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Terms and Conditions
1. INTRODUCTION
1.1. The Interchange Organization Limited (Interchange) of 4 Marble Arch London W1H 7AP provides facilities for the purchase or sale of currencies on behalf of clients.
1.2 The Client wishes to enter into contracts for the purchase, sale and delivery of currency with Interchange for use in connection with its personal or business purposes and has agreed with Interchange that all transactions shall be carried out on the terms and conditions ("the Terms") set out below.
2. INTERCHANGE'S SERVICES
2.1 Interchange's services hereunder shall be limited to dealing and entering into contracts for the sale and purchase of currency ("Contracts") (including without limitation to the foregoing Forward Contracts, Forward Time Option Contracts and limit Orders) with the Client. Interchange shall, unless otherwise agreed, contract as principal with the Client for delivery of the currency in question and deal with the Client on an execution only basis. In entering into Contracts, the Client shall rely solely on its own judgment and, whilst Interchange may provide information to the Client from time to time, it will not provide advice to the Client upon the merits of a proposed currency transaction or provide taxation or other advice, to the client.
2.2 Interchange will, at such time or times as it may agree, enter into Contracts with the Client relating to either spot currency transactions or forward currency transactions, which provide in either case for delivery of currency. The Client undertakes to take physical delivery of and pay for the currency in question on the date specified in the relevant contract note ("the Value Date"), or in the event that further funds are called for by Interchange to pay at such time or times as Interchange may decide.
3. INSTRUCTIONS
3.1 The Client may give Interchange verbal or written orders or instructions relating to a transaction for the purchase or sale and delivery of currency. Interchange shall be entitled to act upon the verbal or written order or instruction of any other person authorised or nominated by the Client. The moment the Client agrees a Contract verbally, the Client agrees that he/she is entering a binding contract and is obliged to perform the Contract according to Interchange Terms. In the case of a verbal order or verbal instruction Interchange will require the Client to confirm such order or instruction in writing but Interchange will itself confirm the order or instruction electronically or by email, fax or post to the Client which itself shall be deemed to be (if not the fact) confirmation of the order or instruction that Interchange may act upon with impunity notwithstanding the fact that the Client fails to confirm the same in writing as requested herein.
3.2 Failure to confirm the transaction will not entitle you to treat the Contract as void and we will presume that you agree with the Terms. If you have not received the contract note, you must notify us within 24 hours of agreeing the Contract. Otherwise our record of the Client instructions and our Terms shall be definitive.
3.3 Once an order or instruction has been given by or on behalf of the Client it cannot be rescinded, withdrawn or amended without Interchange's express consent.
3.4 Interchange may at its absolute discretion refuse any dealing instruction given by the Client without giving any reason or being liable for any loss occasioned thereby. Interchange may (but shall not be obliged to) require confirmation (in such form as Interchange may specify from time to time) from the Client of any order or instruction if:
(a) Interchange considers that such confirmation is desirable or that an order or instruction is ambiguous: or
(b) The instruction is to close the Client's account or to remit the Client's funds to a third party.
4. PAYMENT AND FINANCIAL PROVISIONS
4.1 The Client shall facilitate payment into an account held at a bank designated by Interchange in the name of Interchange and designated as a Client Account ("the Transaction Account") of cleared funds to the value of the currency to be sold by the Client ("the Sale Currency") in order to secure payment.
4.2 The Client shall pay any outstanding amount of the Sale Currency into the Transaction Account in cleared funds prior to the Value Date.
4.3 Interchange shall not be required to settle any Contract or to pay to the Client, or to the Client's order, any amount in respect of such Contract without Interchange first having received confirmation from the bank where the Transaction Account is held or from any broker or dealer with or through whom Interchange executes currency transactions ("the Broker") to the effect that the amount of Sale Currency due and payable by the Client to Interchange in respect of the Contract has in fact been received.
4.4 All payments due from the Client to Interchange under these Terms shall be made in full without any set-off, counter-claim, deduction or withholding whatsoever. Interchange may deduct from any payment to be made to the Client such amounts as Interchange may be required by law to deduct in respect of taxation liabilities or as may be charged to Interchange by the Broker in respect of transfer charges.
4.5 In the event of a Contract, the Client will pay the Sale Currency in full into the Transaction Account on such date or dates as Interchange might direct, but no later than by 12 noon on the second working day after the relevant Contract.
4.6 In the event of a Forward Contract, the Client will immediately pay into the Transaction Account in cleared funds a deposit of 10% of the full amount of the Sale Currency, or such other percentage as Interchange may specify and will pay any outstanding balance of the Sale Currency into the Transaction Account not later than one working day before the Value Date of the particular Forward Contract.
4.7 In the event of a same day Contract the Client will pay the Sale Currency into the Transaction Account by no later than 12.00 noon on a working day, unless Interchange stipulates otherwise.
4.8 Unless otherwise specified in writing by Interchange all payments due from the Client to Interchange pursuant to these Terms will be made in the currency specified in the Contract without set-off, counterclaim or deduction whatsoever.
4.9 Interchange will make any payments to the Client under a Contract in full unless required by law to deduct sums in respect of any taxation liabilities.
4.10 Banks have specified times of cut off for the receipt and dispatch of electronic payments. Interchange accepts no responsibility for any delay in onward payment attributable to the late arrival of funds or instructions of payment relative to the cut off times of the designated bank.
4.11 Interchange reserves the right to re-establish the margin to the original percentage level agreed for the particular Contract (“Margin Call”) if the margin subsequently falls below the applicable threshold for that Contract as set out below as a result of an adverse market movement.
(a) in the event an initial margin of 10% falling to or below 7.5%.
(b) in the event an initial margin of 5% falling to or below 4%.
(c) in the event an initial margin of 3% falling to or below 2%.
4.12 In the event of a Margin Call being made the Client shall pay all those monies required pursuant to the Margin Call within twenty four hours of Interchange first communicating the Margin Call to the Client. The Client's failure to do so shall be a fundamental breach of the Terms of the Contract in question and shall entitle Interchange without prejudice to any other remedy available, to immediately and without notice to the Client terminate the Contract without liability.
4.13 The Client undertakes that the margin or such other funds to be provided as security for the Client's obligations hereunder will be beneficially owned by the Client and will not be subject to any charge, lien or other encumbrance and the Client will not create any charge, lien or other encumbrance over any funds so provided.
4.14 The margin will vest automatically in Interchange in any of the following circumstances:
a) on the Value Date
b) the Client is in breach of any of the Terms
c) in the circumstances set out in Condition 9.
4.15 All funds provided by the Client under a Contract (whether as security or otherwise) may be appropriated by Interchange in the event that Interchange incurs any liability, is exposed to increased market risk (as Interchange in its discretion may decide) in respect of any Contract or in the event that the Client is unable to pay its debts or fails to comply or breaches these conditions.
5. CONTRACT NOTES AND STATEMENTS
5.1 Contracts will be evidenced by a document confirming execution of a Contract between Interchange and the Client ("a Contract Note"). Interchange will send, or will arrange for the Broker to send, with due despatch to the Client a Contract Note in respect of each Contract. The Contract Note may comprise or be a copy of the Contract Note sent to Interchange by the Broker. The failure of Interchange or the Broker to send a Contract Note will not prejudice the rights and obligations of either party under the Contract.
5.2 Interchange may but is not obliged to send the Client a monthly statement with respect of each account of the Client which shall include details of transactions during the preceding calendar month.
5.3 Unless the Client notifies Interchange of any error or omission within two business days of receipt of any Contract Note, statement of account, settlement notice of other document issued by Interchange to the Client, the Client shall be deemed to have ratified and accepted the contents of such document and shall not thereafter be entitled to dispute the contents of any such document and it shall in the absence of any manifest error be conclusive evidence of the matters stated therein.
6. CHARGES
Interchange's commission and/or charges for sale or purchase and delivery of currency will be on the basis set out in the Contract Note issued in accordance with these terms by Interchange as confirmation of each order from the Client.
7. DISPUTES AND DEFAULT
7.1 If at any time a dispute arises between Interchange and the Client relating to the existence or terms of any contract ("a Disputed Contract"), Interchange may at any time in its absolute discretion without prior notice to or any further authority from the Client take whatever action that it considers appropriate for the Client's account in relation to the Disputed Contract, Interchange will notify the Client (verbally or in writing) as soon as is practically possible thereafter of any action it has taken but any failure by Interchange to give such notice will not prejudice the validity of such action.
7.2 The liability of the party found to be at fault in respect of any Disputed Contract shall not exceed the amount of direct loss incurred in connection with such Contract plus interest pursuant to paragraph 7.4.
7.3 Reference shall be made to any available electronic recordings or transcripts of recordings of telephone conversations between the parties to resolve disputes between the parties.
7.4 Any payment required to be made by the Client under these Terms, which is not made when due shall bear interest (after as well as before judgment) at a rate of 6% per annum over the Base Rate of The Royal Bank of Scotland from time to time (or such rate as may replace it). Such interest shall accrue and be calculated daily from the due date until the date of payment and shall be compounded monthly if not paid.
8. REPRESENTATIONS
The Client represents to Interchange that, both at the date hereof and at the time of execution of each Contract:
a) The Client is acting as principal for its own account and has full power and authority and has taken all necessary steps to enable it lawfully to enter into and perform these Terms and every Contract executed hereunder
b) All sums held as security for the Client's obligations hereunder are and will remain beneficially owned by the Client and the Client will not create any charge or other encumbrance over or in respect of such money or assets
c) All information supplied to Interchange is, or at the time it is supplied to it will be true and accurate in all material respects and the Client will not omit or withhold any information which would render the information so supplied false or inaccurate in any material respect
d) The Client will provide to Interchange on request such information regarding its financial and business affairs and identity as Interchange may reasonably require, including without prejudice to the foregoing, in relation to any obligations imposed on regulated investment businesses under the United Kingdom Money Laundering Regulations 1993
e) The client is entering into these Terms in connection with its trade or line of business or for other commercial purposes and the Client will take physical delivery of the currency in question under the contract.
9. DEFAULT
9.1 Interchange shall have the right to close out all or any part of any Contract, without further liability to the Client for losses that may be sustained or other wise, upon or at any time after the happening of any of the following events without giving prior notice to or further authority from the Client if:
a) The Client shall fail to make any payment when due under these Terms
b) The Client dies or becomes of unsound mind
c) Whether in the United Kingdom or elsewhere, the Client suspends payment of its debts, makes any composition with its creditors, suffers a receiver of some or all of its assets to be appointed, takes or has any proceedings taken against it in bankruptcy or (being a company) takes or suffers any steps to be taken for its winding up other than for the purposes of amalgamation or reconstruction approved in advance in writing by Interchange
d) The Client fails in any respect fully and promptly to comply with any obligations to Interchange or through Interchange to any clearing house or Broker or bank
e) It becomes or may become unlawful for Interchange to maintain or give effect to all or any of the obligations under these Terms or otherwise to carry on its business or if Interchange or the Client is requested to close out a Contract (or any part thereof) by any regulatory authority whether or not that request is legally binding
f) The Client fails to observe or perform in whole or in part any of the provisions of these Terms or commits a material breach of the representations in clause 8
g) Anything analogous to any of the events specified above occurs under the laws of any applicable jurisdiction, or
h) Interchange considers it necessary or desirable to do so for its own protection.
9.2 If the Client becomes aware of the occurrence of any event referred to in clause 9.1 it shall give Interchange notice of such event forthwith.
9.3 After closing out a Contract for any reason Interchange or the Broker will send with due despatch to the Client a settlement notice, showing the Client's profit or loss arising from the closing out.
9.4 In the event that the Client’s cheque is dishonoured, returned, not met on first presentation or stopped for whatever reason Interchange shall levy an administrative charge of £25 in respect of each such cheque. This administrative charge will become payable by the client in addition to any other sums due under these Terms.
9.5 Interchange assumes no responsibility whatsoever for any delay in payment under these Terms caused by the Client or any other third party, including but not confined to, bank delay, postal delay, delay caused by accident, emergency or act of God. For the avoidance of doubt the Client accepts that it is the Client who is solely responsible for ensuring that all payments required under any transaction between the Client and Interchange are made promptly and within the time limits specified by the particular Contract.
10. DEDUCTION OF INTERMEDIARY/RECEIVING BANK FEES
In some circumstances a number of intermediaries (such as correspondent banks) may be involved in an international payment and may deduct a charge. The receiving bank may also take a charge. These charges cannot always be calculated in advance, and the Client agrees to be liable for these expenses. The Client should take account of this fact when giving instructions as Interchange cannot be liable for losses that result from these fees being levied. If it is important that the full value of Sale Currency arrives as Interchange may be able to pre-cover these charges. The Client should ensure that this is clearly discussed and understood by the Broker when booking a Contract.
11. LIMITATION OF LIABILITY AND INDEMNITY
11.1 Interchange shall not be liable to the Client for the non performance of Interchange's obligations hereunder or the failure to execute any Contract in accordance with the instructions of the Client by reason of any cause beyond the reasonable control of Interchange.
11.2 The Client shall, on demand by Interchange indemnify Interchange and keep it indemnified from and against all liabilities, damages, losses and costs (including legal costs) duties, taxes, charges or commissions incurred or suffered by Interchange in the proper performance of its services or the enforcement of its rights hereunder and, in particular, without prejudice to the generality of such indemnity, against all amounts which Interchange may certify to be necessary to compensate it for all costs, expenses, liabilities and losses sustained or incurred by Interchange (including but not limited to Interchange's loss of profits) and any loss or expenses which Interchange may suffer or incur in taking such action as Interchange in its absolute discretion considers necessary or appropriate in the circumstances to cover, reduce or eliminate its exposure in respect of any Contracts where the Client fails to honour its obligations hereunder as a result of:
a) Any default in payment by the Client of any sum under these Terms or any Contract when due or any other breach by the Client of these Terms
b) Interchange doing and taking all and any actions and steps whatsoever to carry out the terms of any telephone instructions from or purporting to be from a person duly designated or authorised by the Client for such purpose pursuant to and in accordance with clause 3.1, or
c) Interchange exercising its rights under these Terms to close out all or any part of any Contract before its applicable Value Date
11.3 The indemnities in this clause 11 shall survive termination of any agreement under these Terms and the certificate of Interchange as to the amounts due under clause 11.2 shall, save for manifest error, be conclusive.
12. GENERAL
12.1 These Terms constitute the entire agreement and understanding of the parties with respect to its subject matter and supersede all oral communications and prior writings with respect thereto.
12.2 Time shall be of the essence in respect of any obligations of the Client hereunder.
12.3 Interchange may amend these Terms by notice in writing to the Client at any time. Any such amendment shall take effect from the date specified by Interchange but may not be retrospective or affect any rights or obligations that have already arisen. Otherwise, these Terms may only be varied by the written agreement of both Interchange and the Client.
12.4 If at any time any provision of these Terms or any Contract is or becomes illegal, invalid or unenforceable in any respect under the laws of any jurisdiction, neither the legality, validity or enforceability of such provision under the laws of any other jurisdiction shall in any way be affected or impaired thereby.
12.5 No failure on the part of any party in exercising, and no delay on its part in exercising, any right or remedy under these Terms shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy. The rights and remedies provided in these Terms and the indemnities contained in clause 11 are cumulative and not exclusive of any rights or remedies provided by law.
12.6 The parties agree and consent to:
a) The electronic recording by either party of telephone conversations between the parties with or without an automatic tone warning device; and
b) The use of such recordings as evidence by either party in any dispute or anticipated dispute between the parties or relating to dealings between the parties.
12.7 Any such recordings or transcripts made by Interchange may be destroyed by Interchange in accordance with Interchange's normal practice.
13. FORFEITURE AND DAMAGES
13.1 In the event of a Client failing to comply with the terms of any Contract between us and in particular (but without prejudice to the generality of this) in respect of Forward Contracts or Forward Time Option Contracts or Limit Orders or Stop Orders (to include Forward Limit Orders and/or Forward Stop Orders), Forward Limit Time Option Contracts and/or Forward Stop Time Options Contracts or any variation or combination of such orders, on the Value Date or failing to pay any monies that from time to time become due and payable to Interchange pursuant to any other arrangement or facility, the Client irrevocably agrees that Interchange may;
a) Forfeit the whole of any deposit that the Client has lodged with Interchange on any matter, and
b) Sell the necessary covering currency to close out the position in the market and terminate the Contracts and in particular any Forward Contract or Forward time Option Contract or Limit Order, and
c) Charge the Client with all of the costs, expenses and losses (including without limitation to the foregoing bank interest at the rate set out in Clause 7.4 hereof on all or any sums that Interchange may expend or borrow) incurred by Interchange as a result of Interchange entering into the said Contract and in particular any Forward Contract or Forward Time Option Contract or Limit Order or other transaction. Charges will include all currency losses, interest charges on amounts unpaid by the client, a £50 administration fee and any other costs or losses incurred by Interchange as a result the Client failing to comply with the terms of the contract.
13.2The Client understands and agrees that Interchange may require a deposit from the Client to validate anycontract made.
14. EXECUTION ONLY
Interchange are not providing any advice (whether to proceed, or not to proceed or in respect of timing) in respect of any Contract which the Client instructs Interchange to execute on his/her behalf. Interchange may provide market information at the Client’s request, but this is not advice. The Client should not infer anything beyond the raw data Interchange provides, as foreign exchange rates and conditions can fluctuate widely and rapidly. As a result, Interchange cannot accept responsibility for the Client’s decision to enter a foreign currency transaction.
15. GOVERNING LAW AND JURISDICTION
These terms shall be governed by English law and any disputes in relation to any matters governed by these terms shall be subject to the exclusive jurisdiction of the Courts of England and Wales.
The Interchange Organization Ltd.
4, Marble Arch
London W1H 7AP
Telephone: +44 (0) 20 7723 0007
Facsimile: +44 (0) 20 7723 0100
www.interchangefx.co.uk
Company Registration No. 4019832
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FOREIGN CURRENCY EXCHANGE SERVICES
