Terms and Conditions
FOREIGN CURRENCY EXCHANGE LIMITED - TERMS AND CONDITIONS
1. These conditions set out the terms upon which contracts (Trades) for the sale or purchase of foreign currency between you (you, the client, clients) and us (Foreign Currency Exchange Limited, Salisbury House, Finsbury Circus, London, EC2M 5QQ, under Company number 05452483, (we, FCE) will be undertaken.
Becoming a Client
2. You may only become a client (or in the case of joint or multiple applicants; clients) with our agreement. You must complete a Trading Agreement Form and return it to us in hard copy or you can complete a Trading Agreement Form via our website http://www.fcexchange.co.uk/. When you sign the form in hard copy or "tick" the "I accept" button on the website you are agreeing to abide by these terms and conditions and requesting us to accept you as a client. To do so we must verify your identity to our reasonable satisfaction and may ask you to provide us with documentation. We are obliged to comply with the Money Laundering Regulations 2007 and specific exchange control requirements of HM Revenue & Customs. In order to carry out these obligations and requirements, we may undertake electronic or automated searches. Clients acknowledge and agree that any details provided to FCE regarding identity and the purposes of any Trade may be submitted to credit reference and other information agencies for clearance. The client accepts that such personal data will be processed for and on behalf of, or by FCE, in connection with these clearance requirements.
3. Clients agree to supply information reasonably requested by FCE promptly. Clients warrant that the information they give in relation to their identity and the reasons for their intended Trade is accurate and that the Trade does not breach any laws or regulations. We are not permitted to send any funds to you or as you direct until we are satisfied as to your identity. If at any time, we are not satisfied as to your bona fides we may, at our absolute discretion, withdraw your status as a client. Once accepted by us as a client you will be provided with a Client Reference Number which must be used in all future transactions. You may authorise someone else to act on your behalf but such authorisation must be given in writing to FCE and at FCE's discretion to accept or reject. Where clients apply for joint client accounts then FCE shall be entitled to accept instructions from one as being instructions for both and advice or information given to one of the joint clients shall be deemed to be given to both. Joint customers shall be jointly and severally liable for any sums due to FCE under the terms of this agreement.
4. Clients may contact us (giving their name and Client Reference Number and any other information about their identity and the purposes of their instructions as we may reasonably require) to ask FCE to provide facilities for the buying or selling of currency (money or other medium of exchange). Each request for Trade (Trade Request) forms a separate contract for services between the client and FCE. We may accept written instructions to Trade (by fax, post or e-mail). However, if we do so, such Trades are made in good faith by us and we shall be under no duty to challenge or make enquiries concerning written instructions, which we genuinely believe originate from and express the client's wishes. We may, at our absolute discretion and without giving reasons, refuse any Trade or Trade Request whether received by telephone or through written instructions.
5. We will provide you with information about proposed exchange rates and the total price payable on the Trade requested by you. If the exchange rate is acceptable to you and you confirm the Trade Request at that exchange rate (including any other costs or sums payable) then, should we accept your Trade Request, a contract for the sale or purchase of currency will have been made between us. Other costs may be deducted, see clause 18 below.
6. FCE will use its reasonable endeavours to complete a Trade once your Trade Request has been accepted. However, no liability will be accepted by FCE in regard to any reasonable delay in completing the Trade or in respect of Force Majeure.
7. Force Majeure: If FCE are unable to perform any of its obligations under these terms in regard to any Trade because of factors beyond its control such as, but not limited to, acts of God; fire, flood, earthquake, wind, storm or other natural disaster; war, threat of war, armed conflict, sanctions, embargos, breaking of diplomatic relations, terrorist attack; chemical or biological contamination; sonic boom; changes in law in any relevant jurisdiction; explosion or accidental damage, collapse of buildings or structures; failure of computers; labour disputes; non-performance by third parties; interruption or failure of utility services, provided that it has complied with all other provisions, FCE shall not be in breach of this agreement or any trade and shall not be liable for any failure or delay in the performance of its obligations.
8. Once a contract has been made between us it may not be altered, cancelled or rescinded by the client without the express written consent of a director of FCE. All communications will be made with clients on the phone number(s) or email address(es) provided by you. You irrevocably agree to service of any document at your nominated UK address. We provide you with the information requested of us under s. 7(1) and 7(2) of the Financial Services (Distance Marketing) Regulations 2004. As such you do not have a right of cancellation under EU distance selling regulations, and your acceptance of these terms signifies your understanding that this right of cancellation is not applicable.
9. FCE send clients confirmation of accepted Trades (Contract Note) which includes remittance advice details for monies owed by the client to FCE and an onward payment instruction form to be completed by the client. Onward payment instruction forms must be completed and signed for by the client and delivered to FCE to process. Whether or not clients receive a Contract Note a contract has been made upon acceptance by FCE of a request for Trade at the agreed exchange rate. Once a contract has been made clients are liable for the full sums due on the due dates. If you have not received a Contract Note within 24 hours of your telephone call or communication to FCE and you would like one, then please contact FCE by telephone within 48 hours of the contract having been made. A Contract Note is not evidence of the terms of any Contract but a confirmation for your records. If you notice any inaccuracies please advise FCE immediately. Alterations cannot be made after a Trade Request is accepted.
10. A Trade means each transaction to purchase and deliver currency for a client including, but not limited to, a Spot Contract and a Forward Contract. A Spot Contract means a transaction where the Value Date (which means the date stipulated by FCE for each trade on which the currency transaction matures) is two (2) Working Days after the date of instruction. FCE will purchase the currency or sell currency for delivery immediately against receipt of cleared funds. A Forward Contract is a transaction where the Value Date is later than two (2) Working Days after the instruction is accepted. A Working Day means any day between the hours of 08.30 and 16.30 when the clearing banks are open for business in England.
11. There are two types of Forward Contract which are: a) Fixed Term Forward Contract: these comprise trades at fixed exchange rates for delivery at a specified date in the future, a Fixed Term Forward Contract guarantees an exchange rate for the delivery of the currency on a specified date in the future, and b) Time Option Forward Contract: a Time Option Forward Contract allows the currency to be made available between two predetermined future dates. A Time Option Forward Contract allows clients to draw down in full on the Trade within the designated dates. In both cases, the rate is fixed in advance.
12. Once a Fixed Term Forward Contract or a Time Option Forward Contract has been entered into (under the procedures set out above) no alterations or variations to the terms of the contract shall be accepted without the written consent of a Director of FCE. At FCE's absolute discretion a Director of FCE may agree other types or combinations of Trades with a particular client. Such discretion is determined on a Trade by Trade basis. FCE cannot guarantee to buy currency at any particular value or level. Where Stop and Limit Trade levels are agreed, FCE shall use its reasonable endeavours to place orders at the agreed levels but due to market fluctuation no guarantees can be given. FCE cannot guarantee to achieve Interbank rates on any Trade.
Stop and Limit Trades are contracts where currency is bought or sold at a date in the future where the conditions precedent for the Trade becoming effective are agreed between us at the date and time the order is placed. Stop and Limit Trades are used where clients want to protect against adverse market changes.
For the avoidance of doubt, clients should be aware that the value of currencies can fluctuate at any given time, and such fluctuations are beyond the control of FCE.
13. In the event of a Spot Contract, the client shall pay all sums due into FCE's nominated bank account on such date or dates as FCE might direct but no later than 12 noon on the second Working Day after the relevant Trade has been accepted by FCE. Time shall be of the essence in relation to such payment.
14. In the event of a Forward Contract, and where the client has not already done so, the client shall pay into FCE's nominated bank account, within two (2) Working Days of the contract coming into place, in cleared funds, a deposit of 10% of the full amount agreed for the Trade (or such other sum or percentage as FCE may specify/notify prior to the contract coming into place). FCE reserve the right to alter the percentage of the deposit requested up or down on a Trade by Trade basis. All outstanding balances must be paid to FCE no later than 16.30 on the working day immediately preceding the maturity date of the Trade. Time shall be of the essence in relation to such payment.
15. If FCE accept instructions from the client for a "same day" Trade, the client shall pay all sums due to FCE by no later than the time stipulated by FCE at the time the contract was made. All payments due and paid by the client to FCE pursuant to these terms shall be made without set-off, counterclaim or deduction whatsoever. Payment is not contingent on any event and for the avoidance of doubt is not conditional upon the client receiving a Contract Note.
16. Any deposit provided by the client will be held by FCE in a designated clients account. The client remains the beneficial owner of any deposit monies until such time as the Trade is complete and/or FCE incurs costs, losses, damages or other liabilities relating to or in connection with the Trade. Whether or not the Trade completes, FCE shall be entitled to set-off against the deposit monies in relation to any costs, damages, losses or other liabilities of the client against FCE, whether related to the specified Forward Contract, any Trade or otherwise occurring. It is your responsibility to maintain the value against future Trades at an appropriate level. We will notify you by telephone or email giving notice of any increase required, and such further monies must be received by FCE in cleared funds within one (1) working day. We will close out the Trade, even if you incur losses, if you do not respond within the timeframe given. Time being of the essence in this matter. It is for you to check your phone calls or emails. No liability will be accepted by FCE for any losses, costs, damages or expenses incurred by clients as a result of any actions by FCE necessitated under this provision.
17. Neither cheque nor cash payments are accepted by FCE and remittance by this method will result in increased administration costs to the client. The client will be charged an administration fee of £250 for the return of any cash payments, or cheques returned or shredded, at our discretion. In addition FCE shall be entitled to claim all losses, costs and expenses for the termination of any Trades on an indemnity basis. No Trade shall take place and no delivery of onward sums shall be made until FCE is in receipt of cleared funds. Clearance shall be deemed at the absolute discretion of FCE. The client should allow at least five (5) Working Days for funds to clear. Some banks have specific times when receipt and dispatch of electronic payments are permitted. FCE accepts no responsibility for and shall have no liability to you in respect of any delay in onward payment attributable to the late arrival of funds or instructions received after the specific bank's designated times in respect of electronic payments. Payments made by means other than telegraphic transfer will incur delays in clearing and FCE assumes no responsibility or liability whatsoever in regard to such clearance periods and may, if it incurs any losses, costs or damages arising therefrom, make equivalent claims for indemnity from the client.
18. FCE will deliver all purchased currency in regard to any Trades by electronic transfer to the designated onward account specified by the client to FCE. If FCE is not in receipt of satisfactory onward payment instructions from the client, or those instructions cannot be complied with for any reason, then FCE shall accept no responsibility and shall have no liability in respect of any delay or failure of such payment, save for the earliest reimbursement to the client of any sums due and owing. Any bank or other third party charges accruing for such transfers are the absolute responsibility of the client and monies may be remitted net of such charges. You should make your own enquiries as to such charges and FCE accepts no liability for shortfalls arising therefrom. We will deduct from any monies held on your behalf the equivalent sum charged to FCE for such transfers, whether related to the current or previous Trades.
19. If the client fails to make the required payments ( deposit or balance sums) on or before the due date or the Value Date (whichever is the relevant date to that Trade) or if FCE are obliged for any other reason to cancel or terminate the Trade, then FCE may be obliged to enter into a matching trade. In these circumstances it is possible that FCE will incur a loss, damage or expense and if it does so then you will be charged for any such loss on the Trade. FCE also reserves the right to make an additional administration charge of up to £250 in the event of such matching Trade being deemed necessary (at the absolute discretion of FCE). In addition FCE may counter charge clients legal costs of up to £250 without reference to any court procedure or court awarded costs.
20. In the event of cancellation or termination, whether by FCE or the client, the client may forfeit part or all of any deposit or monies provided to FCE for that Trade. You hereby authorise FCE to deduct from or add to any future Trade instructions from you any sums charged or incurred by you for previously cancelled or terminated Trades. We may set-off any sums due from you to FCE under these terms and conditions from any monies received from or due to you. In addition we may, at our absolute discretion, charge interest at 8% per annum on a daily basis on any sums unpaid from the payment due date or Value Date (whichever is the relevant date) until crystallisation of our losses by way of a matching trade. If FCE hold client monies for any purpose FCE do not pay and clients are not entitled to interest on any monies so deposited. Any unused balance of funds held on the client's behalf (after permitted deductions and set-off) will be refunded to the payee account of the client as soon as reasonably practical.
21. Failure to pay on time may be treated as a termination of the Trade by FCE with the consequent right to recover costs, losses, damages and expenses as set out under these terms.
22. FCE shall not be held liable for any loss or damages suffered by the client (or any other party) as a result of FCE's acceptance or refusal to accept a Trade Request.
23. The client is solely responsible for supplying accurate and up-to-date details to enable FCE to undertake a Trade, including but not limited to, contact information, Trade Requests and onward payment instructions. FCE relies on the client acting in the utmost good faith. The client shall, on a fiduciary basis, notify FCE of any changes to status and residency and any other changes, to information which may be reasonably required by FCE to transact the services.
24. You may notify us in writing to email@example.com or by hardcopy to Salisbury House, Finsbury Circus, London, EC2M 5QQ that you no longer want to be a client. Your status as a client may be terminated by FCE at any time but these terms shall continue to apply to any contract or Trade then in place.
25. FCE may terminate all or any part of these terms or any contract or Trade then in place (without incurring liability to the client, or any other party, for any loss, costs, expenses or damages incurred as a result thereof) without notice, if the client is in breach of any of these terms or has breached any obligation under any contract between FCE and the client.
26. FCE may also terminate this agreement, a contract, or Trade, at any time, without notice, if it reasonably believes that the client is unable to fulfil its obligations under these terms. Any loss, costs, damages or expenses incurred by FCE as a consequence of such termination shall be charged to the client and recovered in the manner set out in these terms.
27. FCE may also terminate any Trade or Trade Request on the request or instruction of any law enforcement agency, any regulatory body or any other authorised person. All or any funds then in the control of FCE, whether or not held to the benefit of the client, may be held or transferred at the request or requirement of such body or person, or as may be ordered by a court or other authorised body.
28. The client warrants and represents to FCE on a continuing basis that:
You have full authority to enter into these terms and any Trade and that you will not be contravening any laws or regulations by seeking the services of FCE or entering into each and any Trade; All information supplied is accurate in all material respects and will be kept up to date; You are acting as principal not agent or representative (other than through an Authorised Nominee or as a corporate officer if the client is a corporate entity where identification evidence of the officer may be sought and must be provided). If the client is acting through an accountant, solicitor or financial adviser (an Authorised Nominee), then FCE reserves the right to seek information relating to the identity of the originating client both before acceptance of a client and at any time thereafter. FCE may, at their discretion, accept appropriate identification from any persons or bodies who have themselves complied and are obliged to comply with the Money Laundering Regulations 2007 and are prepared to provide the appropriate confirmation of identity as provided thereunder.
29. FCE shall use its reasonable endeavours to complete a Trade once accepted. However, FCE shall accept no liability for reasonable delay or Force Majeure.
30. In any event, FCE shall not be liable for any direct, indirect or consequential loss or damage as a result of any Trade, whether the loss, damage, expense or cost incurred was due to the negligence or delay of FCE or otherwise. FCE shall not be liable for any loss incurred as a result of any reasonable delay in the onward transmission of any monies to the client if that delay could not be reasonably avoided by FCE. FCE shall not be liable for the acts or omissions of any third parties upon whom it relies to complete Trades.
31. In setting out its responsibilities and any liability expressed hereunder, FCE does not attempt to limit or exclude its liability for death or personal injury resulting from its negligence or for any damage or liability incurred by the client (or any third party) as a result of fraud or fraudulent misrepresentation by FCE. FCE shall not be liable for loss of profits, loss of business, depletion of goodwill and/or similar losses, loss of anticipated savings, loss of goodwill, loss of contract, loss of use, loss or corruption of data or information or any special, direct, indirect or consequential or pure economic loss, costs, damages, charges or expenses. In any event, save as expressly set out above, FCE's total liability in contract, tort (including negligence or breach of statutory duty) misrepresentation, restitution or otherwise arising in connection with the performance or contemplated performance of a Trade, shall be limited to the sums paid or payable by the client for that particular Trade or the sum of £25,000 whichever is the lesser sum.
32. In compliance with the Data Protection Act FCE collects, uses and processes personal information for the purposes of performing the services requested by the client. FCE may also use this information for promoting the same or similar services to the client unless it receives, in writing, confirmation from the client that it does not wish to receive such similar service information in the future.
33. FCE does not provide financial advice and is not a regulated entity under the Financial Services & Markets Act 2000 (Regulated Activities) Order 2001. When seeking a trade or entering into any contract with FCE you rely solely on your own judgement. FCE does not provide any advice in regard to foreign exchange or foreign exchange markets and accepts no responsibility or liability for the accuracy or completeness of any information given in this regard and assumes no duty of care in relation to the client in respect of any transaction. The client uses its own judgement to make Trade requests. FCE does not offer financial advice on any matter including, without limitation, the merits or otherwise of any currency transactions, on individual taxation, or foreign exchange markets.
34. FCE will not be liable to the client for any loss, costs, damages or expenses which arise as a result of currency fluctuations between the date when the Trade is accepted and the Value Date or the date of delivery, whichever is the later.
35. If FCE is obliged to issue court proceedings or other debt recovery action in order to recover any loss, costs, damages or expenses incurred by FCE as a result of your failure to comply with these terms or any contract or Trade made hereunder, it shall be entitled to recover from the client, on an indemnity basis, any legal or other administrative expenses it so incurs.
Our obligations under the Payment Services Regulation
36. In accordance with our obligations under the Payment Services Regulations (Regulations), FCE must inform you of certain important rights pertaining to you.
Once a Trade is completed we cannot retain the proceeds unduly and must send them to your nominated account or return them to you. Money transfers are governed by the Regulations where the destination of the funds and the recipient of those funds are located with the EEA and where the funds are in a currency of an EEA state. Further information on the Payment Services Regulations can be found on the website of the Financial Conduct Authority (FCA).
37. In the unlikely event that you are dissatisfied with any of the services we perform in the first instance in accordance with our complaints procedure we require you to inform us of your complaint either initially verbally or in writing where the initial complaint is verbal it must be followed up immediately with a written complaint. Such complaint should be addressed to the Head of Compliance at our address on these terms and conditions. If you are dissatisfied with our response you retain the right to have refer the matter to the Financial Ombudsman Service situated at South Quay, 183 Marsh Wall, London, E14 9SR
37. These terms represent the entire agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter.
38. Each party acknowledges that in entering into this agreement it does not rely on any statement, representation, assurance or warranty of any person other than as expressly set out in this agreement.
39. Nothing in these terms shall limit or exclude any liability for fraud.
40. No reliance should be placed on any oral statements made either before or after entering into these terms. Any information provided by FCE to clients is for information purposes only, and should not be relied upon as expert advice. No reliance should be made on any statements made on the FCE website, which may be out of date. FCE accepts no variations to these terms and conditions proposed by clients save those expressly agreed by a Director of FCE in writing. FCE may vary the terms of this agreement by posting notice of such variations on its website http://www.fcexchange.co.uk/ and such changes shall be binding from the date of such notice.
41. If any provision of this agreement is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable that provision or part provision shall, to the extent required, be deemed not to form part of these terms or any contract or Trade transacted thereunder, and the validity and enforceability of the other provisions of these terms shall not be affected.
42. The client may not, without the prior written consent of FCE, assign, transfer, charge, mortgage or deal in any other manner with all or any of its rights or obligations under these terms.
43. All communications in regard to any Trade shall be in the English language.
44. A person who is not a party to these terms shall not have any rights under or in connection with them.
45. FCE may record telephone conversations with clients and, in doing so, complies with the Telecommunications (Lawful Business Practice) (interception of communications) Regulations 2000. FCE keeps these records in order to establish the existence of facts, or to ascertain compliance by its employees with its practices and procedures; or for the purposes of preventing and detecting crime. All reasonable efforts are made to notify every person who is being recorded that recording is taking place.
46. Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the affairs of the other party except as permitted below. Each party may disclose the other party's confidential information:
- To persons who need to know such information for the purposes of carrying out the party's obligations under this agreement. Each party shall ensure that anyone to whom it is permitted to disclose and to whom it discloses the other party's confidential information complies with this clause; and
- As may be required by law, court order or any governmental or regulatory authority.
No party shall use any other party's confidential information for any purpose other than to perform its obligations under this agreement.
47. These terms and any Trade or contract made pursuant to these terms and any dispute arising hereunder shall be interpreted in accordance with English law and all disputes shall be heard in the exclusive jurisdiction of the courts of England and Wales.