These Terms and Conditions constitute a legal agreement (the “Agreement”) between you and Foreign Currency Direct Plc (“FCD”).
Please note that various terms in these Terms and Conditions have defined meanings, which are set out below and you are advised to print or download and keep a copy of these Terms and Conditions for future reference.
BY USING ANY OF THE FCD SERVICES DESCRIBED IN THESE TERMS AND CONDITIONS, YOU ARE AGREEING TO BE BOUND BY THESE TERMS AND CONDITIONS. PLEASE DO NOT USE ANY OF THE FCD SERVICES IF YOU DO NOT ACCEPT THESE TERMS AND CONDITIONS. THESE TERMS AND CONDITIONS FORM PART OF A LEGALLY BINDING AGREEMENT AND IT IS IMPORTANT THAT YOU TAKE THE TIME TO READ THEM CAREFULLY.
FCD is authorised by the FCA under the Regulations for the provision of payment services with FCA register number 538392.The address of FCD is Currencies Mews, Badminton Court, Church Street, Old Amersham, Buckinghamshire, HP7 0DD.
FCD provides foreign exchange and payment services and these Terms and Conditions govern your use of these services.
FCD owns all right, title and interest in and to FCD’s proprietary technology and has the right, at any time, to amend its operating procedures effective immediately, where appropriate in its determination. These Terms and Conditions do not transfer from FCD to you any licence or ownership rights in FCD’s proprietary technology and you may only use FCD’s proprietary technology for the receipt of the FCD Services and in a manner consistent with these Terms and Conditions and you shall not interfere with, disrupt, or cause damage to users of the FCD Services or any of FCD’s equipment.
It is your responsibility to ensure that you keep your login details, password or other security features associated with your use of the FCD Services safe and secure. If you have any knowledge or any suspicion that any of these security features have been stolen, misappropriated, used without authorisation or otherwise compromised you must contact Your Account Manager without delay. Any undue delay in notifying FCD may affect the security of your use of the FCD Services and /or result in you being liable for any losses as a result.
FCD may suspend your access to the FCD Services on reasonable grounds relating to the unauthorised or fraudulent or illegal or disruptive use or security of your use of the FCD Services or in order to comply with applicable law and for such period as FCD shall reasonably determine to be necessary.
FCD will notify you of any suspension and its reasons for doing this (if possible in advance) unless notifying you would be unlawful.
You must have any equipment or telecommunications lines and links that may be necessary for you to use the FCD Services and you acknowledge that certain software and equipment used by you may not be capable of supporting certain features of the FCD Services.
FCD is not responsible for the content, policies or services of any other persons or sites linked to or accessible via the Website. The existence of any link to any other website does not constitute an endorsement of or association with any such website or any person operating any such website. Any reliance on any content, policies or services of any other persons or websites is at your sole risk. Any queries, concerns or complaints concerning such websites should be directed to the persons responsible for their operation.
(i) With respect to information that constitutes ‘Personal Data’ for the purposes of all current and future applicable laws in the UK relating to data protection, processing of personal data and privacy(including the Data Protection Act 1998 and with effect from 25 May 2018 the General Data Protection Regulation (EU) 2016/679) (“Data Protection Laws”), you warrant, as relevant, that such information that is supplied by you, your officers, employees, agents (including an Authorised Person) or anyone you have authorised to supply such information (each being a ‘Data Provider’), has been lawfully obtained and supplied to FCD in accordance with the Data Protection Laws and that FCD may process and provide to third parties for the purposes of fulfilling its obligations to you in connection with the FCD Services or to respond to the request or requirement of a regulatory authority.
FCD may conduct and record searches through multiple identity referencing agencies and through other sources of information and use scoring methods both to allow FCD to provide you with the FCD Services and to assess its risks in doing so including credit standing and compliance with all customer due diligence (sometimes known as KYC) requirements. Information may also be passed to other organisations or persons to prevent fraud.
FCD does not ordinarily charge any commission for the purchase or sale of foreign currency under Contracts. You acknowledge that the exchange rate FCD offers you under a Contract will not be the same as the exchange rate which FCD agrees with market counterparties and that FCD derives a profit from the difference between these two exchange rates.
The following charges will be incurred by you (payable in advance) for the following Payment Services:
In addition to FCD’s other rights under these Terms and Conditions such as in relation to the Close Out of a Contract if you attempt to cancel a Contract then FCD shall be also entitled to charge a reasonable cancellation fee to recover any of its costs and losses.
In circumstances where incorrect payment beneficiary details are provided to FCD by you or an Authorised Person you shall pay FCD’s reasonable administrative costs incurred in assisting in the recovery and resending of the payment subject to a minimum of £77 per attempted recovery and resending of the payment which will be payable by you to FCD in addition to any other sums due to FCD under these Terms and Conditions.
FCD does not accept cash or cheques or any other payment instrument denominated in any currency other than UK pounds sterling or, at the sole discretion of FCD, Euro bankers’ drafts. If you attempt to make payment to FCD by these means without the prior express agreement of FCD then payment shall be deemed not to have been made to FCD under these Terms and Conditions and in addition, for attempted payments in cash a charge of £100 will become immediately payable to FCD by you made to cover the additional administrative cost caused by the attempted payment and irrespective of whether or not ultimately FCD agrees to accept such payment.
FCD may from time at its sole discretion agree to accept payment of any sums due to FCD via a credit, debit or charge card in which case FCD shall be entitled to charge you for the costs to FCD which are associated with such method of payment.
In the event that any payment made by you or on your behalf is dishonoured, returned, not met on first presentation or stopped for whatever reason then you agree that you shall pay FCD’s reasonable administrative costs incurred in respect of each such non-payment subject to a minimum of £50 per each such non-payment which will be payable by you to FCD in addition to any other sums due under these Terms and Conditions.
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 the net income of FCD.
If you do not promptly pay any amount properly due to FCD under these Terms and Conditions then FCD may charge you interest on the overdue amount at the rate of 2% per year above the base rate of Lloyds Bank Plc from time to time (which interest will accrue daily and be compounded quarterly before as well as after judgment or any Insolvency Event).
You agree that FCD may set off any amount you owe FCD against any sums owed by FCD to you and that FCD may deduct from any payment to be made to you or your selected beneficiary 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 routing charges or other fees, taxes (or analogous amounts) or costs.
All payments due from you to FCD under these Terms and Conditions shall be made in full without any set-off, counter-claim, deduction or withholding of any kind.
In no circumstances shall FCD be liable to you with respect to any deductions made by a third party (including, without limitation, governmental or regulatory authorities) transfer charges or routing charges or other fees, taxes (or analogous) or costs.
Information about currencies available for conversion and payment cut-off times are available on request from your Account Manager and FCD will also in accordance with the Regulations communicate to you the maximum execution time for a payment.
Any telephone conversations FCD have with you may be monitored and recorded by FCD and FCD may also maintain records of emails sent by or to you and your Authorised Person. You agree that FCD 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, FCD may not in fact make or maintain such recordings or records or be able to make them available to you.
The obligations of FCD under these Terms and Conditions are conditional upon (i) FCD’s acceptance of you as a client, which is at the sole discretion of FCD and (ii) your representations and warranties to FCD remaining correct and FCD reserves the right to decline to conclude an Order or provide the FCD Services or open an account at any time without specifying a reason.
In addition you acknowledge that all regulatory requirements and FCD’s own risk management policies need to be met and complied with before any FCD Services are provided and on a continuing basis.
Accordingly you agree to provide FCD with such information in form and substance satisfactory to FCD, as FCD may from time to time acting in its sole discretion require in relation to any Order and/ or the FCD Services including all information required by FCD to comply with its obligations in customer due diligence. This may include personal details in relation to you and any Authorised Persons or other relevant individuals connected with you such as directors or relevant employees and direct or indirect owners and in all circumstances the source and destination of funds and your reason(s) for using the FCD Services.
This information will be required before FCD starts to provide you with the FCD Services and on future occasions when FCD may require you to re-confirm such information to us and adherence to these Terms and Conditions. The current practice of FCD is to require such confirmation at two year intervals but FCD reserve the right to vary its requirement from time to time acting in its sole discretion
It is your responsibility to ensure that the contact details FCD have for both you and your Authorised Persons are up to date at all times.
FCD’s agreement will be treated as made with all persons named as FCD’s joint clients and each of them will (both together and separately) be responsible for the performance of all obligations under the Contract and liable to FCD in the event of any breach of any of these Terms and Conditions. For the purposes of interpretation of these Terms and Conditions, all references to “you” and “your” in such circumstances means all such persons and any notice or statements which FCD are required to give or provide concerning any joint account will be treated as properly given if it is given in accordance with clause 9.9 of these Terms and Conditions.
You hereby represent and warrant to FCD at all times that (i) these the Terms and Conditions have been made available to you and you agree to and will comply with these Terms and Conditions and all applicable laws, rules and regulations regarding your use of the FCD Services and you will use the FCD Services only for lawful purposes; (ii) you do not reside in the United States of America, Quebec or Mexico; (iii) you have full power and authority to enter into and comply with these Terms and Conditions and you are acting as principal and for your own account (and not as agent for or on behalf of any other third party) and you have taken all necessary steps to enable you to enter into and perform and to be bound by every Contract and these Terms and Conditions (iv) title to all money and assets transferred to FCD under these Terms and Conditions will vest absolutely in FCD and not be subject to any charge or other rights of third parties; (v) you are compliant with all applicable laws in all jurisdictions in which you operate; (vi) you are using the FCD Services for bona fide payment purposes and will take physical delivery of the currency due to you under each Contract and are not buying currency for the purposes of investment or speculation or to profit from fluctuations in currency exchange rates; (vii) you will only use Forward Contracts for the payment of identifiable goods, services or direct investment and (viii) (a) all information supplied to FCD by you is true, complete, accurate and up to date and truthful in all material respects (b) you have not omitted or withheld any information which would either render such information false, inaccurate or misleading in any material respect or might reasonably adversely influence the decision of FCD to enter into a Contract or provide the FCD Services (c) contact details for you and your Authorised Person supplied to FCD are up to date.
FCD may from time to time require you to confirm that these representations and warranties remain true and correct.
FCD is entitled to act on instructions and rely on agreed Orders which are received from or made by you or an Authorised Person or appear so to be so and that you and any Authorised Person are and will at all times be of sound mind and have full capacity and in full possession of your faculties and not precluded in any way from giving FCD binding instructions and concluding Orders with FCD. You agree to indemnify FCD for all losses arising from FCD doing so and from any losses FCD may incur resulting from any errors made by you or an Authorised Person in providing instructions to FCD or concluding Orders with FCD (whether verbally or in writing) unless these arise due to negligence, wilful default or fraud on the part of FCD. FCD 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, FCD will make reasonable efforts to recover the funds involved in the payment. You will be responsible for the costs incurred by FCD for any such recovery.
Nothing in this Agreement excludes FCD’s liability for fraudulent misrepresentation, death or personal injury caused by FCD’s negligence or the negligence of its employees or agents or any other liability that cannot be excluded by law.
Under the Regulations you may be entitled to redress for any payments made by FCD that are unauthorised or incorrectly executed. In the case of an executed payment not authorised by you or an Authorised Person FCD will refund the amount of the unauthorised payment to you or where applicable, restore the debited payment account to the state it would have been in had the unauthorised payment not taken place. If FCD fails to execute, or incorrectly execute, a payment unless FCD can establish that the beneficiary’s payment service provider received the amount of the payment transaction, FCD will refund to you the amount of the non-executed or defective payment transaction or, where applicable, restore the debited payment account to the state in which it would have been had the defective payment transaction not taken place. FCD will also refund to you any direct charges for which you are responsible and any interest that you must pay as a consequence of the non-execution or defective execution of the payment transaction. Beyond this, FCD will have no further liability to you for any unauthorised or incorrectly executed payments and in all cases FCD will be afforded such period of time as is permitted under the Regulations to investigate and establish the circumstances and as to whether or not a payment was unauthorised or has been incorrectly executed.
You should ensure that you notify FCD by telephone or in writing if you become aware of any unauthorised or incorrectly executed payments by contacting your Account Manager and as soon as possible and without undue delay and in any event no later than thirteen (13) months after the debit date of the transaction.
Subject to your rights under the Regulations the aggregate liability of FCD to you (either directly or as a third party defendant in any action or proceeding) with respect to these Terms and Conditions shall not exceed the amount of fees paid by you to FCD under these Terms and Conditions within one year preceding the date you make your claim. However, the maximum liability of FCD, whether arising in contract, tort or otherwise, shall in no circumstances exceed an amount equal to the currency sold by FCD under the relevant Contract. In no event shall FCD be liable for any loss of data, loss of profits, cost of cover, or any other special, incidental, consequential, indirect or punitive damages.
FCD will not be liable if the payee/beneficiary bank fails or any bank other than FCD’s own bank involved in the payment transaction to process the payment correctly.
If a loss is incurred by you due to FCD’s negligence, FCD will attempt to correct the error. If FCD is unable to do so, FCD will be liable for any direct losses such as bank fees and interest incurred as a result of FCD’s negligence. In no circumstances will FCD 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 or other third party.
You agree to defend any claim against FCD that your actions in connection with your use of the FCD Services violate any third party’s rights of privacy, or violate any privacy laws. You will indemnify FCD (and its directors, employees and agents) against all damages awarded against FCD 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 FCD from and against all liabilities, damages, losses and costs (including reasonable legal costs), duties, taxes, charges, commissions or other expenses incurred by FCD (including losses and expenses from any action FCD take to seek to cover or reduce its exposure under any Contracts) as a result of: (i) FCD acting on an Order or instruction whether written, oral, telephone, fax or otherwise communicated Order which reasonably appeared to FCD to be from you or an Authorised Person; or (ii) FCD exercising its rights to Close Out all or any part of any Contract.
These Terms and Conditions shall remain in effect for so long as FCD is providing any FCD Services to you. However FCD reserves the right exercisable at any time acting in its absolute discretion and without FCD specifying a reason not to agree an Order with you and /or agree to execute a payment for you and to return funds held by FCD to the account or accounts from which the funds were received by FCD.
FCD may terminate its agreement with you and/or suspend any of the FCD Services with or without prior notice if: (i) any payment is not made to FCD in accordance with these Terms and Conditions or you are in material breach of any of these Terms and Conditions or FCD become aware that any representation given by you is not true and correct; or (ii) an Insolvency Event occurs.
FCD may terminate its agreement with you and/or suspend any of the FCD Services with or without prior notice if: (i) any governmental, regulatory, or judicial authority so directs FCD; (ii) after FCD has made reasonable endeavours to contact you or an Authorised Person using the most recent contact details provided to FCD by you, you fail, within one business day to respond to FCD or acknowledge FCD’s communication (notwithstanding that you may not have received such communication for any reason); (iii) FCD (acting reasonably) considers it necessary to do so for its own protection including circumstances relating to fraud protection, your default or the actions of your creditors, protection from market failures and adverse or volatile market conditions and protection from loss making activities to FCD or withdrawal of liquidity by FCD’s bank or other liquidity provider; (iv) FCD has reason to believe that you are engaged in fraud, money laundering, or terrorist financing; or (v) in the circumstances referred to below in clause 9.7.
On the occurrence of an event specified in clauses 8.2 and 8.3 above FCD may, without being obliged to do or to give notice to you, Close Out any Contract.
The following provisions will survive termination of FCD’s agreement with you: clauses 2.5 (Linking and Framing), 4.1 (Fees), 7 (Liability), 8 (Termination), 9.2 (Governing law and forum), 9.3 (Entire Agreement and Waiver), 9.7 (Force majeure) and 9.8 (Third party rights).
You consent to FCD assigning its rights under these Terms and Conditions at any time to any person. You may not assign your rights under these Terms and Conditions without the prior written consent of FCD.
These Terms and Conditions and any non-contractual obligations arising out of or in connection with the same shall be governed by and interpreted in accordance with the laws of England and the courts of England shall have exclusive jurisdiction to settle any dispute or claims which may arise in connection with these Terms and Conditions including in relation to any non-contractual obligations.
FCD intend to rely on these Terms and Conditions and to the extent permitted by the Consumer Rights Act 2015 these Terms and Conditions constitute the entire agreement between the parties with respect to the subject matter hereof and all prior agreements, representations and statements with respect to such subject matter are superseded. Any failure by FCD to exercise or enforce its rights under these Terms and Conditions shall not act as a waiver of subsequent breaches.
The provisions of these Terms and Conditions are severable and the invalidity or unenforceability of any provision herein shall not affect the validity or enforceability of any other part of these Terms and Conditions.
During the term of this agreement and for a period of one (1) year thereafter, you shall not solicit or hire the services of any employee or subcontractor of FCD, without the prior written consent of FCD.
FCD reserves the right to amend these Terms and Conditions by giving you no less than two (2) months’ notice where such an amendment is not in your favour and in all other circumstances with immediate effect by sending or making available to you revised FCD terms and conditions by post or e-mail or other electronic means including the Website.
Whenever you use any of the FCD Services you are confirming to FCD (i) that you have recently accessed the Website and that the current FCD terms and conditions have been made available to you and that you have printed these off or otherwise stored these in a Durable Medium (ii) that you agree to the current FCD terms and conditions by using the FCD Services.
Such amendments will become effective on the date specified by FCD and unless otherwise agreed by FCD in writing, an amendment will not affect any legal rights or obligations that may have already arisen prior to the date specified in the notice.
In the event that FCD is delayed or hindered or prevented from the performance of any act required by reason of strikes, lock-outs, labour troubles, inability to procure materials or services, failure of power, riots, insurrection, war, mud-slide, fire, earthquake, tsunami, or other similar reasons of a like nature not the fault of FCD then FCD shall immediately provide notice to you of such delay, and performance of such act shall be excused for the period of the delay and the period for the performance of any such act shall be extended for a period equivalent to the period of such delay.
Nothing in these Terms and Conditions confers or is intended to confer a benefit enforceable by a person who is not a party to it and no term of these Terms and Conditions is enforceable under the Contracts (Rights of Third Parties) Act 1999 by a person who is not a party to these Terms and Conditions. Without prejudice to the generality of the foregoing, you will be the counterparty to a Contract and the recipient of the FCD Services.
Any notice required to be given under these Terms and Conditions shall be treated as having been served on delivery if by hand, 48 hours after posting (disregarding days which are not Business Days) and on completion of transmission if sent by e-mail or other electronic means. All communications in relation to these Terms and Conditions and the services contemplated hereunder, whether verbally or in writing, must be in the English language and you are responsible for providing all documentation required by FCD under or in connection with these Terms and Conditions in the English language including the costs of a proper translation into the English language. All communications may be made by any reasonable means, including but not limited to, telephone, letter, electronic mail or other electronic means. FCD reserves the right to request that you confirm in writing any verbal communications that you may give FCD.
If you feel that FCD has not met your expectations in the delivery of its services or if you think FCD has made a mistake, please let FCD know by emailing. firstname.lastname@example.org .FCD has internal procedures for handling complaints fairly and promptly in accordance with the FCA requirements (including the time limits imposed by the Payment Services Regulations 2017). A copy of the complaints procedure of FCD 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 the final response of FCD. Eligibility criteria and the procedures involved are available from the Financial Ombudsman Service, Exchange Tower London E14 9SR.
The following provisions will apply to the Payment Services which are provided by FCD.
These Terms and Conditions set out important rights and obligations that arise between you and FCD including the liability of FCD to you under the Regulations when FCD is asked to provide Payment Services.
The Regulations do not apply to Foreign Exchange Services.
For the purposes of this clause “Relevant Funds” means sums received for the execution of Payment Services in accordance with the Regulations Relevant Funds are held in segregated bank accounts that are independent of FCD’s business bank accounts. The purpose for so holding funds is to ensure that in the event of FCD’s insolvency, or if a financial claim is made against FCD, 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 you by FCD and utilised by FCD in connection with settlement of a Contract or funds transferred to FCD to pay Margin Call(s) and full ownership and title to these funds transfers to FCD absolutely and such funds will not be Relevant Funds and so will not be afforded protection under the Regulations.
Pursuant to the Regulations, FCD will not pay interest on funds paid to FCD including balances held in segregated or client bank accounts and FCD may retain, for its own benefit, any interest that accrues from funds held in any accounts.
Your rights in relation to funds held by FCD may not be assigned or transferred to a third party nor may any third party be otherwise granted any legal or equitable interest over such funds.
Funds held by FCD may also be subject to payment limits due to security and legal requirements as determined by FCD from time to time at its sole discretion and FCD may require (acting reasonably) that security questions be answered or other activities completed in relation to any payment transaction.
FCD reserves the right in its sole discretion to carry out all and any necessary money laundering, terrorism financing, fraud or other illegal activity checks including due diligence in relation to the payee/beneficiary before processing any payment transaction. FCD will not be liable to you for any loss suffered by you as a result of any delay in processing any upload, payment or withdrawal transaction while these checks are being carried out and completed to the satisfaction of FCD.
Whenever you use the FCD Services you are confirming to FCD that you have (i) regular access to the Website and email; (ii) the ability to store information sent or made available to you by email and other electronic means by FCD including the Website in a Durable Medium by printing out or otherwise retaining for future reference all electronic communications sent and information made available by FCD (via the Website or by email or telephone); and (iii) the ability to access any such communications and information at all times.
FCD may contact you by email or other reasonable methods of sending communications to you with information or notices regarding your account and Payment Services. It is your responsibility to regularly check the proper functionality of email accounts and other reasonable methods of sending communications to you to ensure that messages relating to your account and Payment Services are retrieved and read promptly. FCD shall not be liable for any loss arising out of a failure to do this.
If you require statements for any transactions please contact Your Account Manager. These can be sent via email or post.
Funds returned to you by FCD will be sent to the account or accounts from which the funds were received by FCD. FCD will require evidence in form and substance satisfactory to FCD to establish the origin of funds transferred to FCD in order to return such funds.
Funds can be paid to FCD by contacting your Account Manager.
Received funds will be credited by FCD after the funds have been received by FCD and have not been subject to any reversal in which case FCD will deduct such reversed transaction from the balance of funds held by FCD. If the balance of funds held by FCD is insufficient, FCD reserves the right to require repayment from you.
FCD must be notified by telephone or in writing as soon as possible after you become aware of any unauthorised or incorrectly executed payments by contacting Your Account Manager otherwise it may not be liable to you and in order to claim a refund for an unauthorised or incorrectly executed payment transaction you must notify FCD 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 and payment details provided when funds are to be withdrawn are provided to FCD. You are required to provide FCD with any additional information that FCD requests with regard to a payment within two (2) Business Days of FCD’s request. You consent to the inclusion of the full name, address and account number (and any other details as are required to enable FCD to comply with anti-money laundering procedures) of the beneficiary on the payment details to be sent to our bank, payment service provider or any other provider to allow FCD to comply with anti-money laundering regulations. You also consent to the inclusion of your full name and address and that of the originator of the payment for the same purposes.
If incorrect beneficiary details are provided to FCD by you or an Authorised Person or if you provide incorrect payment details when funds are to be withdrawn, FCD will not be liable for any losses incurred by you. However FCD will use reasonable efforts to (i) assist in the recovery of the payment in accordance with the Regulations and subject to reimbursement by you of the reasonable costs of FCD in doing so and (ii) resend the payment subject to FCD’s other rights under these Terms and Conditions including payment by you of applicable fees.
To send a payment FCD may use third party intermediaries to complete the money transfer and the intermediary shall then be responsible for ensuring the onward transmission of the payment to the recipient and the obligations of FCD under these Terms and Conditions for the onward transmission of funds shall be complete once such funds have been credited by FCD to the account of the relevant intermediary. FCD will not be liable for losses that result from such third party charges or fees being applied to a payment.
Funds returned to you can only be sent to the account or accounts from which the funds were received by FCD.
Subject to the Regulations FCD may refuse a payment instruction because, for example, you have not satisfied your obligations under these Terms and Conditions or FCD reasonably believes the payment to be unlawful. In these circumstances, FCD shall promptly notify you using your contact details of you or your Authorised Person contact details, stating wherever possible the reasons for its refusal, and the procedure for rectifying any payment detail errors that led to the refusal but FCD reserves the right to charge you a fee to cover its reasonable costs for doing this. FCD is not obliged to notify you of its refusal to execute the proposed transaction where FCD reasonably believes that such a notification would be unlawful.
In circumstances where FCD have refused a payment instruction because, for example, you have not satisfied your obligations under these Terms and Conditions or FCD reasonably believes the payment to be unlawful or where you have requested that funds be returned to you FCD will not be liable for any loss suffered by you as result.
If FCD receives a payment instruction by 3.00 p.m. (GMT) on a Business Day, the payment instruction will be deemed to have been received by FCD on that Business Day. If a payment instruction is received by FCD after by 3.00 p.m. (GMT) or on a day that is not a Business Day, the payment instruction will be deemed to have been received on the next Business Day. Subject to these Terms and Conditions a payment instruction will be acted on the earliest possible payment date available once the Contract has been performed and subject to unless a specific future date has been requested.
Receipt of funds by FCD does not necessarily mean that these transactions cannot be reversed. FCD reserves the right to reverse a payment in cases where the payer or the payer’s bank or payment service provider has reversed a payment to FCD which was used to fund the payment.
The functionality of the Payment Services provided by FCD does not give rise to a Payment Account which is accessible online for the purposes of the Payment Services Regulations 2017 and as such you will not be able to use the services of a TPP in relation to funds held by FCD .
FCD only accept instructions to send on a “SHA” basis that is where you pay FCD's charges ( if any) and the beneficiary of the payment pay the charges of their bank or other payment service provider. FCD will be liable for charges incurred by FCD to its own bank but will not be liable for any other charges incurred to a bank or other payment service provider in respect of payment (such as the charges of a correspondent bank) which charges shall be for your account or the account of the beneficiary of the payment.
You are reminded that no interest accrues to you in respect of funds sent and that the purpose of receipt of funds by FCD is in relation to the provision of Foreign Exchange Services to you.
As such and where funds received by FCD are due, owing or incurred under a Contract they will only be available to you in the sold currency held by FCD and otherwise in accordance with there Terms and Conditions.
You may make a request for the return of funds where such funds are not due, owing or incurred under a Contract by contacting your Account Manager but please note such return of funds will be in the currency in which such funds were received.
Subject to the above FCD will value date funds received by FCD and make such funds available to you in accordance with the Regulations.
It is your responsibility to regularly reconcile payments made to and from FCD with your own records.
FCD reserves the right, in its sole discretion to impose ‘acceptable use’ terms in relation to the provision of any Payment Services including the prohibition of certain categories of payment transactions.
FCD Services must not be used for any illegal purposes including without limitation fraud, tax evasion and money laundering. FCD will report any suspicious activity to the relevant law enforcement agency.
If any transaction is conducted or attempt to be conducted in violation of the prohibitions contained in this section FCD reserves the right to reverse the transaction, and/or close or suspend FCD Services to you and/or report the transaction to the relevant law enforcement agency and/or claim damages from you.
The following provisions will apply to the Foreign Exchange Services and to all Contracts entered into by FCD.
You must pay all funds specified by FCD as required to be paid to FCD in connection with a Contract (including any applicable transfer charges by electronic transmission) in full and in cleared funds into an account specified by FCD usually in the contract note. Payment must be made on or before the Maturity Date or such earlier date as FCD may specify and for the full value of the currency to be sold by you under the Contract.
You are responsible for any fees, costs, taxation liabilities or charges arising in respect of any payment made to FCD and FCD may deduct any such amounts from any amounts paid to it.
If any payment is not made or deemed not to be made to FCD when it falls due then FCD shall be entitled to apply default interest on the amount outstanding pursuant to these Terms and Conditions and shall also be relieved of any obligation to settle any Contract to which the payment relates or to pay or perform the relevant Order, or any amount in respect of the relevant Contract and nor shall FCD be liable for any costs or losses you incur as a result.
Each Contract shall be an individual contract between you and FCD as principals and FCD may at any time and at its sole discretion refuse to offer terms for any Contract.
In providing currency exchange services for you FCD enters into corresponding trades with counterparties in the currency exchange market to secure the appropriate rate of exchange for you. Such counterparties are generally banks or brokers but the selection of choice of counterparty is a matter for FCD only acting in its sole discretion. FCD are not liable to account to you for any spread that is the difference between the exchange rate which FCD offers you under a Contract and the exchange rate which FCD agrees with market counterparties and the profit that FCD thereby derives
FCD shall not provide any advice in connection with the FCD Services or in respect of a Contract such as whether to proceed or not to proceed with a transaction or in respect of timing of a transaction or the legal, regulatory, tax, business, financial, accounting or other consequence of a transaction. All FCD Services are provided to you by FCD on an execution only basis. Any decision to transact should be arrived at independently by you and FCD cannot be liable for any loss including loss if exchange rates move before or after you transact. Any market information FCD provides is not provided as advice and nothing should be inferred from the information provided by FCD. Foreign exchange conditions are very complex and volatile and subject to fluctuations outside the control of FCD and as a result FCD cannot accept responsibility for any decision to enter a transaction under these Terms and Conditions.
FCD buys and sells currency on the basis of physical delivery and to support personal and/or commercial purposes such as the buying of goods and services or property and therefore no Contract nor any of the FCD Services should be used for investment or speculative purposes such as by trying to profit from fluctuations in foreign exchange rates and you should tell FCD if that is the intended purpose. FCD may decline to deal if it has reason to believe that any Contract or the FCD Services are being used for investment or speculative purposes and FCD shall not be liable to account to any person for any gains following any Close Out of a Contract in these circumstances
Electronic or verbal instructions relating to a transaction for the purchase or sale and delivery of currency may be given to FCD and FCD will at its sole discretion offer the commercial terms of a proposed Contract. Once the commercial terms of the Contract have been accepted (by electronic or verbal or by any other means), then you will become legally bound to perform the contract in accordance with the terms of the Order. Once FCD has agreed an Order, the Contract may not be amended or cancelled unless FCD expressly agrees (and any such amendment or cancellation shall be on the conditions specified by FCD).
FCD shall send you a contract note, which will confirm the details of the Order but any delay or failure by FCD shall not excuse either party from its obligations to perform the Contract but you should contact FCD immediately if you do not receive a contract note or you believe that the contract note does not accurately confirm the terms of the Order.
FCD may accept instructions that include 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 FCD will use its reasonable endeavours to execute such an Order but if market conditions prevent FCD from executing any instruction(s) in full or at all, then FCD will have no liability in respect thereof.
Each Contract constitutes an irrevocable and legally binding agreement by you to sell or buy (as the case may be) the relevant currency and as such you will have no right to cancel a Contract. However, you may prior to the Maturity Date request that FCD Close Out a Contract or enter into a further Contract to (as the case may be), sell the currency you agreed to buy or buy the currency you agreed to sell but FCD shall have sole discretion as to whether FCD enters into such further Contract or decides to Close Out the Contract.
If a dispute arises between you and FCD relating to the existence or terms of any Contract (a “Disputed Contract”), FCD may at its sole discretion and with or without notice to you take any action it reasonably deems necessary or appropriate in the circumstances and in particular FCD may refuse to perform or Close Out the Disputed Contract and may also reserve its position under the Disputed Contract pending settlement of the dispute. While FCD will notify you (orally or in writing) of any such action by FCD as soon as practicable if FCD does not so notify you then the validity of any action taken by FCD shall not be affected.
In order to resolve any such disputes FCD may but is not obliged to make available to you electronic messages, recordings or transcripts of recordings of telephone conversations.
FCD may at its sole discretion refuse to perform or Close Out a Contract with or without giving prior notice, upon or at any time after any of the following events:
33.1 any payment is not made to FCD in accordance with these Terms and Conditions;
33.2 an Insolvency Event occurs;
33.3 you fail in any respect fully and promptly to comply with any obligations owed to FCD, or if any information supplied by you or any representations made by you are or become materially inaccurate;
33.4 it becomes or may become unlawful for FCD to maintain or to provide any of the FCD Services or if FCD is requested not to perform or to Close Out a Contract (or any part thereof) by the FCA or any governmental or regulatory authority whether or not that request is legally binding; or
33.5 FCD considers it necessary to do so for its 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 FCD immediately.
If any event referred to above takes place, FCD shall, at its discretion, be entitled to cancel any Contract then outstanding and charge you with all of the costs, expenses and losses that FCD may incur (including any action FCD may take to cover or reduce its exposure). Any excess amount held by FCD in respect of Contracts shall be returned to you after deducting all other sums due to FCD but FCD shall not be responsible in any way for any delay in payment by FCD caused by the occurrence of any event referred to above.
You will become liable on demand for all costs, expenses and losses that FCD may incur as a result of any Close Out of a Contract pursuant to these Terms and Conditions together with interest at the rate provided for in these Terms and Conditions on any sums due to FCD but unpaid and FCD will have no liability for any losses that may be sustained by you or any other person as a result of a Close Out nor shall FCD be liable to account to you or any other person for any gains.
As soon as reasonably practicable FCD will specify any loss FCD shall have suffered as a result of the Close Out such as costs, charges, expenses and liabilities and losses and costs 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/or as a result of a market counterparty closing out against FCD.
All sums held by FCD may be used to settle your liability to FCD pursuant to these Terms and Conditions and to the extent that such sums are insufficient to settle such liability then you will pay on demand such outstanding balance. FCD may also sell any currency and terminate any Contract including any Forward Contract. In the event that the sum held by FCD exceeds your liability to FCD then FCD will (subject to any regulatory or legal requirements) return the balance to you.
For a Forward Contract FCD shall be entitled from time to time to require you to make immediate payment to FCD in cleared funds of Margin whether from the balance of the sold currency or otherwise funded by you and in all cases by payment into an account nominated by FCD and in amount(s) specified by FCD from time to time. In addition, FCD will be entitled to require you to provide additional Margin in such amount(s) as FCD shall specify in the event of exchange rate fluctuations at any time prior to the Maturity Date. FCD also reserves the right to change the Margin requirement from time to time upon notification to you. All requests for additional Margin and increased Margin will be made by us to you via email, or telephone contact details supplied by you and must be paid by the end of the next business day following FCD’s request.
Forward Contracts must be for the purpose of facilitating payment for identifiable goods, services or direct investment. Prior to any payment relating to a Forward Contract you will be required to demonstrate that the purpose of the payment is for identifiable goods, services or direct investment. If you are unable to do this following a request from FCD, FCD reserves the right to Close Out the Forward Contract.
If you no longer intend to use the proceeds of a Forward Contract for the purpose of facilitating payment for identifiable goods, services or direct investment you must contact your account manager immediately.
If FCD’s Margin requirements have not been met in full then FCD shall be relieved of its obligations in respect of the relevant Contract and FCD further reserves 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 FCD as Margin shall transfer to FCD absolutely and you shall have no interest in such funds, which FCD will be entitled to deal with in its own right. You will have the right to be repaid any Margin held by FCD in excess of the minimums specified by FCD.
With FCD’s written consent, you may draw down against a Forward Contract in the 3 months immediately prior to its Maturity Date. FCD may at its sole discretion 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.
“Authorised Person” means any person or persons authorised to give FCD instructions in relation to Payment Services and/or to conclude Orders;
“Business Day” means any day other than a Saturday or a Sunday or a public or bank holiday in England;
“Close Out” means any action FCD may take to close out, cover or reduce its exposure in relation to the relevant Contract such as unwinding any hedging arrangements and any other such action FCD reasonably consider appropriate in the circumstances;
“Contract” means any one or more of the agreements between you and FCD for the sale, purchase, and delivery of currency;
“FCD” means Foreign Currency Direct Plc, a company incorporated in England and Wales with company number 05082565 and authorised by the FCA with FCA register number 538392;
“FCD Services” means the Payment Services and/or Foreign Exchange Services;
“Data Protection Legislation” means the Data Protection Act 1998 (as amended from time to time);
“Durable Medium” means a medium which allows a person to store information in a way accessible for future reference for a period of time adequate for the purposes of the information and which allows the unchanged reproduction of the information stored;
“Fees” means the charges payable by you to FCD for the FCD Services;
“FCA” means the Financial Conduct Authority of the United Kingdom the address of which is 25 The North Colonnade, Canary Wharf, London E14 5HS, United Kingdom; further information on the FCA can be obtained on the FCA’s website at www.fca.org.uk;
“Foreign Exchange Services” means the currency exchange services provided by FCD for the sale and purchase of currency;
“Forward Contracts” means any one or more Contracts under which currency is bought and sold for delivery at a fixed time in the future including 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 by us in the meantime);
“Insolvency Event” means if you suspend payment of your debts or otherwise become unable to pay your debts when they fall due or seek to reschedule the repayment of your debts or make or propose to make any composition or other analogous arrangement with your creditors or any person becomes entitled to appoint a receiver or administrative receiver over some or all of your assets or a creditor or beneficiary of security attaches or takes possession of any of your assets or a distress, sequestration, execution or similar process is levied or sought to be levied against any such assets or (if you are an individual) you take or have any proceeding taken against you in bankruptcy or (if you are a company) you take or suffer any steps to be taken for your 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 if any event similar or analogous to the foregoing occurs in the United Kingdom or elsewhere or (if you are an individual) if you become of unsound mind or die;
“Margin” means a payment or payments made by you to secure performance of a Contract in addition to any deposit you may have paid and includes additional margin and increased margin;
“Maturity Date” means the date specified by FCD to you in the contract note as the maturity date;
“Order” means the accepted commercial terms of a Contract (which will incorporate these Terms and Conditions);
“Payment Account” means as defined in the Payment Services Regulations 2017;
“Payment Services” means the execution of payment services provided by FCD where such payment services are within the scope of the Regulations applicable to FCD and for the avoidance of doubt excluding own payments made in connection with the Foreign Exchange Services;
“Regulations” means the Payment Services Regulations 2017 (as amended from time to time);
“Spot Transaction” means where currency is bought and/or sold for delivery immediately upon receipt of payment;
“TPP” means a provider of Payment Initiation Services and/or Payment Account Information Services (both as defined in the Regulations);
“Website” means the website available at www.currencies.co.uk;
“You” means you the person or persons who is contracting with FCD for the provision of any of the FCD Services and “your” shall be construed accordingly; and
“Your Account Manager” means the individual person at FCD who you usually deal with in relation FCD Services.