TERMS AND CONDITIONS
27 June 2016
PERSONAL AND BUSINESS CUSTOMERS
1. This Agreement
1.1. Capacity - These terms and conditions apply to personal and business customers who use our foreign exchange or payment services available through any of our Websites or our mobile app.
1.2. Owner of Funds - You must be the owner or trustee of the money you are intending to transfer.
1.3. Structure of this Agreement - The terms and conditions in this Agreement apply to all Transactions that you enter into with us. The specific details of each Transaction, including the currencies and amounts to be exchanged, will be agreed separately when you request Transactions. Each Transaction will constitute separate agreements and will incorporate these terms and conditions.
1.4. Important Documents You Should Read - You acknowledge that you have been provided with access to the following documents:
1.4.3. Our Complaints Policy
2. Our Services
2.1. We may refuse to enter into or complete a transaction with you at our sole discretion.
2.2. Foreign Exchange Services - On receipt of your Instruction, we will specify the amount of the Sale Currency required, the amount of the Purchase Currency which will be purchased for you, the exchange rate offered, applicable fees, any transmission costs, the terms for an Initial Deposit (if applicable) and a date by which the Sale Currency must have arrived in cleared funds in the bank account specified by us. Once you accept these terms whether orally, in writing, or online, you will be legally bound to perform the FX Service in accordance with those terms.
2.3. Payment Services - This Agreement sets out important rights and obligations including our liability to you under the Payment Services Regulations 2009 (the ‘Regulations’). Please note the Regulations apply to Payment Services and not to FX Services.
2.3.1. Once the FX Service has been concluded and performed and provided that no amounts are owed to us then the Purchased Currency we are holding will be available for onward payment. It is your responsibility to ensure that accurate and complete payment Instructions for the recipient of the payment are provided to us on or before the Delivery Date. If you provide incorrect recipient 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.
2.4. No Investment or Speculative Trading - We do not offer any form of investment or speculative trading facilities. When you enter into a Transaction, you must deliver to us the full amount of the funds you are transferring on or before the Delivery Date.
2.5. No Exchange Rate Set-Off - We will not agree to enter into any kind of set-off arrangement that would allow you to receive or pay only the amount of any gain or loss that might be realised as the result of exchange rate movements on settlement of the Transaction.
2.6. No Financial Advice - We will not take into account your specific financial circumstances or needs when we enter into a Transaction with you. To the extent that we provide you with any advice, it will relate only to the mechanics of the transaction you are proposing to enter into or to publicly available information. You must obtain your own financial advice and make your own assessment as to whether our service is appropriate for your particular requirements. You must select the type and timing of each Transaction you enter into yourself.
3. Your Instructions
3.1. Authorised Users - You may appoint one or more Authorised Users. An Authorised User may have unlimited authority to give us Instructions on your behalf or you may specify the stages of a Transaction they are authorised to undertake. We will rely on Instructions received by the individual/s appointed by you as Authorised Users until such time as you revoke or vary that authority by giving us 48 hours notice in writing. If you wish to appoint or change an Authorised Users, please contact us for instructions.
3.2. Username and Password - We will issue you and each of your Authorised Users with a Username and Password in order that they may provide us with Instructions online, by telephone or by email. It is your responsibility to ensure the security of your Username and Password. We will accept any Instructions received pursuant to the use of the Username and Password without checking the identity of the user and you will at all times be bound by those Instructions.
3.3. No Obligation to Accept Instructions or Process Transactions - While we will always endeavour to comply with your Instructions as quickly as possible, there may be circumstances in which we are unable to do so. Therefore, we always reserve the right to refuse to accept your Instructions and to 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.
4.1. Transaction Binding - If you wish to enter into a Transaction, you may do so by giving us Instructions online, by telephone or by email. The Transaction will be legally binding on you when we receive your Instructions.
4.2. Online Auto Confirm Transaction - If you enter into an Auto-Confirm Transaction online, the Transaction will be legally binding on you as soon as we receive your electronic Instructions. We will provide you with confirmation of the Transaction Details on the screen at the time you book the Transaction, but we will not provide you with any subsequent confirmation of any kind, unless you request it.
4.3. Online Booking Confirmation - If you book a Transaction online that is not an Auto-Confirm Transaction, we will attempt to contact you by telephone within 15 minutes of your online booking to confirm the Transaction details. The Transaction will be legally binding on you at the conclusion of the telephone call. If we cannot contact you by telephone on the number you have given to us within 15 minutes, we reserve the right to cancel the Transaction.
4.4. Email Booking - It you book a Transaction by email, the Transaction will be binding on you when we process your email. You acknowledge that, if you choose to book a transaction by email, it may not be processed immediately. When we process your Instructions, we will send you an email headed "Deal Confirmation". The Deal Confirmation constitutes an error correction mechanism only. If there is any discrepancy between the Deal Confirmation and the details of the Transaction set out in your email, you must contact us within 24 hours of receipt of the Deal Confirmation, failing which the Transaction details in the Deal Confirmation will be deemed to be correct.
4.5. Telephone Booking - If you book a Transaction by telephone, the Transaction will be legally binding at the conclusion of the telephone call. We record all such telephone calls. We will send you an email headed "Deal Confirmation". The Deal Confirmation constitutes an error correction mechanism only. If there is any discrepancy between the Deal Confirmation and the details of the Transaction that have already been agreed in the telephone conversation, you must contact us within 24 hours of receipt of the Deal Confirmation, failing which the Transaction details in the Deal Confirmation will be deemed to be correct. In the event of any dispute, the recording or transcript of our telephone conversation may be used as evidence as to the terms of the agreement that was entered into.
4.6. Cancellation - Once a Transaction has become legally binding, you may not cancel the Transaction. You may only take action to correct any of the Transaction details set out in the Deal Confirmation if the Deal Confirmation does not reflect the transaction details that have already been agreed.
4.7. Out-of-Market Quotes - If we quote you a Rate that is clearly a mistake on our part ("Out-of-Market Quote") as the result of a technical or human error, it is not binding on us. You must notify us as soon as the mistake comes to your attention and we will requote the Rate as soon as possible.
4.8. Prompt Performance by You - You acknowledge that exchange rates can fluctuate rapidly, so the Rate we quote you is contingent on the prompt performance of your obligations. We reserve the right to requote the Rate if you do not provide us with requested information or funds on time.
5. Forward Contracts
5.1. Forward Contract - A Forward Contract may only be entered into by telephone.
5.2. Deposit - You acknowledge that we bear the risk that you might default on settlement of your Forward Contract and, to mitigate this settlement risk, we reserve the right to request that you pay one or more deposits in relation to all Forward Contracts. We may request a deposit both at the time you book the Forward Contract and at any time prior to the Maturity Date. You acknowledge that the amount of any deposit/s requested will be determined by us in our discretion and that we may request a deposit even if we have approved a Credit Limit.
5.3. Failure to Pay a Deposit - If we have asked you to pay a deposit, you must pay the amount we have requested on the date we have nominated. If you do not do so, we reserve the right to Close Out the Forward Contract in accordance with clause 9.
5.4. Change to the Maturity Date - You may ask us to bring forward (pre-deliver) the Maturity Date or to extend (roll over) the Maturity Date in relation to the whole or only part of your Forward Contract. You acknowledge that we may agree to such a request entirely at our discretion. If we agree, you acknowledge that the Rate will be adjusted to account for the timing of the new Maturity Date.
5.5. Payment of Full Amount on Settlement - You must transmit to our nominated account the full amount of the funds that are the subject of the Forward Contract, less any deposit already paid, together with any service fees that we have requested, on or before the Maturity Date.
6. Payment to Us
6.1. Spot Contract Payments - You must make payment into our nominated account of the full amount of a Spot Contract on the day the Transaction becomes legally binding. If we have not received the funds within 3 business days, we reserve the right to Close Out the Transaction in accordance with clause 9.
6.2. Forward Contract Payments - You must ensure that you pay into our nominated account the full amount of all Forward Contracts on or before the Maturity Date. If we have not received the funds by the Maturity Date (or any agreed change to the Maturity Date), we reserve the right to Close Out the Transaction in accordance with clause 9.
6.3. No Cash or Cheques - You acknowledge that we do not accept cash or cheques. You agree to make all payments to our nominated account electronically and you acknowledge that we will transmit your funds by electronic means only.
6.4. Recipient Account - You must provide us with full details of your Recipient Account, including the full name and address of the account holder and the full name and address of the Recipient bank, on or before the date that we nominate. If you fail to do so, we reserve the right to Close Out the Transaction in accordance with clause 9.
6.5. Recipient Account Number - We will rely solely on the account number you give us for your Recipient Account and will not check to ensure that the name provided by you accords with the account number you have given us.
6.6. Full Amount - All payments must be received by us in cleared funds and for the full amount being transferred, including any transaction fees that may be payable and any service fees that have been requested by us, before we will credit your Recipient Account. In the event that we agree to make a payment for you without having received the full amount, you acknowledge that we are not waiving our right to ask you for the full amount after the Transaction has been processed.
6.7. Funds Held by Us - You acknowledge and agree that we do not hold your funds on trust and will not put your funds into a separate bank account.
6.8. No Interest Paid - We will not pay to you any interest on any funds held by us whether by way of deposit or otherwise.
6.9. Funds Held by Us without Instructions - In circumstances where you ask us to hold your funds pending your further instructions, you should provide us with your Instructions as soon as possible; if you do not do so within 3 months, we will return the amount we hold for you without interest.
7. Misdirected Funds
7.1. Your Mistake - If your funds are sent to the wrong account as the result of a mistake made 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 to the correct Recipient Account. You will need to book a new Transaction.
7.2. Our Mistake - If your funds are sent to the wrong account as the result of a mistake made 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 if the mistaken Recipient is related to you or associated with you in some way.
8. Limit Orders
8.1. Legally Binding - You may enter into a Limit Order online, by telephone or by email. Subject to your right to cancel the Limit Order in accordance with clause 8.2, the Limit Order will become binding as and from the time that your Instructions are received by us. After we receive your Instructions, we will send you an email headed "Order Confirmation". The Order Confirmation constitutes an error correction mechanism only; if you do not contact us within 24 hours of receipt of the Order Confirmation, the Transaction details will be deemed to be correct.
8.2. Cancellation of Orders by Telephone Only - You may cancel a Limit Order at any time before the Target Rate is reached by giving us notice by telephone. You may not cancel a Limit Order after the Target Rate has been reached, whether or not we have notified you that the Target Rate has been reached. When the Target Rate is reached, you are legally bound by the Transaction.
8.3. Payment - We will notify you by telephone or email as soon as possible after the Target Rate has been reached. As soon as you receive our notification, you must take action to ensure that the funds reach our nominated account by the Delivery Date. If we do not receive the funds in time, we reserve our right to Close Out the Transaction in accordance with clause 9.
9. Closing Out
9.1. Closing Out Transactions - We may Close Out a particular Transaction and all current Transactions that you have with us, without notice to you:
9.1.1. if you fail to make any payment when it is due, including the payment of any deposit that has been requested by us;
9.1.2. if you fail to provide any information we have requested or any information or warranty you have given us is or becomes, in our opinion, inaccurate, incorrect or misleading;
9.1.3. in the event of your death or loss of mental capacity;
9.1.4. in the event that bankruptcy proceedings are commenced against you or the occurrence of an Insolvency Event;
9.1.5. if the performance of our obligations under this Agreement become illegal;
9.1.6. if a serious dispute has arisen between us;
9.1.7. if you breach a material term of this Agreement or of any Transaction; or
9.1.8. if you terminate this Agreement in accordance with Clause 10 below.
9.2. Consequences of Closing Out - When we Close Out any or all of the Transactions that you have entered into, we buy back the currency that we have bought for you when you entered into the Transaction at prevailing market rates. If the value of the currency you have asked us to exchange has strengthened, a loss will be incurred on the Transaction and you will be liable to pay us the amount of that loss, together with any expenses, premiums, commissions or other fees incurred by us.
9.3. No Payment of Profit - We will not pay you any profit arising from Closing Out a Transaction in any circumstances.
9.4. Payment of Loss - You acknowledge that the amount of any loss realised on the Closing Out of a Transaction is a debt payable by you and agree that we may immediately deduct the total amount of any loss (together with any expenses, premiums, commissions or other fees) from any funds we hold for you, including any deposit you have paid to us in relation to any Transaction and any amount held by us for payment to any Recipient Account. If the amount we are seeking to recover exceeds the amount of any deposit or other funds held by us, you agree to pay the balance within 7 days of being notified by us of the total amount due.
9.5. Interest - You agree that we may charge you interest on any sum that remains payable to us after we Close Out any or all of your Transactions at a rate of 2% per annum over the base rate of the Bank of England (or of such monetary authority as may replace it). Interest will accrue and will be calculated daily and be compounded monthly from the date payment was due until the date full payment is made by you.
9.6. Default Notification - You must notify us immediately if you become aware of any event referred to in Clause 9.1 above happening or being likely to happen.
9.7. Notice of Monies Due - If we Close Out a Transaction, we will send you a written statement explaining the amount of any sums that may be payable to us and the amount of any sums being withheld by us.
10. Duration and Termination of this Agreement
10.1. Termination - This Agreement will remain in force until terminated by you or us.
10.2. Termination by You - You may terminate this Agreement at any time without penalty by notifying us in writing. Termination following such notice will only take effect when any outstanding Transactions are completed.
10.3. Termination by Us - We may terminate this Agreement at any time by giving you two calendar months’ notice in writing. We may also terminate this Agreement immediately in the event of fraud or breach of contract by you.
11. Limitation of Liability
11.1. No Liability for Delays - You acknowledge that delays in the transmission and receipt of payments may occur. In particular, you acknowledge that we operate an online platform that could be subject to technical, or other, problems, the nature and duration of which may be beyond our control. Our service also involves the use of banks and/or intermediaries who are outside our control. Accordingly, while we do everything in our power to ensure the timely transmission of funds, we cannot guarantee that transfers of funds will always be made on time and cannot accept any liability to you for any loss suffered by you or any other person as a result of any delays in the transmission of funds.
11.2. Liability Limited to the Amount of Your Funds - We do not in any circumstances assume liability to you in excess of the amount of money you are asking us to transfer. We will not be liable to you for any form of consequential damages or loss that you may suffer as a result of delays in the transfer of your funds or any other breach of our obligations under this Agreement. For example, you may not make a claim against us for loss of business, loss of opportunity or loss of interest on funds.
12. Warranties and Indemnities
12.1. Your Warranties - You agree that the following statements are true and accurate, and you acknowledge that we may refuse to process, or Close Out, any all open Transactions, if we find at any stage that they are not true and accurate:
12.1.1. you are over the age of 18 and have full authority to enter into this Agreement and any Transaction/s;
12.1.2. you are the beneficial owner of the money being transferred;
12.1.3. you are not acting on behalf of another person unless you inform us that you are acting as:
18.104.22.168. a sole proprietor;
22.214.171.124. a corporate partner of a partnership
126.96.36.199. trustee of a trust;
188.8.131.52.1. if you are acting as a trustee of a trust:
184.108.40.206.1.1. this agreement binds you in your personal capacity and in your capacity as trustee of the trust;
220.127.116.11.1.2. you are the only trustee of the trust, the trust is validly constituted and you have the power, to enter into this Agreement and any Transactions in accordance with theterms of the relevant trust deed;
18.104.22.168.1.3. you will comply with the terms of the trust deed and your duty as trustee.
12.1.4. you have a valid reason for entering into each Transaction and will not enter into any Transaction for speculative purposes; and
12.1.5. in making a decision to enter into a Transaction, you will not rely on any market-related information that may be provided from time to time by us on our Website or by our employees or consultants.
12.2. Your Indemnity - You agree to indemnify us for any costs, expenses or fees we may incur as a result of your failure to perform your obligations under this Agreement, whether they arise under clause 9 or in some other way. This includes any legal costs, on a solicitor and own client basis, that we may incur in order to enforce our rights or recover any amounts you owe us. You also agree to indemnify us for any fees, costs, duties and taxes charged by third parties in relation to the Transactions you enter into, including fees charged by your Recipient bank, whether or not those fees or charges were notified to you in advance.
13. Collection and Protection of Information
13.1. Collection of Information - In order to provide you with the Services, we must collect certain information about you. You agree to provide to us upon request all such information in relation to your financial and business affairs and/or identity as we may reasonably require to satisfy our regulatory obligations. If we are not satisfied with the information you provide, we may request additional information. In particular, you acknowledge that we will not provide the Service until we are in receipt of sufficient information to adequately verify your identity.
13.2. Use of Information - You acknowledge and agree that we may use, store, retain and otherwise process information, including Personal Information, or data provided by you in connection with this Agreement. You acknowledge we may obtain data from third parties and may share data with our related companies and, to the extent that it is necessary to provide you with the Service, with third parties (some of whom may not be registered under the DPA) and may transfer data across international borders (including outside the European Economic Area).
13.4. Consent to Search Public Databases - You consent to an electronic database search and credit reference agencies search by us in order to verify your identity and, if necessary, credit standing of your directors and authorised users. We shall retain records of the contents and results of such searches in accordance with all current and applicable laws.
13.5. Disclosure of Information - You acknowledge that we reserve the right, if considered appropriate in our sole discretion, to provide relevant information about you and your Transaction/s to credit reference agencies. We may also disclose Personal Information where required to do so by law or if requested by any regulatory authority; where it is necessary to investigate or prevent fraud or other illegal activity; where it is necessary or desirable for any purpose ancillary to the provision of the Services or where it is in the public interest to do so.
13.6. Information Accuracy - You must ensure that all information provided to us is accurate and up-to-date at all times. Any changes must be advised to us in writing as soon as practicable.
14.1. Arbitration - If a dispute is not resolved, it must be submitted to arbitration by an arbitrator appointed by the Chartered Institute of Arbitrators, or a similar body, whose decision shall be binding upon the parties.
14.2. Enforcement - The parties will accept the determination of the arbitrator and will submit to the exclusive jurisdiction of the courts of England for the enforcement of the determination.
14.3. Recovery of money payable by you - You acknowledge that nothing in this Agreement shall prevent us from taking immediate legal action to recover any sums payable by you under this Agreement.
15. Telephone Recordings
15.1. Recording of phone conversations - You consent to the electronic recording by us of telephone conversations between us, without an automatic warning tone.
15.2. Use of telephone recordings - You acknowledge that we may use any telephone recordings as evidence in any dispute or anticipated dispute between us or in relation to any dealings between us.
16.1. Notices - Where notice in writing is required under this Agreement, it may be sent by post or email, but not by facsimile. Proof of posting will be proof of receipt and receipt shall be deemed to have taken place within 48 hours of posting in the case of domestic post and within 7 days in the case of international post. In the case of email, receipt shall be deemed to have taken place on the day of dispatch if the email was sent prior to 1.00pm on a business day or the first business day after dispatch in any other case. Documents shall be sent to the last known postal address or email address you have given to us; if those details change, you must notify us as soon as possible.
16.2. Modification of this Agreement - We may alter some of the terms of this Agreement by posting the new terms on our website. This will not affect any rights or obligations you already have, but you will be bound by the new terms when you enter into subsequent Transactions.
16.3. Governing Law - This Agreement shall be interpreted in accordance with the laws of England and Wales and both parties submit to the jurisdiction of the courts of England and Wales.
Authorised User means an individual appointed and authorised by you to provide Instructions to us on your behalf.
Auto-Confirm Transaction means a Transaction that has been booked online and has been processed by us automatically with no telephone call or other communication being entered into.
Business Day means a day other than a Saturday, Sunday or public holiday on which banks are open for business in London.
Booking means finalising a Transaction by providing us with all of the relevant Transaction details.
Close Out means cancelling a Transaction in the circumstances set out in clause 9 or otherwise pursuant to this Agreement.
Credit Limit means the amount by which we will allow your Transactions to accrue a negative value before requesting a deposit or exercising our rights under clause 9 of this Agreement.
Deal Confirmation means a written communication, however described, provided by us confirming the details of any Transaction that you have booked by telephone, email or online, which shall be an error correction mechanism only.
Delivery Date means the date on which we have requested that you deliver your funds to our account for transmission.
Forward Contract means a foreign exchange contract under which we agree to exchange money at an agreed exchange rate and at an agreed time which is between 48 hours and 12 months from the time of the contract being entered into.
FX means foreign exchange.
FX Service means each and every foreign exchange contract entered into between you and us.
Group Companies means any of our parent, affiliated, or subsidiary companies and any company which is or becomes a holding company of any such company or subsidiary or affiliate of such company or holding company and any other company lawfully acting under the OFX brand which provides all or any part of the foreign exchange and other services described in this Agreement.
Insolvency Event means:
(a) a meeting has been convened, resolution proposed, petition presented or order made for the winding up of the company;
(b) a receiver, receiver and manager, provisional liquidator, liquidator or other officer of the court has been appointed in relation to the company over all or any asset the company;
(c) a mortgagee or chargee has taken, attempted or indicated an intention to exercise its rights under any security under which the company is the mortgage or chargor;
(d) the company has become insolvent;
(e) the company has stopped paying its debts as and when they fall due; or
(f) the company is subject to voluntary administration.
Instructions means a request made by you to enter into a Transaction and shall be taken to include any information, communications or documents incidental to or relating to a Transaction whether we process the Transaction or not.
Limit Order means an Instruction to enter into a Spot Contract or a Forward Contract at a Target Rate.
Maturity Date means, in relation to a Forward Contract, the date on which the currency exchange is to be made by us and includes any agreed variation to the original date, being either an earlier or a later date.
OFX Group and any OFX Group company means UKForex Limited, and/or any of its Group Companies appointed to provide services in relation to this Agreement.
Purchase Currency means the currency being bought by you and sold by us.
Rate means the foreign currency exchange rate that we quote you for a Transaction.
Recipient Account means the account to which you are sending your funds.
Regulations means the Payment Services Regulations 2009 as amended from time to time.
Sale Currency means the currency being bought by us and sold by you.
Spot Contract means a foreign exchange contract under which we agree to exchange money at an agreed rate within 48 hours of the contract being entered into.
Target Rate means the Rate nominated by you in any Limit Order.
Transaction means an FX or Payment Service including but not limited to a series of transactions pursuant to standing instructions given by you.
We, us, our or the Company shall mean UKForex Limited (trading as “OFX”) registered in England and Wales (company no. 04631395) with registered office at 1st Floor 85 Gracechurch Street, London EC3V 0AA; Registered with HMRC as a Money Services Business under the Money Laundering Regulations (reg. no. 12219180); Regulated by the FCA as an Authorised Payment Institution (FRN: 521566).
Websites means any websites owned by us or any OFX Group company from time to time.