of either party.
3.3 In the event of termination the COMPANY maintain the right to close any outstanding contracts without prior notice to the CLIENT.
4 CLIENT INSTRUCTIONS
4.1 The COMPANY will accept instructions from any person duly authorised by the CLIENT and accepted by the COMPANY. Acceptance will be conditional on the appropriate due diligence requirements being met. The instruction may be verbal, written, by facsimile or electronic transmission, for the purchase or sale of foreign currency.
4.2 Once the COMPANY has accepted an instruction, the instruction cannot be amended, withdrawn or cancelled without the written and express consent of a director of the COMPANY.
4.3 The COMPANY reserves the right to request written confirmation of any CLIENT instruction.
a. The COMPANY will not be obliged to accept a CLIENT instruction, and may refuse to do so at the COMPANY’s sole discretion without liability for any resultant loss or damage suffered by any party.
b. By placing an instruction with the COMPANY the CLIENT agrees to pay for and take physical delivery of the agreed amount, upon the agreed date as specified in the Contract Note/FX Confirmation.
4.4 Both parties agree and consent to electronic recording by either party of telephone conversations between the parties, and the use of such recordings as evidence by either party in any dispute or anticipated dispute between the parties or relating to dealing between the parties.
5 FINANCIAL PROVISIONS
5.1 The CLIENT will pay into a bank account as specified by the COMPANY, the amount specified by the COMPANY to include the amount of the instruction and any other charges as detailed in the Contract Note/FX Confirmation.
5.2 Any payment made to Client Account by the CLIENT shall be made in full without any deduction, set-off, counterclaim or withholding whatsoever, and such funds will be free of any charge, lien or other encumbrance, and no such charge, lien or encumbrance will be created over such funds provided, either in full or in part.
5.3 The COMPANY will pay the amount of the instruction to the Payment Destination as specified by the CLIENT on the value date, provided that cleared funds are received in accordance with the terms herein, one business day prior to value date.
5.4 The COMPANY reserves the right to set-off against CLIENT funds held by the COMPANY any amounts owed to the COMPANY by the CLIENT in respect of any instruction whatsoever.
5.5 The COMPANY reserves the right to deduct such sums from the CLIENT funds as it may be required to
deduct by law or in the compliance with the service of any legal instruments and including, but not limited to deduction in respect of any taxation liabilities.
5.6 The COMPANY will not be responsible for any delay of the onward payment, when the delay is due to the late arrival of funds to the COMPANY from the CLIENT, or due to the late arrival of instructions for such onward payment.
5.7 In the event of a forward transaction the COMPANY will require a deposit of no less than ten per cent, or other percentage as the COMPANY may specify, to be paid in cleared funds to a bank account as specified by the COMPANY, with any outstanding balance to be paid in full no less than one business day prior to value date.
5.8 THE COMPANY reserves the right to make a Margin Call to re-establish the margin deposit to the original percentage level agreed. In the event of a Margin Call the client shall pay the due amount as per the Margin Call within 24 hours of the first communication of the Margin Call. The client’s failure to respond sufficiently to the Margin Call will amount to a fundamental breach of the contract and shall entitle us without prejudice to terminate the contract without liability. Any costs incurred due to the termination of the contract and the subsequent closing of any position will be deducted from any deposit or held client funds. In the result that the cost is greater than the deposit held the client will also be liable for this cost.
6.1 In the event of any default of payment, or any other event of breach under this AGREEMENT, or if it becomes unlawful for the COMPANY to fulfil any or all of its obligations to the CLIENT under this AGREEMENT, or if instructed to do so by any regulatory authority, the COMPANY have the right to close out any contract, or take any actions that it deems necessary, without further liability.
6.2 In the event of the closure of a position the COMPANY will issue a Contract Note/FX Confirmation to the CLIENT noting the details of such closure.
6.3 In the event of late payment the COMPANY will charge interest, from the date of late payment until the receipt of cleared CLIENT funds at a rate of Bank of England base rate plus ten per cent, per annum of the contract value. Late payment will be deemed to be a payment made to the COMPANY following a CLIENT instruction to buy or sell currency, which is received after two business days from agreed settlement date.
7 LIABILITY AND INDEMNITY
7.1 The CLIENT shall indemnify, and keep indemnified, the COMPANY against all losses, damages and costs incurred by the COMPANY, in the proper performance of its services, including any costs incurred by the COMPANY in covering, reducing or eliminating its’ risk, or the enforcement of its’ rights herein contained, through any breach or non- performance of the CLIENT in any contract or AGREEMENT with the COMPANY.
7.2 The CLIENT shall pay all legal fees or costs incurred in connection with the enforcement of these terms and conditions or legal fees incurred in connection with any dispute or difference arising under this AGREEMENT that is resolved in favour of the COMPANY.
7.3 The COMPANY shall not be liable to the CLIENT for any liability whatsoever arising from this AGREEMENT between the CLIENT and the COMPANY, in respect of loss of profits, anticipated savings or any indirect or consequential loss, even if such loss or damage results from any delay or failure of any third party, and even if such loss or damage was reasonably foreseeable.
7.4 The COMPANY will be liable to the CLIENT in the event of default, and such liability will be limited to the direct loss suffered in connection with such contract.
8 ELECTRONIC DELIVERY OR COMMUNICATION CHANNELS
THE COMPANY UTILISES AN ONLINE PLATFORM (Web Payment System)
TO WHICH CLIENTS ARE GIVEN ACCESS AS THE GATEWAY TO THE COMPANY IN ORDER TO UNDERTAKE TRANSACTIONS.
8.1 Risks of using computers, mobile devices and e-mail: The Client understands that computers, mobile devices and Internet e-mail are not fully secure means of communication and that the Company does not use encryption or digital signatures for incoming or outgoing e-mail.
I also understand that The Company recommends that clients do not use computers, mobile devices or e-mail for confidential purposes or share their Internet access with others. The Company also recommends that clients use up-to-date virus- checking software, passwords and appropriate security features. If the Client nonetheless chooses to use electronic delivery or communication channels, The Client assumes full responsibility for the risks of doing so. These risks include the possibility that: Someone could intercept, read, retransmit or alter our messages; E-mail messages could be lost, delivered late, or not received. Computer viruses could be spread by e-mail causing damage to computers, software or data.
8.2 The Client agrees that use of any the Company electronic delivery or communication channels will be in accordance with the following terms and conditions and that the Client’s use of any Company electronic delivery or communication channel signifies both the Client’s acknowledgement and acceptance of the terms and conditions below.
8.3 The Client authorises the Company to accept any method of instructions from the Client:
(a) To provide account and transaction information
(b) To transfer funds between the Client’s accounts
(c) To transfer funds from any account in the Client’s name to any individual, firm or corporation
(d) To issue stop payment orders
(e) Relating to foreign exchange transactions
8.4 The Client understands that the Company reserves the right to first obtain verbal or written confirmation before executing any such instructions.
8.5 Use of e-mail: If the Client uses e-mail to communicate with the Company the Client authorises the Company to reply to the Client by e-mail. This includes sending the Client confidential information to the Client at the Client’s request. If the Client is an individual, The Company will not be required to act on instructions or communications sent by e-mail unless they are sent from an e-mail address that the Client has designated for e-mail communications. If the Client is a corporation, partnership, or unincorporated association, The Company will not be required to act on any instructions or communications sent by e-mail unless they are sent from an e-mail address that the Client has designated for e-mail communications and that bears both the Client’s name (company name) as well as the name of the Client’s authorised signatory (individual name).
8.6 Acting on instructions: The Company may act on instructions and information from, or purporting to be from, the Client as if the Client had given The Company such instructions or information in writing, until the Company has received written notice to the contrary.
8.7 Confirmation of telephone, e-mail and Platform (WPS) instructions: the Client acknowledges that the Company may request that the Client provide confirmation of telephone, e-mail and Platform (WPS)instructions to The Company on the day that they are given by mailing to the Company office a written confirmation signed by the Client. The Company may, but need not, notify the Client of any discrepancy between the instructions as understood by it and the written confirmation from the Client, provided that the failure to so notify the Client shall not amount to gross negligence or willful misconduct.
8.8 Validity of Communications: All my Communications that the Company accepts and acts upon will be considered to be valid and authentic. This will be the case even if, among other things, they did not come from the Client, were not properly understood by the Company (except for The Company’ gross negligence or willful misconduct) or were different from any of the Client’s previous or later Communications. Communications will only be valid at the Company office at which they are received.
8.9 The Company does not have to act upon any of the Client’s Communications if it is unsure whether they are accurate or are really from the Client or if the Company does not understand them.
8.10 The Company’s liability: The Company will not be responsible for any costs, damages, demands or expenses that the Client may incur due to the Company’s acting or failing to act upon the Client’s Communications (except for the Company’ s gross negligence or willful misconduct). The Company will not in any event be liable for any special, incidental, consequential or indirect damages, or for loss of profit.
8.11 Indemnity clause. The Client will indemnify and save the Company harmless from any claims, damages, demands and expenses that The Company incurs (other than due to its own gross negligence or willful misconduct), including among other things all legal fees and expenses, arising from the Company acting, or declining to act, on any of the Client’s Communications given under this Agreement. This indemnity is in addition to any other indemnity or assurance against loss provided by the Client to the Company.
8.12 If the Client is a corporation, partnership or association, the Company may only accept the Client’s Communications when they are from, or purport to be from, the Client’s signing officer(s) who is/are authorised to sign in accordance with the Client’s General Resolution or Resolution-Re: and Security, signing authorities and the terms of this Agreement.
8.13 If the Client a corporation, the Client confirms that the Client has obtained the approval of the board of directors or shareholders as applicable; to enter into this Agreement and will provide the Company with an appropriately signed resolution to this effect from the board of directors.
8.14 Authorisation: The Client understand that by executing this Agreement the Client authorises the Company to accept and irrevocably honour any and all instructions set out in this Agreement. The Client further agrees that any one of the signatories to this Agreement may authorise these instructions.
8.15 The Company will use reasonable efforts to monitor its communications facilities to determine if it has received any instructions or information from its customers. Since the Company’s ability to act on my Communications depends upon the normal functioning of various communication facilities, The Company is not liable for any delay or failure to receive the Client’s Communications.
9 ANTI-MONEY LAUNDERING
9.1 The Company has legal responsibilities to prevent money laundering and to report on any form of suspicious activity to the relevant Authorities. To enable The Company to fulfill these responsibilities the Company has a range of policies and procedures in place and these are rigorously applied to all financial transactions conducted under the terms of this Agreement.
9.2 Documentation/Information: The Client agrees to provide the Company with any relevant document or information that they may reasonably request in order for the Company to properly discharge its duties under anti money laundering legislation. This includes information regarding source of funds, purpose of transaction(s) and 3rd party or ultimate beneficiaries.
9.3 Expenses: The Client will indemnify the Company for its out of pocket expenses, including reasonable legal fees and court costs for any investigation or potential investigation under applicable anti-money laundering legislation regarding the Client’s account, including but not limited to seeking direction from a court of competent jurisdiction on the Company’s rights and obligations in such matters.
9.4 Admissibility: If it wishes, The Company may enter any photocopy, computer-generated copy, reproduction, tape recording or transcript of tape recording that the Company has of the Client’s Communications into evidence in any legal proceeding as if it were an original document. That copy will be sufficient and valid proof of the information contained in it.
9.5 Method of receiving funds: All funds sent to the Company will be by way of authenticated bank transfer clearly indicating the originator.
9.6 Payment instructions: All payment instructions must clearly state, source of funds, purpose of transaction and the ultimate beneficiary.
9.7 Cash deposits: The Company will NOT accept cash deposits under any circumstances.
10 PAYMENT SERVICES REGULATIONS
10.1 The CLIENT has important rights and obligations and the COMPANY acknowledges our liability to the CLIENT, under the Payment Services Regulations 2009.
10.2 After a foreign exchange trade is settled the COMPANY will send CLIENT funds to a bank account specified by the CLIENT, as per 4.1 and 9.6 above.
10.3 Under certain circumstances, this Payment Service is covered by the PSR and thereby regulated by the Financial Conduct Authority (FCA). This includes payments to third parties in all EEA member states in Euros, Sterling or other currencies but does not include payments outside the EEA.
10.4 The PSR applies to payments made on behalf of the CLIENT to third parties but it does not apply to payments where we are paying CLIENT funds back to them in a bank account of whatever denomination in their name.
10.5 However, for the purpose of clarity, the CLIENT is advised that the COMPANY applies the same processes and procedures, as detailed above, for ALL payments, regardless of origination or destination.
11 DATA PROTECTION
11.1 In accordance with the Data Protection Act, the COMPANY is required to inform the CLIENT of certain information in respect of their personal data.
11.2 Personal data is required in respect of compliance with legal requirements, fraud prevention and in order to process CLIENT transactions effectively.
11.3 The COMPANY will take all reasonable steps to protect the security of CLIENT personal data. The COMPANY has a Data Protection Policy that is rigorously applied. Details of the policy are available to the CLIENT upon request.
11.4 The COMPANY will check information given by the CLIENT with 3rd Parties for data checking and validation for KYC and AML purposes; and regulatory and prosecuting authorities.
11.5 The COMPANY reserves the right to disclose personal data to any persons with whom we might share data for fraud prevention purposes; and with regulatory and prosecuting authorities.
11.6 The CLIENT should be aware that if payments are made to persons outside the EEA, this may involve transfers of the CLIENT’s personal data to jurisdictions which do not have data protection laws as strict as those in the UK.
11.7 Under the DPA the CLIENT has the right of access to, and correction of, any of their personal data held by the COMPANY under certain circumstances. If a CLIENT wishes to request such access they should write to, The Data Protection Officer at the registered office of the COMPANY.
11.8 The CLIENT should pass all of the information contained in this section of the AGREEMENT to any individual whose personal data they have supplied to the COMPANY.
11.9 Storing information. The Company may record and store all information relating to the Client’s account in such form and by such means as The Company sees
fit. The Client acknowledges that the Company is not required to retain or return original items (other than to retain and return to the Client items normally returned in accordance with The Company’s general practice) or to provide the Client with copies of any account statements, items or other documents. The Client understands that the Company may, in its discretion and subject to availability, provide the Client with copies of account statements, items or other documents at the Client’s request.
11.10 If the Client requests copies of any items or other documents and the originals have been transferred to some other storage medium and destroyed, the
Client will accept copies made from that storage medium. The Client acknowledge that the Company is not required to produce copies of any items or other documents if neither the originals nor any copies exist at the time my request is processed. The Client will pay the Company its applicable charges for any searches the Client requests. The Client acknowledges that the Company may, however, require the Client to pay part of such search fees in advance.
11.11 Data processing: The Company may use the services of any of its subsidiaries and affiliates or any electronic data processing service bureau or organisation in connection with keeping the Client’s account. Consent is given for the sharing of information with such subsidiaries, affiliates, electronic data processing services or organization for the purposes of processing information relating to the Client’s account, providing contingency backup of data or any other proper purpose. In such a case, The Company will not be liable to the Client by reason of any act, delay or omission of such service bureau or organisation in the performance of the services required of it.
12 CAPACITY AND WARRANTIES
12.1 The CLIENT warrants that it is acting as a principal and has full legal capacity to enter into this AGREEMENT and every instruction there under.
12.2 The CLIENT warrants that it is entering into this AGREEMENT for trade or commercial purposes only and not for any investment purpose.
12.3 The CLIENT warrants that all information provided to the COMPANY as reasonably requested of the CLIENT shall be provided and shall be true and accurate and without omission.
12.4 The CLIENT warrants that any funds provided by the CLIENT to the COMPANY shall be beneficially owned by the CLIENT.
12.5 The CLIENT warrants to give notification to the COMPANY in any event of insolvency, administration, liquidation or other events that materially affect any rights or obligations pursuant to any clause within this AGREEMENT or herein.
13 NATURE OF AGREEMENT
13.1 It is intended that these terms and conditions shall be reasonable as between the COMPANY and the CLIENT having regard to the nature of the AGREEMENT.
13.2 If at any time any of these terms and conditions is either unenforceable or void at law or pursuant to any ruling of any governmental authority, Court, tribunal or arbitration, it shall not adversely affect or prejudice the remainder of the terms and conditions or the AGREEMENT and it shall be deemed to be excluded and (where possible) be replaced by such other enforceable and valid term or condition as shall be as near as may be to the original in both form and effect.
13.3 Valid agreement: This Agreement is a valid and binding obligation by the Client, enforceable in accordance with its terms.
13.4 Severability: If any clause of this Agreement is found by a court to be void or unenforceable, that clause will be severed without affecting any other provisions of this Agreement.
13.5 This agreement additional: This Agreement is in addition to, and not in substitution for, the terms of any other agreement between The Company and the Client. If any conflict arises between these and any other agreement with me, the terms of this Agreement will prevail.
14.1 All disputes or differences shall be subject to the laws of England and the jurisdiction of the English Courts.
14.2 Any complaints will be dealt with in accordance with the COMPANY Complaint Handling Procedures. The CLIENT should be aware that they may access the dispute resolution services of the FOS and submit any complaint to them in certain circumstances. Full detail is contained within the COMPANY Complaint Handling Procedures which are available, on request, to the CLIENT.
14.3 Any notice, document or other information required to be given by either party to the other under this AGREEMENT shall be in writing and shall be deemed to have been duly given if left at or sent by first class pre-paid recorded delivery post, or by facsimile or by other electronic communication to the recipient at the address as set out in this AGREEMENT, or using the telecommunications number of the recipient as at the date of this AGREEMENT, or to other such address or telecommunication number as the recipient may from time to time designate in writing for such purpose.
14.4 The proof of the giving of notice shall be either the proof of despatch or the proof of delivery. The receipt of any notice, document or other information shall be deemed to be two working days from despatch of such by post, or simultaneously with transmission in the case of despatch via facsimile or other electronic communication.
14.5 The CLIENT acknowledges and accepts that time is of the essence in any transaction between the CLIENT and the COMPANY.
14.6 If either party is affected by Force Majeure it shall notify the other party of that fact as soon as it is reasonably possible. An act of Force Majeure shall not deem either party to this AGREEMENT to be in breach of this AGREEMENT if any non-performance, or delay in performance of its obligations under this AGREEMENT, is due to an act of Force Majeure.
- ‘AGREEMENT’ shall mean Framework Contract.
- ´The COMPANY` shall mean Currency Matters Limited.
- ´CLIENT` shall mean the person, firm or organisation to whom the COMPANY shall deliver its services.
- ´COMMERCIAL` shall mean commercial and not investment as defined by the Financial Services Act 1986 as amended as at date of this AGREEMENT.
- ´TRADE` shall mean the exchange of goods or services for money.
- ´SPOT` shall mean a transaction with the Value Date two working days after the transaction.
- ´FORWARD` shall mean a transaction where the value date is more than two working days after the transaction.
- ´VALUE DATE` shall mean the date on which the transaction reaches value with the counter-party.
- ´BUSINESS DAY` shall mean the Company working day excluding public, national and exceptional national holidays, between the hours of the Company. Details as published on the Company web site.
- ´PAYMENT DESTINATION` shall mean the bank account to which CLIENT funds are sent following currency conversion.
- ‘PSR’ shall mean the Payment Services Regulations 2009.
- ´TRANSACTION DATE` shall mean the date on which the transaction is agreed between the COMPANY and the CLIENT.
- ‘FOS’ shall mean the Financial Ombudsman Service.
- Any reference in this Agreement to “instructions” or “my instructions” refers to Internet e-mail (“e-mail”), telephone or Platform (WPS) fax instructions.
- In this Agreement, “the Client” means the undersigned corporation, partnership, association, sole ownership or individual.
- “Communications” means any instructions or information from, or purporting to be from, the Client or the Client’s e-mail address.
- “Web Payment System (WPS)” shall mean The company’s foreign exchange and payment Client interface platform.