2. USE OF THE PAYMENT ENGINE AND THE SERVICES
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.
2.4 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.
3.4 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.
4.4 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.
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
7. OUR AGREEMENT WITH YOU
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.
8.5 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.
9.3 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.
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.
10.5 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.
10.8 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.
10.13 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.
PAYMENT SERVICES AND E MONEY ACCOUNT OPERATION
The following provisions will apply to the Account Services and the Payment Services
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.
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
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.
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 topurchase or buy (as the case may be)the relevant currencyand as such you will have no right to cancela 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.
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.
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.