1.1 ForeignExchange.com is a trading name of GAIN Capital Payments Ltd, whose registered office is Park House, 16 Finsbury Circus, London, United Kingdom, EC2M 7EB (Company Number: 09688167). GAIN Capital Payments Ltd is authorised by the Financial Conduct Authority as a payment institution for the provision of certain payment services (FRN: 720701).
1.2 Our main business is providing the Facilities which allow you to buy and sell foreign currency and make payments of purchased currency to your or a third party beneficiary’s accounts. We aim to provide you with the highest quality of service. If you ever have any complaints or disputes about any Transaction, Service or the Facilities, we will handle it in accordance with our complaints handling procedure.
1.4 Security of the Facilities is important. You will be given a unique client number to access the Facilities. Instructions for Transactions and/or Services cannot be submitted without this information. You may also be required to provide us with your unique client number when contacting us.
1.5 You must take all reasonable steps to keep safe all security information used to access the Facilities. You must use reasonable endeavours to prevent any unauthorised access to, or use of, the Facilities and shall notify us, as soon as possible, of any such unauthorised access or use. If you become suspicious or aware of a loss, theft, misappropriation or unauthorised use of any security information you must notify us without undue delay.
1.6 Both you and we shall use reasonable endeavours to ensure that we do not access, store, distribute or transmit any virus, or any material that is: unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; facilitates illegal activity; depicts sexually explicit images; or promotes unlawful violence, discrimination based on race, gender, colour, religious belief, sexual orientation, disability, or any other illegal activities, via the Facilities or in any communications between you and us.
2.1 To use our Facilities you must:
2.1.1 be at least 18 years old;
2.1.2 be a UK resident;
2.1.3 enter into Transactions on your own behalf (unless we confirm in writing otherwise);
2.1.4 own all of the money you exchange/transfer as part of a Transaction and/or Service; and
2.1.5 satisfactorily complete any customer verification process we reasonably require.
2.2 By using the Facilities, you agree that you represent to us that you meet the above requirements.
2.3 If we are aware, or reasonably suspect, you do not meet all of the above criteria, we may:
2.3.1 refuse to let you access the Facilities;
2.3.2 refuse to perform any Transaction or Service; and
2.3.3 cancel any current Orders or Transactions in accordance with clause 9.2.
3. MAKING A FOREIGN EXCHANGE TRANSACTION
3.1 You can submit a Transaction request (an “Order”) using the Facilities. We will only enter into a Transaction with you when we have received and verified satisfactory identification and anti-money laundering documents and confirmed we have accepted your Order.
3.2 Unless clause 3.3 applies, the Order is deemed to have been received immediately once it has been placed.
3.3 We are only able to process Orders received prior to the specified cut-off times as published on our website. If we receive your Order on or after the specified cut-off times, your Order will be deemed to be received on the next applicable Business Day.
3.4 After you place an Order, and we have accepted it, we will send you electronic confirmation of the Order. This shall be evidence of the Terms agreed between you and us. You are responsible for checking the accuracy of each confirmation and you must notify us of any errors promptly, and in any event prior to the settlement of the Transaction. Unless we receive notice from you prior to the settlement of the Transaction, the Terms will be deemed to be correct in all respects.
3.5 We may rely on, and treat as genuine, any Order which we reasonably believe you have placed. You agree that we are not under any duty to make enquiries about any Order or other instructions which we reasonably believe are your instructions.
3.6 Once we have accepted your Order you cannot withdraw it and the Transaction cannot be cancelled unless clause 9.2 applies. Orders, once accepted, may not be amended or altered without our written consent, which may be refused in our absolute discretion (except where there is a material error or omission identified with the Order which is not your fault). We may charge a fee for any amendment or alterations requested by you where we are not at fault.
3.7 All Transactions will be made using an agreed exchange rate as provided to you at the point of placing your Order and such rate shall be applied to your Order once we accept your Order. We shall apply the rate that is applicable at the point we accept your Order. Even though an exchange rate is agreed at the time we accept your Order we cannot guarantee the same rate of exchange will apply to any other Transaction. If we quote an exchange rate that is clearly a mistake on our part (for any reason), it is not binding on us. You must notify us as soon as the mistake comes to your attention and we will requote the correct exchange rate as soon as possible.
3.7.1 The exchange rate you receive includes a spread. Spread is the difference between the wholesale exchange rate (the rate at which we buy foreign exchange) and the exchange rate that you receive (the rate at which we sell foreign exchange). The spread we charge varies by several potential factors including the selected currency pair, the amount being transferred and the time of day.
3.7.2 All per-transaction charges in connection with priority Orders are clearly shown on the interface on our website. Charges for priority Orders are available on our website and are determined based on the selected base currency.
3.8 You acknowledge that exchange rates can fluctuate rapidly and that the exchange rate provided to you as part of an Order is dependent on you promptly doing all things necessary for the execution and settlement of that Transaction. Should you fail to perform all necessary actions, we may, in our absolute discretion, requote the applicable exchange rate, even if it is to your detriment.
3.9 You are able to submit Orders for Spot Transactions by using the Facilities:
3.10 A spot transaction is a Transaction under which you and we agree to exchange money at an agreed rate on a specified date after an Order is placed.
3.11 You may submit an Order for a spot transaction by booking a transfer using the interface. Once you have successfully booked a transfer you will be deemed to have consented to and submitted your Order.
3.12 You must pay us the amount of currency being exchanged plus any charges into our nominated account promptly and in full by the stipulated settlement date and time as stated on our website.
4. SETTLEMENT OF TRANSACTIONS
4.1 If you are a Business, you agree that regulations 40 to 46 (Framework Contracts) of the PSRs shall not apply with the effect that we are not obliged by legislation to provide you with certain information prior to and following the execution of Transactions and we do not have to comply with the PSR requirements relating to the provision of general contract information and information on changes to the contract.
4.2 A ‘Business’ is any party that is not a ‘consumer’, a ‘micro-enterprise’ or a ‘charity’, each being defined in accordance with the PSRs.
4.3 By making payment to us to settle a Transaction you agree and acknowledge that we have correctly understood your Order as detailed in the confirmation.
4.4 You are required to make an electronic payment of the full amount required to settle a Transaction into our nominated account in cleared funds in accordance with clause 3.12. We will notify you of our nominated account as part of the confirmation of your Order.
4.5 Upon settlement any amount of currency which is to be electronically delivered to you or to a third party beneficiary following the settlement of a Transaction will only be delivered to the account nominated by you as notified to us from time to time.
4.6 You are responsible for the accuracy and completeness of the information you provide to us as part of a request for any Service involving electronic transfers.
4.7 We will initiate the electronic transfer of any currency due following a settlement. We will impose charges for an electronic transfer, and you will also be liable for any charges imposed by the entity where your nominated account is held including but not limited to correspondence/intermediary bank charges and any beneficiary’s bank charges for receiving an international payment which can be applied to you under applicable law.
4.8 Following settlement of a Transaction we will send you a confirmation detailing the specifics of the Transaction and any delivery details. This confirmation will confirm the exchange rate applied to your Transaction, the execution times and any charges.
4.9 When we receive the monies from you as detailed in clause 4.4, we will transfer the funds to a third party as part of executing the exchange of currency and settling your Transaction. Where that third party continues to hold the funds at the end of the business day following the day on which they were received by it and has yet to execute the exchange of currency, we will ensure sufficient funds are held in our nominated account to compensate you for the full value of the monies you provided under clause 4.4 if the third party becomes insolvent prior to the settlement of the Transaction.
4.10 Following the settlement of the Transaction but prior to the completion of a Service, when the amount of currency is returned to us from the third party it shall be subject to the safeguarding requirements set out in the PSRs. We shall hold such funds in a nominated safeguarding client account in accordance with those requirements until the transfer of the funds to you or to a nominated third party beneficiary.
4.11 You acknowledge that we are under no obligation to pay interest on any funds held on your behalf in any account.
5.1 It is your responsibility to determine what, if any, taxes apply to the payments you receive in connection with the Facilities, Transactions and/or Services (“Taxes”). It is solely your responsibility to assess, collect, report, or remit the correct Taxes to the proper tax authority. We are not under any obligation to determine whether Taxes apply, or calculate, collect, report, or remit any Taxes to any tax authority arising from any transaction. You acknowledge that we may make certain reports to tax authorities in the United Kingdom and overseas regarding Orders and Transactions that we process.
6. EVENTS OUTSIDE OUR CONTROL
6.1 We will do all we reasonably can to provide the Facilities and carry out any Transaction or Service. However, we will not be liable or responsible for failing to perform, or a delay in performance of, any of our obligations in relation to any Transaction and/or Service or any loss suffered by you where that is caused by an Event Outside Our Control.
6.2 An “Event Outside Our Control” means any act or event beyond our reasonable control. This includes, but is not limited to any acts or restraints of governments or public authorities; strikes or other industrial action; terrorism or threat of terrorist attack; war (whether declared or not) or threat of war, revolution, riot or civil commotion; natural disaster; failure or loss of public or private telecommunications, networks or other systems/services our Facilities rely on; or a third party system/service which we rely on is provided/operated for the provision of the Facilities and/or the carrying out of any Transaction or Service becomes unavailable and/or inaccessible (including in the event of a third party system/service provider becoming insolvent).
6.3 If an Event Outside Our Control takes place that affects the performance of our obligations, we will promptly notify you, and our obligations under to any Transaction and/or Service will be suspended and the time for performance of our obligations will be extended for the duration of the Event Outside Our Control. You may cancel any Transaction and/or Service affected by an Event Outside Our Control, which has continued for more than 30 calendar days. You may do this by contacting us at the address supplied above, or via email: email@example.com .
7. CUSTOMER ACKNOWLEDGEMENTS
7.1 You acknowledge and agree that we are not a deposit taking institution and do not hold client funds on trust.
7.2 You acknowledge and agree that we will not take into account your specific financial circumstances or needs when we enter into a Transaction with you and will not provide you with advice as to the suitability or appropriateness of entering into any specific Transaction, or selecting any specific details of a Transaction.
8.1 If you are a Business, you agree that Regulations 60, 62(1) and 75 to 77 of the PSRs shall not apply with the effect that we are not liable under statute for any non-execution or defective execution of payment transactions and your liability for losses incurred in respect of unauthorised payment transactions is not limited by the statutory amount. The clauses in this section 8 incorporating those rights shall not apply.
8.2 For non-business customers, we are liable to you for the correct transmission of any payments to your nominated account and for certain unauthorised transactions in accordance with the limits set out in the PSRs.
8.3 We shall incur no liability if any laws prevent us from processing, settling, or transferring any payments.
8.4 All payments due from you under the Terms shall be made in full without any set off, counter-claim, deductions or withholding.
8.5 We will not make any payment to you or a third party beneficiary until we have received your payment of the full amount required to settle the Transaction.
8.6 If your currency is sent to the wrong account as the result of an error or omission by you, and we have acted in accordance with your instructions, we will be under no obligation either to recover the funds or to resend the funds. We may undertake reasonable efforts to assist in the recovery of the funds involved to the extent they are swift payments but may impose a charge for our efforts. Due to local banking restrictions, we are not able to assist in the recovery of the funds for local payments.
8.7 If your currency is sent to the wrong account as the result of an error or omission by us, we will take urgent action at our own expense to recover those funds, provided that you take immediate action to assist us to recover any such funds. We will ensure that you receive the applicable currency and are put in the position you would have been has the transfer been executed correctly.
8.8 We shall not be liable to you for any delay, failure or error in providing a Service in accordance with your instructions, where such delay, failure or error is caused by:
8.8.1 failure or error of any machine, data processing system or transmission link (whether or not under our control); or
8.8.2 any period of essential maintenance, critical change, repairs, alteration to or failure of computer systems (whether or not under our control); or
8.8.3 the acts or omissions of any third party.
8.9 Where the error, failure or delay in sending any currency to you or a third party beneficiary under a Transaction is caused by our breach of contract or negligence, we will be responsible for any direct losses that arise as a result. This may (but will not necessarily) include bank charges, loss of interest or a detrimental fluctuation in the value of the currency. However we will have no liability for, nor be required to compensate you against, any loss of profit or other consequential or indirect, special or economic loss or a loss of bargain howsoever arising including because you have been unable to enter into or to perform a contract with a third party, even if such losses were known to us or were reasonably foreseeable by us.
8.10 If you become aware of an unauthorised or incorrectly executed Transaction or Service you must notify us immediately and no later than 13 months after the date of the relevant Transaction or Service.
8.11 If you have acted fraudulently, with intent or with gross negligence failed to keep your personal security details safe, you shall be liable for all losses incurred in respect of an unauthorised Transaction or payment. Provided you have not acted fraudulently or intentionally or in a grossly negligent manner failed to keep your personal security details safe, your maximum liability for each instance of the loss, theft or misappropriation of your personal security details is up to a maximum of £50.
8.12 Subject to any applicable law, we shall not be liable for the loss and/or misuse of funds held by a third party under clause 4.9 unless we have acted fraudulently or with gross negligence in placing those funds with the third party.
8.13 Notwithstanding any other provision of these Terms, where we have any liability to you in respect of any Service (whether under statute, or in negligence or other tort, contract or otherwise), subject to applicable laws, our liability shall be limited to the amount paid by you under the relevant Service.
8.14 We shall have the right to deduct from any amount to be paid to you, such sums as we may be required to deduct by law together with any other sums that you may owe to us in connection with any Transaction and/or Service or otherwise.
8.15 Nothing in these Terms excludes or limits our liability for anything that cannot be excluded by applicable laws.
9. REFUSAL, CANCELLATION AND DEFAULT
9.1 We may refuse to accept any order for any reason we see fit. where we refuse an order we will notify you of our refusal at the earliest opportunity and we will try to notify you by the end of the business day following receipt of the order where we refuse an order we may do so without giving you any reasons and without incurring any liability to you for any resulting loss or damages incurred by you or any other party.
9.2.1 we know, or we reasonably suspect, that you do not meet any of our eligibility criteria,
9.2.2 we do not receive the full settlement of any Transaction in time,
9.2.3 you enter any form of bankruptcy arrangement (or any other similar proceedings), or
9.2.4 a Default Event under clause 9.6 occurs,
we may cancel, as we see fit, any and all of your current Orders and Transactions. If we cancel a Transaction we will buy back the full value of the currency that we were obliged to provide you at a current market rate chosen by us acting reasonably.
9.3 Where we cancel a Transaction under clause 9.2 you will be liable, on an indemnity basis, for any loss we incur as a result of the cancellation (which shall include, but not be limited to, any expenses, premiums, commissions or other fees incurred by us and any fluctuations in the value of the currency). We will not be obliged to pay you any profits we obtain as a result of a cancellation.
9.4 You acknowledge and agree that any liability you have towards us as a result of a cancellation may be immediately deducted from any funds we hold for you, including any deposit you have paid to us in relation to any Transaction.
9.5 If you owe us more than the amount of any funds we currently hold for you, you must pay the balance within 7 calendar days of being notified by us of the total amount due by debit cards and bank transfers. You agree that we may charge you interest on any sum that remains payable to us after the expiry of the 7 calendar day notice period at a rate of 2% per annum over the base rate of the Bank of England. Interest will accrue and will be calculated daily and be compounded monthly from the date the notice is expired until the date full payment is made by you.
9.6 A Default Event means:
9.6.1 if you breach of your obligations under the Terms;
9.6.2 if you are unable to pay your debts as they fall due;
9.6.3 if in our reasonable opinion any information provided by you is incorrect or misleading in any material respect;
9.6.4 if any event occurs which we reasonably believe will have a material adverse effect on your ability to comply with your obligations under the Terms;
9.6.5 if we reasonably believe that you or a Transaction and/or Service is, or is likely to be, in material breach of any applicable laws or regulations; or
9.6.6 if we have reasonable cause to believe that a payment is being made to, from or via a person or entity subject to sanctions.
9.7 We may refuse to perform a Transaction or Service or terminate the Terms with immediate effect, and cancel any pending Transactions upon the occurrence of a Default Event, by giving you notice of the Default Event. Where verbal notice is given, we shall confirm it in writing. The rights of either party arising prior to termination shall not be affected by the notice of Default Event.
9.8 If we terminate the Terms due to a Default Event, you will indemnify us against all costs and charges incurred by us including without limitation all intermediary or receiving bank charges and break costs which may arise.
9.9 If we terminate the Terms due to a Default Event, we will not need to explain our reasons for our decision, if we are prevented from doing so under any applicable law.
10. CHANGES TO THE TERMS
10.1 Subject to clauses 10.3 and 10.4, we will provide you with not less than two months’ notice of any changes to the Terms other than any changes to exchange rates or any change that is more favourable to you both of which shall apply immediately without notice. If you are dissatisfied with the changes, you have the right to terminate the Terms immediately without charge before the proposed changes take place.
10.2 If you do not terminate these Terms within the notice period we provide, you will be deemed to have accepted the changes and the amended Terms will apply from the effective date set out in the notice.
10.3 Where a change to the Terms is required due to a change in applicable laws and we are unable to give you two months’ notice, we will use reasonable endeavours to provide you with as much written notice as possible. If you are dissatisfied with any changes made under this clause 10.3, you have the right to terminate these Terms immediately without charge within two months from the date of the notice. If you do not terminate these Terms within the notice period we provide, the amended Terms will apply from the effective date set out in the notice.
10.4 If you are a business, we will provide you with not less than 14 calendar days’ notice of any changes to the Terms.
11.1 If you are a consumer, the Terms will remain in force until terminated.
11.2 Unless clause 9 or 11.3 applies, you may immediately terminate the Terms by giving us written notice and we may terminate these Terms by giving you at least two months’ written notice.
11.3 If you are a business, these Terms will remain in force until terminated by either party giving written notice to the other at any time.
12.1 When we refer, in the Terms, to “in writing”, this will include e-mail.
12.2 If you are a consumer, you may provide us with notice by email.
12.3 You have the right to request, at any time during the contractual relationship, a copy of these Terms and any information required to be disclosed under applicable laws.
12.4 If you are a business, any notices in connection with the Terms must be in writing and in English and shall be delivered personally, sent by prepaid first class post, or email to the other party’s registered office address or the address, or email address set out in the Order.
12.5 Notice shall be deemed received: if delivered personally, at the time of delivery to the address referred to above; if sent by pre-paid first class post, on the second Business Day after posting it; or email, at the time of its transmission.
12.6 These Terms will be concluded in English and any communications or notices in connection with the Terms will be in English.
13.1 ‘Business Day’ means a day (other than a Saturday or Sunday) on which banks in London are open for business (other than for the purpose of electronic banking).
13.2 You may not assign or otherwise transfer the benefit of the Terms without our express written consent. We may assign and/or novate our rights and obligations under the Terms to any third party and you hereby consent without reservation to any such assignment or novation.
13.3 Any failure by either party to exercise and any delay, forbearance or indulgence by any party in exercising any right, power or remedy under the Terms will not operate as a waiver of that right, power or remedy or preclude its exercise at any subsequent time.
13.4 If any of the clauses of these Terms and Conditions conflict with the specific details of any Transaction or Service, the notification of the specific details shall take precedence.
13.5 Each of the paragraphs of the Terms operates separately. If any court or relevant authority decides that any of them are unlawful or unenforceable, the remaining paragraphs will remain in full force and effect. If any of the rights or obligations of either of us are substantially altered to our or your disadvantage, we or you may terminate the Terms by written notice to the other within five Business Days such court decision.
14. THIRD PARTY RIGHTS
14.1 The Terms are between you and us and no other person shall have any rights to enforce any of its terms, whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise.
15. COMPLIANCE WITH FINANCIAL CRIME PREVENTION LAWS
15.1 You agree to comply with all applicable financial crime prevention laws, including anti-money laundering, combatting terrorist financing, economic sanctions, anti-bribery and corruption and fraud prevention methods (“Financial Crime Prevention Laws”) and, without limitation, you will not make any payment to, from or via:
15.1.1 any person or entity named in the consolidated list of asset freeze targets designated by the United Nations, European Union and/or United Kingdom from time to time under legislation relating to current financial sanctions regimes;
15.1.2 any country against which the United Nations, the European Union or the United Kingdom has declared a sanction or embargo; and/or
15.1.3 any person or entity named by any other body that maintains similar lists.
15.2 You acknowledge that:
15.2.1 we and our partners may also apply own sanctions screening checks;
15.2.2 we may apply additional checks in relation to high-risk payment instructions, including:
(a) those to or from individuals, entities or jurisdictions that are determined to be high-risk in our reasonable opinion; or
(b) in relation to any payment instructions that appear to be for an illegal or unauthorised purpose;
15.2.3 you are responsible for reviewing and dealing promptly with any concerns arising from any such checks; and
15.2.4 we may, as a regulated entity, be subject to audit and inspection by our regulators in relation to the provision of the Transactions and Services and therefore we may request that you provide, such records and other information as we may reasonably require.
15.3 In the event that you, we or any of our partners identify any activity or a Transaction or an Order as requiring further investigation, then you:
15.3.1 shall promptly provide us with any applicable information that you hold in relation to such activity, Transaction or Order (and we may forward any such information to any relevant party (including any bank, regulator or law enforcement agency));
15.3.2 acknowledge that any such investigation may result in delay or rejection of Orders;
15.3.3 acknowledge that in the event that the necessary information is not provided, or there is an unreasonable delay in providing such information, then we will not process the payment and we may be obliged under applicable law to withhold settlements and provide information to our regulators;
15.3.4 acknowledge that we are under no obligation to provide any Transaction or Service to you, and we may terminate any Transaction or Service for reasons other than proven criminality, based on our own or our partner’s assessment of the financial crime risk posed by you or any actual or proposed payment related to you or associated persons.
15.4 In the event that you become aware of any material event relating to Financial Crime Prevention that impacts upon your continued use of the Facilities; you shall promptly, and in any event within 5 Business Days, disclose details of that material event to us. In the event that you notify us of any such event, or we notify you of any such event, you shall act reasonably to mitigate your losses.
15.5 You agree to give all reasonable cooperation to us in relation to any periodic due diligence review.
15.6 You shall promptly notify us of any breach of your obligations under the Terms.
16. GOVERNING LAW AND JURISDICTION
16.1 These Terms are governed by English law. This means any dispute or claim arising out of or in connection with a Transaction or Service or the Terms will be governed by English law. You and we both agree to that the courts of England and Wales will have an exclusive jurisdiction.