Terms & Conditions – Corporate – Version C2.2
1.1 Foreign Currency Direct Plc also trading as currencies.co.uk (“FCD”) of Currencies Mews, Badminton Court, Church Street, Old Amersham, Buckinghamshire, HP7 ODD, provides facilities for the purchase or sale of currencies (“a Currency Exchange Transaction”) together with money transfer services (“a Money Transfer”) for the transmission of proceeds of Currency Exchange Transactions.
1.2 These Terms and Conditions of Business for commercial customers (“the Terms”) will be incorporated into and govern any contract formed between FCD and a customer (“the Client”) in connection with any Currency Exchange Transaction or Money Transfer undertaken by FCD for the Client.
1.3 Clause headings are for general guidance only and shall not affect the interpretation or construction of these Terms.
2. CURRENCY EXCHANGE TRANSACTIONS AND MONEY TRANSFERS
2.1 Currency Exchange Transactions will typically include (but are not limited to) the following transactions;
(a) “a Forward Transaction”, where currency is bought and/or sold for delivery at a fixed time in the future;
(b) “a Forward Time Option Transaction”, where currency is bought and/or sold for delivery during an agreed period or at the end of that period (if no instructions are received from the Client in the meantime);
(c) “a Limit and/or Stop Loss Transaction”, where currency is bought and/or sold for delivery when an agreed exchange rate is available and/or protecting against adverse market movements; and
(d) “a Spot Transaction”, where currency is bought and/or sold for delivery immediately upon receipt of payment.
(e) Spot Transactions pursuant to the Regular Payment Plan (‘RPP’) service offered by FCD and in respect of which additional terms and conditions apply (“RPP Terms”) that will be supplied to the Client as appropriate, the RPP Terms being incorporated into these Terms. In the event of any conflict or inconsistency between the RPP Terms and these Terms, the RPP Terms shall prevail.
2.2 Subject to clause 14.9, Money Transfer services are only provided in connection with Foreign Currency Transactions, most usually when FCD transfers the proceeds of a Currency Exchange Transaction to the Client’s account or to the Client’s order. In addition to provisions of these Terms that apply both to Currency Exchange Transactions and Money Transfers, clause 14 contains provisions that relate exclusively to Money Transfers.
3. PLACING ORDERS, FORMATION OF CONTRACT AND THE CONTRACT NOTE
3.1 Without prejudice to clause 3.7, FCD will only accept an instruction (an ‘Order’) for a Currency Exchange Transaction and execute such transaction together with any Money Transfer associated with it, when the Client has registered with FCD and provided the Relevant Information (defined in clause 3.2 below) in content and form to the satisfaction of FCD in order to comply with relevant legislation and regulation (including but not limited to relevant UK money laundering regulation), and FCD’s own risk management policies.
3.2 ‘Relevant Information’ in connection with a Currency Exchange Transaction or, as the case may be, a Money Transfer, includes (but is not limited to) such information and evidence (including information and evidence provided orally) as FCD may in its absolute discretion require from time to time relating to (i) the Client’s corporate existence/status, identity, location, structure, business activities, financial condition, management and ownership (including ultimate beneficial ownership), (ii) any person whom the Client authorizes or nominates to instruct FCD and enter into binding contracts with FCD for the purposes of Currency Exchange Transactions and Money Transfers (an ‘Authorized Person’), (iii) the source or destination of funds and (iv) the reason(s) for carrying out Currency Exchange Transactions and Money Transfers.
3.3 In carrying out relevant checks for the purposes of registration, entering into and performing a Currency Exchange Transaction or Money Transfer together with appropriate ongoing monitoring, FCD may use the services of third party information providers. FCD shall be entitled to rely on the information furnished by such providers as complete and accurate, and shall not be obliged to disclose to the Client any such information. In the event that the Client requests or authorizes FCD to communicate with a third party for any reason, FCD shall be entitled to treat information received as complete and accurate, and shall be entitled to rely upon such information. Unless the Client stipulates otherwise, in the event that FCD discloses information about the Client, its business or affairs, a Currency Exchange Transaction, a Money Transfer or potential Currency Exchange Transaction or Money Transfer, for the purposes of such communication, FCD shall not be in breach of any duty of confidentiality it may otherwise owe to the Client.
3.4 Without prejudice to clause 3.4.1 and 12.1(d) FCD may from time to time require the Client to confirm the continuing accuracy of the Relevant Information and where necessary update it. FCD shall not be obliged to enter into or execute a Currency Exchange Transaction or Money Transfer unless and until it is satisfied with such updated Relevant Information or, as the case may be, the Client’s confirmation that the Relevant Information requires no revision.
3.4.1 It shall be the responsibility of the Client to ensure that FCD at all times has current contact details for the Client, any Authorized Person and any other person FCD might reasonably be required to contact in connection with a Contract or Money Transfer and whose contact details might reasonably be expected to be known by the Client.
3.5 The Client may give FCD an oral or written Order and the placing of such Order shall constitute an offer by the Client to purchase FCD services as contemplated by the Order. FCD may accept such offer orally or in writing (by fax, email or posted letter) and upon acceptance there will be a binding contract between the Client and FCD to execute the Order and it shall be a ‘Contract’ the full performance of which (without prejudice to such other provisions of these Terms that may relieve FCD from the obligation to perform a Contract) shall be subject to completion to the satisfaction of FCD of relevant due diligence procedures.. FCD will, as soon as practicable after its acceptance as aforesaid, confirm the terms of the Contract (without prejudice to its conditionality as aforesaid) in writing (the “Contract Note”) (by fax, email or posted letter) and, where there has been no prior acceptance of the Order by FCD then such confirmation shall also constitute acceptance of the Order. The failure of FCD to send a Contact Note will not prejudice the rights and obligations of either party under a Contract that has been otherwise agreed.
3.6 Once an Order has been accepted by FCD, the Client shall not be permitted to rescind, withdraw or amend it without FCD’s express consent in writing.
3.7 FCD may at its absolute discretion decide (a) not to accept the registration of a prospective Client and (b) not to accept an Order for execution or proceed with a Contract, in both cases without being required to provide any reason (irrespective of whether such reason relates to a statutory requirement) or being liable for any costs or losses the Client may suffer as a result of such refusal.
3.8 FCD shall, unless otherwise agreed, contract as principal with the Client for delivery of the currency in question and deal with the Client on an execution only basis. Whilst FCD may provide information to the Client from time to time, in entering into Contracts, the Client shall not rely on any comment or opinion expressed by FCD as to the merits of placing an Order or any comment or opinion regarding the markets or the sale or purchase of investments or taxation. The Client shall rely solely on its own judgement entering into a Contract.
3.9 It should be noted that foreign currency exchange rates are subject to fluctuations outside the control of FCD or Market Counterparty (as defined in clause 3.11). Any historical trend of movement in foreign currency exchange rates should not be taken as an indicator of future movement in such exchange rates.
3.10 FCD enters into a Currency Exchange Transaction on the basis that it is a Contract in the relevant physical currency for which the Client undertakes to take delivery.
3.11 In providing currency exchange services for the Client, FCD enters into corresponding trades (“a Corresponding Trade”) with participants (“a Market Counterparty”) in the currency exchange market to secure the appropriate rate of exchange for the Client. Such Market Counterparties are generally banks or brokers, but the choice of Market Counterparty is a matter of FCD’s absolute discretion. The performance by FCD of its obligations to the Client under a Contract shall be conditional upon the receipt by FCD of relevant amounts (in the relevant currency) pursuant to the Corresponding Trade, and FCD shall not be liable to the Client for any costs or losses the Client may suffer as a result of FCD’s inability to perform the Contract according to its terms in the event that such relevant amounts are not received by FCD at the correct time or at all.
3.12 The Client shall not enter into Currency Exchange Transactions for the purposes of speculation or to secure a profit by reference to fluctuations in currency exchange rates, but only for commercial purposes connected with its business.
4.1 The Client does not have any right under the Financial Services (Distance Marketing) Regulations 2004 to cancel any Contract.
5. AUTHORIZED PERSONS
5.1. FCD will only act upon the instructions of an Authorized Person in connection with a Currency Exchange Transaction or Money Transfer.
5.2. FCD will only accept instructions from the Authorized Person when FCD has received Relevant Information to its satisfaction including such information as FCD shall require, from time to time, with respect to the authority (including its scope) and identity of the Authorized Person. FCD may require a specimen signature of the Authorized Person.
5.3. The Client is wholly responsible for the integrity and acts and omissions of the Authorized Person. Furthermore, it shall not be the responsibility of FCD to consider whether the instructions and conduct of the Authorized Person are in the Client’s best interests.
5.4. FCD may rely on instructions of the Authorized Person given over the telephone where there is no manifest evidence that it is not the Authorized Person speaking. FCD may rely on any email or text message (or other analogous medium of communication) purportedly sent by the Authorized Person where the email address or, as the case may be, mobile number has been provided in the Relevant Information as those for the Client or Authorized Person.
5.5. Any proposed changes to the details relating to the Authorized Person (including the scope of authority or the appointment of an alternative or additional Authorized Person) shall be in writing. Without prejudice to clause 3.1 FCD may require further Relevant Information with respect such changes before accepting a further Order.
6. PAYMENT FOR CONTRACTS
6.1. The Client shall make the payments specified in the Contract Note in cleared funds in the specified currency, into an account notified by FCD and in its name at a bank designated by FCD (“the Relevant Account”). FCD reserves the right to change, from time to time and for the purpose of one or more payments, the Relevant Account or any details relating thereto and it shall be the obligation of the Client to make such payment or, as the case may be, payments, in accordance with any communication issued by FCD specifying such change, and FCD shall not be liable for any costs or losses the Client incurs as a result of the Client’s failure to act in accordance with such communication.
6.2. Payments shall be made and credited to the Relevant Account on or before the date specified in the Contract Note for final settlement and, if applicable in the case of a Contract that is a Forward Transaction or Forward Time Option Transaction, for payment of the relevant deposit. Without prejudice to clause 12.1(a), failure to do so shall relieve FCD of any obligation to settle any Contract or to pay the Client, or the Client’s order, any amount in respect of the relevant Contract, and FCD shall not be liable for any costs or losses the Client incurs thereby.
7.1 With respect to a Forward Transaction or Forward Time Option, FCD shall be entitled, from time to time, to require the Client, in addition to any deposit the Client may have paid, to make a payment of margin (‘Additional Security’) to provide FCD security in circumstances where the value of a Contract shall vary by such an amount that the deposit (if any) provided is insufficient security for the exposure to which FCD is exposed by reference to such unsettled Contract.
7.2 FCD will contact the Client (using email, fax or telephone) if Additional Security is required and inform the Client of the amount. The Client shall pay such amount in cleared funds into the bank account specified by FCD for such purpose within 24 hours of the contact by FCD. If FCD uses the most recent email address or, as the case may be, telephone number, supplied to it by the Client, then in the event the Client does not receive or is unaware of such communication for whatsoever reason, and fails to pay the Additional Security then, notwithstanding such failure of communication, the provisions of clause 7.3 shall apply.
7.3 Without prejudice to clause 12.1(a), failure by the Client to deliver such Additional Security in the amount and manner required shall relieve FCD of any obligation to settle any Contract or to pay the Client, or the Client’s order, any amount in respect of the relevant Contract, and FCD shall not be liable for any costs or losses the Client incurs thereby.
8. OTHER PAYMENT PROVISIONS
8.1 Payments made other than by telegraphic transfer will incur delays in clearing of such payments. Payments made in cash or, as the case may be, by cheque paid over the bank (or analogous) counter (“Counter Cheque”), inevitably result in increased administration due to anti-money laundering compliance requirements, and the Client will be subject to an additional charge as provided in clause 9.3.
8.2 Without prejudice to clause 12.1(a), in the event that the Client makes a payment in cash or via a Counter Cheque without the express agreement of FCD then FCD shall be relieved of any obligation to settle any Contract or to pay the Client, or the Client’s order, or any amount in respect of the relevant Contract, and FCD shall not be liable for any costs or losses the Client incurs thereby.
8.3 It shall be the obligation of the Client to provide the correct and sufficient payment information when making a payment (including without limitation sufficient information so as to identify the payment as being that of the Client). Without prejudice to clause 12.1(a) and (b), in the event that the Client makes a payment but the payment information is either incorrect in some respect or omits relevant information , then FCD shall be relieved of any obligation to settle any Contract or to pay the Client, or the Client’s order, or any amount in respect of the relevant Contract, and FCD shall not be liable for any costs or losses the Client incurs thereby.
8.4 FCD may seek confirmation from the bank where the Relevant Account is held or from any Market Counterparty that the relevant amount (in the relevant currency) required for the purposes of a Contract has in fact been received before proceeding with any payments under such Contract.
8.5 All payments due from the Client to FCD under these Terms shall be made in full without any set-off, counter-claim, deduction or withholding of any kind. FCD may deduct from any payment to be made to the Client such amounts as FCD may be required to deduct in respect of taxation liabilities or other deductions required by law or as may be charged to FCD by a Market Counterparty or other third parties (including, without limitation, governmental or regulatory authorities) in respect of transfer charges or other fees, taxes (or analogous) or costs. Without prejudice to clause 12.1(a) and (b), FCD shall not be liable to the Client with respect to any deductions made by a third party (including, without limitation, governmental or regulatory authorities) transfer charges or other fees, taxes (or analogous) or costs.
9.1 FCD does not charge any commission for the purchase or sale of foreign currency under properly executed Contracts in accordance with these Terms. The Client acknowledges that the exchange rate FCD offers the Client under a Contract will not be the same as the one FCD obtains for itself with Market Counterparties. FCD derives a profit from the difference between these two exchange rates (“the Spread”).
9.2 Without prejudice to clause 12.1(c) if the Client purports to cancel a Contract after the terms have been agreed FCD shall be entitled to charge a reasonable cancellation fee to cover its costs and losses.
9.3 Without prejudice to clause 12.1(a), in the event the Client shall pay any amount to FCD via cash or a Counter Cheque, a charge of £100 will be made to cover the additional administrative burden caused thereby. The charge shall be paid irrespective of whether FCD agrees to proceed with a Contract (if any) associated with such payment.
9.4 Although not obliged to, in the event that FCD agrees to accept payment of any sums via a credit, debit or charge card, then FCD shall be entitled to charge the cost to which it is subject in accepting payment via such medium.
9.5 Without prejudice to clause 12.1(a), in the event that any payment made by the Client or on the Client’s behalf is dishonoured, returned, not met on first presentation or stopped for whatever reason the Client shall pay FCD’s reasonable administrative costs incurred in respect of each such event. Such costs will be a minimum of £50 in each event and will become payable by the Client in addition to any other sums due under these Terms.
10.1 Without prejudice to clause 12.1(c) if at any time a dispute arises between FCD and the Client relating to the existence of a Contract or the terms of any Contract (a “Disputed Contract”), FCD may take any action it reasonably deems necessary or appropriate in the circumstances in order to Close Out (as defined in clause 12.2) the Disputed Contract or otherwise reserve the position of the parties under the Disputed Contract pending settlement of the dispute. Such action may include refusing to perform the Disputed Contract. FCD will try to notify the Client (orally or in writing, including via email) as soon as is practically possible of any action it has taken but if it can not do so any action taken in this way shall remain valid.
10.2 Reference may be made to any available electronic messages, recordings or transcripts of recordings of telephone conversations between the parties to resolve disputes between the parties.
11.1 The Client represents to FCD that, both now and when each Contract is entered into and performed (including the performance of any associated Money Transfer):
(a) the Client is acting as principal for its own account (and not as agent for or on behalf of any other third party) and has full power and authority and has taken all necessary steps to enable it lawfully to enter into and perform every Contract and Money Transfer governed by these Terms;
(b) all sums paid by the Client to FCD under these Terms belong to the Client and are not subject to any charge or other security or interest of a third party;
(c) all information (including Relevant Information) supplied to FCD is, or at the time it is supplied to it will be, up to date, true and accurate in all material respects and the Client will not omit or withhold any information which would either (i) render the information so supplied false, inaccurate or misleading in any material respect or (ii) might reasonably adversely influence the decision of FCD to enter into a Contract or carry out a Money Transfer for the Client;
(d) the Client is entering into all Contracts and instructing FCD to carry out all Money Transfers for the purposes of and in connection with its trade or line of business and not for speculative purposes or to profit from fluctuations in currency exchange rates and that the Client will take physical delivery of the currency in question under the Contract;
(e) the Client is not a resident of the United States; and
(f) prior to placing an Order, the Client has reviewed the current version of the Terms on and accepts them for the purpose of any Contract resulting from the Order and any associated Money Transfer.
12.1 Each of the following events shall entitle FCD to take the steps set out in clause 12.2:
(a) the Client shall fail to make any payment when due and in the manner prescribed under these Terms or the Client shall make a payment in cash or via Counter Cheque without the express agreement of FCD;
(b) the Client fails to observe or perform in whole or in part any of the provisions of these Terms or commits a material breach of the representations in clause 11;
(c) the Client purports to disavow or deny the existence of or its obligations under a Contract;
(d) after having made reasonable endeavors to contact the Client or an Authorized Person by reference to the most recent contact details provided to FCD by the Client, the Client fails, within one business day to respond to FCD or acknowledge FCD’s communication notwithstanding that the Client may not have received such communication for any reason.
(e) FCD (acting reasonably) considers it necessary to do so for its own protection including but not limited to the following circumstances: (i) protection from fraud; (ii) protection from the Client’s default or the actions of the Client’s creditors; (iii) protection from market failures; (iv) protection from adverse or volatile market conditions; and (v) protection from loss making activities to FCD.
(f) the expiry of the period referred to in clause 16.2;
(g)the Client suspends all or substantially all of its business activities for whatsoever reason;
(h) (i) the Client suspends payment of its debts or otherwise become unable to pay its debts when they fall due; (ii) the Client seeks to reschedule the repayment of its debts or makes, or proposes to make, any composition or other analogous arrangement with its creditors; (iii) a person becomes entitled to appoint a receiver or administrative receiver over some or all of the Client’s assets; (iv) a creditor or beneficiary of security attaches or takes possession of any of the Client’s assets, or a distress, sequestration, execution or similar process is levied or sought to be levied against any such assets, (v) the Client takes or has any proceeding taken against it in bankruptcy or (being a company) takes or suffers any steps to be taken for its winding up (other than for the purposes of amalgamation or reconstruction approved in advance in writing by FCD) or for the appointment of an administrator; or (vi) any other similar or analogous event that occurs in the United Kingdom or elsewhere.
(i) it becomes or may become unlawful for FCD to maintain or give effect to all or any of the obligations under these Terms or otherwise to carry on its business or if either FCD or the Client are requested to Close Out (as defined in clause 12.2) a Contract (or any part thereof) by any regulatory authority whether or not that request is legally binding; or
(j) anything analogous to any of the events specified above occurs under the laws of any applicable jurisdiction;
(k). If the Client becomes aware of the occurrence of any event referred to in this clause 12.1 and fails to notify FCD of such event forthwith.
12.2 On the occurrence of an event specified in clause 12.1, FCD may, without being obliged to give notice, terminate any Contract prior to its scheduled completion date or the date of settlement thereof (‘Close Out’) without further liability for any costs or losses that the Client may incur as a result thereof. As soon as reasonably practicable FCD will send the Client a settlement notice, specifying, inter alia, any loss FCD shall have suffered including (without limitation) any costs, charges, expenses and liabilities FCD shall have incurred as a result of the Close Out (Including, without limitation, losses and costs (a) incurred in entering into covering currency exchange transactions with respect to trades carried out by FCD with third parties in connection with the Contract and (b) as a result of a Market Counterparty closing out as against FCD).
12.3 Sums the Client shall have paid FCD may be used to settle the Client’s liability to FCD pursuant to these Terms and, to the extent that such sums are insufficient to settle such liability then the Client will pay on demand such outstanding balance. Without prejudice to the generality of the foregoing, FCD may sell the necessary covering currency to terminate the Contract and in particular (without limitation) any Forward Transaction or Forward Time Option Transaction. In the event that the sum held by FCD exceeds the Client’s liability to FCD, then FCD will (subject to any regulatory or legal requirements) return the balance to the Client.
13.1 If the Client fails for any reason to make any payment to FCD by the date upon which it falls due (an “Overdue Payment”), then FCD shall be entitled to charge interest on such Overdue Payment at the rate set out in clause 13.2 from the time at which it fell due until it is paid in full and for each day or part of a day that it remains unpaid.;
13.2 The interest payable on the Overdue Payment shall be calculated by applying a rate of 3% above the Bank of England’s (or at FCD’s discretion the equivalent authority for late currency payments) annual base rate from time to time (or such monetary authority as may replace it). Such interest shall accrue and be calculated daily from the date the payment was due until the date you pay in full any Overdue Payment.
13.3 FCD reserves the right, where applicable, to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.
14. MONEY TRANSFERS
14.1 The Client’s proceeds of a Currency Exchange Transaction cannot be held by FCD indefinitely and, subject to any regulatory considerations, such proceeds should within a reasonable period be sent to an account in your name or to your order.
14.2 The transmission of such proceeds will be subject to the Payment Services Regulations 2009 (“the PSR”) where the destination of such proceeds is within the European Economic Area (“EEA”) and is to be made in Euro, Sterling or the currency of a country that is not a member of the Euro but is a member of the EEA.
14.3 The PSRs require FCD to provide the Client with certain information and notifications in connection with Money Transfers they govern. Such information may be provided by FCD in communications to the Client at relevant times through email, letter, leaflets, on the FCD website or on the telephone or in a manner FCD reasonably deems appropriate.
14.4 Instructions to FCD to make a Money Transfer must be given in writing and include all details required, including where applicable, the IBAN number, to identify the destination account in order for FCD to perform the Money Transfer effectively. Providing FCD with such instructions shall constitute the Client’s authorization for FCD to carry out the Money Transfer. In the event that the Client confirms (whether in writing or orally) that the details for a prior payment carried out by FCD to the Client (or to its order) shall apply, then this shall constitute the Client’s authorization to carry out the Money Transfer and, furthermore, FCD shall not be liable to the Client for any costs or losses the Client suffers as a result of any ambiguity in such confirmation.
14.5 Destination accounts that are not in the Client’s name may result in delays in order to comply with relevant anti-money laundering regulation.
14.6 If the Client wishes to revoke a Money Transfer after the transmission of funds, then such revocation must be agreed by FCD and, in the event FCD so agrees, it shall be entitled to make a reasonable charge for administration and costs. The Client accepts that in certain circumstances it may not be possible successfully to implement the revocation and, in such event, FCD shall not be liable to the Client for any costs or losses the Client suffers as a result of such failure and, further, the Client shall remain liable to pay FCD its charge for administration and costs.
14.7 FCD shall be entitled to refuse to perform a Money Transfer for any reason. In such event, FCD will inform the Client of such refusal if permitted by law to do so and, if possible, the reason for such refusal. If such reason relates to an error in the information provided to FCD then FCD will inform the Client of this and will use its reasonable endeavors to rectify the issue and make the Money Transfer.
14.8 From time to time, it will be the case that a Money Transfer cannot be made directly to a Client’s designated destination account within the international banking system. In certain circumstances, arrangements for the ‘routing’ of such payments are required and this may incur extra costs and charges. FCD will determine which routing arrangement to employ by reference to the criteria of cost, speed and safety. In the event that the Client provides a specified routing in its instructions, FCD shall be entitled to employ a different routing if in FCD’s reasonable judgment such alternative routing is preferable by reference to the foregoing criteria. The Client shall be liable for any costs and charges levied in connection with routing whether such costs or charges are incurred in respect of a routing arrangement selected by the Client or by FCD, and in the latter case, irrespective of whether the Client had provided FCD with details for a routing arrangement.
14.9 In the event that FCD is to return funds it has received from the Client and with respect to which no Currency Exchange Transaction has been entered into, then FCD shall only be obliged to return such funds to the account from which such funds were originally sent and when it is satisfied that it has sufficient information in order to make such transfer. FCD shall not be liable to the Client with respect to any deductions, charges or fees (which charges or fees FCD shall be entitled to pay from such funds) levied in respect of such funds.
14.10 Complaints. FCD always aims to treat its customers fairly. However if the Client has a complaint, this should be sent (either verbally, or in writing by letter or email), to the firm’s Nominated Officer at the address given in clause 1.1. If the Client remains unsatisfied by the response of FCD to the compliant then the Client may be entitled to refer its concerns regarding a Money Transfer to the Financial Ombudsman Service (“FOS”) for them to investigate. FOS can be contacted by telephone on 0800 0 234 567 or 0300 123 9 123 or email firstname.lastname@example.org or http://www.financial-ombudsman.org.uk/. The address for the FOS is South Quay Plaza, 183 Marsh Wall, London, E14 9SR.
15. THE CLIENT’S FUNDS WITH FCD
15.1 Funds sent by the Client to FCD for Currency Exchange Transactions and proceeds received by FCD to send via a Money Transfer will be held as client money in accordance with FCA and PSR requirements as trust money in a segregated pooling account at an authorized credit institution.
15.2 Subject to clause 15.3, the funds FCD holds for the Client will be used solely to enable FCD to perform Contracts and to carry out associated Money Transfers.
15.3 The following shall not constitute an amount subject to the arrangements set out in clause 15.1: (a) the Spread, (b) fees, costs, losses and charges due to FCD from the Client in connection with the services provided by FCD including deductions to be made pursuant to clause 8.5, and (c) sums required to provide collateral to Market Counterparties in order to perform the Client’s Contract.
16. LIMITATION AND ASSUMPTION OF LIABILITY
16.1 FCD assumes no responsibility whatsoever for any delay in payment under these Terms caused by the Client or any other third party, including but not confined to, bank delay, postal delay, delay caused by accident, emergency or act of god. For the avoidance of doubt, but subject to clause 16.4, the Client accepts that it is solely responsible for ensuring that all payments required under any transaction between it and FCD are made promptly and within the time limits specified for the particular Contract and by these Terms.
16.2 FCD shall not be liable to the Client for any delay or failure to perform its obligations under these Terms, a Contract or Money Transfer by reason of any cause beyond the reasonable control of FCD, but FCD shall try to perform those obligations as soon as it reasonably can in any event. After the expiry of a period reasonably determined by FCD, FCD may terminate the Contract and any obligation to carry out the associated Money Transfer.
16.3 The Client shall, on demand by FCD, indemnify FCD in full and keep it fully indemnified from and against all liabilities, damages, losses, reasonably incurred expenses (including lost profits and expenses from any business interruption or any action taken by FCD to reduce its exposure to risk or loss in respect of breach of these Terms by the Client) and costs (including reasonable legal costs) duties, taxes, charges or commissions reasonably incurred or suffered by FCD in the proper performance of its services or the enforcement of its rights under these Terms and, including but not limited to:
(a) the Client being in breach of any of these Terms;
(b) FCD acting upon any Order which FCD reasonably assumed was made by the Client or an Authorized Person;
(C) any act or omission by the Client or an Authorized Person; or
(d) FCD exercising its rights under these Terms to Close Out all or any part of a Contract.
16.4 Due to the time-critical nature of the obligations to be carried out by the Client under these Terms and the material effect any delay may have on the performance of a Contract or Money Transfer, the Client shall be fully responsible for any liability, losses, expenses or costs incurred by FCD as a result of any such delay.
17.1 The Client’s liability to FCD. Nothing in these Terms shall allow FCD to recover more than the reasonable sums to which it may be entitled to compensate it for losses, costs, claims, expenses, damage, charges, taxes actually incurred by it as a result of agreeing to enter a Contract with the Client.
17.2 FCD’s liability to the Client. This clause 17.2 sets out the entire financial liability of FCD (including any liability for the acts or omissions of its employees, agents or sub-contractors) to the Client in respect of any breach of contract or any representation, statement or tortious act or omission (including negligence) arising under or in connection with any Contract or Money Transfer.
17.2.1 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from these Terms, any Contract and Money Transfer.
17.2.2 Nothing in these Terms limits or excludes the liability of FCD for any death or personal injury arising from or for any damage or liability incurred by the Client as a result of fraud or fraudulent misrepresentation by FCD.
17.2.3 Subject to clause 17.2.2, FCD shall not be liable, whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation or otherwise for: loss of profits, business, contract, anticipated savings, loss or corruption or data or information; or any special, indirect consequential or pure economic loss, costs damages, charges or expenses. And in any event, FCD’s total liability to the Client in connection with a Contract and its associated Money Transfer shall not exceed the lower of:
(a) the aggregate amount actually paid by the Client with respect to the Contract, and
17.3 FCD is not liable for losses or damage suffered by third parties. The Client shall, on demand by FCD, indemnify FCD in full and keep it fully indemnified from and against all liabilities, damages, costs, claims, losses, expenses, taxes, charges and any other liability whatsoever in connection with (a) the performance or the proposed performance by FCD of any Contract or execution of a Money Transfer or (b) any instruction the Client or an Authorized Person may give FCD.
18.1 Whole Agreement. These Terms constitute the whole agreement and understanding of the parties with respect to their subject matter and supersede all previous oral communications and prior writings with respect thereto although nothing in these terms shall limit or exclude either party’s liability for fraudulent statements or representations.
18.2 Amendment. FCD may amend these Terms by notice in writing to the Client at any time. For the purpose of this clause, ‘writing’ shall include the posting of such amended or revised Terms that are designated for commercial customers on a webpage, and that the Client shall have been informed of the means by which such webpage may be accessed. The Client’s attention is drawn to its representation at clause 11.1(f) that it shall have reviewed the current Terms and, where the Client places an Order, this shall constitute acceptance of the such amended or revised Terms and such amended or revised Terms will apply to any Contract entered into (and any Money Transfer associated therewith) thereafter until further amended or revised Terms are notified to the Client in accordance with this clause.. Otherwise, these Terms may only be varied by the written agreement of both FCD and the Client.
18.3 Severability. To the extent that any provision of these Terms is found to be invalid, unlawful or unenforceable by a court of competent jurisdiction then, so far as is possible, such term shall be deemed to be deleted from these Terms and the remaining provisions shall, to the fullest extent possible, remain valid, legal and enforceable.
18.3.1 If at any time any provision of these Terms or any Contract is or becomes illegal, invalid or unenforceable in any respect under the laws of any jurisdiction, this shall not affect the legality, validity or enforceability of such provision under the laws of any other jurisdiction.
18.4 No Waiver. If FCD fails to exercise or delays exercising any right or remedy under these Terms by doing so it does not forfeit or waive that right. The rights provided in these Terms do not exclude other rights or remedies provided by law.
18.5 Telephone Recording. The parties agree and consent to:
(a) the electronic recording by either party of telephone conversations between the parties with or without an automatic tone warning device; and
(b) the use of such recordings as evidence by either party in any dispute or anticipated dispute between the parties or relating to dealings between the parties.
18.5.1 Any such recordings or transcripts made by FCD may be destroyed by FCD in accordance with FCD’s normal practice.
18.6 Third Party Rights. The Contract (Rights of Third Parties) Act 1999 shall not apply to any contractual relationship between FCD and the Client, and accordingly no third party can take action regarding or enforce any term of any contract between FCD and the Client.
18.7 Assignment. Unless FCD consents in writing, the Client may not assign, dispose, transfer or charge a Contract or any right or obligation thereunder to a third party. FCD may assign, dispose, transfer or charge a Contract in whole or in part or any right or obligation thereunder to a third party at any time.
18.8 Consequences of termination The accrued rights, remedies, obligations and liabilities of the parties as at termination shall not be affected, including (without limitation) the right to claim damages in respect of any breach of contract which existed at or before the date of termination; and, furthermore, clauses which expressly or by implication have effect after termination shall continue in full force and effect.
18.9 Links from the FCD website. FCD accepts no responsibility whatsoever for the content of websites or other media (for example, without limitations, blogs) that are accessible from the FCD website irrespective of whether such websites or, as the case may be, other media shall be hosted or purport to be hosted by FCD or shall contain content provided or purported to be provided by FCD.
19. DATA PROTECTION
19.1 With respect to information that constitutes ‘Personal Data’ for the purposes of UK data protection legislation, the Client warrants that such information that is supplied by the Client, its officers, employees, agents (including an Authorized Person) or anyone the Client has authorized to supply such information (each being a ‘Data Provider’), has been lawfully obtained and supplied to FCD and that FCD may process and provide to third parties for the purposes of fulfilling its obligations to the Client in connection with a Contract or Money Transfer or to respond to the request or requirement of a regulatory authority.
19.2 The Client also agrees that FCD may use the Personal Data to provide the Client with details of other FCD products or services which may be of interest to the Client or to pass the Personal Data on to any organisation who assumes FCD’s obligations and rights under a Contract.
19.3. Where the Client has given its specific consent to FCD either in written or electronic form, FCD may also pass on the Personal Data to third parties for other specified purposes.
19.4. The above uses of Personal Data may mean that it is passed to organisations based outside the European Economic Area (“EEA”). These countries may not have laws in place that afford the Client the same level of protection in relation to his or her Personal data as the laws in the countries within the EEA do. By dealing with FCD on these terms and conditions the Client consents to the passing of data to such countries.
19.5. If the Client no longer wishes to receive any information relating to other products or services from FCD or third parties they should contact FCD at the address detailed above.
19.6 The Client shall, on demand by FCD, indemnify FCD in full and keep it fully indemnified from and against all liabilities, damages, costs, claims, losses, expenses, taxes, charges and any other liability whatsoever arising from the use by FCD of such Personal Data supplied to FCD by any Data Provider.
20. APPLICABLE LAW AND JURISDICTION
20.1 These Terms and any relationship between FCD and Client shall be governed by English law.
20.2 All communications between the Client and FCD shall take place in English.
20.3 The parties hereby submit to the exclusive jurisdiction of the English courts.
20.4 The Client agrees in advance that in respect of any claim (including, without limitation, a debt claim) in respect of, or arising out of, these Terms or any agreement between the parties, that such claim, if within the jurisdiction of the County Courts, is heard in the High Wycombe County Court, located at the date of these Terms at The Law Courts, Ground Floor, Eaton Street, High Wycombe, Buckinghamshire, HP11 1LR; and that the Client irrevocably consents in advance to that location as the forum for resolution of such claim.
FCD is authorized and regulated by the Financial Conduct Authority as a Payment Service Institution pursuant to the Payment Service Regulations 2009 for the provision of payment services (Reference Number 538392). Additionally, FCD is registered with HM Revenue and Customs as a money service business (Registration Number 12146539).