Terms of Use

Terms of Use
The Currency Cloud Limited (“Currencycloud”)
These Terms of Use, including the Schedules, govern your use of the services provided by Currencycloud and
constitute the legal relationship between you and us. Currencycloud is a wholly owned subsidiary of The Currency
Cloud Group Limited.
Capitalized terms in these Terms of Use are defined in the Schedule entitled “Definitions – Terms of Use” which is
located at the end of these Terms of Use.
You are also advised to print or download and keep a copy of the Terms of Use (including the Definitions – Terms
of Use and other terms and conditions referred to herein) for future reference.
BY USING ANY OF OUR SERVICES DESCRIBED IN THESE TERMS OF USE, YOU ARE AGREEING TO BE
BOUND BY THESE TERMS OF USE. PLEASE DO NOT USE ANY OF OUR SERVICES IF YOU DO NOT
ACCEPT THESE TERMS OF USE. THESE TERMS OF USE ARE A LEGALLY BINDING AGREEMENT
BETWEEN YOU AND US AND IT IS IMPORTANT THAT YOU TAKE THE TIME TO READ THEM CAREFULLY.
1. OVERVIEW
1.1 The Services. We operate a proprietary Payment
Platform that automates the payment lifecycle from
receipt of funds through currency conversion and
payment. The Services include Payment Services –
Global Account, Foreign Exchange Service, EUR
Collection Service, GBP Collection Service, SWIFT
Collection Service, Spark Service, and Platform
Services. Currencycloud is authorised by the
Financial Conduct Authority (the “FCA”) under the
Regulations for the issuing of electronic money and
the provision of payment services with Firm
Reference Number 900199. These Terms of Use
govern your use of the Services including without
limitation your access to the Payment Platform. Your
use of the Services, including without limitation your
access to the Payment Platform, is subject to and
governed by these Terms of Use, our operating
procedures, and our acceptable use policy. If you are
entering into a Commercial Agreement directly with
us, then in the event of any conflict or inconsistency
between these Terms of Use and the Commercial
Agreement, these Terms of Use shall prevail except
in relation to any fees or charges payable under the
Commercial Agreement.
1.2 Business Introducer. If you have been
introduced to us by a Business Introducer, then the
Business Introducer may provide the first level of
customer service and perform other functions
necessary and appropriate to support the provision
of the Services, pursuant to a separate agreement
between the Business Introducer and Currencycloud.
You are not a third-party beneficiary of that separate
agreement between the Business Introducer and
Currencycloud.
2. USE OF THE PAYMENT PLATFORM AND
THE SERVICES
2.1 Ownership and Use. The Currency Cloud Group
owns all rights, title and interest in the Payment
Platform and our proprietary technology, including
our software (in source and object forms), algorithms,
user interface designs, architecture, and
documentation (both printed and electronic), network
designs, know-how, and trade secrets, and including
any modifications, improvements, and derivative
work thereof (the “Currencycloud Technology”).
Currencycloud has the right, at any time, to amend
our operating procedures and acceptable use policy,
effective immediately, where appropriate in our
determination, subject to such changes not materially
adversely affecting the Services we provide to you.
These Terms of Use do not transfer from us to you
any license or ownership rights in the Payment
Platform or the Currencycloud Technology. You may
only use the Payment Platform for the receipt of the
Services and in a manner consistent with these
Terms of Use, our operating procedures, and our
acceptable use policy. You shall not interfere with,
disrupt, or cause damage to users of the Services,
the Payment Platform, or any of our equipment.
2.2 Security. It is your responsibility to ensure that
the Payment Platform and the Global Account is only
accessed by you or your Authorised Persons and that
you, including your Authorised Persons, employees
and agents, keep your login details, passwords, or
other security features associated with your access
safe and secure. If you have any knowledge or any
suspicion that any of these security features have
been stolen, misappropriated, improperly disclosed
to a third party or used without authorisation or
otherwise compromised you must contact Client
Support immediately. We agree that we shall use
industry standard practices to ensure that the Global
Account is kept secure and will inform you promptly
of any attempted hack or unauthorised access to the
Global Account.
2.3 Suspension of Access. We are entitled to
suspend your Global Account and/or your or
Authorised Persons’ access to the Payment Platform
and/or otherwise restrict functionality if you are in
2
breach of these terms. In all such cases we will, to
the extent permitted under applicable laws, provide
you with reasonable notice in advance of taking these
steps. However, we may suspend your Global
Account and/or your or Authorised Persons’ access
to the Payment Platform and/or otherwise restrict
functionality without notice if you are using your
Global Account or the Services in a manner that
could cause us legal liability or disrupt other users’
ability to access and use the Services or if any of the
events set out in Section 10.3 occur. Any suspension
or restriction shall continue for such a period as we
shall reasonably determine to be necessary.
2.4 Equipment. You must provide and/or obtain any
equipment or telecommunications lines and links that
may be necessary for you to use the Payment
Platform, and you acknowledge that certain software
and equipment used by you may not be capable of
supporting certain features of the Payment Platform.
For the avoidance of doubt, we are not responsible
for providing you with any equipment or
telecommunications lines and links that may be
necessary for you to use the Payment Platform.
2.5 Principal Only. You hereby (i) confirm, represent
and warrant to us at all times that you are acting
either on your own Global Account or, where
applicable, for the benefit of your End Customer, and
not on behalf of any other person, and (ii)
acknowledge that we shall not be a principal to any
transaction or be responsible for or otherwise
guarantee the performance of any transaction
entered into by you with an End Customer.
2.6 End Customer Responsibilities. We shall not
treat End Customers as our client for the purposes of
providing the Services. You are solely responsible
and liable for all acts and omissions of End
Customers including without limitation (i) all dealing
services provided to End Customers and the correct
inputting of trade details including trades executed
via another liquidity partner, (ii) End Customer limits
default, spreads and permissions and the setting of
trading limits, products, default spreads and user
permissions for End Customers, (iii) all Know Your
Customer (“KYC”) and/or customer due diligence
(“CDD”) requirements relating to End Customers and
the on-boarding of End Customers, (iv) all
operational matters relating to End Customers
including inputting any manual End Customer’s
payment details, chasing End Customers for
payment details, any late arrival of funds, settlement
with End Customers, and monitoring the open
positions of End Customers, (v) all sales, marketing
and account management in relation to End
Customers, including the promotion and marketing of
foreign exchange deliverable services and/or
international payments services to End Customers,
End Customer account management and execution
of trades over the phone to End Customers, and
training End Customers on the use of the Platform
Services.
3. DATA PROTECTION LEGISLATION
3.1 Personal Data. By asking us to provide you with
the Services, you will be providing us with information
which includes Personal Data. In relation to such
Personal Data, we shall act as: (i) a Data Controller
in respect of our use of such Personal Data to
(a) conduct KYC, CDD and other checks as part of
our process of accepting you as a Client (as detailed
in Section 7.1), (b) comply with any legal and/or
regulatory requirements to which we are subject from
time to time, including but not limited to FCA
requirements, (c) determine how best to provide the
Services and our risks in doing so, and (d) prevent
fraud or financial crime; and (ii) a Data Processor in
respect of our use of Personal Data relating to You
and where applicable End Customers in order to
provide the Services, and where we so act the terms
contained in our Data Processing Policy (found at
https://www.currencycloud.com/legal/dataprocessing/) apply to such processing. By accepting
these Terms of Use, you also agree to the terms of
our Data Processing Policy. You should print and
keep a copy of the Data Processing Policy together
with these Terms of Use.
3.2 Privacy Policy. Details on how we collect, use,
and share Personal Data, and the steps we take to
protect Personal Data are set out in our Privacy
(found at https://www.currencycloud.com/privacypolicy/) (our “Privacy Policy”). You should print and
keep a copy of the Privacy Policy together with these
Terms of Use.
3.3 Cookies Policy. Details on how we use cookies
to store and retrieve information on and from your
browser/device are set out in our Cookies Policy
(found at
https://www.currencycloud.com/legal/cookie-policy ).
3.4 Identity. We may conduct searches through an
identity-referencing agency and through other
sources of information, such as your mobile service
provider, and use scoring methods both to allow us
to provide you with the Services and to assess our
risks in doing so, including credit standing and
compliance with all KYC/CDD requirements. Where
you have consented to our eKYC process, you
authorise your mobile phone provider to provide
details of your mobile phone number, name, address,
and device details to us in order to verify your identity.
A record of any searches, scoring and data collected
will be kept and may be used to allow our Group
Companies to similarly provide you with services and
to assess our risks in doing so. Information may also
be passed to other organisations or persons to
prevent fraud. Additionally, information may be
3
passed to governmental, regulatory or judicial
organisations to prevent fraud or financial crime
where we consider it appropriate. The foregoing use
of Personal Data may render us a Data Controller.
3.5 Data Lawfully Obtained. You confirm to us that
(i) all Personal Data which you or any of your officers,
employees, agents or sub-contractors supply to us at
any time has been lawfully obtained and will be
lawfully supplied to us in accordance with Data
Protection Legislation, and (ii) all notices have been
provided and relevant consents have been obtained
(or an alternative legal ground for processing
Personal Data has been relied on) as may be
required under the Data Protection Legislation for us
to process the Personal Data as contemplated by
these Terms of Use and/or the Commercial
Agreement.
3.6 Responsibility for Data. You are solely
responsible for the content, quality, accuracy and
completeness of any Personal Data, any End
Customer data, and any other data provided or
transmitted by you or on your behalf via or in
connection with the use of the Payment Platform and
the Services.
3.7 Record Keeping. Each party shall maintain
records of all processing operations under its
responsibility that contain at least the minimum
information required by the Data Protection
Legislation and shall make such information
available to any DP Regulator on request.
3.8 Complaints, Notices or Communications. If
either party receives any complaint, notice or
communication which relates directly or indirectly to
the processing of Personal Data or to either party’s
compliance with the Data Protection Legislation, it
shall as soon as reasonably practicable notify the
other party and provide the other party with
commercially reasonable co-operation and
assistance in relation to any such complaint, notice
or communication.
4. FEES AND AMOUNTS TO BE PAID
4.1 Fees. All fees for the Services shall be as set out
in the Commercial Agreement and may be increased
by us in accordance with the terms of the Commercial
Agreement. In the event that you have been
introduced to us by a Business Introducer, the
Business Introducer, when acting as your Authorised
Person, shall be liable to us for all fees and charges
for the Services; provided, however, that (i) you are
responsible for the payment of Margin and deposit
amounts as described in Schedule 2, and (ii) any
other fees for the Services shall be as set out in your
agreement with the Business Introducer.
4.2 Taxes. All Fees are stated exclusive of all taxes
and similar fiscal charges now in force or enacted in
the future, all of which you will be responsible for and
must pay in full.
4.3 Default Interest, Suspension, and
Reconnection. If you, or your Business Introducer if
applicable, do not promptly pay any amount properly
due to us under these Terms of Use, we may after
the expiry of 7 days following notice informing you,
and/or your Business Introducer if applicable, of the
amount outstanding and requesting payment charge
interest on the overdue amount at the rate of 2% per
annum above the base rate of Barclays Bank Plc
from time to time which interest will accrue daily. If
the amount due remains unpaid for thirty (30)
calendar days or more following the serving of the
notice described above, suspend, interrupt, or
terminate your access to the Payment Platform
and/or your use of the Services. In the event of
suspension, you, or your Business Introducer if
applicable, may be required to pay us a reconnection
fee in an amount determined by us prior to
reactivation of access to the Payment Platform in
addition to full payment of all amounts due under
these Terms of Use (including interest).
4.4 Set Off. You agree that we may set off any
amount you owe us against any sums owed by us to
you, except for any Relevant Funds we may hold for
you in accordance with Section 11 of Schedule 1,
provided we have given you 10 (ten) days prior
written notice of such intention and document the
amount to be deducted and the reasons for the same.
You also agree that we may set off any amount you
owe to us against any Margin or deposit you have
provided to us.
5. CLIENT HELP CENTRE AND SERVICE
LEVELS
5.1 Client Help Centre. Currencies available for
conversion, settlement schedule, payment cut-off
times, and failed payment procedures are described
in the Client Help Centre, and the Services will be
provided subject to and in accordance with the terms
set out in the Client Help Centre. We will also in
accordance with the Regulations communicate to
you the maximum execution time for a payment, the
charges payable by you in respect of a payment, the
cut-off time for the payment system we use to
transmit your payment, and (where applicable) a
breakdown of the amounts of any charges. In all
cases, the maximum execution time to process
payment instructions (as opposed to currency
conversions) shall be five (5) Business Days.
However, in many cases and where required by the
Regulations, Currencycloud may process a payment
much faster. Please refer to the execution times set
out in the Client Help Centre for more information.
4
5.2 Telephone Conversations. Any telephone
conversations we have with you or Authorised
Persons may be monitored and recorded by us and
we may also maintain records of emails sent by or to
you and your Authorised Persons. You agree that we
may use these telephone recordings and any
transcripts or email records for training and quality
control purposes or to resolve any disputes, and also
in the prevention and detection of crime. However,
we may not make or maintain such recordings or
records for you or be able to make them available to
you.
5.3 Service Levels. We shall use all reasonable
endeavours to ensure that the Payment Platform is
available 99.5% of the time during each calendar
month (“Availability”). Availability excludes
unavailability due to scheduled maintenance or a
force majeure event (described below in section
11.10). In any case, we will promptly inform you if
the Services or the Payment Platform becomes
unavailable.
5.4 Help Desk. You may report incidents requiring
our help by contacting Client Support via
Currencycloud Direct, by telephone or by sending an
email which will be acknowledged by email or
telephone during UK office hours within one (1) hour
of the incident report. Reported incidents will be
assigned to a Client Support representative, who
shall coordinate support efforts with you through
resolution of the reported problem. We will use all
reasonable endeavours to resolve any incidents or
problems relating to the Services as soon as is
reasonably possible.
5.5 Limits on Support Services. We will have no
obligation under these Terms of Use to provide
support services in respect of any fault or error
caused by (a) the improper use of the Payment
Platform, or (b) use of the Payment Platform
otherwise than in accordance with these Terms of
Use.
5.6 Scheduled Maintenance. We suspend access
to the Payment Platform each evening at 5 p.m. (New
York time) for three (3) minutes to carry out
scheduled maintenance. In addition, we may
suspend access to the Payment Platform outside of
UK Business Hours for no more than fifteen minutes
to upgrade the Payment Platform. We will, to the
extent practicable, provide you with advance notice
of any other scheduled maintenance, including
details of the expected Payment Platform downtime.
Payment Platform downtime during scheduled
maintenance carried out by us in accordance with
this section shall not be counted as downtime for the
purposes of Availability.
6. CONFIDENTIAL INFORMATION
Each party agrees that it (i) will neither use in any
way, for its own account or the account of any third
party, except as expressly permitted by, or required
to enable it to perform its obligations under, these
Terms of Use, nor disclose to any third party (except
as required by law or to that party’s advisors as
reasonably necessary), any of the other party’s
Confidential Information, and (ii) will take reasonable
precautions to protect the confidentiality of such
information, which precautions shall be at least as
stringent as those it takes to protect its own
Confidential Information. In addition, each party may
reveal the other party’s Confidential Information to its
agents, representatives and employees who have a
“need to know” such information in connection with
these Terms of Use, who are informed of the
confidential nature of such Confidential Information,
and who shall agree to act in accordance with the
terms and conditions of this section. Each party
agrees that the obligations under this section will
survive any expiration or termination of these Terms
of Use.
7. OUR AGREEMENT WITH YOU
7.1 Our Acceptance of You as a Client. Our
obligations under these Terms of Use are conditional
upon our acceptance of you as a client which is at our
sole discretion. We reserve the right to decline to
provide the Services or open a Global Account for
you without specifying a reason. You acknowledge
that all regulatory requirements need to be met
before any Services are provided by us. Before we
agree to provide Services to you and at all times
during the term of the Agreement, you agree to cooperate with us and provide any information and
documents and do all such acts we require (i) by law,
regulation or according to our internal policies, (ii) to
comply with requests of local and foreign regulatory,
governmental, and law enforcement authorities, (iii)
to check your identity or the identity of an EndCustomer, and its activities and objectives, and (iv)
to explain the reasons for the (intended) use of a
Service, the origin of funds used for a service or
transaction, and the economic nature of (the use of)
a service or transaction. You hereby agree to
promptly notify us, and/or your Business Introducer if
applicable, in writing of any change in Client or EndCustomer information and to provide us with any
further information which is required from time to time
for the purposes of our general policies or the
provision of the Services. Any information or
documents that you provide to us may be provided to
us directly by you, or via your Business Introducer if
applicable.
For the avoidance of doubt, no Services shall
commence until (i) we have completed our
5
compliance checks, (ii) you, or your Business
Introducer, if applicable, have agreed to be bound by
the terms of a commercial agreement with us, and
(iii) you have agreed to be bound by these Terms of
Use.
7.2 Your Representations and Warranties. You
hereby represent, warrant, and covenant to us at all
times that (i) you will comply with these Terms of Use
and all applicable laws, rules and regulations
regarding your use of the Payment Platform and End
Customer data and the Services, and you shall
procure that all Authorised Persons, agents and
employees comply with these Terms of Use and all
applicable laws, rules and regulations regarding your
use of the Payment Platform and End Customer data
and the Services, (ii) you are compliant at all times
with all applicable laws, rules and regulations in all
jurisdictions in which you operate, (iii) you will and
shall procure that all Authorised Persons, agents and
employees use the Payment Platform and the
Services only for lawful purposes, (iv) you have full
power and authority to enter into and comply with
these Terms of Use, (v) title to all money and assets
transferred to us under these Terms of Use is not be
subject to any charge or other rights of third parties,
(vi) you hold all required licences, registrations and
permissions to carry out your business, (vii) you are
not buying currency for the purposes of investment
or speculation (viii) all information supplied to us by
you is complete, accurate, up to date, and truthful in
all material respects (ix) you will enter into Forward
Contracts only to facilitate payment for identifiable
goods, services, and direct investment, and (x) you
shall not use the Services other than in accordance
with such operating processes and procedures as we
may prescribe from time to time, whether through
Currencycloud Direct or otherwise.
7.3 Payment Services Regulations 2017. Unless
you have been introduced to us by a Business
Introducer and you are a Consumer, none of the
provisions of Part 6 and 7 of the Payment Services
Regulations 2017 (as amended and replaced from
time to time) (“PSRs”) will apply to these Terms of
Use. If you are a Consumer, you will inform us of
such fact prior to commencing use of the Services.
7.4 Our Representations and Warranties. We
hereby represent and warrant to you at all times that
(i) we will comply with these Terms of Use and all
applicable laws, rules and regulations regarding your
use of the Payment Platform and End Customer data
and the Services; (ii) the Payment Platform and the
Services when used in accordance with these Terms
of Use shall not infringe the intellectual property
rights of any third party; (iii) we have full power and
authority to enter into and comply with these Terms
of Use; (iv) we are compliant with all applicable laws
in all jurisdictions in which we operate; (v) the
Services shall be provided by us using reasonable
skill and care in accordance with good industry
practice; and (v) we shall comply with your and your
Authorised Persons’ prior written instructions
(including e-mail and instructions via our website) in
relation to payments from your Global Account.
8. RELIANCE ON INSTRUCTIONS
8.1 Authorized Persons. Currencycloud is
authorised and entitled to rely upon, and act in
accordance with, any instruction which may from
time to time be, or purport to be, given by Authorised
Persons. For these purposes, an instruction includes
a payment instruction or an instruction relating to a
transaction for the purchase or sale and delivery of
currency. Currencycloud is entitled to treat any
instruction as fully authorised by, and binding upon,
you and is entitled (but not bound) to take any steps
in connection with, or in reliance upon, that
instruction which Currencycloud in its absolute
discretion may consider appropriate, and
notwithstanding any error or misunderstanding or
lack of clarity in the terms of that instruction. If
Currencycloud receives what it considers to be
conflicting or ambiguous instructions from any
Authorised Person, Currencycloud may, in its
absolute discretion and without any liability on its
part, decline to act whilst seeking clarification of that
instruction, as Currencycloud in its discretion deems
appropriate. For the avoidance of doubt, a payment
instruction shall be regarded as having been
authorised by you for the purposes of the Payment
Services Regulations 2017 if an Authorised Person
has given his/its consent.
8.2 Business Introducer. If you have been
introduced to us by a Business Introducer, then your
Business Introducer shall be an Authorised Person
and shall act as your agent for the purposes of your
using the Services unless you have informed us in
writing that you have agreed otherwise with the
Business Introducer. In the event that a Business
Introducer does not act as an Authorised Person or
ceases to act as an Authorised Person, you are
required to inform us of this immediately
9. LIABILITY
9.1 Your Liability for Losses. You shall be liable to
us, and on our demand you shall promptly pay us, for
all Losses (including losses and expenses from any
action we take to seek to cover or reduce our
exposure under any Contracts) arising from or in
connection with:
(a) our acting on your or your Authorized Persons’
instructions or apparent instructions and Orders
(including, where applicable and without limitation, by
e-mail, fax, telephone, or via the Payment Platform);
(b) anything relating to such instructions made by
or on behalf of you or an Authorised Person
6
(including where applicable and without limitation,
instructions in writing by e-mail, fax or via our
website) to us or concluding Orders with us (whether
orally or in writing); and
(c) our exercising our rights to Close Out all or
any part of any Contract;
except to the extent that, in each case, the Losses
arise due to our negligence, wilful default, or fraud.
9.2 Unauthorised or Incorrectly Executed
Payments. Under the Regulations you may be
entitled to redress for any unauthorised or incorrectly
executed payments. In the case of an executed
payment or withdrawal from your Global Account not
authorised by you or an Authorised Person, we will
refund the amount of the unauthorised payment to
you, and where applicable, restore the debited
payment account to the state it would have been in
had the unauthorised payment not taken place. If we
fail to execute, or incorrectly execute, a payment,
unless we can establish that the beneficiary’s
payment service provider received the amount of the
payment transaction, we will refund to you the
amount of the non-executed or defective payment
transaction promptly after becoming aware of the
error, and, where applicable, restore the debited
payment account to the state in which it would have
been had the defective payment transaction not
taken place. We will also refund to you any direct
charges for which you are responsible and any
interest which you must pay as a consequence of the
non-execution or defective execution of the payment
transaction. Beyond this, we have no further liability
to you for any unauthorised or incorrectly executed
payments.
9.3 Incorrect Information or Payee/Beneficiary
Bank Failure. We will not be liable to you for the nonexecution of a payment or for the defective execution
of a payment if the information you provide is
incorrect. We will not be liable for errors, mistakes,
or non-performance arising from the
payee/beneficiary bank if the payee/beneficiary bank
fails to process the payment correctly. In either case,
we will make reasonable efforts to recover the funds
involved in the payment. You, or your Business
Introducer if applicable, will be responsible for the
costs incurred by us for any such recovery.
9.4 Our Negligence. If a Loss is incurred due to our
negligence or breach of contract, we will promptly
attempt to correct the error. Subject to Section 9.6,
we will be liable for any direct losses such as bank
fees and interest incurred as a result of our
negligence or breach of contract. In no
circumstances will we be liable for any indirect,
unforeseeable or incidental losses incurred, such as
loss of opportunity.
9.5 Non-Exclusion. Nothing in these Terms of Use
excludes either party’s liability for any Loss to the
extent it is caused by fraud, dishonesty or deceit,
death or personal injury caused by a party’s
negligence or the negligence of its employees or
agents or any other liability that cannot be excluded
by law.
9.6 Aggregate Liability. Except for liabilities arising
in connection with: a breach of Section 3 (Data
Protection Legislation); a breach of Section 6
(Confidential Information); Section 9.1 (Your Liability
for Losses); Section 9.2 (Unauthorised or Incorrectly
Executed Payments) (but only up to the amount of
the refund due); Section 9.5 (Non-Exclusion);
Section 9.7 (Your Indemnities); and Section 9.8 (Our
Indemnities), each party’s aggregate liability to the
other party (either directly or as a third party
defendant in any action or proceeding) with respect
to these Terms of Use and all Commercial
Agreements shall not exceed the amount of fees paid
or payable by you to us under or in relation to these
Terms of Use within one year preceding the date that
the cause of action arises.
Notwithstanding the foregoing, but always subject to
Section 9.5 (Non-Exclusion), if the claim:
(a) relates to a specific Contract, our maximum
liability to you, whether arising in contract, tort or
otherwise, shall in no circumstances exceed an
amount equal to the currency sold by us under
the relevant Contract; or
(b) arises in relation to or in connection with a breach
of Section 3 (Data Protection Legislation), where
you are not a Consumer our liability to you and
your liability to us shall in no circumstances
exceed £1,000,000.
Subject to Section 9.5. (Non-Exclusion), in no event
shall either party be liable to the other for any loss of
data, loss of profits. or any special, incidental, indirect
or consequential Loss, howsoever arising.
9.7 Your Indemnities. You agree to fully defend us
on demand from and against any third-party claim (i)
alleging that your actions in connection with your use
of the Payment Platform or the Services violates any
third party’s rights of privacy or violates any privacy
laws; and (ii) arising from or relating to End Customer
data. You will, in either case, indemnify us (and our
directors, employees and agents) against all
damages awarded against us or agreed to in a written
settlement agreement signed by you arising out of
such claim. We shall: (a) promptly notify you in writing
of any such claim; (b) authorize you to control the
defence and all related settlement negotiations; (c)
provide you with the assistance and information
reasonably necessary to defend and/or settle the any
such claim; (d) in no event jeopardise, settle or admit
liability with respect to any such claim without your
7
prior written consent, and (e) use reasonable
endeavours to mitigate any such claim.
9.8 Our Indemnities. We agree to fully defend you
on demand against any third-party claim alleging that
the use of our Services in accordance with these
Terms of Use infringe the intellectual property rights
of a third party. We will indemnify you in full and on
demand against all damages awarded against you
or agreed to in a written settlement agreement
signed by us arising out of such claim. You shall (a)
promptly notify us in writing of any such claim; (b)
authorize us to control of the defence and all related
settlement negotiations; (c) provide us with the
assistance and information reasonably necessary to
defend and/or settle any such claim; (d) in no event
jeopardise, settle or admit liability with respect to any
such claim without our prior written consent, and (e)
use reasonable endeavours to mitigate any such
claim.
10. TERMINATION
10.1 Term. These Terms of Use shall remain in effect
so long as our Commercial Agreement with you, or
our Commercial Agreement with your Business
Introducer, if applicable, is in force, or for so long as
we are providing any Services to you.
10.2 Termination for Convenience. If you have
been introduced to us by a Business Introducer and
you are a Consumer, then you may terminate these
Terms of Use on providing one (1) month’s prior
written notice to us, and we may terminate these
Terms of Use by giving two (2) month’s prior written
notice to you.
10.3 Termination for Cause. Either of us may
terminate these Terms of Use if: (i) the other party
commits any material breach of these Terms of Use
and fails to cure such breach within thirty (30) days
after receipt of written notice of the same, (ii) the
other party becomes the subject of a voluntary or
involuntary petition in bankruptcy or any proceeding
relating to insolvency, receivership, liquidation, or
composition for the benefit of creditors, if such
petition or proceeding is not dismissed within sixty
(60) days of filing.
10.4 Additional Grounds for Termination. You or
we may suspend Services and/ or terminate these
Terms of Use at any time without prior notice if: (i) a
financial regulator, regulatory or government agency,
or law enforcement agency posts a warning with
regard to you or us: (ii) any governmental, regulatory,
or judicial authority directs or requests us or you to
suspend or terminate these Terms of Use or any
Commercial Agreement; or (iii) a banking partner of
ours or yours requests that we or you terminate these
Terms of Use or any Commercial Agreement. We
may suspend Services and/or terminate these Terms
of Use at any time without prior notice where we have
reason to believe that you or an End-Customer is
engaged in fraud, money laundering, or terrorist
financing or where we have reason to believe that
you or an End-Customer may cause us to breach our
internal risk policy.
10.5 Effect of Termination. Termination of these
Terms of Use shall automatically terminate the
Commercial Agreement and termination of the
Commercial Agreement shall automatically terminate
these Terms of Use. Upon the effective date of
termination: (i) you will immediately cease all use of
the Payment Platform and return any and all copies
of any documentation, notes and other materials
comprising or regarding the Payment Platform; (ii) all
of your payment obligations under these Terms of
Use, or under our Commercial Agreement with you,
or under our Commercial Agreement with your
Business Introducer, if applicable, will immediately
become due and payable; (iii) we will on request
return to you any funds of yours which we hold; and
(iv) within thirty (30) days of such termination of these
Terms of Use, each party will return all Confidential
Information of the other party in its possession and
will not make or retain any copies of such
Confidential Information except as required to
comply with any applicable legal or accounting record
keeping requirement. For the avoidance of doubt,
termination by either party shall not affect any
Contract previously entered into and shall not relieve
either party of any outstanding obligations arising out
of these Terms of Use, nor shall it relieve you of any
obligations arising out of any Contract entered into
prior to such termination.
10.6 Survival. The following provisions will survive
any expiration or termination of these Terms of Use
and the Commercial Agreement: sections 3, 6, 9, and
10, and any other provision that by their nature are
intended to survive termination of the Commercial
Agreement. Any sums owed by you to us under these
Terms of Use shall become immediately due and
payable on the expiration or termination of our
Commercial Agreement with you or of our
Commercial Agreement with your Business
Introducer, if applicable.
11. MISCELLANEOUS
11.1 Relationship between the Parties. Except as
specifically set forth in a Schedule to these Terms of
Use, no provision of these Terms of Use creates a
partnership or agency relationship between the
parties for any purpose. A party has no authority to
bind, to contract in the name of or to create a liability
for the other party in any way or for any purpose and
neither party shall hold itself out as having authority
to do the same.
8
11.2 Changes to the Payment Platform. We
reserve the right to modify and make changes to the
Payment Platform at any time as we deem necessary
to comply with applicable laws and regulations or
business needs, provided that such modification
shall not in our reasonable opinion degrade the
functionality of the Payment Platform. Where
possible, we shall notify you of such modification as
soon as is reasonably practicable following our
determining to make the modification.
11.3 Assignment. You consent to our assigning our
rights under these Terms of Use at any time to (i) any
one or more of our Group Companies and/or (ii) any
person pursuant to a merger, consolidation or sale of
any substantial portion of our business to which this
these Terms of Use relate. You may not assign your
rights or obligations under these Terms of Use
without our prior written consent, which consent shall
not be unreasonably withheld, conditioned or
delayed.
11.4 Governing Law and Forum. These Terms of
Use (and any non-contractual obligations arising out
of or in connection with the same) shall be governed
by and interpreted in accordance with the laws of
England and the courts of England shall have
exclusive jurisdiction to settle any dispute or claims
which may arise in connection with these Terms of
Use and/or the Services provided hereunder
(including in relation to any non-contractual
obligations). However, if you have been introduced
to us by a Business Introducer and are a Consumer,
then (a) if you live in Scotland you can bring legal
proceedings in respect of the Services in either the
Scottish or the English courts, and (b) if you live in
Northern Ireland you can bring legal proceedings in
respect of the Services in either the Northern Irish or
the English courts. In addition, please note that if you
are a Consumer, disputes may be submitted for
online resolution to the European Commission
Online Dispute Resolution platform at
https://ec.europa.eu/consumers/odr.
11.5 Advertising. We may include your name, logo
and contact information in directories of our service
subscribers and other general promotional materials
for the purpose of promoting the use of the Payment
Platform generally. However, we shall immediately
cease using your name, logo and contact information
if you request us to do so. Neither party shall issue a
press release relating to their business relationship
without the written consent of the other party. Except
as set forth herein, neither party may use the
trademark or trade name of the other party without
the written consent of such party.
11.6 Entire Agreement and Waiver. These Terms
of Use, together with each of the documents referred
to herein, constitute the entire agreement between
you and us with respect to the subject matter hereof.
All prior agreements, representations, and
statements with respect to such subject matter are
superseded. Any failure of either party to exercise or
enforce its rights under these Terms of Use shall not
act as a waiver of subsequent breaches.
11.7 Severability. The provisions of these Terms of
Use are severable and the invalidity or
unenforceability of any provision herein shall not
affect the validity or enforceability of any other part of
these Terms of Use.
11.8 Non-Solicitation. During the term of these
Terms of Use and the term of the Commercial
Agreement and for a period of six (6) months
thereafter, neither party shall solicit or hire the
services of any employee or contractor or
subcontractor of the other party who has performed
services in relation to these Terms of Use or a
Commercial Agreement, without the prior written
consent of the other party. Nothing herein shall
prevent a party from recruiting or engaging any
employee or subcontractor who has applied in an
unsolicited manner for a role which has been
advertised.
11.9 Amendments. We reserve the right to amend
these Terms of Use by giving you no less than two
(2) month’s prior written notice and sending you
revised terms and conditions by post or email or other
electronic means. Such amendments will become
effective on the date specified in the written notice,
and unless otherwise mutually agreed by us in
writing, an amendment will not affect any legal rights
or obligations which may have already arisen prior to
the date specified in the notice. Notwithstanding the
foregoing, any amendment to these Terms of Use
that materially and adversely impacts you must first be
agreed upon in writing signed by us and you, and in
the event that the parties are unable to reach
agreement and we in any event implement such
amendment to these Terms of Use, you shall have the
right in your sole discretion without any liability to
terminate these Terms of Use forthwith.
11.10 Force Majeure. In the event that either party
hereto shall be delayed or hindered or prevented
from the performance of any act required by reason
of strikes, lock-outs, labour troubles, failure of power,
riots, acts of terrorism, insurrection, war, mud-slide,
fire, earthquake, tsunami, pandemic, or where such
act or omission is due to our obligations under
provisions of European Union or national law, or
other similar reasons of a like nature not the fault of
the party delayed in performing work or doing acts
required under these Terms of Use, such party shall
as soon as reasonably practicable provide notice to
the other party of such delay, and performance of
such act shall excused for the period of the delay and
9
the period for the performance of any such act shall
be extended for a period equivalent to the period of
such delay. We will not have any liability to you where
we are unable to perform our obligations because of
factors beyond our control. If an event of force
majeure affecting a party continues for a period of
more than 30 days, the other party may terminate
these Terms of Use and all affected Commercial
Agreements.
11.11 Third Party Rights. Nothing in these Terms of
Use confers or is intended to confer a benefit
enforceable by a person who is not a party to it and
no term of this Agreement is enforceable under the
Contracts (Rights of Third Parties) Act 1999 by a
person who is not a party to these Terms of Use.
Without prejudice to the generality of the foregoing
you (and not any End Customer) will be the
counterparty to a Contract and the recipient of the
Services.
11.12 Notices and Communications. Any notice
required to be given under these Terms of Use shall
be treated as having been served on delivery if by
hand, 48 hours after posting (disregarding days
which are not Business Days) and on completion of
transmission if sent by or e mail or other electronic
means. All communications in relation to these
Terms of Use and the services contemplated
hereunder, whether verbally or in writing, must be in
the English language. All communications may be
made by any reasonable means, including but not
limited to, telephone, letter, electronic mail or other
electronic means. We reserve the right to request
that you confirm in writing any verbal
communications that you may give us.
11.13 Complaints. 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. We have internal procedures for handling
complaints fairly and promptly in accordance with the
FCA requirements. A copy of our complaints
procedure is available upon request and on the
Website. If you are not satisfied with the decision in
our final response, you may be able to refer your
complaint to the Financial Ombudsman Service
should you not be satisfied with our final response.
Eligibility criteria and the procedures involved, are
available from the Financial Ombudsman Service,
Exchange Tower London E14 9SR.
11.14 Information You may request, at any time
during our relationship, a copy of these Terms of Use
and of any of your signed Commercial Agreements
with us.
11.15 English Text Prevails. In the event these
Terms of Use are translated into a foreign language,
in case of any conflict or discrepancy between the
English language version and the foreign language
version, the English language version shall prevail.
10
1. Rights and obligation. These Terms of Use
set out important rights and obligations including our
liability to you under the Regulations when you open
a Global Account and ask us to provide Payment
Services – Global Account.
2. Scope of the Regulations. The Regulations
apply to all Payment Services – Global Account
including any balances held for you by
Currencycloud and all payments made on your or an
Authorised Persons’ instructions by Currencycloud.
3. Account Status. Your Global Account is an
electronic money account which enables you to send
and receive electronic payments. The electronic
money on your Global Account is issued in
accordance with the Regulations and other
applicable law. Where you close your Global Account
as described below the electronic money held on
your Global Account does not expire but it will not
earn any interest.
You can fund your Global Account and make
payments from your Global Account. For these
purposes, making payments from your Global
Account includes making payments to third party
beneficiaries or instructing funds in your Global
Account to be transferred to another account in your
name with a third party.
You acknowledge that electronic money accounts
are not bank accounts and accordingly the UK’s
Financial Services Compensation Scheme (FSCS)
does not apply to your Global Account. We strictly
adhere to the legal requirements under the
Regulations which are designed to ensure the safety
and liquidity of funds deposited in electronic money
accounts; however, in the unlikely event that we
become insolvent; you may lose the electronic
money held in your Global Account. For further
information on how we safeguard client funds, please
refer to section 11 of this Schedule or contact Client
Support.
We shall treat the electronic money on a Global
Account registered in your name as belonging to you
and no person other than the holder of the Global
Account has any rights in relation to the funds held in
a Global Account and you may not assign or transfer
your Global Account to a third party or otherwise
grant any third party a legal or equitable interest over
it unless a court or competent regulatory body
requires you to in which case we shall use all
commercially reasonable endeavours to assist you in
executing such assignment, transfer or grant.
Your Global Account may be subject to funding,
payment or conversion limits due to security and
legal requirements as determined by us from time to
time at our reasonable discretion. You may be asked
to answer security questions or to complete other
processes that we may reasonably require in relation
to any funding or payment transaction. If we are
lawfully able to, we shall notify you in writing as soon
as is reasonably practicable following any
determination that funding or payment limits are to be
imposed.
We reserve the right in our reasonable discretion to
carry out all and any necessary money laundering,
terrorism financing, fraud or other illegal activity
checks before processing any payment transaction.
Certain transactions may be subject to fees.
4. Opening an Account. In order to use our
Payment Services – Global Account, you must first
open a Global Account with us. By opening a Global
Account with us, you are also confirming that you (i)
have regular access to the internet and email and (ii)
are able to store information sent to you by email and
other electronic means including by Currencycloud
Direct in a Durable Medium by printing out or
otherwise retaining for future reference all electronic
communications sent and information made
available to you by us (via Currencycloud Direct or by
email or telephone). It is for you to ensure that your
contact details are up to date and that you are able
to access any such communications and information
at all times.
5. Joint Accounts If you open a joint account
with us, you confirm and agree that: (i) you are jointly
and severally liable for any funds owed to us, (ii) all
communications in relation to your joint account will
be sent to all account holders, (iii) any account holder
may give us instructions regarding your joint account,
(iv) we are not obliged to ask all account holders to
consent to instructions given by an account holder;
however, we may require all account holders to give
their consent to any instruction if we determine that
this is necessary, (v) closing your joint account
requires the consent of all account holders, (vi) you
will not use your joint account for business purposes,
(vii) in the event an account holder dies, the account
will not be considered part of the deceased account
holder’s estate, and the remaining account holder
may continue to operate the account. We reserve the
right to close a joint account in our sole discretion in
the event one of the account holders is removed from
or leaves the account for any reason.
SCHEDULE 1 – PAYMENT SERVICES – GLOBAL ACCOUNT
The following provisions will apply to Payment Services – Global Account
11
6. Maintaining an Account. You must ensure
that the information recorded on your Global Account
is always complete, accurate and up to date and we
shall not be liable for any loss arising out of your
failure to do so. We may ask you at any time to
confirm and/or provide documents or other evidence
as to the accuracy of this information.
We may contact you via Currencycloud Direct or by
email with information or notices regarding your
Global Account and Payment Services – Global
Account. It is your responsibility to regularly check
the proper functionality of your email account or other
methods of communication that you have registered
with your Global Account and to retrieve and read
messages relating to your Global Account and
Payment Services – Global Account promptly. We
shall not be liable for any loss arising out of your
failure to do so.
Funding, payments or conversions are displayed in
your Global Account and you should check your
Global Account balance and transaction history
regularly. You should report any irregularities or
clarify any questions you have as soon as possible
by contacting Client Support.
7. Closing an Account. You may close your
Global Account at any time by contacting Client
Support and withdrawing any surplus balance held at
that time.
8. Funding your Account & Receiving
Payment. Funds paid by you or a third party will be
credited to your Global Account on the Business Day
they are received. If we receive funds after 4.30pm
on a Business Day or on a day that is not a Business
Day, funds will be deemed to have been received on
the next Business Day. We shall not be responsible
for the funds until they are received by us.
In the event that the funds are subject to a reversal,
we will deduct such reversed transaction from the
balance of your Global Account. If your Global
Account balance is insufficient to cover the reversal,
we reserve the right to require repayment from you.
You should regularly reconcile incoming payments
with your own records. You should be aware that the
crediting of funds to your Global Account does not
mean that these transactions cannot be reversed.
We reserve the right to reverse a payment where the
payer or the payer’s bank or payment service
provider has reversed (or is reasonably likely to
reverse) a payment to your Global Account.
All payments to us must be ascribed to a clear and
complete reference so that we may credit the funds
into your Global Account. Further details as to what
references must be used are set out in the Client
Help Centre.
It is your responsibility to ensure that accurate,
complete and correct references are ascribed for
each incoming payment so that we may credit the
funds into your Global Account. If no reference or an
incorrect reference is provided, then we will not be
able to credit your Global Account. In such cases, we
will not be liable for any loss you incur, although we
will use reasonable efforts to investigate and credit or
return incorrect and inaccurately referenced
payments into or from your Global Account.
9. Sending Payment. We will send payments
in accordance with your or your Authorised Persons’
instructions to third party beneficiaries or another
account held in your name that you specify to us in
accordance with your instructions. When making
payments to yourself and not to a third-party
beneficiary, we will only make a payment to a bank
account where you are the named holder of such
bank account.
All payment instructions must be made through the
Payment Platform.
It is your responsibility to ensure that accurate,
complete and correct payment instructions for the
beneficiary of a payment (including payments to
yourself) are provided to us through the Payment
Platform. This includes but is not limited to providing
us with correct details for the beneficiary to which you
would like the payment sent. If you provide incorrect
beneficiary details we will not be liable for any loss
you incur, although we will use reasonable efforts to
assist you in the recovery of your payment. We
reserve the right to charge you a fee to cover our
reasonable costs for doing this.
You are required to provide us with any additional
information that we request with regard to a payment
within two (2) Business Days of our request.
You consent to us including your full name, address
and account number (and any other details as are
required to enable us to comply with our anti money
laundering procedures) on the payment details to be
sent to the beneficiary’s bank or payment service
provider to comply with anti-money laundering
regulations If you instruct us to make payment to a
new or an existing beneficiary, and your beneficiary
account details are provided via an oral Instruction
(such as by telephone, video conferencing or other
similar means) or otherwise by a communication that
is not in writing then we will send you an email
containing the beneficiary account details you have
provided.
12
You or an Authorised Person may revoke or cancel a
payment instruction for a future outgoing payment
transaction at any time prior to payment execution
through the Payment Platform.
You or an Authorised Person are responsible for
confirming via the Payment Platform that a payment
instruction has been received and processed by us.
We are not liable for any loss in circumstances where
erroneous duplicate payment instructions are sent to
us by you or and Authorised Person.
If we receive a payment instruction (through the
Payment Platform) by 4.30pm on a Business Day,
your payment instruction will be deemed to have
been received by us on that Business Day. If your
payment instruction is received after 4.30pm or on a
day that is not a Business Day, your payment
instruction will be deemed to have been received on
the next Business Day. Your payment instruction will
be acted on the earliest possible payment date
unless you have requested a specific future date. The
payment cycles are shown here:
https://help.currencycloud.com/world/paymentschedules/
You must notify us by telephone or in writing as soon
as is reasonably practicable after you become aware
of any unauthorised or incorrectly executed
payments, otherwise we may not be liable to you and
in order to claim a refund for an unauthorised or
incorrectly executed payment transaction on your
Global Account you must notify us without undue
delay after becoming aware of the unauthorised or
incorrect transaction and in any event no later than
thirteen (13) months after the debit date of the
transaction.
International money transfers often require funds to
be transmitted between multiple intermediaries
beyond our own direct payment service providers.
These intermediaries or the beneficiary bank may
deduct a charge. You acknowledge that these
charges cannot always be calculated in advance and
that you agree to be responsible for such charges.
We will not be liable for losses that result from such
charges being applied to your payment.
Subject to the Regulations we may refuse your
payment Instruction because for example you are in
material breach of these Terms of Use or we
reasonably believe the payment to be unlawful. In
these circumstances, we shall promptly notify you
using your supplied contact details, stating wherever
possible the reasons for our refusal, and the
procedure for rectifying any payment detail errors
that led to the refusal but we reserve the right to
charge you a fee to cover our reasonable costs for
doing this. We are not obliged to notify you of our
refusal to execute the proposed transaction where
we reasonably believe that such a notification would
be unlawful.
10. Prohibited Payments. We reserve the right,
in our reasonable discretion to impose ‘acceptable
use’ terms in relation to the operation of your Global
Account and the provision of any payment service
including the prohibition of certain categories of
payment transactions for example payments in
relation to the gaming, bitcoins and virtual currencies
sectors by specifying these on the Website.
You must not use your Global Account for any illegal
purposes including without limitation fraud and
money laundering. We will report any suspicious
activity to the relevant law enforcement agency.
If you conduct or attempt to conduct any transaction
in violation of the prohibitions contained in this
section we reserve the right to reverse the
transaction, and/or close or suspend your Global
Account and/or report the transaction to the relevant
law enforcement agency and/or claim damages from
you.
11. Safeguarding. Funds received in exchange
for electronic money that has been issued will be
subject to the safeguarding requirements as set out
in the Regulations and are referred to as “Relevant
Funds”.
For the purposes of this section, “Relevant Funds”
means any sums received from you or for your
benefit and electronic money issued in exchange for
these funds. Relevant Funds are held in segregated
bank accounts which are independent of our
business bank accounts. Relevant Funds may also
be covered by an insurance policy with an authorised
insurer. The purpose for so holding and/or insuring
funds is to ensure that in the event of our insolvency,
or if a financial claim is made against us, no creditor
or claimant should be able to claim funds held in
these accounts or covered by this insurance policy.
This is because no other person or institution may
have any rights or interest over the funds held in
these accounts or covered by this insurance policy
such as a lien over funds in these accounts. Relevant
Funds are not covered under the Financial Services
Compensation Scheme.
When you transfer funds to us to pay a deposit in
respect of a Forward Contract, full ownership and title
to these funds transfer to us, and such funds are
considered our funds, subject to these funds being
applied against your payment obligations upon the
settlement or closing out of the Forward Contract(s).
They will not be Relevant Funds and so they will be
placed into our business bank account and will not be
afforded protection under the segregation rules of the
Regulations.
13
When you transfer funds to us to pay Margin or
Margin call(s) full ownership and title to these funds
transfer to us absolutely and such funds are
considered as our funds. They will not be Relevant
Funds and so they will be placed into our business
bank account and will not be afforded protection
under the segregation rules of the Regulations.
Pursuant to the Regulations, we will not pay interest
on funds paid to us including balances held in
segregated or client bank accounts and we may
retain, for our own benefit, any interest which accrues
from funds held in any accounts
14
SCHEDULE 2 – FOREIGN EXCHANGE SERVICE
The following provisions will apply to the Foreign Exchange Service
1. Individual Contracts. Each Contract shall
be an individual contract and we may at any time and
at our sole discretion refuse to offer terms for any
Contract.
2. Execution Only. We shall not provide you
with any advice in connection with the Services (such
as, whether to proceed or not to proceed with a
Contract and in respect of timing). We may provide
market information but this shall not constitute
investment advice. We cannot accept responsibly for
your decision to enter into a Contract. Any decision
to transact is your decision and we will not be liable
for any loss or opportunity loss if exchange rates
move before or after you transact.
You agree that you will use Contracts in connection
with your lawful future payment needs and not for any
speculative or investment purpose. We may decline
to deal with you if we have reason to believe that you
are using any Contract or the Services for investment
or speculative purposes and we may Close Out a
Contract in accordance with section 7 of this
Schedule.
3. Forward Contracts. You hereby agree to
enter into Forward Contracts only for the purpose of
facilitating payment for identifiable goods, services or
direct investment. You agree that we reserve the
right to decline to accept an instruction in respect of
a Forward Contract if we reasonably believe that you
intend to enter into the Forward Contract for
purposes other than those listed above.
4. Instructions and Orders. Upon request, we
may provide you or an Authorised Person with an
exchange rate quote. This quote is given on an
indicative basis only and we are not legally bound to
perform a proposed Contract in accordance with this
quote.
You or and Authorised Person can give us electronic
or verbal instructions relating to a transaction for the
purchase or sale and delivery of currency. We will at
our sole discretion offer the commercial terms of a
proposed Contract. These terms will include
amongst other things the exchange rate we are
offering which may be different from a quote you
have previously been given by us.
Once you or and Authorised Person accepts the
commercial terms of the Contract (by electronic or
verbal or by any other means), you will become
legally bound to perform the Contract in accordance
with the terms of the Order. Following receipt of an
Order, we shall subsequently transmit electronically
to you a trade confirmation, which will confirm the
details of the Order.
Once we have agreed an Order, you or an
Authorised Person may not amend or cancel the
Contract unless we expressly agree (and any such
amendment or cancellation shall be on the conditions
specified by us). If you or an Authorised Person
elects to cancel or amend a Contract, you, or your
Business Introducer if applicable, must pay a fee
which will be set out in our Commercial Agreement
with you or in our Commercial Agreement with your
Business Introducer, if applicable. We may require
further confirmation or information from you or an
Authorised Person of any Order.
5. Settling Contract. You must pay all funds
specified by us in connection with a Contract
(including any applicable transfer charges by
electronic transmission) in full and in cleared funds
into a client account specified by us. Payment must
be received by us on or before the Settlement Date
and Time or such earlier date as we may specify and
for the full value of the currency to be sold by you
under the Contract. Please see the daily cut-off times
available at http://help.currencycloud.com for
settlement times.
If funds do not arrive on or before the Settlement
Date and Time, we may at our sole discretion roll the
trade to the next settlement day and apply a charge
in accordance with the provisions of our Commercial
Agreement with you, or of our Commercial
Agreement with your Business Introducer, if
applicable, or Close Out the Contract. Where
practicable, we will give notice to you before rolling
the trade to the next settlement day. We will deliver
bought currency funds into your Global Account on a
specified Contract Delivery Date.
6. Disputes. If a dispute arises between you
and us relating to the existence or terms of any
Contract (a “Disputed Contract”), we may at our
sole discretion Close Out the Disputed Contract
pending settlement of the dispute. We will notify you
(orally or in writing) of such action as soon as
practical but if we do not the validity of any action by
us shall not be affected.
7. Default & Refusal to Perform.
Notwithstanding Sections 2, 5 and 6, we may at our
sole discretion refuse to perform or Close Out a
Contract, including but not limited to upon or at any
time after any of the following events:
(a) you fail to settle a Contract by the agreed
Settlement Date and Time;
15
(b) if we have reason to believe that you are using
any Contract or the Services for investment or
speculative purpose;
(c) either you or we cancel a Contract;
(d) you fail to pay Margin or additional Margin by
the due date as requested by us;
(e) you fail to pay the deposit or additional deposit
by the due date requested by us;
(f) An Insolvency Event occurs or you take steps
to or suspend payment of your debts;
(g) you fail in any respect to fully and promptly
comply with any obligations owed to us, or if any
information supplied by you or any representations
made by you are or become materially inaccurate;
(h) it becomes or may become unlawful for us to
maintain or to provide any of the Services or if you or
we are requested not to perform or to close out a
Contract (or any part thereof) by the FCA and any
governmental or regulatory authority whether or not
that request is legally binding; or
(i) we consider it necessary to do so for our own
protection including (without limitation) in the
following circumstances: (i) protection from fraud; (ii)
protection from your default; and (iii) protection from
broad-based market failure.
Where practicable, we will provide you with notice
prior to making the decision to refuse to perform or
Close Out a Contract, save in the circumstances
described in clauses (h) or (i) above where it may not
be possible for us to give prior notice.
If you become aware of the occurrence of any such
event or any circumstances that mean that any such
event is likely to occur, you must notify us
immediately.
If any event referred to above takes place, we shall,
at our discretion, be entitled to cancel any
outstanding Contracts and charge you all of the
costs, expenses and losses that we may incur
(including any action we may take to cover or reduce
our exposure). Any Margin held by us in respect of
Contracts shall be returned to you after deducting all
other sums due to us (including any fees or losses
resulting from closing out the Contract). We shall not
be responsible in any way for any delay in payment
by us under this Schedule 2 caused by you or any
other third party.
8. Close Out. We reserve the right in our sole
discretion to Close Out a Contract at any time
including without limitation where you decide to
cancel a Contract and in the circumstances
described in Section 7 of this Schedule.
You will be liable on demand for all costs, expenses
and losses that we may incur as a result of any Close
Out of a Contract pursuant to these Terms of Use
and we will have no liability for any losses that may
be sustained by you as a result of a Close Out nor
shall we be liable to account to you any gains.
We reserve the right to select which Contracts are
subject to Close Out irrespective of any End
Customer including without limitation in
circumstances where an End Customer has made a
payment of Margin direct to us. However, we will
make reasonable efforts to contact you before Close
Out of any Contract.
9. Margin. We shall require Margin on demand
as collateral to protect Currencycloud from financial
losses which it may incur as a result of Contracts
being Closed Out (either on your request or at our
discretion). Margin may be paid to us via your
Business Introducer if applicable.
We reserve the right to increase the Margin required
at any stage up to the Settlement Date and Time to
allow for changes in the foreign exchange rate or
volatility which we believe may increase our risk
under the contract. We may make a Margin call to
increase Margin held at any point. The Margin call
will be for such sum as we consider necessary.
Full ownership and title to all funds sent to us as
Margin shall transfer to us absolutely and you, or any
party acting on your behalf, shall have no interest in
such funds which we will be entitled to deal with in
our own right. For the avoidance of doubt, this means
that we have the right to pledge or grant a security
interest over it, or transfer or deposit it to or with an
exchange or clearing house, a broker, a bank or any
other financial institution or payment service
provider.
All and any part of Margin may be applied across all
and any Contracts.
You, or any party acting on your behalf, shall not be
entitled at any time to the return of any Margin
without our prior written consent.
Our Margin Policy is available on request.
10. Payment of Margin. Margin must be paid to
us in cleared funds whether from funds available in
your Global Account or otherwise funded by you or
by your Business Introducer if applicable. In all
cases, Margin or additional Margin must be paid into
an account specified by us to you in an amount
specified by us.
All requests for Margin or additional Margin must be
paid to us within one Business Day of our request.
If our Margin requirements have not been met in full,
Services cannot commence or continue, and the
trade will not be executed. We reserve the right to
16
Close Out any Contract if any payment of Margin or
Margin call is not made by the due date.
11. Deposit. In our sole discretion, we will
require you to pay us an initial deposit in respect of a
Forward Contract. As agreed between you and your
Business Introducer if applicable, the deposit may be
paid to us via your Business Introducer. We reserve
the right to increase the deposit required at any stage
up to the Settlement Date and Time. This may be
required to allow for changes in the foreign exchange
rate. The deposit or additional deposit required will
be for such sum as we consider necessary. Full
ownership and title to all funds sent to us as deposits
shall transfer to us, subject to these funds being
applied against your payment obligations upon the
settlement or closing out of the Forward Contract(s).
For the avoidance of doubt, this means that we have
the right to pledge or grant a security interest over a
deposit or transfer a deposit to an exchange or
clearing house, a broker, a bank or any other
financial institution or payment service provider.
12. Date change. In our sole discretion, you
may alter the Settlement Date and Delivery Date of a
contract. This will incur a fee as set out in our
Commercial Agreement with you, or in our
Commercial Agreement with your Business
Introducer, if applicable.
13. End Customers. We deal with you as
Principal only and assume no obligations to End
Customers.
17
SCHEDULE 3 – EUR COLLECTION SERVICE
The following provisions will apply to the EUR Collection Service
1. Description of Service. The EUR Collection
Service enables users to fund their Global Accounts
by receiving EUR. This funds transfer service
enables a user to receive payments in the EEA in
EUR. Currencycloud will issue to a user Virtual
IBANs solely for the purpose of the collection of EUR.
The user may then provide instructions to its Payers
to use the Payers’ own banks or similar financial
institutions to send funds to Currencycloud on the
user’s behalf. Upon receipt of these funds, the funds
will be settled to the user’s Global Account.
2. Payers.
2.1 In the event that Currencycloud accepts
payments on your behalf, you agree and understand
that you must provide express instructions to your
Payers to use their own bank or similar financial
institution to send funds to Currencycloud. You shall
provide Payers with information sufficient for them to
understand that their payments are being processed
by Currencycloud on your behalf, and you shall
provide Payers with a receipt confirming receipt of
payment when such payment is received by
Currencycloud. Accordingly, in connection with such
transactions, you authorise us to act as your agent
for the limited purposes of receiving, holding and
disbursing to your Global Account such funds
received from Payers on your behalf. You agree and
understand that the receipt of funds by us from a
Payer, pursuant to instructions you have provided
the Payer, satisfies the Payer’s obligation to you.
3. Funding.
3.1 For transactions where we are acting as your
limited payments agent to receive funds on your
behalf from a Payer, you will need to provide
instructions to each Payer on how to transmit his or
her funds to us. Information regarding such
instructions will be provided to you in connection with
onboarding for the EUR Collection Service, as
applicable, and such instructions may be updated by
us from time to time. The Payer will need to fund the
payment by transferring funds from his or her bank
account, using an SEPA Credit Transfer (a SEPA
Credit Transfer the Payer initiates), or by any other
method we specify. You are responsible for
providing instructions to the Payer so that Payer
funds will be received by us. You are solely
responsible for any errors or omissions with
such instructions. You agree and understand that
you will include with such instructions to each Payer
an explanation that Payer’s funds owed to you are
being received by Currencycloud on your behalf, and
that the receipt of the funds by Currencycloud shall
be deemed the receipt of funds by you.
3.2 We reserve the right in our sole discretion to
refuse the funding of any transaction. We may return
the funds to the Payer’s bank account. The funding
of a transaction may be delayed, cancelled, or
otherwise modified in accordance with our
obligations to prevent this Service from being used
for fraud, money laundering, and the financing of
terrorism. We, or the Business Introducer if
applicable, will attempt to notify you of any such
delay or cancellation using the contact information
provided by you to us as part of your registration,
stating (where possible) the reasons for the refusal
and whether the problem can be corrected. You are
solely responsible for communicating with the
Payer, as appropriate, in the event of any such
issue. We will not notify you if to do so would be in
violation of applicable law.
18
SCHEDULE 4 – GBP COLLECTION SERVICE
The following provisions will apply to the GBP Collection Service
1. Description of Service. The GBP Collection
Service enables users to fund their Global Accounts
by receiving GBP. This funds transfer service
enables a user to receive payments in the UK in
GBP. Currencycloud will issue to a user a virtual
account number and sort code solely for the purpose
of the collection of GBP. The user may then provide
instructions to its Payers to use the Payers’ own
banks or similar financial institutions to send funds to
Currencycloud on the user’s behalf. Upon receipt of
these funds, the funds will be settled to the user’s
Global Account.
2. Payers.
2.1 In the event that Currencycloud accepts
payments on your behalf, you agree and understand
that you must provide express instructions to your
Payers to use their own bank or similar financial
institution to send funds to Currencycloud. You shall
provide Payers with information sufficient for them to
understand that their payments are being processed
by Currencycloud on your behalf, and you shall
provide Payers with a receipt confirming receipt of
payment when such payment is received by
Currencycloud. Accordingly, in connection with such
transactions, you authorise us to act as your agent
for the limited purposes of receiving, holding and
disbursing to your Global Account such funds
received from Payers on your behalf. You agree and
understand that the receipt of funds by us from a
Payer, pursuant to instructions you have provided
the Payer, satisfies the Payer’s obligation to you.
3. Funding.
3.1 For transactions where we are acting as your
limited payments agent to receive funds on your
behalf from a Payer, you will need to provide
instructions to each Payer on how to transmit his or
her funds to us. Information regarding such
instructions will be provided to you in connection with
onboarding for the GBP Collection Service, as
applicable, and such instructions may be updated by
us from time to time. The Payer will need to fund the
payment by transferring funds from his or her bank
account, using a Faster Payments transfer (a Faster
Payments transfer the Payer initiates), or by any
other method we specify. You are responsible for
providing instructions to the Payer so that Payer
funds will be received by us. You are solely
responsible for any errors or omissions with
such instructions. You agree and understand that
you will include with such instructions to each Payer
an explanation that Payer’s funds owed to you are
being received by Currencycloud on your behalf, and
that the receipt of the funds by Currencycloud shall
be deemed the receipt of funds by you.
3.2 We reserve the right in our sole discretion to
refuse the funding of any transaction. We may return
the funds to the Payer’s bank account. The funding
of a transaction may be delayed, cancelled, or
otherwise modified in accordance with our
obligations to prevent this Service from being used
for fraud, money laundering, and the financing of
terrorism. We, or the Business Introducer if
applicable, will attempt to notify you of any such
delay or cancellation using the contact information
provided by you to us as part of your registration,
stating (where possible) the reasons for the refusal
and whether the problem can be corrected. You are
solely responsible for communicating with the
Payer, as appropriate, in the event of any such
issue. We will not notify you if to do so would be in
violation of applicable law.
19
SCHEDULE 5 – CAD COLLECTION SERVICE
The following provisions will apply to the CAD Collection Service
1. Description of Service. The CAD Collection
Service enables users to fund their Global Accounts
by receiving CAD. This funds transfer service
enables a user to receive payments in Canada in
CAD. Currencycloud will issue to a user a virtual
account number and routing number solely for the
purpose of the collection of CAD. The user may then
provide instructions to its Payers to use the Payers’
own banks or similar financial institutions to send
funds to Currencycloud on the user’s behalf. Upon
receipt of these funds, the funds will be settled to the
user’s Global Account.
2. Payers.
2.1 In the event that Currencycloud accepts
payments on your behalf, you agree and understand
that you must provide express instructions to your
Payers to use their own bank or similar financial
institution to send funds to Currencycloud. You shall
provide Payers with information sufficient for them to
understand that their payments are being processed
by Currencycloud on your behalf, and you shall
provide Payers with a receipt confirming receipt of
payment when such payment is received by
Currencycloud. Accordingly, in connection with such
transactions, you authorise us to act as your agent
for the limited purposes of receiving, holding and
disbursing to your Global Account such funds
received from Payers on your behalf. You agree and
understand that the receipt of funds by us from a
Payer, pursuant to instructions you have provided
the Payer, satisfies the Payer’s obligation to you.
3. Funding.
3.1 For transactions where we are acting as your
limited payments agent to receive funds on your
behalf from a Payer, you will need to provide
instructions to each Payer on how to transmit his or
her funds to us. Information regarding such
instructions will be provided to you in connection with
onboarding for the CAD Collection Service, as
applicable, and such instructions may be updated by
us from time to time. The Payer will need to fund the
payment by transferring funds from his or her bank
account, using an Electronic Funds Transfer, or by
any other method we specify. You are responsible
for providing instructions to the Payer so that
Payer funds will be received by us. You are
solely responsible for any errors or omissions
with such instructions. You agree and understand
that you will include with such instructions to each
Payer an explanation that Payer’s funds owed to you
are being received by Currencycloud on your behalf,
and that the receipt of the funds by Currencycloud
shall be deemed the receipt of funds by you.
3.2 We reserve the right in our sole discretion to
refuse the funding of any transaction. We may return
the funds to the Payer’s bank account. The funding
of a transaction may be delayed, cancelled, or
otherwise modified in accordance with our
obligations to prevent this Service from being used
for fraud, money laundering, and the financing of
terrorism. We, or the Business Introducer if
applicable, will attempt to notify you of any such
delay or cancellation using the contact information
provided by you to us as part of your registration,
stating (where possible) the reasons for the refusal
and whether the problem can be corrected. You are
solely responsible for communicating with the
Payer, as appropriate, in the event of any such
issue. We will not notify you if to do so would be in
violation of applicable law.
20
SCHEDULE 6 – SWIFT COLLECTION SERVICE
The following provisions will apply to the SWIFT Collection Service
1. Description of Service. The SWIFT
Collection Service enables users to fund their Global
Accounts by receiving currency. This funds transfer
service enables a user to receive payments in the UK
in any available currency. Currencycloud will issue
to a user a SWIFT BIC code solely for the purpose of
the collection of currency. The user may then
provide instructions to its Payers to use the Payers’
own banks or similar financial institutions to send
funds to Currencycloud on the user’s behalf. Upon
receipt of these funds, the funds will be settled to the
user’s Global Account.
2. Payers.
2.1 In the event that Currencycloud accepts
payments on your behalf, you agree and understand
that you must provide express instructions to your
Payers to use their own bank or similar financial
institution to send funds to Currencycloud. You shall
provide Payers with information sufficient for them to
understand that their payments are being processed
by Currencycloud on your behalf, and you shall
provide Payers with a receipt confirming receipt of
payment when such payment is received by
Currencycloud. Accordingly, in connection with such
transactions, you authorise us to act as your agent
for the limited purposes of receiving, holding and
disbursing to your Global Account such funds
received from Payers on your behalf. You agree and
understand that the receipt of funds by us from a
Payer, pursuant to instructions you have provided
the Payer, satisfies the Payer’s obligation to you.
3. Funding.
3.1 For transactions where we are acting as your
limited payments agent to receive funds on your
behalf from a Payer, you will need to provide
instructions to each Payer on how to transmit his or
her funds to us. Information regarding such
instructions will be provided to you in connection with
onboarding for the SWIFT Collection Service, as
applicable, and such instructions may be updated by
us from time to time. The Payer will need to fund the
payment by transferring funds from his or her bank
account, using a SWIFT payment (a SWIFT payment
the Payer initiates), or by any other method we
specify. You are responsible for providing
instructions to the Payer so that Payer funds will
be received by us. You are solely responsible for
any errors or omissions with such instructions.
You agree and understand that you will include with
such instructions to each Payer an explanation that
Payer’s funds owed to you are being received by
Currencycloud on your behalf, and that the receipt of
the funds by Currencycloud shall be deemed the
receipt of funds by you.
3.2 We reserve the right in our sole discretion to
refuse the funding of any transaction. We may return
the funds to the Payer’s bank account. The funding
of a transaction may be delayed, cancelled, or
otherwise modified in accordance with our
obligations to prevent this Service from being used
for fraud, money laundering, and the financing of
terrorism. We, or the Business Introducer if
applicable, will attempt to notify you of any such
delay or cancellation using the contact information
provided by you to us as part of your registration,
stating (where possible) the reasons for the refusal
and whether the problem can be corrected. You are
solely responsible for communicating with the
Payer, as appropriate, in the event of any such
issue. We will not notify you if to do so would be in
violation of applicable law.
21
SCHEDULE 7 – SPARK SERVICE
The following provisions will apply to the Spark Service
1. Description of Service. The Spark Service
enables users and/or their End Customers to receive
EUR, GBP and CAD locally and to receive funds via
SWIFT or any other method that we may specify, and
have these funds transferred into the user’s Global
Account. This funds transfer service enables a user
and/or an End Customer to receive payments in the
EEA in EUR, in the UK in GBP, in Canada in CAD,
and via SWIFT in multiple currencies. Currencycloud
will issue to a user and/or End Customer Virtual
IBANs and/or virtual sort codes and Account
Numbers solely for the purpose of the collection of
funds. The user may then provide instructions to its
Payers and/or End Customers who in turn may
provide these instructions to their Payers to use the
Payers’ own banks or similar financial institutions to
send funds to Currencycloud on the user’s and/or
End Customer’s behalf. Upon receipt of these funds,
the funds will be settled to the user’s Global Account.
2. Eligible End Customers. You are not
allowed to instruct us to issue a Virtual IBAN or
Virtual Sort Code and Account Number for the benefit
of an End Customer who is a bank or any other
financial institution. We reserve the right, in our
reasonable discretion to impose ‘acceptable use’
terms in relation to the eligibility of End Customers
for the Spark Service by specifying these on the
Website.
3. Payers.
3.1 In the event that Currencycloud accepts
payments on your behalf, you agree and understand
that you must provide express instructions to your
Payers to use the Payers’ own bank or similar
financial institution to send funds to Currencycloud.
You shall provide your Payers with information
sufficient for them to understand that their payments
are being processed by Currencycloud on your
behalf, and you shall provide your Payers with a
receipt confirming receipt of payment when such
payment is received by Currencycloud. Accordingly,
in connection with such transactions, you authorise
us to act as your agent for the limited purposes of
receiving, holding and disbursing to your Global
Account such funds received from Payers on your
behalf. You agree and understand that the receipt of
funds by us from a Payer, pursuant to instructions
you have provided the Payer, satisfies the Payer’s
obligation to you.
3.2 In the event that Currencycloud accepts
payments on your End Customer’s behalf, you agree
and understand that you must provide express
instructions to your End Customers who in turn must
provide these instructions to their Payers to use the
Payers’ own bank or similar financial institution to
send funds to Currencycloud. You shall provide your
End Customers with information sufficient for them to
understand that their payments are being processed
by Currencycloud on their behalf, and you shall
require your End Customers to provide Payers with a
receipt confirming receipt of payment when such
payment is received by Currencycloud. Accordingly,
in connection with such transactions, you authorise
us to act as your End Customer’s agent for the limited
purposes of receiving, holding and disbursing to your
Global Account such funds received from Payers on
your End Customer’s behalf. You agree and
understand that the receipt of funds by us from a
Payer, pursuant to instructions you have provided the
End Customer, satisfies the Payer’s obligation to
your End Customer.
4. Funding.
4.1 For transactions where we are acting as your
limited payments agent to receive funds on your
behalf from a Payer, you will need to provide
instructions to each Payer on how to transmit his or
her funds to us. Information regarding such
instructions will be provided to you in connection with
onboarding for the Spark Service, as applicable, and
such instructions may be updated by us from time to
time. The Payer will need to fund the payment by
transferring funds from his or her bank account by
any method we specify. You are responsible for
providing instructions to the Payer so that Payer
funds will be received by us. You are solely
responsible for any errors or omissions with
such instructions. You agree and understand that
you will include with such instructions to each Payer
an explanation that Payer’s funds owed to you are
being received by Currencycloud on your behalf, and
that the receipt of the funds by Currencycloud shall
be deemed the receipt of funds by you.
4.2 For transactions where we are acting as your
End Customers limited payments agent to receive
funds on your End Customers behalf from a Payer,
you will need to provide instructions to each End
Customer and Payer on how to transmit his or her
funds to us. Information regarding such instructions
will be provided to you in connection with onboarding
for the Spark Service, as applicable, and such
instructions may be updated by us from time to time.
The Payer will need to fund the payment by
transferring funds from his or her bank account by
any method we specify. You are responsible for
providing instructions to your End Customer and
the Payer so that Payer funds will be received by
22
us. You are solely responsible for any errors or
omissions with such instructions. You agree and
understand that you will include with such
instructions to each Payer an explanation that
Payer’s funds owed to your End Customer are being
received by Currencycloud on your End Customers
behalf, and that the receipt of the funds by
Currencycloud shall be deemed the receipt of funds
by your End Customer.
4.3 We reserve the right in our sole discretion to
refuse the funding of any transaction. We may return
the funds to the Payer’s bank account. The funding
of a transaction may be delayed, cancelled, or
otherwise modified in accordance with our
obligations to prevent this Service from being used
for fraud, money laundering, and the financing of
terrorism. We will attempt to notify you of any such
delay or cancellation using the contact information
provided by you to us as part of your registration,
stating (where possible) the reasons for the refusal
and whether the problem can be corrected. You are
solely responsible for communicating with your
End Customer and the Payer, as appropriate, in
the event of any such issue. We will not notify you
if to do so would be in violation of applicable law.
23
Schedule: Definitions – Terms of Use
“Affiliates” means, in relation to an entity, any person
or entity Controlling, Controlled by or under common
Control with such entity. An entity is deemed
included within the meaning of “Affiliate” even if it
qualifies as such after these Terms have been
agreed to by a Client;
“Authorised Person” means any person authorised
by you to give us instructions in relation to the Global
Account and/or Payment Services – Global Account
and/or to conclude Orders on your behalf. A
Business Introducer shall be an Authorised Person
unless you have agreed otherwise;
“Business Day” means any day other than a Saturday
or a Sunday or a public or bank holiday in England;
“Business Introducer” means the person with which
we have entered into a Business Introducer
Agreement. This person markets and promotes the
Services, and unless you have agreed otherwise will
act as an Authorised Person;
“Client” means the person who is contracting with us
for the provision of the Services;
“Client Help Centre” means the information which is
available online at http://help.currencycloud.com. If
applicable, the Client Help Centre may be available
to you online through a website provided by your
Business Introducer.
“Client Support” means our client support service
which is available by calling our help desk at +44 20
3597 4800 during UK office hours to speak with a
support representative or by sending an email
to support@currencycloud.com;
“Close Out” means any action we may take to close
out, cover or reduce our exposure in relation to the
relevant Contract including any action we reasonably
consider appropriate in the circumstances;
“Commercial Agreement” means the agreement
between you (or your Business Introducer, if
applicable) and us setting out the commercial terms
for the provision of one or more of the Services. In
the event that you have been introduced to us by a
Business Introducer, then the Commercial
Agreement shall be the commercial agreement
between us and the Business Introducer;
“Confidential Information” means confidential
information of the other party concerning the other
party’s business, plans, customers, clients,
technology, services and products and other
information held in confidence by the other party
including all information in tangible or intangible form
that is marked or designated as confidential or that,
under the circumstances of its disclosure, should be
considered confidential. Our Confidential
Information will include, but not be limited to, the
Currencycloud Technology, and your Confidential
Information will include, but not be limited to End
Customer data and Personal Data. Information will
not be deemed Confidential Information if such
information: (i) is known to the receiving party prior to
receipt from the disclosing party directly or indirectly
from a source other than one having an obligation of
confidentiality to the disclosing party; (ii) becomes
known (independently of disclosure by the disclosing
party) to the receiving party directly or indirectly from
a source other than one having an obligation of
confidentiality to the disclosing party; (iii) becomes
publicly known or otherwise ceases to be secret or
confidential, except through a breach of these Terms
of Use by the receiving party; or (iv) is independently
developed by the receiving party. The receiving party
may disclose Confidential Information pursuant to the
requirements of a governmental agency or by
operation of law, provided that it gives the disclosing
party reasonable prior written notice sufficient to
permit the disclosing party to contest such disclosure
and it is not itself unlawful to give such notice;
“Consumer” means (a) an individual who, in contracts
for payment services to which the PSRs 2017 apply,
is acting for purposes other than a trade, business or
profession; (b) an enterprise which, at the time at
which the contract for payment services is entered
into, is an enterprise as defined in Article 1 and Article
2(1) and (3) of the Annex to Recommendation
2003/361/EC of 6th May 2003 concerning the
definition of micro, small and medium-sized
enterprise; and (c) a body whose annual income is
less than £1 million and is (i) in England and Wales,
a charity as defined by section 1(1) of the Charities
Act 2011; (ii) in Scotland, a charity as defined by
section 106 of the Charities and Trustee Investment
(Scotland) Act 2005; or (iii) in Northern Ireland, a
charity as defined by section 1(1) of the Charities Act
(Northern Ireland) 2008;
“Contracts” means any one or more of the
agreements between you and us for the sale,
purchase, and delivery of currency;
“Control” of an entity means the power, direct or
indirect, to direct or cause the direction of the
management and policies of such entity, whether by
contract or otherwise, and in any event and without
limitation of the foregoing, any entity owning more
than 20% of the voting securities of a second entity
shall be deemed to control that second entity.
Derivative forms of the term “Control” (e.g.
Controlling and Controlled by) have corresponding
meanings;
24
“Currency Cloud Group” means The Currency Cloud
Group Limited and its Affiliates from time to time.
“Currencycloud” means The Currency Cloud Limited,
a company incorporated under the laws of England
and Wales with a registered office at 12 Steward St,
London E1 6FQ with registration number 06323311
and authorised and regulated by the Financial
Conduct Authority (FRN: 900199);
“Currencycloud Direct” means the user interface on
the Website where you can access our Services;
“Data Controller” has the meaning set out in the Data
Protection Legislation (or, in respect of the GDPR,
means the same as “controller” in Article 4 of GDPR).
“Data Processor” has the meaning set out in the Data
Protection Legislation (or, in respect of the GDPR,
means the same as “processor” in Article 4 of
GDPR);
“Data Protection Legislation” means (in each case as
such are updated, amended or replaced from time to
time): (a) the UK Data Protection Act 1998 (as
amended or replaced from time to time), (b) from its
effective date (25 May 2018), the Regulation (EU)
2016/679 of the European Parliament and of the
Council of 27 April 2016 (General Data Protection
Regulation) (the “GDPR”), and any laws or
regulations ratifying, implementing, adopting,
supplementing or replacing GDPR (including the UK
Data Protection Act 2018), in each case, to the extent
in force; and (c) any other relevant data protection
legislation in any jurisdiction which is applicable to
the Services, including but not limited to the Privacy
and Electronic Communications (EC Directive)
Regulations 2003.
“Data Subject” means an individual who is the subject
of Personal Data;
“Delivery Date” means the date on which we will
deliver currency that has been purchased by you,
provided you have fully paid for the purchased funds
and complied with these Terms of Use. The Delivery
Date must be a Business Day;
“DP Regulator” means any governmental or
regulatory body or authority with responsibility for
monitoring or enforcing compliance with the Data
Protection Legislation;
“Durable Medium” means a medium which allows
you to store information in a way accessible for future
reference for a period of time adequate for the
purposes of the information and which allows the
unchanged reproduction of the information
stored;
“End Customer” means any person other than us
who contracts with you, including without limitation
any client you engage in connection with the Platform
Services;
“Fees” shall mean the charges payable by you to us
for the Services as set out in these Terms of Use and
our Commercial Agreement with you, or payable by
the Business Introducer to us pursuant to our
Commercial Agreement with the Business
Introducer, if applicable;
“FCA” means the Financial Conduct Authority of the
United Kingdom whose address is 25 The North
Colonnade, Canary Wharf, London E14 5HS, United
Kingdom; further information on the FCA can be
obtained on the FCA’s website at www.fca.org.uk;
“Foreign Exchange Services” means the foreign
exchange services provided by Currencycloud
including quoting and execution of foreign exchange
contracts to sell and buy currency for any date up to
12 months;
“Forward Contract” means any one or more
Contracts under which currency is bought and sold
for delivery at a fixed future time which is at least 7
days (or longer) after the contract is entered into;
“Global Account” means the electronic money
account you open and maintain with Currencycloud,
also referred to from time to time as Primary Account
and/or Named Account;
“Group Companies” means in relation to a company
those companies which are subsidiaries, holding
companies or subsidiaries of any holding company of
such company, where the terms “subsidiary” and
“holding company” bear the meaning given to them
in section 1159 of the Companies Act 2006;
“Insolvency Event” means in relation to either party:
If such party becomes insolvent or a bankruptcy
petition is presented against any such person or any
steps are taken to appoint an administrator, judicial
factor or similar officer to any such party or to
commence the winding up or dissolution of any such
party or to otherwise apply to the court for a
moratorium or make a proposal to creditors for a
voluntary arrangement or any such party grants a
trust deed for creditors or takes any action with a view
to the readjustment, rescheduling forgiveness or
deferral of any part of any such party’s indebtedness
or any such person enters into any arrangement,
compromise or composition with or assignment for
the benefit of its creditors or any class of them
(except for the purposes of a solvent reconstruction
or amalgamation), or a receiver, receiver and
manager, or other controller, administrator or similar
officer to be appointed with respect to, or takes
25
control of, the assets or undertakings of any such
party;
“Losses” means all losses, liabilities, fines, charges,
damages, actions, costs and expenses, professional
fees (including legal fees actually incurred) and
disbursements and costs of investigation, litigation,
settlement, judgment, interest and penalties;
“Margin” means collateral paid by you to us, including
additional margin and increased margin;
“Order” means the accepted commercial terms of a
Contract (which will incorporate these Terms of Use);
“Payer” means a third party that sends funds to us on
your and/or your End Customer’s behalf.
“Payment Platform” means the Currencycloud online
Payment Platform that provides the functionality and
connectivity via the API or Currencycloud Direct;
“Payment Services – Global Account” means the emoney and payment services provided by
Currencycloud to you including the receipt and
holding of funds in the Global Account and execution
of payment services or transactions on your behalf;
“Personal Data” has the meaning given to it by the
Data Protection Legislation;
“Platform Services” means the access to information
and market data via the Payment Platform provided
by us to amongst other things, facilitate the booking
and management of payments, track trades and
report on balances and transactions on your Global
Account;
“Regulations” means the Electronic Money
Regulations 2011 and the Payment Services
Regulations 2017 as (as amended and replaced from
time to time);
“Services” means the Payment Services – Global
Account, Foreign Exchange Service, EUR Collection
Service, GBP Collection Service, CAD Collection
Service, SWIFT Collection Service, Spark Service
and Platform Services provided by Currencycloud to
you as described in these Terms of Use and on the
Client Help Centre;
“Settlement Date and Time” means the date and time
specified within the Contract, by which funds must be
received by or available to Currencycloud;
“UK Business Hours” means Monday through Friday
9:00 am to 5:00 pm;
“Website” means the website available at
www.currencycloud.com;