| PRIVATE
CLIENT AGREEMENT
Terms and Conditions
The parties to this agreement are: Smart Currency Exchange
Limited (hereinafter referred to as “SCEL”) and
whose company number is 5282305 and the client(s) who has
either completed the registration form or agreed to these
terms and conditions electronically (hereinafter referred
to as the “Client”)
1. Service
1.1 SCEL buy and sell currency for commercial purposes. It
cannot trade with the Client if the Client is seeking to profit
by pure speculation on currency movements without having a
genuine reason for wanting to exchange currency In addition,
the Client warrants that you have full capacity and that you
are acting as principal only and not as an agent for any third
party whose identity has not been disclosed to SCEL at the
time of submitting your instructions to SCEL.
1.2 Whilst SCEL may provide information about currency markets
and related matters, it does not and will not provide advice.
Any decision made to buy/sell currency is made wholly independently
of SCEL.
1.3 All currency trades that SCEL transacts will only be on
the basis of these Terms and Conditions and the other documentation
referred to in them.
1.4 If SCEL reasonably believe that instructions are from
the Client, the Client agrees that SCEL may accept the instructions
as being genuine whether or not they are actually from the
Client and the Client authorises SCEL to act on those instructions.
If there is more than one individual who can issue instructions
on behalf of the Client, the Client agrees that SCEL may accept
instructions from such individual as sufficient authority
to bind the Client to any set of instructions given under
these Terms and Conditions.
1.5 The Client may give SCEL written or oral instructions
and this is done entirely at the Client’s own risk and
it will indemnify SCEL and keep it fully indemnified against
any losses that SCEL may incur as a result of accepting instructions
from the Client or purporting to be from the Client and which
are honestly believed by SCEL to come from the Client. Further
SCEL is under no duty to challenge or make any enquiries concerning
any instructions that SCEL believes in good faith to be genuinely
from the Client.
2. Converting currency
2.1 The Client may make a contract to trade currency once
SCEL has confirmed that the Client’s account is open
and SCEL is satisfied as to the legitimacy of the Clients
purpose for requiring the currency. The Client may give SCEL
instructions to trade in writing by post or by fax, verbally
or electronically including by e-mail.
2.2 Once an exchange rate has been quoted by SCEL that is
acceptable to the Client and the Client has confirmed to SCEL
that the Client wishes to enter into a contract at that rate,
then provided SCEL’s dealer accepts the order and SCEL
notifies the same to the Client, a legal and binding contract
will exist between the Client and SCEL to trade the relevant
currencies at the quoted exchange rate on and subject to these
Terms and Conditions. SCEL reserves the right not to accept
any order, without incurring any liability to the Client.
Once a contract has been made it cannot be withdrawn, rescinded
or amended without SCEL’s express consent and at its
absolute discretion.
2.3 If SCEL is asked by the Client to attempt to obtain a
better rate of exchange than that which is immediately available
in the market, SCEL will endeavour to do so but does not guarantee
that it will be able to achieve that rate (this is known as
‘working an order’ or a ‘limit order’).
2.4 SCEL will endeavour (but does not promise) to confirm
any contract in writing by sending a Contract Note, usually
by email, within 12 hours of the contract being made. The
Contract Note will contain a section requesting details of
where the currency purchased should be sent. These details
must be supplied by the Client to SCEL as soon as possible
and in any event before the value date of the contract i.e.
the date upon which the contract matures and the currency
is ready for delivery. Please note that, whether the Contract
Note is received by the Client or not, the Client is still
bound by the contract and SCEL must be contacted to notify
payment details if the Contract Note has not been received
within 48 hours of making the Contract.
3. Payment
3.1 All currency purchased will be sent by electronic transfer
to the destination specified by the Client, provided always
that
(a) cleared funds have been received by SCEL at least one
full working day before the value date; and
(b) the details of where the currency is to be sent have been
returned as set out in paragraph 2.4 above
3.2 SCEL will only accept payment from the Client’s
bank account and will not accept payments from third parties
unless prior arrangements have been made, for example, where
payment is to be made from the Clients’s solicitor’s
account.
3.3 The Client must make all payments in full without any
deduction, set-off, counterclaim or withholding of any kind.
All transfers by the Client to SCEL should include the Clients
account number and contract number as reference as this minimises
possible delays in allocating the funds received correctly.
4. Forward payment for forward contracts
4.1 For forward contracts SCEL will require a forward payment
deposit (a ‘margin’) to be provided within two
working days of the Contract being made. This margin will
be of such a percentage of the value of the Client’s
contract(s) as SCEL may specify. The remaining percentage
must be paid at least one full working day before the value
date.
4.2 The margin will be held by SCEL in a designated account
belonging to SCEL, until such time as SCEL incurs any costs,
losses or liabilities in connection with or arising out of
the Client’s contract(s) (including, without limit,
liabilities incurred with third party currency dealers, exchanges,
brokers, banks or similar entities or any clearing house or
regulatory body), at which point, SCEL will apply such proportion
of the margin as is equal to its costs, losses, or liabilities,
without the need for any notice or demand. SCEL may also,
at its absolute discretion, offset any margins or other monies
held by SCEL in respect of any one of the Client’s contracts,
against any costs, losses or liabilities that SCEL incurs
in connection with or arising out of any other contract the
Client may have with it, but the Client may not insist or
require that SCEL does so offset any such margins or other
monies held by SCEL in respect of any of the Clients contracts.
4.3 If SCEL does incur a cost, loss or liability, on any of
the Client’s contracts, the Client must pay to SCEL
within 24 hours of a demand that it do so an additional sum
sufficient to restore the margin to the percentage of the
value of its contract(s) previously specified by SCEL (known
as a ‘margin call’).
4.4 The Client will not be entitled to any interest on the
margin or any other monies held on its behalf on any contract.
Furthermore, at no time will the Client grant or attempt to
grant any charge or other incumbrance over any margin or other
monies held by SCEL on its behalf on any contract.
5. Costs
While SCEL does not charge commission SCEL may, at SCEL’s
sole discretion, charge the Client for any transfer fees or
other reasonable costs incurred by SCEL. The Client may also
occasionally be subject to other charges, for example from
banks receiving its payment. SCEL has no control over these
charges and accepts no liability for them.
6. Information about the Client
6.1 SCEL is, by law, required to know certain information
about its clients and be confident that you are exchanging
currency for a legitimate and non-speculative purpose and
it is hereby agreed that the Client will provide SCEL with
such documentation as SCEL may from time to time request.
6.2 Furthermore, it is warranted by the Client that is acting
on its own behalf, for a genuine reason, that the currency
that the Client wishes to trade belongs to the Client both
legally and beneficially, has not been obtained by illegal
means nor in any way contrary to the rights of the legal owner
and is in no way tainted by criminal activity. The Client
also warrants that the information that is provided to SCEL
is accurate, that no material information will be withheld
from SCEL, that SCEL will be provided with any information
that SCEL may reasonably require from the Client and that
SCEL will be notified immediately if any of the information
that it has been given changes.
7. Recording telephone conversations
Telephone conversations may be recorded with or without advance
notice or warning being given and such recordings or transcripts
thereof may be used as evidence of contracts entered into,
in relation to disputes and for ongoing quality control programmes.
If SCEL makes any recordings or transcripts SCEL may also
destroy them as SCEL considers appropriate.
8. Termination of Contracts
8.1 SCEL maintains the right to terminate any contract if:
(a) any breach of the Terms and Conditions or any other contract
between SCEL and the Client occurs; or
(b) SCEL reasonably believes that the Client will be unable
to fulfil its obligations under any Contract; or
(c) if the Client becomes unable to pay their debts as they
fall due or the Client has a bankruptcy petition presented
against them or the Client has proposed a form of composition
or arrangement to the Clients creditors or the Client ceases
to carry on all or a part of your business; or
(d) if for SCEL to continue with any Contract would expose
SCEL to any liability for which SCEL is not protected.
8.2 Further, if:
(a) the Client is in breach of any of these terms and conditions
or of any other contract: and
(b) that breach is capable of being rectified; and
(c) SCEL has given notice to rectify the breach, allowing
a reasonable time for so doing; and
(d) that notice has not been complied with SCEL may terminate
any Contract forthwith and the Client will be liable for any
losses that it incurs.
8.3 Yet further, SCEL may terminate any Contract if it is
required to do so on the instruction of any law enforcement
agency or regulatory body. In such a case SCEL may retain
all or any of the Client’s money if SCEL is required
to do so by law and then deal with the Client’s money
as ordered by a Court or other body of competent jurisdiction.
9. SCEL’s liability to the Client
9.1 If SCEL is in breach of its obligations under these Terms
and Conditions it will be liable for only the Direct Loss
that the Client may incur. Direct loss is defined as the value
of the currency SCEL is asked to transfer by the Client, in
accordance with Clause 3.1, where it does not reach the destination
the Client has specified as a result of SCEL’s gross
negligence. SCEL will not be liable in contract, tort (including
negligence) or for breach of statutory duty or in any other
way in connection with these Terms and Conditions or any contract
for any indirect or consequential losses or special damages
or for loss of profit, contract, business, goodwill or anticipated
savings or any other additional costs that may be incurred
whether or not such costs, losses or damages were in the contemplation
of the parties at the date of these Terms and Conditions (except
for death or personal injury for which SCEL’s liability
shall remain unlimited).
9.2 Other than aforesaid, SCEL will not be liable to the Client
and in no circumstances shall it be liable for an act or omission
of any third party involved in the payment process or otherwise.
9.3 Insofar as and to the extent that the same is permitted
by law, all implied terms are excluded from these Terms and
Conditions and any contract.
10. The Client’s Liability to SCEL
The Client will indemnify SCEL against all liabilities that
it may incur as a result of accepting the Clients order(s)
to trade currency and/or following its instructions or instructions
that purport to be from it, whether sent/given by telephone,
fax, post, e-mail or otherwise. Furthermore, and without limiting
the general scope of this indemnity, if any payments are made
late by the Client or the Client is otherwise in breach of
these Terms and Conditions or any Contract, the Client will
be liable for and will immediately indemnify SCEL against
any costs, losses or liabilities that it may incur in connection
with or arising out of its contract(s) including (again without
limit) costs, losses or liabilities incurred with third party
currency dealers, exchanges, brokers, banks or similar entitles
or any clearing house or regulatory body. SCEL may also charge
interest on any amount(s) owing to it at the rate of 4 per
cent per annum above the Bank of England base rate from time
to time in force, compounded daily from the due date until
payment. Further, if the Client has any liability to SCEL
under these Terms and Conditions or any contract, SCEL may
retain any money that it is holding for the Client, on whichever
contract, to offset against its costs, losses or liabilities.
The Client hereby agrees (without prejudice to their other
obligations in these Terms and Conditions or any contract)
to notify SCEL immediately if the Client becomes aware of
any event referred to in clause 8 herein
11. Other legal notices
11.1 Should any contract made under these Terms and Conditions
be terminated in accordance with Clause 8 herein, the Client’s
liability to indemnify SCEL pursuant to clause 10 shall not
terminate.
11.2 Any person who is not a party to these Terms and Conditions
has no rights under the Contracts (Rights of Third Parties)
Act 1999 to enforce any term of these Terms and Conditions
but this does not affect any right or remedy of a third party
which exists or is available apart from that Act.
11.3 SCEL may at any time amend these Terms and Conditions
but it shall notify the Client should it do so. Any amendments
that are so made shall apply from the date upon which notification
of the amendment is sent to any contracts made with SCEL from
that date.
11.4 Should any of the Terms and Conditions be deemed to be
unenforceable or illegal, the remainder of the Terms and Conditions
shall remain in full force and effect as if the unenforceable
or illegal part had been removed.
11.5 These Terms and Conditions may not be transferred or
assigned.
11.6 Should SCEL decide to waive or delay enforcement of any
right that it may have under these Terms and Conditions, this
shall not prohibit it from enforcing that or any other right
subsequently.
11.7 Should any of these Terms and Conditions be in conflict
with any other documentation or information that has been
provided in connection with any particular contract, then
these Terms and Conditions shall have priority unless specifically
agreed by SCEL in writing that such other documentation and
information shall have priority in whole or in part.
11.8 These Terms and Conditions and the documents referred
to in it supersede all prior agreements, oral or written,
between the parties and no reliance may be placed on any oral
or written representations made in respect of the subject
matter of these Terms and Conditions other than fraudulent
misrepresentations. Furthermore, these Terms and Conditions
and the documents referred to in it constitute the entire
agreement between the Client and SCEL
11.9 The Client acknowledges and agrees that SCEL is permitted
to carry out electronic database searches and search credit
reference agencies and similar in order to verify the identity
and credit rating of the Client including all individuals.
If such searches are carried out, SCEL may keep records of
the contents and results of such searches in accordance with
all current and applicable laws.
12. Data Protection
12.1 The Client authorises SCEL to collect, use, store or
otherwise process any personal information (“Personal
Information”) to enable SCEL and/or members of its group
and/or the organisation which introduced or referred the Client
to SCEL to provide and/or improve its services. This may mean
passing Personal Information to individuals or organisations
which may be located in countries outside the European Economic
Area (“EEA”) that do not have laws to protect
the Client’s Information.
12.2 SCEL may also use the Personal Information to provide
the Client with news and other information on services and
activities from SCEL or members of its group which may be
useful to the Client. If the Client would prefer its Personal
Information not to be used for such purposes, the Client should
contact SCEL.
12.3 SCEL may pass on Personal Information to any organisations
which SCEL considers may be of assistance to the Client (which
may be located outside the EEA) so that they may contact the
Client with details of products and services which may interest
the Client, subject to the Client’s consent.
13. Applicable Law
These Terms and Conditions and the documents referred to in
it are governed by and are to be interpreted in accordance
with English law and any dispute regarding these Terms and
Conditions or the documents referred to in it is to be determined
by the exclusive jurisdiction of the English Courts.
© 2005-2007 Copyright Smart Currency
Exchange Ltd
|
