FOREIGN CURRENCY PARTNERS LTD
FRAMEWORK TERMS FOR BUSINESSES RELATING TO ENTRY INTO TRADE CONTRACTS AND PAYMENTS CONTRACTS
TABLE OF CONTENTS
1. THESE TERMS
2. INFORMATION ABOUT US AND HOW TO CONTACT US
4. TERMS AND BECOMING A CLIENT
6. AUTHORISED PERSONS
7. PLACING ORDERS AND PAYMENT ORDERS
8. GENERAL INFORMATION ON FX CONTRACTS
10. CLOSING OUT AN FX CONTRACT
11. LIMITATION OF LIABILITY FOR FX CONTRACTS
12. PAYMENT ORDERS
14. LIABILITY FOR INCORRECTLY EXECUTED PAYMENTS
15. LIABILITY FOR UNAUTHORISED PAYMENTS
16. PAYMENTS TO US
17. RESTRICTIONS ON US HOLDING YOUR MONEY
18. CONTRACT NOTE
21. WARRANTIES, REPRESENTATIONS AND UNDERTAKINGS
22. FCP DIRECT AND THE WEBSITE
23. GENERAL LIMITATION OF LIABILITY
25. RECORDING OF CONVERSATIONS AND RECORD KEEPING
26. ESTABLISHING YOUR IDENTITY
27. DATA PROTECTION
1. THESE TERMS
1.1 What these Terms cover. These Terms are a framework contract which set out the basis on which Foreign Currency Partners Ltd (“us” or “we”) will enter into Trade Contracts and Payment Contracts with you (“you” or “Client”).
1.2 Why you should read them? Please read these Terms carefully before you agree to them, as they will be incorporated into each Contract which is formed between you and us. They explain many of your responsibilities to us and our responsibilities to you, how and when each Contract and these Terms can be terminated and the extent of our liability to you. If there are any terms that you do not understand or do not wish to agree to, please contact us. You should only complete the sign-on procedures and agree to the Terms and enter into Contracts if you agree to be bound by these Terms.
1.3 Are you Large Corporation? You will have different rights under these Terms depending on whether or not you are a Large Corporation. You can find out if you are a Large Corporation by looking at clause 3 of these Terms which sets out its meaning.
2. INFORMATION ABOUT US AND HOW TO CONTACT US
2.1 Who we are. We are Foreign Currency Partners Ltd, a company incorporated in England and Wales (company number: 12790370) with its registered office and head office at Sutton Court, Church Yard, Tring, HP23 5BB. We are authorised by the Financial Conduct Authority under the Payment Services Regulations 2017 (registration number FRN941408) for the provision of payment services.
2.2 Communications between us are to be in English. These Terms are concluded in English and all communications between you and us shall be in English only.
2.3 How to contact us.You may contact us in writing by email to firstname.lastname@example.org or by posting a letter to our head office or by phone to 01442 804620. If there is a requirement for a notice to be sent to us in writing in accordance with these Terms, please send us an email.
2.4 How we may contact you. We will contact you by telephone or by writing to you at the email address(es) you provided when agreeing to these Terms or any other contact details you or any of your Authorised Persons have provided to us. We will contact one of your Authorised Persons via telephone and/or email (depending on the circumstances) using the details you or your Authorised Persons have provided to us in the event of suspected fraud or security threats.
2.5 ‘Writing’ includes emails. When we use the words “writing” or “written” in these Terms, this includes emails.
2.6 Some of the services we provide are subject to the Payment Services Regulations 2017. The Regulations regulate how Payments must be transmitted and provide protection for the clients of authorised payment institutions. The Regulations apply to Payments Contracts but do not apply to Trade Contracts.
The definitions set out in this clause apply in these Terms as follows:
“Authorised Person(s)” means the individual(s) who are authorised by you to issue Orders, enter into Contracts and communicate with us on your behalf.
“Beneficiary” means the recipient of monies subject to a Payment which can include, for the avoidance of doubt, you.
“Beneficiary Account” means the account, belonging to the Beneficiary, which you have instructed us to send money to.
“Business Day” means a day when the clearing banks in the City of London are open for business, excluding Saturday, Sunday and public holidays.
“Charity” means a body whose annual income is less than £1 million and is (a) in England and Wales, a charity as defined by section 1(1) of the Charities Act 2011 (meaning of “charity”); (b) in Scotland, a charity as defined by section 106 of the Charities and Trustee Investment (Scotland) Act 2005; (c) in Northern Ireland, a charity as defined by section 1(1) of the Charities Act (Northern Ireland) 2008.
“Contract” means a Trade Contract and/or a Payment Contract.
“Contract Date” means the date that a Contract is entered into.
“Contract Note” means our written document setting out the details of each Contract.
“Data Protection Legislation” means all legislation and regulatory requirements in force from time to time relating to the use of Personal Data and the privacy of electronic communications, including, without limitation any data protection legislation from time to time in force in the UK including the Data Protection Act 2018 or any successor legislation.
“FCP Direct” means the online portal where Authorised Persons can (amongst other things) place Payment Orders on your behalf, available via the Website.
“Forward Trade Contract” means a Trade Contract where the Value Date is not within the Spot Period.
“Large Corporation” means you if you are not a Charity or a Micro-Enterprise.
“Manifest Error” means a manifest or obvious misquote of the purchase or sale price quoted to you.
“Margin” means the amount of money required by us: (a) upon entry into each Forward Trade Contract; and (b) upon issuance of a Margin Call by us.
“Margin Call” means a request by us to you to provide additional amounts of money (not exceeding the full amount of the Sale Monies) as we may reasonably require to cover adverse exchange rate movements between the Contract Date and the Value Date of a Forward Trade Contract.
“Micro-Enterprise” means an enterprise which, at the time at which a Contract is entered into, employs fewer than 10 persons and whose annual turnover and/or annual balance sheet total does not exceed €2M.
“Order” means both a Trade Order and a Payment Order.
“Password” means the password used by an Authorised Person to gain access to FCP Direct.
“Payment” means us sending a sum of money, belonging to you, whether Purchase Monies or otherwise, to a Beneficiary Account.
“Payment Contract” means a contract between us and you whereby we commit to executing a Payment on your behalf.
“Payment Order” means a request from you to us to enter into a Payment Contract.
“Personal Data” has the meaning set out in the Data Protection Legislation.
“Purchase Currency” means the currency of the money which you agree to purchase from us pursuant to a Trade Contract.
“Purchase Monies” means the money which you agree to purchase from us, in the Purchase Currency, when a Trade Contract is entered into between us and you.
“Regulations” means the Payment Services Regulations 2017 (SI 2017 No. 752).
“Sale Monies” means the money payable by you to us, in respect of a Trade Contract including, without limitation, any Margin.
“Security Breach” means:
- (a) someone other than the relevant Authorised Person knowing or possibly knowing the relevant Authorised Person’s Password;
- (b) a Password being lost or stolen; or
- (c) the suspected or actual misappropriation or unauthorised use of FCP Direct.
“Services” means the services identified in clause 5.
“Spot Trade Contract” means a Trade Contract where the Value Date is within the Spot Period.
“Spot Period” means (generally) two Business Days after the Contract Date (the exact timing to be decided by us).
“Standard Business Hours” means the hours between 9:00 am and 5:00 pm on a Business Day.
“Term” means the term of these Terms, as set out in clause 4.5.
“Terms” means these terms and conditions.
“Trade Contract” means a contract between us and you whereby you agree to purchase Purchase Monies from us.
“Trade Order” means your request for us to enter into a Trade Contract with you.
“Username” means the username an Authorised Person has to gain access to FCP Direct.
“Value Date” means the date agreed in a Trade Contract when the Purchase Monies will be made available to you.
“Website” means our website from time to time, currently www.foreigncurrencypartners.co.uk.
4. TERMS AND BECOMING A CLIENT
4.1 In order to become a client and before any Services can be provided by us, the applicant must:
- (a) provide us with all information required by us to comply with our legal and regulatory obligations and our own internal risk management processes; and
- (b) accept these Terms.
4.2 You can accept these Terms by you or someone representing you:
- (a) ticking the relevant box online; or
- (b) confirming that you accept them via email or telephone; or
- (c) acting like you accept them by sending money to us or entering into Trade Contracts or Payment Contracts with us, having been:
- (1) provided with a copy of these Terms by us (probably by email);
- (2) directed to the part of the Website where a copy of these Terms is able to be viewed; or
- (3) provided with a summary of the main provisions of these Terms via telephone, with the full set of these Terms being sent shortly thereafter.
4.3 You warrant that all information provided to us is true and correct to the best of your knowledge and belief. In consideration for the administrative work carried out by us and making ourselves ready to accept Orders from you, we agree to these Terms. You will become a client of ours upon our confirmation to you that you have become a client of ours.
4.4 At our absolute discretion we may refuse to open an account for you and may do so without giving any reason.
4.5 These Terms shall come into force on the date that we confirm to you that you are a client and shall remain in force indefinitely until terminated in accordance with these Terms.
5.1 We may in our absolute discretion provide, or continue to provide, the following services to you:
- (a) foreign exchange services – we may enter into Trade Contracts with you in accordance with a Trade Order sent by you; and
- (b) payment services – we may enter into Payments Contracts with you in accordance with a Payment Order sent by you.
5.2 Our Services do not include the provision of advice. We do not offer advice under these Terms on any matter including (without limit) the merits or otherwise of any currency transactions, on taxation, or markets. Although we may provide you with market information from time to time, we do not provide advice (whether to proceed with, or not proceed with or in respect of the timing of any Trade Contract). It is entirely for you to decide whether a particular Trade Contract and your instructions to us, are suitable for you and your circumstances.
6. AUTHORISED PERSONS
6.1 You require at least one Authorised Person to provide us with Orders and otherwise communicate with us on your behalf. You must provide us with the names and contact details of all persons you wish to be Authorised Persons. You can add and remove Authorised Persons by having an Authorised Person call us.
6.2 The following persons will automatically be deemed to be an Authorised Person upon your acceptance of these Terms:
- (a) the person who accepts these Terms on your behalf; and
- (b) you, if you are a sole trader.
6.3 An Authorised Person must notify us immediately when you no longer want one of your Authorised Persons to be able to place Orders and communicate with us on your behalf. We will accept no liability for acting on the instructions of an Authorised Person where you no longer wanted them to place Orders and/or otherwise communicate with us on your behalf but you failed to notify us that this was the case.
7. PLACING ORDERS
7.1 How to place an Order. An Authorised Person can place a Trade Order and a Payment Order verbally by telephone using the telephone number set out in clause 2.3 or by using the telephone number of your designated account manager or otherwise by speaking to one of our employees via telephone.
In addition, an Authorised Person can place a Payment Order by using FCP Direct.
If an Authorised Person attempts to place an Order with us via e-mail or by using the messaging system on FCP Direct, it will not be deemed by us to be an Order. Instead, we may call one of your Authorised Persons so that your Order can be placed via telephone.
7.2 Authorised Persons telephone numbers need to be secure. We are entitled (but no obliged) to act upon Orders which are or reasonably appear to be from an Authorised Person. In particular we shall deem any Order received from an Authorised Person’s telephone number as having come from that Authorised Person, and we shall be entitled to act upon Orders received from any other communication channels provided to us by you.
We reserve the right to verify any Orders received or appearing to be received from an Authorised Person by using the details provided by you or an Authorised Person.
7.3 How will you let us know if an Order is accepted? We will let you know verbally, via FCP Direct or via email if your Order has been accepted. Once accepted, the Order will form a Contract. Please note that we are under no obligation to accept any Orders.
TERMS APPLYING TO TRADE CONTRACTS
8. GENERAL INFORMATION ON TRADE CONTRACTS
8.1 You acknowledge that foreign exchange rates are subject to fluctuations outside our control and that historical prices are not a reliable indicator of future prices.
8.2 Subject to clauses 8.3, we may from time to time during the existence of these Terms, enter into:
- (a) Spot Trade Contracts with you for any purpose; and/or
- (b) Forward Trade Contracts, for the purpose of:
- (1) facilitating a means of payment for you for identifiable goods and/or services; or
- (2) your direct investment.
8.3 We cannot sell you a Forward Trade Contract if you are, among other things, seeking to profit by pure speculation on foreign exchange movements. We have sole discretion to decide whether the purpose of a Forward Trade Contract is for the purchase of identifiable goods and/or services or direct investment.
8.4 You acknowledge that the full amount of Purchase Monies shall be safeguarded by us on completion of the Trade Contract in accordance with clause 19.
8.5 In entering into a Contract under these Terms, you understand that:
- (a) late arrival of funds may result in the Trade Contract being terminated or the Purchase Monies not being made available on time;
- (b) any Forward Trade Contract can be subject to requirements for additional Margin;
- (c) we cannot predict future exchange rates; and
- (d) we will only accept payment directly from your bank account(s) unless otherwise specified and agreed with us.
8.6 We will always contract directly with you when entering into Trade Contracts with you. We do not act on your behalf or as your agent when purchasing currency from our counterparties.
8.7 When giving a Trade Order or entering into any Trade Contract you rely solely on your own judgement. If we provide you with information concerning any matter including (without limit) the currency markets, it is on a voluntary basis, it is not advice and we do not accept responsibility for the accuracy or completeness of such information or assume any duty of care in relation to it.
8.8 We will not be bound by any Trade Contract where it is reasonably determined by us that there is a Manifest Error in the agreed foreign exchange rate.
8.9 You do not have any right under the Financial Services (Distance Marketing) Regulations 2004 to cancel any Trade Contract. However, you may, with our consent, close-out a Trade Contract prior to the Value Date by giving notice in writing to us. In such an event, you will be liable for all of the costs, expenses and losses and interest at the rate referred to in clause 16.8, relating to closing out the Trade Contract, including any action we may take or have taken to cover or reduce our exposure, as a result of us entering into such Trade Contract with you (including the actual or hypothetical costs of unwinding any hedging arrangements which are referable to such Trade Contract).
8.10 We may agree to notify you when we are able to provide you with a specific foreign exchange rate. Upon such notification, you may, at your discretion, place a Trade Order with us. Alternatively, you are able to request that a Trade Order is automatically placed by you when we are able to provide you with your desired exchange rate. If we consent to this, we will notify you when we are able to provide your requested foreign exchange rate, at which stage you will be deemed to have entered into a Trade Contract with us. It is therefore essential when you make such a request to us that you intend to pay for money in the Purchase Monies in full when your desired exchange rate becomes available. You are able to cancel the request at any time before we notify you that we are able to provide you with the requested foreign exchange rate and that we have entered into the Trade Contract with you. Please note that the services outlined in this clause 8.10 are offered on a no-liability basis, i.e. we will not be held liable for any losses you incur if we fail to notify you that we were able to offer you the specific foreign exchange rate or fail to enter into a Trade Contract when arguably we could have done.
8.11 We may provide you with quotes for Trade Orders from time to time. However, currency exchange rates are continuously changing, sometimes dramatically. Accordingly, whilst we issue every quote in good faith, we cannot guarantee that a certain exchange rate will be available to you when you go to place your Trade Order.
9.1 When you enter into a Forward Trade Contract, instead of paying us all of the Sale Monies up front, you will pay us in stages. We will ask you for:
- (a) an initial payment of Margin equal to 10% of the total amount of the Sale Monies owing to us under the relevant Trade Contract upon entry into the Forward Trade Contract; and
- (b) a final balance payment for the remainder of the Sale Monies prior to the Value Date of the Forward Trade Contract (please see clause 16.2 for more details).
In addition, we may issue you with a Margin Call if we are concerned that, if the Forward Trade Contract were to be terminated, we would incur losses in unwinding the Forward Trade Contract which would exceed the amount of Margin you have already provided to us. The balancing payment you have to make will take into account any payments you have made pursuant to a Margin Call.
9.2 We may make a Margin Call via telephone, email or text message to any of your Authorised Persons. It is a term of each Forward Trade Contract that, up until the time that the Forward Trade Contract is complete:
- (a) your Authorised Persons make themselves available to take a call on the telephone numbers they have provided us with during Standard Business Hours;
- (b) your Authorised Persons check their emails and text messages regularly during Standard Business Hours.
9.3 You are deemed to have received the Margin Call at the time we:
- (a) speak to an Authorised Person on the phone;
- (b) send an Authorised Person an email or a text message (as applicable).
We will always try and call you to speak with an Authorised Person to ensure that you have received a Margin Call sent via email or text however accept no liability if you do not answer our call(s) or if we are unable to connect to your phone.
9.4 Margin owing as a result of a Margin Call must be paid in accordance with clause 16.2(b). If we do not receive the full amount of Margin on time, we can terminate the Forward Trade Contract.
9.5 You acknowledge that Margin, once sent to us, is our money and not client money and therefore will not be safeguarded.
10. CLOSING OUT A TRADE CONTRACT
10.1 We may refuse to perform or may close out all or any part of any Trade Contract, without incurring any liability to you for losses that may be sustained as a result and without giving notice to you or receiving any instructions from you, upon or at any time after the happening of any of the following events:
- (a) you fail to make any payment when due to us under these Terms or any Trade Contract;
- (b) where we reasonably determine that there was a Manifest Error with the foreign exchange rate we provided you;
- (c) if you are an individual or a partnership:
- (1) you or one or more of your partners die or, by reason of illness or incapacity (whether mental or physical), are incapable of managing your own affairs or becomes a patient under any mental health legislation;
- (2) you or one or more of your partners suspend payment of your debts, make or take steps with a view to making any moratorium, assignment, composition or similar arrangement with creditors, have a receiver appointed in respect of some or all assets, are the subject of a bankruptcy petition, application or order, or have anything similar to any of the events described in this clause 10.1(c) happen to you anywhere in the world;
- (d) if you are not an individual or a partnership:
- (1) you suspend, or threaten to suspend, payment of your debts or are unable to pay your debts as they fall due or admit inability to pay your debts or are deemed unable to pay your debts within the meaning of section 123 of the Insolvency Act 1986 (“IA 1986”) as if the words “it is proved to the satisfaction of the court” did not appear in sections 123(1)(e) or 123(2) of the IA 1986;
- (2) you commence negotiations with all or any class of your creditors with a view to rescheduling any of your debts, or make a proposal for or enter into any compromise or arrangement with any of your creditors;
- (3) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with your winding up;
- (4) an application is made to court, or an order is made, for the appointment of an administrator, or a notice of intention to appoint an administrator is given or an administrator is appointed, over you;
- (5) the holder of a qualifying floating charge over your assets has become entitled to appoint or has appointed an administrative receiver;
- (6) a person becomes entitled to appoint a receiver over all or any of your assets or a receiver is appointed over all or any of your assets;
- (7) one of your creditors or encumbrancers attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of your assets and such attachment or process is not discharged within 14 days;
- (8) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 10.1(d);
- (9) you suspend or cease, or threaten to suspend or cease, carrying on all or a substantial part of your business; or
- (e) you fail in any respect to fully and promptly comply with any obligations under these Terms;
- (f) if any of the representations made in these Terms or information supplied by you are or become materially inaccurate or materially changed;
- (g) if it becomes or may become unlawful for us to maintain or give effect to all or any of our obligations under these Terms or otherwise to carry on our business;
- (h) if we or you are requested not to perform or to close out a Trade Contract (or any part thereof) by any governmental or regulatory authority whether or not that request is legally binding; and
- (i) we consider it necessary to do so for our own protection including (without limitation) in the following circumstances:
- (1) if we suspect illegal activities, fraud or money laundering;
- (2) protection from your default;
- (3) protection from market failure;
- (4) protection from adverse or volatile market conditions; and
- (5) protection from loss by us.
10.2 If you become aware of the occurrence or likely occurrence of any event referred to in paragraph (a) to (h) of clause 10.1, you shall notify us immediately.
10.3 If, as a result of us unwinding the terminated Trade Contract:
- (a) Margin you have paid us (if any) covers us for losses we have incurred in unwinding the Trade Contract, we will use this Margin to cover our losses and return any leftover money to you;
- (b) Margin you have provided us (if any) does not cover us for losses we have incurred, we will send you an invoice for monies outstanding and:
- (1) deduct any monies you hold with us to pay for same; and/or
- (2) use any Margin we hold in relation to any other Trade Contracts you have entered into to make up some or all of the shortfall, in which case you will owe us more money under that different Trade Contract; and/or
- (3) you will have to arrange for payment to be made directly to us; or
- (c) we end up with a profit as a result of foreign exchange currency movements, we may keep this profit as we are wary of being deemed to be providing an ‘investment service’, which is outside the scope of our regulatory permissions.
For the purposes set out in clause 10.3(b), we are entitled to convert money into the currency we require and such conversion shall be at a standard rate of exchange available to us.
If you fail to pay us money on time, you may be charged interest. Please see clause 16.8(a) for more details.
11. LIMITATION OF LIABILITY FOR TRADE CONTRACTS
11.1 In addition to any limitation on liability under clause 14 and 23 below which may apply, we shall not be liable to you:
- (a) us acting upon a Trade Order which reasonably appeared to us to be from an Authorised Person; or
- (b) for an amount greater than the maximum stated in clauses 11.2.
11.2 Our maximum liability under a Trade Contract, whether arising in contract, tort or otherwise, shall in no circumstances exceed the amount of Purchase Monies of that Trade Contract.
TERMS APPLYING TO PAYMENTS CONTRACTS
12. PAYMENT ORDERS
12.1 You or an Authorised Person may from time to time provide Payment Orders to us in accordance with clause 7. The Payment Order must confirm the amount and currency of the money you wish to transfer to the Beneficiary and the following details (referred to in these Terms as the “Unique Identifiers”):
- (a) full name and address of the Beneficiary;
- (b) the account details of the Beneficiary and the Beneficiary’s payment service provider which shall be:
- (1) the sort code and account number where the Beneficiary’s payment service provider is located within the United Kingdom; or
- (2) the IBAN and SWIFTBIC where the Beneficiary’s payment service provider is located outside the UK; or
- (3) such other details that we request from you;
12.2 If you think that you have provided incorrect Unique Identifiers, you must contact us immediately by telephone or email using the contact details set out in clause 2.3.
12.3 The Payment Order shall be deemed to be received at the time at which it is received except that:
- (a) where the Payment Order is received:
- (1) on a day which is not a Business Day; or
- (2) after 4 pm GMT on a Business Day,
we have the right to treat your Payment Order as having been received on the next Business Day; and
- (b) if the Payment is to be made on a specified day in the future (for example on the Value Date of the Trade Contract), your Payment Order shall be deemed to be received on the specified day provided that:
- (1) the specified day is a Business Day; and
- (2) we hold enough of your money in the correct currency by midday on that specified day to execute the Payment.
If the specified day is not a Business Day or we do not hold enough of your money in the correct currency by midday, we shall be deemed to have received the Payment Order on the next Business Day that we do hold enough of your money in the correct currency by midday to execute the Payment.
12.4 Following receipt of your Payment Order, we may:
- (a) refuse to execute the Payment and if we do so, we shall (unless it would be unlawful for us to do so) notify you of that refusal, the reasons for that refusal (if possible), and the procedure for rectifying any factual errors that lead to that refusal. Such notification shall be given to you as soon as practicable following the refusal. We shall be deemed not to have received the Payment Order, for the purpose of clause 12.3, where we have refused to execute a Payment; and/or
- (b) request further confirmation or information from an Authorised Person of any Payment Order, including if we consider that such confirmation or information is desirable or that a Payment Order is ambiguous.
12.5 You may not withdraw a Payment Order after it has been received by us except if you have agreed with us that the Payment is to be made on a specific day in the future (for example, when the Purchase Monies are available) and the withdrawal of consent is received by us prior to the end of the Business Day preceding the specified day for the making of the Payment.
12.6 Any withdrawal of the Payment Order, in accordance with clause 12.5, must be received by us via telephone or email using the contact details set out in clause 2.3 and if sent by email it must include a copy of the relevant Contract Note, if received.
12.7 Where the Payment is denominated in:
- (a) euro or sterling, we shall ensure that the amount of the Payment is credited to the Beneficiary’s payment service provider’s account by the end of the Business Day following that on which your Payment Order was deemed to be received;
- (b) a currency other than euro or sterling but the account of the Beneficiary’s payment service provider is located within the European Economic Area (‘EEA’), we shall ensure that the amount of the Payment is credited to that account by the end of the fourth Business Day following that on which your Payment Order was deemed to be received; and
- (c) a currency other than euro or sterling and the account of the Beneficiary’s payment service provider is located outside the EEA, we shall endeavour to ensure that the Payment is actioned as soon as is reasonably practicable.
13. SAFEGUARDS AND SECURITY
13.1 You (or an Authorised Person on your behalf) must notify us as soon as possible via telephone or email, using the contact details set out in clause 2.3, on becoming aware of a Security Breach.
13.2 Each Authorised Person must take all reasonable steps to keep safe their Passwords and FCP Direct. This includes each Authorised Person:
- (a) not writing down or telling anyone their Username or Password;
- (b) logging off FCP Direct every time the computer (or other device used to gain access to FCP Direct) is left by the relevant Authorised Person;
- (c) always ensuring that neither their Username nor Password are stored by the browser or cached or otherwise recorded by the computer or other device used to gain access to FCP Direct;
- (d) having recognised anti-virus software on the device each Authorised Person uses to gain access to FCP Direct; and
- (e) using reasonable endeavours to ensure that the e-mail account(s), phone numbers and mobile phone numbers that they provided us with are secure as they might be used by us to reset Passwords or verify instructions.
13.3 You must take all reasonable precautions to prevent fraudulent use of Services.
13.4 We may stop or suspend your use of FCP Direct if we have reasonable grounds for doing so relating to the security of FCP Direct or its suspected or actual unauthorised or fraudulent use.
14. LIABILITY FOR INCORRECTLY EXECUTED PAYMENTS
14.1 If you are not a Large Corporation and a Payment we have executed on your behalf:
- (a) did not reach the Beneficiary Account at all or within the timeframe set out in clause 12.7; and
- (b) that Beneficiary Account is located in the EEA,
please let us know within thirteen months via email or telephone using the contact details set out in clause 2.3 and we shall refund you the value of the Payment and any charges or interest you have had to pay as a result of our mistake.
14.2 If you are a Large Corporation, clause 14.1 will not apply. Instead, you must contact us within three months of the mistake. We won’t be responsible for:
- (a) any losses other than those that are due to us acting fraudulently or negligently, or deliberately failing to do something; or
- (b) any losses other than those that are directly caused by our failure, whether or not those losses could reasonably have been expected.
14.3 The exclusions of liability set out in this clause 14 apply to our responsibilities for Payments sent to the wrong account, not sent at all or delayed.
15. LIABILITY FOR UNAUTHORISED PAYMENTS
15.1 If you are a Large Corporation and a Payment which we executed was not authorised by you or an Authorised Person, please notify us via email or telephone using the contact details set out in clause 2.3 within 3 months of the date of the Payment and we shall provide you with a refund unless you have acted fraudulently, or have intentionally or with gross negligence not complied with your obligations under clause 13.1, 13.2 and/or 13.3.
15.2 If you are not a Large Corporation and a Payment which we executed was not authorised by you or an Authorised Person, please notify us via email or telephone using the contact details set out in clause 2.3, within 13 months of the date of the Payment and we shall provide you with a refund unless you have acted fraudulently, or have intentionally or with gross negligence not complied with your obligations under clause 13.1, 13.2 and/or 13.3.
TERMS APPLYING GENERALLY
16. PAYMENTS TO US
16.1 In the event of a Spot Trade Contract, you will ensure that we hold the full amount of Sale Monies in the account we requested in cleared funds no later than the close of business on the Value Date.
16.2 In the event of a Forward Trade Contract, you ensure that we have received in cleared funds:
- (a) the full amount of Margin we requested upon entry into the Forward Trade Contract by 4pm on the Business Day after the Contract Date of that Forward Trade Contract; and
- (b) the full amount of Margin we request via a Margin Call, by 4:00 pm on the Business Day after the Margin Call is made;
- (c) the balance of the Sales Monies by no later than 2pm on the Value Date unless the Value Date is not a Business Day in which case the Sale Monies must have arrived with us in cleared funds by 5pm on the Business Day preceding the Value Date.
16.3 We accept no responsibility in the event that you send money to the incorrect account.
16.4 Someone other than you can send money to us on your behalf, provided that you have obtained our prior consent and they have complied with our requirements for additional information and documentation. We accept no liability if a third party sends us money on your behalf but they do not pass our due diligence requirements and you fail to meet your obligations under a Trade Contract or a Payment is not executed at all or on time.
16.5 You should pay us by sending funds from your bank account to our bank account (the details of which we shall provide you). With our consent, you may be able to pay via direct debit. We do not accept cash, cheques or credit or debit card payments.
16.6 Banks have specified cut off times for the receipt and dispatch of electronic payments. We accept no responsibility for any consequence attributable to the arrival of funds or instruction of payment after the relevant cut off times.
16.7 All funds provided by you under a Contract (whether as security or otherwise) may be appropriated by us if we incur any liability in respect of any Contract or in the event that you are unable to pay sums due to us or breach any of these Terms.
16.8 If you fail to make any payments, in full or in part, due to us on time then (without prejudice to any other right or remedy that may be available to us under the Contract or general law):
- (a) we may charge you interest at the rate of 3% above the base rate, from time to time in force, of the Bank of England from the date payment is due until the date payment is made and shall be compounded monthly;
- (b) we will be entitled to terminate the Contract.
16.9 We may, at our discretion, make payments to third party introducers.
16.10 For the avoidance of doubt, we will not pay you interest on any Margin or any money held by us on your behalf.
17. RESTRICTIONS ON US HOLDING YOUR MONEY
17.1 We should only hold your money:
- (a) if it is going to be used to enter into a Trade Contract you have entered into; or
- (b) if we hold a Payment Order in relation to that money.
17.2 We will only hold your money, which is not for one of the reasons set out in clause 17.1, for a short period of time before having to return it to you. We shall try to contact you to find out what you want to use this money for. If we are:
- (a) unable to get in contact with you; or
- (b) you fail to provide us with satisfactory instructions,
we reserve the right to send this money to an account we have on record as belonging to you which is in the same name as the account that we received the money from. This might involve converting your money into another currency, at a standard rate of exchange available to us, prior to sending the money back to you, if we believe the account we intend to send the money to is of a different currency than the money we hold for you.
18. CONTRACT NOTE
18.1 Details of each Contract will be confirmed in writing in a Contract Note issued to you by us. The Contract Note shall include the following:
- (a) the amount and currency of the Sale Monies you are required to send to us to satisfy your obligations;
- (b) the date(s) that you are required to send the money referred to in clause 18.1(a);
- (c) details of the bank account you should send money to, to satisfy clause 18.1(a);
- (d) the foreign exchange rate;
- (e) a transaction number for the Contract;
- (f) the amount and currency of the Purchase Monies;
- (g) the Value Date;
- (h) the Contract Date; and
- (i) any charges payable by you in respect of the Contract;
- (j) confirmation of the Unique Identifiers of the Beneficiary Account in respect of any related Payment; and
- (k) confirmation of the amount and currency of the monies subject to the Payment.
18.2 A Contract remains binding whether or not you receive the Contract Note. If you or an Authorised Person does not receive the Contract Note within two Standard Business Hours of conclusion of the Contract, you must notify us immediately. If you do not notify us within 3 Standard Business Hours of the Contract being entered into then we shall be entitled to assume that you have received the Contract Note. If there is any error or omission in the Contract Note then it must be notified to us within 5 Standard Business Hours of its receipt by you or an Authorised Person. If you do not notify us of an error within that time period, you will be deemed by us to have confirmed that the details set out in the Contract Note (in the absence of Manifest Error) are correct.
19.1 Safeguarding means that we shall either:
- (a) keep your money in a bank account separate from our own business bank account; or
- (b) take out an appropriate insurance policy,
so that in the unlikely event that we get into financial difficulties, the money which we safeguard will be protected from the claims of our creditors and it should be returned to you in full, less the insolvency practitioners’ costs in distributing the safeguarded monies.
19.2 We safeguard your money when:
- (a) we receive money from you or a third party on your behalf, for example, when you send us money having entered into Contract; and
- (b) we hold the Purchase Monies you have purchased from us, under a Trade Contract, to your order.
19.3 We will no longer safeguard money for you on our behalf when it is required:
- (a) to pay money you owe us for the settlement of a Trade Contract (which includes Margin and the final balancing payment);
- (b) to pay any fees that you owe to us;
- (c) for the execution of a Payment you have authorised.
19.4 When money is paid to us and no longer safeguarded it becomes our money. This means that in the unlikely event that:
- (a) we become insolvent between the Trade Contract being entered into and it being completed; and
- (b) the full amount of Purchase Monies is not safeguarded by us, returned to you or sent to your desired Beneficiary after we go insolvent,
to get the money you have paid us back, you will need to add your name and details to the list of creditors in the insolvency. In this circumstance you may not receive all of your money back.
20.1 We make a profit from entering into Trade Contracts with you. The rate at which we purchase money in different currencies from our wholesale providers is better than the rate at which we sell money in different currencies to you.
20.2 The profit we make from entering into a Trade Contract allows you to execute up to three Payments, in relation to the money you purchased under that Trade Contract, without incurring any additional charges. If you want to make more than three Payments in relation to the money you purchased under a Trade Contract, this will incur a fee of £10 per Payment.
20.3 Any transfer of funds (whether resulting from a Contract or otherwise) may be liable to taxation in the UK or in any other applicable jurisdiction. It is your responsibility to ascertain the applicability and extent of any taxation and to declare and pay any tax on any such sums. In the event that we are required to withhold any sums in respect of taxation by any court, regulation or taxing entity in any applicable jurisdiction, we shall be permitted to do so. We shall have no obligation to account to you in respect of sums so withheld.
20.4 In some circumstances a number of intermediaries (such as correspondent banks) may be involved in an international transfer of money, and such intermediaries may charge fees and expenses. The charges will in most cases (but not always) be deducted prior to its delivery. These charges are beyond our control and whilst we will endeavour to minimise these for you wherever possible, those charges sometimes cannot be calculated in advance. You hereby acknowledge that you shall be liable for these charges.
21. WARRANTIES, REPRESENTATIONS AND UNDERTAKINGS
21.1 You warrant and represent to us (such representations and warranties to be made both on the date you sign these Terms and on each Contract Date) that:
- (a) all information that you supply to us is complete, true, accurate and not misleading in any material respect;
- (b) all sums which you send to us or are sent to us on your behalf (until these monies become due to us or are paid back to you) are and will remain owned by you and you have not created and will not create any charge or other encumbrance over or in respect of such monies.
- (c) if you place a Trade Order with us to enter into a Forward Trade Contract, this will be for the purpose of facilitating a means of payment for identifiable goods and / or services or for direct investment;
- (d) you are acting as principal and not as another party’s agent or representative;
- (e) you are not prevented by any legal disability or subject to any law or regulation from performing your obligations under these Terms and any related transactions contemplated by them.
- (f) you have all necessary consents and have the authority to enter into an agreement under these Terms and subsequent Trade Contracts and Payment Contracts and if you are a body corporate, you are properly empowered and have obtained all necessary corporate or other authority pursuant to its constitutional and organisational documents; and
- (g) you comply with all relevant laws, regulations, exchange control requirements and registration requirements.
21.2 You undertake to inform us with immediate effect where your beneficial ownership changes by more than 10%.
22. FCP DIRECT AND THE WEBSITE
22.1 You require access to the internet to use FCP Direct. FCP Direct may only be used by persons aged 18 years and older.
22.2 Upon our approval of your request to use FCP Direct, we grant to your Authorised Persons a non- exclusive, non-transferable, non-sublicensable, revocable licence to use FCP Direct for the Term.
22.3 Payment Contracts formed through FCP Direct are governed by these Terms. You are not able to place limits on the value of Payments entered into through FCP Direct. You cannot enter into Trade Contracts using FCP Direct.
22.4 You acknowledge that due to the nature of the internet and electronic communication, there is a risk that communications may not operate free from error or interruption. We shall not be liable for:
- (a) any error or interruption in communications;
- (b) for any losses or delays in the transmission of instructions caused by any ISP or software failure; or
- (c) for any breaches of security of FCP Direct beyond our reasonable control.
22.5 We reserve the right to withdraw or amend the service we provide on FCP Direct without notice. We will not be liable, if for any reason, FCP Direct is unavailable at any time or for any period.
22.6 From time to time, we may restrict access to FCP Direct.
22.7 FCP Direct, our Website and the content therein and all intellectual property rights pertaining thereto are owned by us or licensed through third parties and all rights, title and interest shall remain ours or the property of such third parties.
22.8 We aim to update our Website and/or FCP Direct regularly and may change the content at any time. If the need arises, we may suspend access to our Website and/or FCP Direct, or close either or both indefinitely. Any of the material on our Website and/or FCP Direct may be out of date at any given time, and we are under no obligation to update such material.
22.9 The material displayed on our Website and/or FCP Direct is provided without any guarantees, conditions or warranties as to its accuracy.
23. GENERAL LIMITATION OF LIABILITY
23.1 Neither party shall be liable to the other for the following types of loss: loss of profits, loss of sales or business, loss of agreements or contracts, loss of anticipated savings, loss of use or corruption of software, data or information, loss of or damage to goodwill, indirect or consequential loss.
23.2 We accept no responsibility for any delay in fulfilling a Contract attributed to the late arrival of funds or instruction of payment relative to the cut off times of the designated bank or for delays or faults due to the clearing banks or banking systems.
23.3 We shall not be liable for any bank charges that you may incur in sending funds to or receiving funds from us.
23.4 We shall not be liable to you for the non-performance of our obligations or the failure to execute any Order if the execution of the Order would be illegal.
23.5 Nothing in these Terms limits or excludes our liability which cannot legally be limited, including death or personal injury caused by our negligence or fraud or fraudulent misrepresentation to the extent that the liability may not be excluded or limited by any applicable law.
24.1 If you feel that we have not met your expectations in the delivery of our Services or if you think we have made a mistake, please let us know. You may let us know by telephone, email or post using the contact details provided in clause 2.3. We have internal procedures for handling complaints fairly and promptly in accordance with the Financial Conduct Authority’s requirements. A copy of our complaints procedure is available upon request.
24.2 If you are an eligible complainant and the complaint specifically relates to a Payment Contract you may be able to take your complaint to the Financial Ombudsman Service should you not be satisfied with our final response. Eligibility criteria and information on the procedures involved are available from http://www.financial-ombudsman.org.uk.
24.3 If a dispute arises between us and you relating to the existence or terms of any Trade Contract (a “Disputed Trade Contract”), we may take any other action we consider appropriate in relation to the Disputed Trade Contract, which may include closing out or suspending the performance of the Disputed Trade Contract pending settlement of the dispute without previously notifying and/or without having received instruction from you. We will try and notify you (orally or in writing) of the action we have taken, as soon afterwards as it practically can, but if it does not, the validity of its action shall not be affected.
25. RECORDING OF CONVERSATIONS AND RECORD KEEPING
You agree that we may record telephone conversations between you and us and use such recordings, or transcripts from such recordings, as evidence in any dispute or anticipated dispute. If we make any recording or transcript we may also destroy them in accordance with our data retention policy.
26. ESTABLISHING YOUR IDENTITY
26.1 To comply with the requirements of the Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017 and related law, it may be necessary for us to:
- (a) obtain from you and retain in our records evidence of the identity of; and/or
- (b) carry out an electronic verification check and/or credit check via a third party provider on,
you and/or your directors, officers, shareholders, partners, trustees, beneficiaries, Authorised Persons and/or beneficial owners (as appropriate).
If we are not satisfied with the documentation provided or the results of such checks, we will not be able to accept any Orders. We shall keep records of the documentation and results of such searches in accordance with our data retention policy. You acknowledge that us carrying out electronic checks will leave a soft footprint on the relevant individual or entity’s credit history. You warrant that you have obtained the consent of each person which will be subject to such checks prior to accepting these Terms.
26.2 We are obliged to report any reasonable suspicions we have about you or any Orders received to the regulatory authorities. This may affect our relationship with you so far as confidentiality is concerned. If we are required under legislation (including the Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017 and the Proceeds of Crime Act 2002) to refrain from communicating with you and/or proceeding with your instructions, we can accept no liability for the consequences of being prevented from doing so.
27. DATA PROTECTION
From time to time, we may be able to offer additional services to you which are designed to improve your overall experience, including in relation to downstream transactions. The provision of such services may necessitate the sharing of your personal data with clearly defined third parties. We will notify you when such services are available. Should you desire to avail of such services, we will provide you with the information required to make an informed decision, and will proceed only on the basis of your informed consent.
28.1 When we may terminate these Terms. We can terminate these Terms at any time and for any reason by giving you not less than two (2) month’s written notice.
28.2 When you may terminate these Terms. You may terminate these Terms at any time with immediate effect by giving a notice to us via telephone or by email to the addresses set out in clause 2.3.
28.3 Consequences of termination of these Terms. In the event of termination of these Terms, any Contract subsisting at the date of termination of these Terms shall remain in force until such time as the relevant Contract is completed, closed-out or terminated in accordance with its provisions.
28.4 Termination of an individual Contract. Termination of an individual Contract shall not affect the existence of these Terms or any other Contracts which shall all be dealt with in accordance with their own provisions.
29.1 Each party undertakes that it shall not at any time, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs, except as permitted by Clause 29.2 and 29.3.
29.2 Each party may disclose the other party’s confidential information:
- (a) to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with this agreement. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this Clause; and
- (b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
29.3 We may disclose confidential information to:
- (a) the person or organisation which introduced or referred you to us, solely as necessary and limited to the purpose of paying such person or organisation an introductory/referral or affiliate fee; and
- (b) any banks which we work with to provide you with the Services;
- (c) third party suppliers which assist us in our goal to prevent fraud and/or money laundering and/or terrorist financing,
on the basis that they are under an obligation no less onerous than the duty of confidentiality contained in these Terms.
30.1 What happens if we got the price wrong. It is always possible that, despite our best efforts, some of the Trade Contracts or Payments Contract we enter into with you may be incorrectly priced. We will normally check prices before accepting your Order. If we accept and process your Order where a pricing error is obvious and unmistakeable and could reasonably have been recognised by you as a mispricing, we may end the Contract and refund you any sums you have paid.
30.2 Even if we delay in enforcing under these Terms, we can still enforce it later. If we do not insist immediately that you do anything you are required to do under these Terms, or if we delay in taking steps against you in respect of your breach of these Terms or any Contract, that will not mean that you do not have to do those things and it will not prevent us taking steps against you at a later date. For example, if you miss a payment and we do not chase you but we continue to fulfil the Contract, we can still require you to make the payment at a later date.
30.3 What if something unexpected happens? We shall have no liability to you under these Terms or any Contract if we are prevented from or delayed in performing our obligations under these Terms, or from carrying on our business, by acts, events, omissions or accidents beyond our reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving our or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or our default or sub- contractors, provided that you are notified of such an event and its expected duration.
30.4 If a court finds part of these Terms illegal, the rest will continue in force. Each of the clauses of these Terms operate separately. If any court or relevant authority decides that any of them are unlawful, the remaining paragraphs will remain in full force and effect.
30.5 Entire Agreement. These Terms, and any documents referred to in them, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover.
30.6 Do any other terms apply? We may publish other terms and conditions or notices from time to time, such as those which may apply more generally to use of our Website. You should look out for these when visiting our Website.
30.7 We are not partners and neither of us may act as the other’s agent. Nothing in these Terms is intended to or shall operate to create a partnership or joint venture between you and us, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
30.8 We can make amendments to these Terms. We may amend these Terms by giving you no less than two months’ notice in writing. If you object to the proposed amendments, you have the right to terminate these Terms without charge before the date proposed by us for the entry into force of the changes. You will be deemed to have accepted the proposed amendments unless you notify us and terminate these Terms before the date proposed by us for the entry into force of the changes. If we receive no objection from you, such amendments shall take effect from the date specified by us but may not affect any rights or obligations that have already arisen and will not be retrospective. For the avoidance of doubt, the termination of these Terms by any means by you, shall not affect any Contract nor any rights or obligations that have already arisen at the date of the termination.
30.9 If you are a Lage Corporation, some of the provisions set out in the Payment Services Regulations 2017 do not apply to you. Where you are a Large Corporation Part 6 and Regulations 66(1), 67(3) and (4), 75, 77, 79, 80, 83, 91, 92 and 94 of the Payment Services Regulations 2017 shall not apply to you.
30.10 Can you obtain a copy of these Terms or additional information? You may request and we shall provide a copy of these Terms and any information set out in Schedule 4 of the Payment Service Regulations 2017 at any time prior to termination of these Terms.
30.11 We may transfer this agreement to someone else. We may at any time assign any or all of our rights and obligations under these Terms to another organisation. We will always tell you in writing before this happens and we will ensure that the transfer will not affect your rights under any Contract.
30.12 You need our consent to transfer your rights to someone else. You may only assign your rights or your obligations under these Terms to another person if we agree to this in writing.
30.13 Nobody else has any rights under these Terms. This contract is between you and us. No other person shall have any rights to enforce any of its Terms.
30.14 Which laws apply? These Terms and any Contract to which these Terms apply and any disputes or claims arising out of or in connection with these Terms or any such Contract or its or their subject matter or formation (including non-contractual disputes or claims) are governed by, and construed in accordance with, the laws of England.
30.15 Where you may issue proceedings under these Terms. The courts of England have exclusive jurisdiction to settle any dispute or claim or other matter that arises out of or in connection with these Terms or their subject matter or formation (including non-contractual disputes or claims) and any Contract to which these Terms apply or its subject matter or formation (including non-contractual disputes or claims) or any of the documents to be entered into pursuant to these Terms.