Whenever used in this Agreement, unless inconsistent with the subject matter or context, the following words shall have the following meanings:
At the time of entering into this Agreement and immediately before entering into any transaction contemplated by this Agreement, the Customer represents and warrants to Custom House that:
The Customer acknowledges that Custom House has entered into this Agreement and will enter into the transactions contemplated by this Agreement in reliance on the representations and warranties in Article 2.1.
The Customer shall indemnify and hold Custom House harmless from any and all liabilities, claims, costs, expenses and damages of any nature, including, but not limited to, reasonable legal fees and any fees and expenses incurred in connection with litigation, arising out of or relating to the Customer’s negligence or wilful misconduct, the violation of any Law by the Customer, or the breach by the Customer of any provision of this Agreement. The Customer also agrees to promptly pay to Custom House all damages, costs and expenses, including reasonable legal fees and expenses, incurred by Custom House in the enforcement of any of the provisions of this Agreement. The Customer’s obligations under this Article shall survive the termination of this Agreement.
Custom House is registered under the Data Protection Act 1998. Any personal data the Customer provides will be held securely and in accordance with the Data Protection Act 1998.
Custom House will use the Customers personal data for the purpose(s) for which it has been provided. Custom House may however need to disclose such personal data to a third party and/or obtain such personal data from a third party (which may not be registered under the Data Protection Act 1998) so that the service the Customer requested can be provided. It will also be necessary to transfer data to countries outside the European Economic Area. Where this happens, Custom House will endeavour to ensure that any recipient of the Customer’s data will treat it with the same level of protection as Custom House would.
Customer personal data may also be used for marketing, offering renewals, research and statistical purposes for verifying information previously provided by the customer, preventing or detecting fraud or other crime and/or compliance with anti-money laundering and exchange
control laws. Any such processing of personal data will be in accordance with the Data Protection Act 1998.
If the Customer provides Custom House with information about another person, in doing so the Customer confirms that the third party has given permission to provide it to Custom House and to be able to process personal data (including any sensitive personal data) and also that the Customer has told the third party who Custom House are and what Custom House will use their personal data for, as set out in these Conditions. In the case of personal data, with limited exceptions, the Customer has the right to access and if necessary rectify information held about them by formal written application to Custom House as controller of the personal data in accordance with the Data Protection Act 1998.
If the Customer makes a claim in respect of the loss, theft or destruction of a draft or otherwise for a replacement draft or for a refund in relation to a draft,The Customer consents to the processing of their personal data in the context of investigating and processing the Customers claim.
Due to the inherent risks in transferring currency between parties located in different countries, Custom House takes extraordinary measures to ensure that it is not participating or assisting in money laundering or terrorist financing. Law enforcement agencies and regulatory authorities may periodically inspect and require copies of customer information and business records held by Custom House. To ensure compliance with all applicable money laundering and terrorist financing Laws the Customer should be fully aware that in appropriate cases all communications and information concerning the Customer held by Custom House including, but not limited to, details of Orders, accounts, and related transactions, may be disclosed to and reviewed by law enforcement agencies and regulatory authorities (which may be outside
the European Economic Area and may not be registered under the Data Protection Act 1998).
In addition, the Customer agrees to comply with all applicable money laundering and terrorist financing Laws, including, but not limited to, the requirement to obtain satisfactory evidence of the identity of any principal whom the Customer may represent in any transaction entered into with Custom House . If the Customer breaches any money laundering, terrorist financing laws or regulations, the Customer irrevocably agrees that Custom House may retain any moneys or funds transmitted to us pursuant to these conditions and/or not fulfil any request if Custom House are required to do so by any legal or regulatory authority and such moneys shall not bear interest against Custom House.
The information provided by Custom House and other entities on the Custom House Website
is believed to be accurate and reliable when placed on this site, but Custom House cannot guarantee it is accurate or complete or current at all times. Information on the Custom House Website is for informational purposes only and is not intended to provide financial, legal, accounting, or tax advice and should not be relied upon for those purposes.
This Agreement shall be exclusively governed and constructed in accordance with the laws of England and Wales and shall be subject to the exclusive jurisdiction of the courts of England and Wales.
Within two (2) Days of termination, each party shall pay all amounts due to the other party, and the Customer will return or destroy all materials received from Custom House as per Custom House’s written instructions. Each party’s duties of payment, delivery, and destruction of materials shall survive termination of this Agreement. Any obligation of Custom House arising by operation of this Article is subject to Custom House’s determination under Article 5.13.
This Agreement, including all transactions, shall inure to the benefit of Custom House, its successors and assigns and shall be binding upon the Customer and the Customer’s personal representatives, executors, trustees, administrators, successors.
Any rights or obligations that the Customer may have pursuant to this Agreement shall not be assigned, transferred, sold, or otherwise conveyed, except with the prior written consent of Custom House. Custom House may, however, transfer any rights or obligations it may have pursuant to this Agreement to another party without the consent of the Customer. The Customer will execute any documents (including a deed of novation) reasonably required by Custom House to effect such a transfer.
If any provision of this Agreement shall be prohibited by Law or is or becomes illegal, invalid or unenforceable in any jurisdiction, that will not affect:
(a) the legality, validity or enforceability in that jurisdiction of any other term of this Agreement;
(b) the legality, validity or enforceability in other jurisdictions of that or any other term of this Agreement.
This Agreement comprises the terms and conditions governing the relationship of the Parties. If there is any conflict between the terms of any schedule, attachment or other addenda attached to this Agreement, then the terms of the schedule, attachment or other addenda shall prevail over the terms in this Agreement to the extent of that conflict.
A person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce or to enjoy the benefit of any term of this Agreement.
The terms of this Agreement and any transactions under it, may be amended by Custom House at any time. Custom House will provide Notice to the Customer of any such amendment no later than two months before the date on which those amendments are to take effect . The Customer will be bound by the terms of such an amendment it notifies Custom House to the contrary before the date the amendment(s) is/are due to take effect (the “ Proposed Amendment Date”). However, the Customer has the right to terminate this Agreement immediately and without charge before the Proposed Amendment Date if it does not agree to the proposed amendment(s).
This Agreement, and all schedules, attachments or other addenda attached to it, constitute the entire agreement between the parties with respect to the use and provision of the Custom House Services, and supersede and replace any and all prior or contemporaneous understandings, communications or agreements, written or oral, regarding such subject matter.
At no time shall either party make commitments for or in the name of the other party. Except
as specifically provided for in this Agreement, neither party will: (a) use the other party’s name
or proprietary marks without the prior written approval of the other party; or (b) represent itself
as being affiliated with, or authorised to act for, the other party.
Each party will conduct its activities under this Agreement in compliance with all applicable Laws. The Customer may be required to provide Custom House with personal information which will be kept on record. If Custom House considers it necessary in order to comply with any applicable Law, Custom House may make a report of transactions involving the Customer to the appropriate regulatory authority or law enforcement agency.
Neither party will be liable for any failure or delay in performance (except for duties of payment) due to an event or cause beyond the reasonable control of the party claiming the force majeure. Events or causes which may satisfy this test include an act of God, peril of the sea, unavoidable accident of navigation, war (whether declared or not), sabotage, riot, insurrection, civil commotion, national emergency (whether in fact or law), martial law, fire, flood, cyclone, earthquake, landslide, explosion, power or water shortage, failure of a transmission or communication network, epidemic, quarantine, strike or other labour difficulty or expropriation, restriction, prohibition, law, regulation, decree or other legally enforceable order of a government agency, breakage or accident or other damage of Custom House’s machinery or systems, unless occurring as a result of an act, omission, default or negligence of the Customer.
Custom House’s liability to the Customer and anyone claiming through the Customer hereunder for a breach of this agreement by Custom House shall be limited to the foreign currency value of the Order relating to the claim, determined as at the Value Date. Custom House shall not be liable for any claim of the Customer for economic loss or consequential damages.
If the Customer fails to pay any amount payable by it under this Agreement, it shall immediately on demand by Custom House pay interest at the rate of 5% above the prevailing London Interbank Offered Rate (LIBOR) on the overdue amount from its due date up to the date of actual payment, both before, on and after judgment.
In the first instance, the Customer should raise any complaints directly with Custom House. If Custom House is unable to resolve the matter to the Customer’s satisfaction, the Financial Ombudsman offers an out of court redress mechanism. The Financial Ombudsman can be contacted on telephone 0845 080 1800 or 0300 123 9 123 or email at email@example.com
The Customer may only enter into an Order for the purpose of hedging the risk of movement in the value of a Currency but not for the purpose of speculation or investment. If Custom House suspects that the Customer is completing Orders for speculative purposes, Cystom House may immediately terminate this Agreement, and Custom House shall be relieved of any obligations set out in the Agreement, including any obligations arising out of any Order already placed and accepted by Custom House.
The Customer shall be solely responsible for evaluating and selecting the timing and nature of all Orders entered into and shall not treat information provided by Custom House as financial advice. The Customer must rely solely on his own / her own judgement in determining whether the services provided by Custom House are appropriate for the Customer’s purposes.
Should the Customer subsequently wish to reverse, alter or cancel any Order made, on the Internet the Customer shall be liable to reimburse Custom House in full, on demand, for any loss or costs incurred by Custom House as a result of such reversal, cancellation or amendment.
Custom House reserves the right to refuse any Order that is incorrect, incomplete, or unsatisfactory to Custom House for any reason. However, where possible Custom House will provide a written explanation to the Customer stating the reasons for the refusal and the procedure for rectifying any factual errors that led to the refusal. Custom House may charge the Customer for that notification where the refusal is reasonably justified.
Although Custom House will use all reasonable efforts to process the Customer’s Order on the same Day it is submitted to Custom House subject to Article 7 and provided that the Order is received before the close of business on that Day), Custom House shall not be responsible or liable for the time it may take other financial institutions to settle accounts. Custom House shall not, in the absence of gross negligence or wilful misconduct, be liable for delays, damages, failures or errors in the completion of the Order.
Rate indications from Custom House on the Internet (the “ Indication”). The Indication is not binding, and the rates will be as agreed when the Order is placed. The exchange rates quoted on the Internet are indicative only and may change. The actual exchange rate will be as agreed when the Customer’s Order is booked. The booked exchange rate may be different to the rate quoted on the Internet for a number of reasons, for example, because the Order is booked some time after the quoted rate was given . As a dealer in currency, Custom House has a spread between its purchase and sale prices; and it bases its individualised rates on many factors including its assessment of market conditions, its overhead and processing costs.
Should a quoting error occur due to a typographical error or obvious mistake in a quote or Indication (the “ Quoting Error”), Custom House is not liable for any damages, claims, losses, liabilities or costs arising from the Quoting Error. Custom House will make reasonable efforts to correct the Quoting Error and recover the funds involved in the payment transaction. Custom House may charge the Customer for any such recovery . Any dispute arising from a Quoting Error will be resolved on the basis of the fair market value, as determined by Custom House acting reasonably, of the relevant currency at the time such Quoting Error occurred.
If the Customer uses Custom House’s Internet based foreign exchange ordering system (the
“Internet System”), the Customer confirms and accepts the following:
All communications between the Customer and Custom House (including information and notifications that Custom House is required to provide to the Customer in accordance with the PSRs) shall be in English.
Where a formal notice, Instruction, Order or other writing (as appropriate) is required or permitted to be given under this Agreement or for the purposes of this Agreement (” Notice”) , that Notice shall be in writing and shall:
A Notice given or made under this Agreement may also be sent by facsimile if the Notice is sent to the facsimile number last notified by the intended recipient to the sender. A Notice sent by facsimile will be deemed to have been given when received in legible form on the date of transmission shown on a transmission report produced by the facsimile machine of the sender which indicates that the entire notice was transmitted successfully.
This Article 7.3 shall apply to any communication between the Customer and Custom House which is not required to be sent as a formal Notice:
In using the Custom House Website and/or any Custom House Service, the Customer and Custom House are expressly authorised to send financial and other data as well as electronic messages to each other through the Internet or by facsimile transmission. The Customer acknowledges that when the Internet, facsimile transmission or any other means of electronic communication are used to transmit or receive data and messages, the data and the messages may be accessed by unauthorised third parties. Custom House shall not be liable to the Customer for any loss or damages in connection with any data and messages which may be accessed by unauthorised third parties. The risk of such unauthorised third party receipt of information confidential to the Customer is expressly acknowledged and accepted by the Customer when using any Custom House Service. The Customer releases and indemnifies Custom House from any claim arising out of an unauthorised third party accessing data or messages being transmitted between the Customer and Custom House.
Hyperlinks or other links to or from websites outside of the Custom House Website are for the convenience of Custom House’s clients only. Custom House does not review, monitor, endorse or control, and is not responsible for, any sites linked to or from the Custom House Website. Custom House will not be liable for any damages in respect of linking or in consequence of following a link.
Custom House shall make available to the Customer the information which the Customer is entitled to receive under the PSRs. That information shall be provided to the Customer by any method set out in this Article 7. In addition, the Customer may at any time request from Custom House a copy of (i) the then-current Agreement applying between the Customer and Custom House and/or (ii) any information to which the Customer is entitled under this Agreement.
At the request of the Customer, the Order may be dispatched by Custom House via draft (“Draft”) and/or wire (“Wire”).
The Customer will contact Custom House immediately to request a stop order on a Draft or Wire.
As it may not be possible to stop payment on Drafts or Wires, Custom House’s obligation on receipt of a request under Article 8.2 shall be limited to sending the applicable stop payment order within two (2) Days of its receipt of the following: (a) a satisfactory stop order, (b) an indemnity agreement, and (c) payment for the related charges. Custom House will not be liable if payment on a Draft or Wire cannot be stopped.
Refunds will be made in the currency of the original item converted into UK pounds at the then applicable Custom House determined rate, less Custom House’s handling charges. Unless the original Draft is returned, Draft refunds may require (a) verification that the Draft has not been paid and that the bank has stopped payment; and (b) receipt of a satisfactory indemnity agreement and/or lost instrument bond. Wire refunds are conditional upon successful recall of the funds.
Custom House undertakes to use reasonable care to ensure that Drafts will be paid by the drawee bank, in accordance with its normal practices; and that Wires will be credited to the designated account or available for pick-up at the time specified by Custom House, in accordance with the payor’s normal practices. However, Custom House cannot be responsible for any loss, seizure, delay, or non-payment unless due to its gross negligence or willful misconduct in selecting drawees, intermediaries, and payors, and in otherwise performing its duties under this Agreement. Custom House takes no responsibility for infringement of import/ export or currency control restrictions.
The Customer may buy or sell currency for the purpose of hedging the risk of movement in the value of a currency (for commercial and not for speculation or investment purposes) by placing an Order with Custom House specifying the currency, amount of currency, and the Value Date (the “Forward Contract”). At the option of the Customer the delivery of the currency pursuant to the Forward Contract may be either: (a) processed on the Value Date (the “Fixed Term Forward Contract”), or (b) processed in multiple draw downs at any time between the Acceptance of the Forward Contract and the Value Date (the “Optional Delivery Date Forward Contract”).
At the request of the Customer, Custom House may, at its sole discretion, deliver the currency pursuant to the Fixed Term Forward Contract prior to the Value Date (the “Fixed Term Predelivery Date”). For any such pre-delivery, an adjusted rate of exchange calculated on the Fixed Term Pre-delivery Date may be applied at the sole discretion of Custom House.
Pursuant to the terms of the Optional Delivery Date Forward Contract, the Customer may request that the delivery of the multiple draw downs commence on a specific date (the “Optional Commencement Date”).
At the request of the Customer, Custom House may, at its sole discretion, deliver the multiple
draw downs pursuant to the Optional Delivery Date Forward Contract prior to the Optional Commencement Date (the “Optional Pre-delivery Date”). For any such pre-delivery, an adjusted rate of exchange calculated on the Optional Pre-delivery Date may be applied at the sole discretion of Custom House.
Custom House may at its discretion allow the terms of the Forward Contract to be extended. If Custom House agrees to such a change, the Customer agrees that the existing Forward Contract will be terminated based on a rate as determined by Custom House and a new Forward Contract will be entered into which reflects the agreed changes. The Customer acknowledges that the exchange rates for the new Forward Contract and for the termination of the original Forward Contract may differ from those in the original Forward Contract. The Customer agrees that all losses and costs in relation to any termination and new Forward Contract are the responsibility of the Customer and must be paid within Two (2) Days of termination of the original Forward Contract.
Custom House may, at its sole discretion, require the Customer to transfer cash or deliver an irrevocable letter of guarantee in order to validate the Forward Contract (the “Deposit”). The Deposit may either be by way of: (a) a cash deposit (in UK pounds, only) of a certain mutually agreed percentage of the currency value of the Forward Contract (the “Forward Contract Value”); or (b) a irrevocable letter of guarantee (the “Letter of Guarantee”) for a certain mutually agreed percentage of the Forward Contract Value .
The Letter of Guarantee shall: (a) be payable to Custom House, (b) be drawn on a Custom House approved financial institution, and (c) have a maturity date a minimum of fourteen (14)
Days after the Value Date of the Forward Contract.
Custom House may at its sole discretion require the Customer to pay an amount solely determined by Custom House (the “Margin Deposit”) if at any time the Mark to Market value (in United Kingdom Pounds) of the Customer’s total outstanding Forward Contracts moves beyond the limit set by Custom House for this purpose and the Customer is Out of the Money compared to the original Forward Contract values; or
A customer will be in default in respect of a forward contract should any of the events detailed below occur:
In the event of default, then the Customer agrees that Custom House shall no longer be obliged to fulfil the Forward Contract, or any other existing contract with the Customer, nor to enter into any further contract with the Customer, and Custom House may, in its sole discretion:
The Customer agrees to reimburse and indemnify Custom House forthwith on demand, for all Costs suffered or incurred by Custom House which are not covered by the Deposit or Margin Deposit. Any remaining portion of the Deposit or Margin Deposit not required to pay the Costs shall be refunded by Custom House to the Customer.
Subject to Article 9.9 the Deposit, including any Margin Deposit, without interest, will either be returned to the Customer upon the completion of the Forward Contract or will be set off by Custom House in settlement of any amount owing to Custom House by the Customer at any time under this Agreement.