Effective Date: 01/08/2012. Version number: 2.3.
CLIENTS COMPLETING THE CURRENCY INDEX REGISTRATION FORM AND PLACING SUBSEQUENT ORDERS AGREE TO THE FOLLOWING TERMS AND CONDITIONS OF BUSINESS.
The parties to this agreement are: Currency Index Ltd (CI) of 16 Church Street, Rickmansworth, WD3 1DD, UK (and registered office 49 The Drive, Rickmansworth, Herts WD3 4EA) and the client(s) named in the application (the ‘Client’).
1.1. CI provides facilities for the purchase or sale of currencies for both commercial and personal purposes. CI contracts with Clients are for settlement and onward delivery. That is, at maturity the Client must take delivery of funds into their onward nominated bank account. CI provides our services to Clients for the fulfilment of international payments and/or hedging of anticipated currency exchange requirements.
1.2. The Client wishes to open the facility to be able to enter into a contract or contracts for the purchase, sale and delivery of currency with CI and the Client agrees with CI that all transactions shall be carried out on the Terms and Conditions (the ‘Terms’) set out below. The Client confirms that:
(a) it has or will have a personal or commercial need for the currency which is the subject of each transaction and no transaction will be for the purpose of speculation or investment; and
(b) it is acting on its own account and not on behalf of any other person.
2. CI’S SERVICES
2.1. CI will, when it agrees to do so, enter into contracts for the sale, purchase and delivery of currency (‘Contracts’) with the Client. Contracts may, without limitation, include:
(a) spot contracts under which currency is bought and sold for delivery up to 3 business days after the Contract is formed (or as agreed between the parties);
(b) fixed forward contracts under which currency is bought and sold for delivery at a fixed future time;
(c) open forward contracts under which currency is bought and sold for delivery at a time subsequently instructed by the Client within an agreed period or, failing such instructions, at the end of the agreed period; and
(d) limit orders under which currency is bought and sold for delivery if and when an agreed exchange rate is available.
2.2. CI will always contract as principal with the Client and deal with the Client on an execution only basis.
2.3. CI will not provide advice to the Client upon the merits of a proposed currency transaction or provide taxation or other advice to the Client (although it may provide information to the Client from time to time). In entering a Contract the Client must not treat any information or comments by CI as advice and must rely only on its own judgement (or the judgement of any third party adviser). CI will not transfer any funds representing the benefit of a fluctuation in currency arising after a Contract has been entered into where CI deem this to be a Contract entered into for speculative purposes.
2.4. The Client must pay for the currency in question on or before the date specified in the Contract Note (the ‘Maturity Date’), and, if advance or instalment payments are called for by CI in the Contract Note or under Clause 4, to make such payments at such time or times as CI may require.
2.5. Each Contract will involve the Client exchanging one currency amount (the ‘Sale Currency’) for an agreed amount of a different currency required by the Client (the ‘Purchase Currency’).
3.1. The Client may give CI instructions verbally, electronically or in writing relating to a transaction for the purchase or sale and delivery of currency at an agreed exchange rate (the ‘Order’). The only person(s) authorised to give us instructions on your behalf are those notified in writing to CI, on your application form, or as verified by written notice to CI. We shall not be bound by any such variation until we have received it and reserve the right to seek to confirmation of that order before being bound by it where we deem this appropriate.
3.2. Following acceptance of an Order by CI, which can be communicated verbally, electronically or in writing, CI shall fax or transmit electronically to the Client a Contract Note which will confirm the details of the Order (the ‘Contract Note’) and Maturity Date. Whether or not a client receives a Contract Note a contract has been made upon acceptance by CI of an Order and the Client is liable for all sums due. If you have not received a Contract Note within 24 hours of our acceptance of your Order please contact CI which can be done verbally, electronically or in writing.
3.3. The Client upon receipt of the Contract Note should check, sign and return the Contract Note to CI either by fax or post.
3.4. Once an Order has been given by or on behalf of the Client in accordance with paragraph 3.1 above and confirmed verbally or in writing by CI it cannot be rescinded, withdrawn or amended without CI’s express consent in writing.
3.5. CI may at its absolute discretion refuse any Order or instructions given by the Client without giving any reason or being liable for any loss the Client suffers as a result of such refusal.
3.6. CI may (but shall not be obliged to) require further confirmation or information from the Client of any Order or instruction if:
(a) CI considers that such confirmation or information is desirable or that an Order or instruction is ambiguous; or
(b) the instruction is to close the Client‘s account or to remit the Client’s funds to a third party.
3.7 The Client does not have any right under the Financial Services (Distance Marketing) Regulations 2004 to cancel any Order.
4. PAYMENT & VALUE DATING
4.1. Instructions to enable the client to remit the Sale Currency to CI will be included in the Contract Note.
4.2. Except where stated in 4.3 below, all Clients’ funds, whether in the Sale Currency or the Purchase Currency, are subject to the safeguarding requirements as defined in Clause 19 of the Payment Services Regulations 2009 (as amended). In the case of CI’s administration, any such funds will be available to an Administrator to repay Clients before any of CI’s other Creditors.
4.3 The following shall not constitute an amount subject to the safeguarding requirements set out in Clause 19 of the Payment Services Regulations 2009: (a) CI’s FX revenue and any applicable costs, losses and charges due to CI from the Client under these Terms, and (b) sterling deposit sums required to provide collateral to CI and its counterparties in the case of Forward Contracts and Time Option Contracts as stipulated on each Contract Note issued to the Client.
4.4. The Client must make sure a posted cheque (sterling only) or an electronic transfer of cleared funds (any Sale Currency) are received by CI for the full amount of the Sale Currency and any applicable transfer charges on or before close of business on the Maturity Date specified on the Contract Note. In the case of any Contract which is not a spot contract, payment will be in such instalments as specified in the Contract Note and/or as CI may subsequently notify the Client from time to time. CI may demand part payment of Forward Contracts earlier than specified on the Contract Note in the case of adverse market movement (known as a Margin Call). No such advance or instalment payment is necessarily refundable. All Margin Calls must be paid within 24 hours of our first communicating the Margin Call to you which can be done verbally, electronically or in writing.
4.5. The Client must make all payments under these Terms in full without any deduction, set-off, counterclaim or withholding of any kind.
4.6. CI may deduct from any payment to be made to the Client any amount the Client may owe to CI or any fees, costs, liabilities, or charges incurred by CI in respect of any transaction with the Client, however they arise.
4.7. CI will make Payment of the Purchase Currency under any Contract (after any deductions due under clause 4.5) on the same business day that all the following conditions have together been satisfied, or the next business day if they are all satisfied after 1500hrs UK time:
(i) CI is notified by its bankers that cleared funds for all sums due and payable by the Client to CI have been received; and
(ii) Clear and complete onward payment instructions have been received from the Client; and
(iii) The Maturity Date of the Contract has been reached; and
(iv) The Client and any other parties who have paid the Sale Currency to CI, have satisfied the relevant compliance and anti-money laundering rules as required by HMRC
4.7. Where the Client sends the Sale Currency by cheque to CI (sterling only), condition 4.7(i) will be deemed to be satisfied at close of business on the sixth working day after receipt of the cheque, as long as the cheque is not returned unpaid.
4.8. The date when the recipient payment institution will receive cleared funds (the ‘Value Date’ of any Payment) will be the same day as the Payment is instructed by CI, except in the case of SEPA Euro payments where the value date will be 2 working days later, and in the case of some currencies where it is not possible to send with the same Value Date, in which case the earliest Value Date available will be used.
4.9. Where practical, CI will send payments before the Maturity Date in clause 4.7(iii), unless it has not yet received the Purchase Currency from its counterparty or supplier.
5.1. If the Client fails to make any payment required under these Terms when it falls due, interest will be charged on the outstanding sum at a rate of four per cent per annum over the base rate of the Bank of England (or of such monetary authority as may replace it) subject to a minimum of £15.00 per working day. Such interest shall accrue and be calculated daily from the date payment was due until the date the Client pays in full.
5.2. CI does not receive interest on any of its safeguarded funds and therefore no interest is payable to the Client for any funds held in these segregated client accounts.
6.1. CI’s charges for payment services will be as agreed with the Client at the time of the Order and set out in the Contract Note and will not exceed £20 per payment (or currency equivalent). The Client understands that because CI deals as principal the exchange rate it offers the Client will not be the same as the rate CI obtains itself.
6.2. If the Client’s cheque, or any other method of payment, is dishonoured, returned, not met on first presentation or stopped for whatever reason, CI shall levy an administrative charge of £50.00 in respect of each such payment. This administrative charge will become payable by the Client in addition to any other sums due under these Terms.
6.3. If the Client pays cash into the Transaction Account, CI shall levy an administrative charge of 1% of the total, or £50.00, whichever is the greater, in respect of each such payment. This administrative charge will become payable by the Client in addition to any other sums due under these Terms.
6.4. CI is not liable for any charges made by intermediary or routing banks, or for receiving charges made by the payment institution receiving the Purchase Currency.
7. DISPUTES & COMPLAINTS PROCEDURE
7.1. If a dispute arises between CI and the Client relating to the existence or terms of any contract (a ‘Disputed Contract’), CI may close out or take any other action it considers appropriate in relation to the Disputed Contract without previously notifying and/or without having received instruction from the Client. CI will try to notify the Client (verbally, electronically or in writing) what action it has taken, as soon afterwards as it practically can, but if it does not, the validity of its action shall not be affected.
7.2. Without prejudice to the exercise of CI’s rights under Clause 7.1 and to clause 9 and the provisions of Clause 10, a party found at fault in relation to a Disputed Contract will not be liable for more than the direct loss incurred by the other party (plus interest on that loss) in connection with that Contract.
7.3 In the unlikely event of complaints about CI’s services, these should be made in writing to the Managing Director at CI’s trading address which is 16 Church Street, Rickmansworth, WD3 1DD. In line with our complaints procedure and obligations under the Payment Services Regulations 2009 we must acknowledge receipt of within five working days.
7.4 If the Client is unsatisfied with CI’s written response to a complaint, it may be referred by the Client to the Financial Ombudsman Service who are situated at South Quay Plaza, 183 Marsh Wall, London, E14 9SR.
The Client represents to CI that, both at the date of this Agreement and at the time each Contract is entered into and carried out:
(a) the Client is acting as principal for its own account and has full power and authority and has taken all necessary steps to enable it lawfully to enter into and perform these Terms and every Contract under these Terms;
(b) all sums paid to CI under these Terms belong to the Client and are not subject to any charge or other encumbrance;
(c) all information supplied to CI by the Client is, or at the time it is supplied will be, accurate in all material respects and the Client will not omit or withhold any information which would make such information inaccurate in any material respect;
(d) the Client will provide to CI on request such information regarding its financial and business affairs and/or identity, as CI may reasonably require; and
(e) the Client has a valid commercial or personal reason for requiring the currency it buys under each Contract will not enter into any Contract for investment or speculative purposes and will take physical delivery of the currency bought.
9. DEFAULT, CLOSE & REFUSAL TO PERFORM
9.1. CI may refuse to perform or may close out all or any part of any Contract, without incurring any liability to the Client for losses that may be sustained as a result and without giving notice to the Client or receiving any instructions from it, upon or at any time after the happening of any of the following events:
(a) the Client fails to make any payment when due under these Terms;
(b) the Client dies or becomes of unsound mind;
(c) the Client suspends payment of its debts, makes any composition with its creditors, has a receiver appointed of some or all of its assets, takes or has any proceedings taken against it in bankruptcy or takes or allows any steps to be taken for its winding up (except for a solvent amalgamation or reconstruction approved in advance in writing by CI) or anything similar to any of these events happens to the Client anywhere in the world;
(d) the Client fails in any respect fully and promptly to comply with any obligations to CI under these Terms or otherwise or if any of the representations of or information supplied by the Client are or become inaccurate;
(e) it becomes or may become unlawful for CI to maintain or give effect to all or any of the obligations under these Terms or otherwise to carry on its business or if CI or the Client is requested not to perform or to close out a Contract (or any part thereof) by any governmental or regulatory authority whether or not that request is legally binding; or
(f) CI considers it necessary to do so for its own protection.
9.2. If the Client becomes aware of the occurrence of any event referred to in clause 9.1(a) to (e), it shall notify CI immediately verbally, electronically or in writing.
9.3. If any event referred to in Clause 9.1(a) to (d) takes place CI shall also at its discretion be entitled to:
(a) forfeit the whole or any part of any sums previously paid to CI (to a maximum amount equal to all sums due or to become due to CI from the Client);
(b) charge the Client with all of the costs, expenses and losses (and interest at the rate referred to in Clause 5 on any sums that CI may expend or borrow in connection with Contracts and action it may take to cover or reduce its exposure under them) incurred by CI as a result of CI entering into Contracts with the Client.
9.4. If for any reason a Contract is closed out or does not proceed to completion, CI will send to the Client any sum due to the Client or a notice setting out the sum due from the Client.
9.7. CI shall not be responsible in any way for any delay in payment by CI under these Terms caused by the Client or any other third party, including but not limited to bank delay, postal delay, failure or delay of any fax or electronic transmission or delay caused by accident, emergency or act of god. For the avoidance of doubt the Client accepts that the Client is solely responsible for ensuring that all payments required from the Client under any transaction between the Client and CI are made promptly and within the time limits specified by the particular Contract.
10. LIMITATION OF LIABILITY AND INDEMNITY
10.1. (a) The maximum liability of CI, whether arising in contract, tort or otherwise shall in no circumstances exceed an amount equal to the amount of the Sale Currency.
(b) If CI fails to perform its duties under a Contract, CI shall in no way be liable to the Client for any consequential or indirect loss the Client may incur as a result.
10.2. The Client shall, on demand by CI, indemnify CI and keep it indemnified from and against all liabilities, damages, losses and costs (including legal costs), duties, taxes, charges, commissions or other expenses incurred by CI in the proper performance of its services or the enforcement of its rights under these Terms and, in particular, but without limiting the general indemnity, against all amounts which CI may certify to be necessary to compensate it for all liabilities, damages, losses and costs (including legal costs), duties, taxes, charges, commissions or other expenses incurred by CI (including loss of profit and losses and expenses from any action CI takes to seek to cover or reduce its exposure under any Contracts) as a result of:
(a) the Client breaching any of these Terms;
(b) CI acting on a written, oral, telephone, fax or electronic Order which appeared to CI to be, from the Client or an Authorised Person; or
(c) CI exercising its rights under these Terms to close out all or any part of any Contract before its applicable Maturity Date.
11.1. These Terms set out the entire agreement and understanding of the parties on their subject matter and supersede all previous verbal, electronic and written communications on the same subject matter.
11.2. CI may amend these Terms by notice in writing to the Client at any time and such amendment shall take effect from the date specified by CI but may not affect any rights or obligations that have already arisen. Otherwise, these Terms may only be varied by the written agreement of CI and the Client.
11.3. If at any time any provision of these Terms or any Contract is or becomes illegal, invalid or unenforceable under the laws of any jurisdiction, neither the legality, validity or enforceability of such provision under the laws of any other jurisdiction nor the legality validity or enforceability of any other provision of these Terms or any Contract shall in any way be affected as a result.
11.4. If a party fails to exercise or delays in exercising any right under these Terms, by doing so it does not waive such right. The rights provided in these Terms do not exclude other rights provided by law.
11.5. The parties agree to:
(a) the electronic recording by either party of telephone conversations between the parties with or without an automatic tone warning device; and
(b) the use of such recordings as evidence by either party in any dispute or anticipated dispute between the parties or relating to dealings between the parties.
11.6. If CI makes any recordings or transcripts it may also destroy them in accordance with its normal procedures.
12. DATA PROTECTION
12.1. CI is registered with the Information Commissioner’s Office under the Data Protection Act 1998 for the secure handling of personal data, Registration Number Z1495263.
12.2. The Client authorises CI to collect, use, store or otherwise process any personal information (‘Personal Information’) to enable CI and/or members of its group and/or the organisation which introduced or referred the Client to CI to provide and/or improve its services.
12.3. CI may also use the Personal Information to provide the Client with news and other information on CI’s services and activities which may be useful to the Client, including a weekly email newsletter. If the Client would prefer its Personal Information not to be used for such purposes, it should contact CI at the Registered Address.
12.4 In accordance with our obligations under the Money Laundering Regulations 2007 you must provide CI with sufficient information to enable us to satisfy ourselves as to your identity. Such information may contain, without limitation, business and financial information and personal identity information. The Client authorises CI to use the Personal Information to complete a free e-identity check through approved third-party providers. This is not a credit check, and will identify the Client to satisfy our regulatory obligations in most cases. Such approved third-party providers will not use Personal Information for any other purposes than identity verification and reporting of the same to CI.
12.5. CI will only pass on Personal Information to any third parties other than as described in 12.2 to 12.4 above, where specifically requested by the Client verbally or electronically, or where requested through official channels by law enforcement agencies and regulatory bodies.
12.6 CI must keep records of all transactions for all clients, which includes Personal Information and results of identity checks, for 5 years following the termination of our commercial relationship in accordance with our obligations under the Money Laundering Regulations 2007.
13. APPLICABLE LAW
13.1 These Terms shall be governed by English law and subject to the exclusive jurisdiction of the English courts.
13.2 All communications between both parties to these Terms shall be in the English language.