1.1 This Agreement employs the following defined terms:
1.1.1 “Charity” means a body whose annual income is less than £1 million and is:
(a) in England and Wales, a charity as defined by section 1(1) of the Charities Act 2011;
(b) in Scotland, a charity as defined by section 106 of the Charities and Trustee Investment (Scotland) Act 2005; or
(c) in Northern Ireland, a charity as defined by section 1(1) of the Charities Act (Northern Ireland) 2008;
1.1.2 “Client” means GCEN’s client who has executed relevant application forms and agreed to be bound by this Agreement;
1.1.3 “Consumer” means an individual who, in contracts for payment services to which the Payment Services Regulations apply, is acting for purposes other than a trade, business or profession;
1.1.4 “Client Personal Data” means personal data provided by or on behalf of the Client or otherwise obtained or generated by GCEN on the Client’s behalf in connection with the provision of the Services;
1.1.5 “Contract” means each and every specific foreign exchange transaction undertaken by GCEN for the Client in performance of the FOREX Service;
1.1.6 “Data Protection Legislation” means the Data Protection Act 2018, the GDPR, the Privacy and Electronic Communications (EC Directive) Regulations 2003 and all applicable laws and regulations relating to the processing of personal data and privacy, including where applicable, any guidance notes and codes of practice issued by the European Commission and applicable national Data Regulators, including the UK Information Commissioner;
1.1.7 “Data Regulator” means any regulatory body with responsibility for ensuring compliance with Data Protection Legislation;
1.1.8 “Data Security Breach” means accidental or deliberate, unauthorised or unlawful acquisition, destruction, loss, alteration, corruption, access, use or disclosure of personal data processed under this Agreement or breach of GCEN’s security obligations under this Agreement;
1.1.9 “EEA” means the European Economic Area;
1.1.10 “FCA” means the UK Financial Conduct Authority and its successors;
1.1.11 “Fees and Charges Annex” means the annex to this Agreement setting out details of GCEN’s fees and charges for providing the Services to the Client;
1.1.12 “FOREX Services” means providing foreign exchange services to facilitate payments;
1.1.13 “FSMA” means the Financial Services and Markets Act 2000, as amended from time to time;
1.1.14 “GCEN” means Global Currency Exchange Network Limited, which also trades as GC Partners;
1.1.15 “GDPR” means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data;
1.1.16 “Micro-Enterprise” means an enterprise which employs fewer than ten (10) persons and whose annual turnover and/or annual balance sheet total does not exceed EUR 2 million;
1.1.17 “Money Remittance Services” means services for the transmission of money (or any representation of monetary value) without any payment accounts being created in the name of the payer or the payee, where:
(a) funds are received from a payer for the sole purpose of transferring a corresponding amount to a payee or to another payment services provider acting on behalf of the payee; or
(b) funds are received on behalf of, and made available to, the payee;
1.1.18 “Payment Services Regulations” means the Payment Services Regulations 2017, as amended from time to time;
1.1.19 “RAO” means the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001, as amended from time to time; and
1.1.20 “Services” means the totality of the services which GCEN agrees to provide to the Client (on an as required basis), and which comprise the Money Remittance Services and the FOREX Services.
1.2 The term “framework contract” bears the meaning given to it in the Payment Services Regulations.
1.3 References to “written” or “in writing” shall include communication by electronic mail (including attachments to electronic mail).
2.1 The terms and conditions set out in this Agreement (as amended by GCEN and notified to the Client from time to time) shall apply as between GCEN and the Client, and shall regulate the provision of the Services by GCEN to the Client or (on the Client’s instructions and subject to GCEN’s acceptance of the same) to any third party named in any order received by GCEN from the Client.
2.2 For the purposes of the Payment Services Regulations, this Agreement including the Fees and Charges Annex (together with any customer agreement entered into between the Client and GCEN (“Customer Agreement”)) constitutes a framework contract.
2.3 This Agreement shall come into force the date that it is communicated to the Client (whether by post, fax or email or by reference to the GCEN website).
2.4 Any reference to GCEN or the Client in this Agreement shall be deemed to include that party’s officers, employees and/or agents.
2.5 References to clauses are to the clauses of this Agreement and the headings in this Agreement are for convenience only and shall not affect its interpretation.
2.6 Any obligation in this Agreement on a person not to do something includes an obligation not to agree, allow, permit or acquiesce in that thing being done.
3. REGULATORY STATUS AND CLIENT STATUS
3.1 GCEN is authorised and regulated by the FCA as an authorised payment institution (reference number 504346). GCEN discharges its obligations to the Client subject to the relevant provisions of the Payment Services Regulations and the FCA’s relevant rules and guidance. Further details and information on GCEN’s regulatory status can be found in the FCA Financial Services Register.
3.2 For avoidance of doubt, GCEN is not authorised or regulated by the FCA in relation to any other matters which are subject to the jurisdiction of the FCA.
3.3 GCEN provides the Services from its registered office, the full address of which is 3rd Floor, 20 Dering Street, London W1S 1AJ.
3.4 Where the Client is not a Consumer, Micro-Enterprise or Charity (as defined in the Payment Services Regulations), the Client agrees that those Payment Services Regulations which may be disapplied by GCEN where the payment service user is not a Consumer, Micro-Enterprise or Charity are all so disapplied with respect to the Client.
4. INFORMATION PRIOR TO AND DURING THE PROVISION OF SERVICES
4.1 In accordance with the Payment Services Regulations (and in particular Schedule 4 thereto), GCEN is required to give various items of information to its Clients prior to providing them with Money Remittance Services. The parties confirm that such information is deemed to be provided in this Agreement.
4.2 If the Client so requests at any time during the contractual relationship, GCEN will provide the Client with a copy of this Agreement.
5. THE SERVICES
5.1 The Services shall be limited to the FOREX Services and the Money Remittance Services.
5.2 GCEN shall record in writing the details of each Contract entered into in the course of providing the FOREX Services, and send a copy to the Client at the time the Contract is performed. This will include details of applicable exchange rates.
5.3 Where providing FOREX Services, GCEN shall unless otherwise agreed, contract as principal with the Client for the delivery of the currency or payment in question and deal with the Client on an execution only basis.
5.4 Where providing FOREX Services, GCEN may provide the Client with information concerning the foreign exchange markets, but will not at any time offer advice to the Client on taxation, investment products or markets or the merits or otherwise of any currency or money remittance.
5.4.1 The Client accepts that any such information does not constitute advice and does not form part of the Services and agrees that it shall rely purely on its own judgement when entering into any Contract.
5.4.2 In providing the information referred to above, GCEN makes no warranty or representation as to its accuracy, and is not liable to the Client in relation to the use made of such information.
5.5 Each order shall stand as a separate Contract. Where FOREX Services are provided, the Client will take physical delivery of the purchased currency upon payment of the full amount of the sold currency, unless a Money Remittance Service is also requested in which case the purchased currency will be transmitted to a third party.
6. INSTRUCTIONS AND COMMUNICATIONS
6.1 All communications between the Client and GCEN, in either direction, shall be in English.
6.2 GCEN may, at its absolute discretion, accept or refuse (without attributing any reason or being liable for any claims, loss of profits, depletion of goodwill or damage, and whether direct, consequential or anticipated) any order for Services or any instruction relating to Services from any officer, employee or agent of the Client. Where only certain named personnel are authorised by the Client to place orders and give instructions to GCEN for Services, an “authorised personnel” list shall be annexed to this Agreement, and where such a list is annexed, GCEN shall only deal with those authorised persons.
6.3 For any order for Services or instructions relating to Services, the Client will be required to provide details to GCEN of the currency they have, the currency they require and to whom the money is to be transmitted, as relevant.
6.4 Orders may be placed, and instructions may be given orally or in writing for Services. In the case of a written order or instruction, the Client will use their personalised security credentials to log in to GCEN’s online portal, in order to be permitted to place the order or instruction. In the case of an oral order or instruction, the Client will call GCEN using the telephone number provided by GCEN, and will give their personalised security credentials, in order to be permitted to place the order or instruction. GCEN is entitled to require the Client to confirm such order or instruction in writing prior to executing the same. Alternatively, GCEN may itself confirm in writing any orally communicated order or instruction for Services, and if so, this shall be final and conclusive evidence of the order or the instruction in question.
6.5 The Client may also set up a recurring order for Services. The Client must complete a recurring order form provided by GCEN, in which the Client will set out details of the recurring order for Services, including:
6.5.1 details of the Client’s payment account at its credit institution from which the Client will transfer the funds;
6.5.2 any currency conversion required as part of the FOREX Service;
6.5.3 frequency of the recurring order for Services; and
6.5.4 details of whether the funds are transmitted back to the Client’s payment account at its credit institution or are transmitted to a third party as part of the Money Remittance Service.
Each order of any recurring order for Services will be subject to the requirements set out in this clause 6. If the Client wishes to stop any recurring order for Services, it must notify GCEN in accordance with clause 16 at least one business day before the next recurrence of the order for Services.
6.6 In accordance with Regulation 67 of the Payment Services Regulations, a Client may withdraw their consent to money remittance in certain circumstances, subject to the conditions set out therein.
6.7 In relation to any money remittance instructed by the Client to GCEN (and prior to execution of the same), GCEN will provide the Client with details of the maximum execution time for money remittance, the applicable charges and (if relevant) how such charges are broken down.
6.8 GCEN will provide the Client, in relation to each transaction or money remittance, with:
6.8.1 a reference enabling the Client to identify the transaction or money remittance;
6.8.2 for Money Remittance Service, the amount remitted, and for a FOREX Service, the amount or value of the relevant foreign currency purchased;
6.8.3 the amount of charges (and if relevant, interest) due from the Client in relation to the transaction or money remittance;
6.8.4 in relation to FOREX Services, the exchange rate or rates used; and
6.8.5 the transfer date, in relation to the money remittance made.
6.9 The information referred to in clause 6.8 will be provided free of charge on a monthly basis by GCEN in respect of all Services provided during the month in question (unless the Client and GCEN agree to provision of such information on a more frequent basis). Unless the Client notifies GCEN of any error or omission in relation to such information within twenty four (24) hours of receipt, the Client shall be deemed to have agreed and accepted the accuracy of all such reported information and it will be legally binding on the Client.
6.10 If the Client considers that GCEN has executed an instruction in its name which it has not originated, it shall notify GCEN forthwith. In accordance with the Payment Services Regulations, there are certain circumstances in which GCEN will be liable to the Client where a money remittance has been incorrectly executed and in those circumstances GCEN will without delay refund the amount of the non-executed or defective money remittance and where applicable refund to the Client the relevant amount. Further details can be obtained from GCEN.
6.11 Requests for refunds must be made within eight (8) weeks from the date on which the funds were remitted by GCEN. GCEN may require the Client to provide further information and refuse the refund until such information is received.
6.12 A Client is entitled to redress from GCEN for unauthorised money remittance, non-execution or defective or late execution of money remittance, but only if the Client has not acted fraudulently, has taken all reasonable steps to keep safe personalised security credentials relating to a payment instrument and notifies GCEN without undue delay on becoming aware of any unauthorised money remittance (and in any event no later than thirteen (13) months after the Client becomes aware of any unauthorised or incorrectly executed money remittance). Notification must be made in writing to [email protected].
6.13 GCEN is liable to the Client for the correct execution of money remittance unless it can prove to the Client, and where relevant, the payee’s payment service provider, that the payee’s payment service provider received the amount of the money remittance, subject to the conditions in the Payment Services Regulations.
6.14 The Client is liable for all losses incurred in respect of unauthorised money remittance where the Client has acted fraudulently. Except where the Client has acted fraudulently, the Client is not liable for losses incurred in respect of unauthorised money remittance where GCEN has failed at any time to provide appropriate means for notification in accordance with the Payment Services Regulations.
7. GCEN’S FEES AND CHARGES
7.1 GCEN’s fees and charges for providing the Services to the Client are set out in detail in the Fees and Charges Annex, which forms a part of this Agreement and are subject to such further details as are contained in this Agreement.
7.2 GCEN reserves the right to modify the charges made for the Services from time to time, giving the Client written notice of not less than seven (7) days before introducing any such modifications. GCEN does not impose any charge or reduction on the Client for using a particular form of payment instrument.
7.3 In addition, GCEN is entitled to be reimbursed at the Client’s expense with such expenses and fees as it incurs in performing the Services as are notified to the Client in this Agreement or in an annexure hereto, and to modify such fees or rates from time to time, giving the Client written notice of not less than seven (7) days before introducing any such modifications.
7.4 All fees due to GCEN and remaining unpaid, together with all bank, brokerage and other charges which the Client is obliged to bear but which have not yet been debited, shall be treated as due and payable.
8. MARGIN CALL
8.1 From time to time, GCEN may require the Client to post funds (“Margin”) as security for GCEN entering into one or more Contracts. Prior to this requirement, GCEN will provide the Client, in writing, with the terms on which it provides credit to the Client and when it requires Margin to be posted (“FX Credit Terms”).
8.2 If GCEN determines, in its sole discretion, that the net market value of all of the Client’s open Contracts has declined and the unrealised loss when marked to market exceeds the amount set out in the FX Credit Terms, the Client shall post Margin with GCEN in the amount calculated in accordance with the FX Credit Terms.
8.3 Payment of any amount of Margin is due on or before the business day following the date GCEN provides written notice to the Client of its request for payment of Margin (such notice, a “Margin Call”).
8.4 If GCEN considers (in its sole discretion) from time to time, that the amount of Margin transferred to it by the Client is insufficient to secure or otherwise collateralise the Client’s obligations and liabilities to GCEN under its open Contracts, GCEN may make additional Margin Calls to the Client.
8.5 If GCEN does not receive the amount of Margin requested in a Margin Call when due, GCEN, in its sole discretion, may close out any or all of the Client’s open Contracts and apply the proceeds of such Contracts to reimburse GCEN for all amounts due to it under such Contracts, including all realised losses.
8.6 If, after such application of proceeds, there is a positive balance in favour of the Client, GCEN will remit the balance of the proceeds to the Client on or before the following business day.
8.7 If the proceeds of such Contracts are insufficient to fully satisfy all amounts the Client owes to GCEN, the Client shall pay to GCEN the amount of such shortfall on or before the business day following the date of being notified of such shortfall.
8.8 The value of a Contract shall be marked to market by GCEN using its internal GCEN systems.
8.9 Any Margin paid to GCEN by the Client, or on the Client’s behalf, will be used to secure or cover all the Client’s present or future, actual or contingent, obligations to GCEN under this Agreement. GCEN shall acquire full ownership of such Margin upon receipt and shall not hold any Margin on the Client’s behalf (whether on trust or otherwise) and GCEN may deal with such Margin as its own funds. In the event of GCEN’s insolvency, the Client shall rank as a general creditor of GCEN in relation to any Margin paid to GCEN.
8.10 GCEN will owe the Client a debt equal to the amount of Margin received by GCEN, as reduced by any set-off rights under, or other terms of, this Agreement or under general law.
8.11 GCEN shall pay to the Client all or part of any amount of Margin transferred to GCEN by the Client under this Agreement if GCEN considers, in its sole discretion, that the amount of Margin transferred to it exceeds the amount required by GCEN to secure or cover all the Client’s present or future, actual or contingent, obligations to GCEN under this Agreement or otherwise.
8.12 The Client is not entitled to receive any interest on Margin delivered to GCEN.
8.13 In certain circumstances, it will not be possible for GCEN to provide FX Credit Terms prior to entry into a Contract. In such a case, if a significant exchange rate fluctuation occurs between the date on which a particular Contract is placed and (if different) the value date for the transaction to which such Contract relates, GCEN may request the Client to provide additional funds to maintain the value and level thereof at the stipulated percentage rate on the original Contract note. Such funds shall be paid in full by the Client on or before the business day following the date of request.
9. CLIENT’S WARRANTIES
9.1 The Client hereby warrants and represents to GCEN as follows:
9.1.1 the Client has full capacity to enter into this Agreement and to provide instructions to GCEN to enter into contracts, whether as part of Money Remittance Services or FOREX Services;
9.1.2 all orders will be placed in pursuance of the Client’s usual trade or business;
9.1.3 the Client is not acting for any third party;
9.1.4 all Contracts instructed to GCEN are to be entered into either for the Client’s commercial purposes (in accordance with Article 84(2) RAO) or for its private purposes, but shall in any event not be or represent Contracts for investment purposes; and
9.1.5 all funds to be provided by the Client will be beneficially owned by the Client (or will be held subject to a constitution that entitles the Client to dispose of such funds as if fully beneficially entitled) and will not be subject to any charge, lien or other encumbrance, and the Client will not create or permit the creation of any charge, lien or other encumbrance over any funds so provided.
9.2 The warranties in clause 9.1 are deemed to be repeated at every point at which the Client provides an instruction to GCEN.
10. LIMITATION OF LIABILITY
10.1 Nothing in this clause 10 seeks to limit GCEN’s liability to the Client for death or personal injury resulting from the negligence of GCEN, its employees, agents or sub-contractors, or in any way which is not permitted in accordance with the Payment Services Regulations.
10.2 Subject to clause 10.1 above, GCEN’s total liability to the Client arising in connection with the performance of the Services shall be limited to damages of an amount equal to the direct loss incurred, provided that GCEN’s liability shall in no circumstances exceed:
10.2.1 in the case of FOREX Services, the value of currency as at the Contract date to be purchased by GCEN from the Client; and
10.2.2 in the case of Money Remittance Services, the value of the money intended to be remitted.
10.3 GCEN shall not under any circumstances be liable to the Client for loss of profits or goodwill, anticipated savings, or any type of special indirect or consequential loss (including loss or damage suffered by the Client as a result of an action brought by a third party) arising in connection with the provision of the Services, even if such loss was reasonably foreseeable.
10.4 The Client will, on demand by GCEN, indemnify GCEN and keep it indemnified against all losses, damages and costs of any nature suffered by GCEN including any costs suffered by GCEN in covering, reducing or eliminating its risk, arising as a result of any breach by the Client of this Agreement.
11. DATA PROCESSING
11.1 References in this clause 11 to “data controller”, “data processor”, “processing”, “data protection officer” and “personal data” shall have the same meaning as defined in Data Protection Legislation.
11.2 The parties acknowledge and agree that in order to provide the Services or otherwise to fulfil its regulatory requirements, GCEN may access, process and retain Client Personal Data. The type of personal data that may be processed under this Agreement includes categories of data such as the Client’s name, address, other contact information, identification documents, other personal information, and payment data.
11.3 GCEN and the Client agree that in respect of the Client Personal Data:
11.3.1 GCEN may, in some instances where GCEN is processing Client Personal Data on behalf of Client, be acting as a data processor and the Client shall be the data controller; and
11.3.2 GCEN may, in other instances where GCEN is separately determining the purpose and manner of processing the Client Personal Data (e.g. for the purposes of fulfilling its regulatory requirements), be acting as an independent controller with the Client.
11.4 The Client shall:
11.4.1 comply with its obligations under applicable Data Protection Legislation in respect of the processing of Client Personal Data under or in connection with this Agreement;
11.4.2 have sole responsibility for the legality, reliability, integrity, accuracy and quality of any personal data it provides to GCEN and shall ensure that any instructions it gives in respect of such processing of Client Personal Data comply with applicable Data Protection Legislation. The Client hereby warrants and undertakes that it has all necessary rights to provide such personal data to GCEN and shall in particular ensure that GCEN is lawfully permitted to process Client Personal Data on its behalf;
11.4.3 ensure it only provides such personal data that may be requested by GCEN for the provision of the Services and no more. To the extent Client provides additional personal data over and above what is requested by GCEN, GCEN shall not be liable in respect of its processing of such additional personal data.
11.5 Each party acknowledges and agrees that each party has respective rights and obligations under applicable Data Protection Legislation.
11.6 Without prejudice to its other rights or obligations, where GCEN acts as a data processor in respect of its processing of Client Personal Data:
11.6.1 it shall process the Client Personal Data only to the extent, and in such a manner, as is necessary for the purposes of this Agreement and in accordance with the Client’s lawful written instructions from time to time. If GCEN is unsure as to the parameters of the instructions issued by the Client and/or believes that the Client’s instructions may conflict with the requirements of Data Protection Legislation or other applicable laws, GCEN may notify the Client for clarification and provide reasonable details in support of any assertion that the Client’s instructions may not be lawful;
11.6.2 it shall ensure the reliability of all its personnel who have access to the Client Personal Data and shall in particular, having regard to the state of technological development and the cost of implementing any measures, take such technical and organisational measures against the unauthorised or unlawful processing of Client Personal Data and against the accidental loss or destruction of, or damage to Client Personal Data, to ensure a level of security appropriate to:
(a) the harm that might result from such unauthorised or unlawful processing or accidental loss, destruction or damage of the Client Personal Data; and
(b) the nature of the Client Personal Data to be protected;
11.6.3 at the Client’s cost, it shall assist the Client by using appropriate technical and organisational measures in responding to, and complying with, data subject requests;
11.6.4 at the Client’s cost, it shall provide the Client with reasonable co-operation and assistance in relation to the Client’s obligations and rights under Data Protection Legislation, taking into account the nature of the processing and the information available to the processor, including providing the Client and relevant Regulators (as applicable) with all information and assistance reasonably necessary to investigate security breaches, carry out privacy impact assessments or otherwise to demonstrate compliance by the parties with Data Protection Legislation;
11.6.5 at the Client’s cost, it shall provide such co-operation, assistance and information as the Client may reasonably require if GCEN:
(a) receives any complaint, notice or communication which relates directly or indirectly to the processing of Client Personal Data under this Agreement or to either party’s compliance with Data Protection Legislation; and/or
(b) becomes aware of any Data Security Breach;
11.6.6 it shall keep a written record of any processing of the data carried out in the course of the Services;
11.6.7 it may engage a sub processor to process data (or otherwise sub-contract or outsource the processing of Client Personal Data to a third party) (a “Sub processor”), provided that it:
(a) notifies the Client of any new or replacement Sub processors (if the Client objects to the appointment of a new or replacement Sub processor, it shall notify GCEN within five (5) business days);
(b) enters into a written contract with the Sub processor that:
(i) provides protections or guarantees that Sub processor considers necessary to implement appropriate technical and organisation measures in compliance with the Data Protection Legislation; and
(ii) terminates, in relation to the processing of Client Personal Data under this Agreement, automatically on termination or expiry of this Agreement for any reason; and
(c) remains liable for all acts or omissions of the Sub processors as if they were acts or omissions of GCEN (except to the extent caused or exacerbated by the Client);
11.6.8 at the Client’s cost, it shall return or destroy (as directed in writing by the Client) all Client Personal Data it has in its possession and delete existing copies unless applicable law requires storage of the personal data;
11.6.9 to the extent that GCEN is required to transfer Client Personal Data pursuant to this Agreement to a territory outside of the EEA that does not have a finding of adequacy by the European Commission, the parties shall execute or procure the execution of the standard contractual clauses set out in Commission Decision of 5 February 2010 on standard contractual clauses for the transfer of personal data to processors established in third countries under Directive 95/46/EC (“Model Clauses”) unless the parties agree another more appropriate lawful data transfer mechanism exists. The parties agree that if the Model Clauses (or agreed alternative mechanisms) cease to exist or are no longer considered by both parties to be a lawful method of transferring personal data outside of the EEA, the parties shall have a good faith discussion and agree an alternative lawful transfer mechanism and GCEN may cease or procure that the relevant third party cease the processing of personal data until such time as the parties have agreed an alternative transfer mechanism to enable the personal data to be transferred outside of the EEA in a compliant manner;
11.7 The Client grants GCEN a non-exclusive, perpetual, worldwide, royalty-free license to use, copy, transmit, sub-license, index, model, aggregate (including with other third party data), publish, display and distribute any anonymous and/or aggregated information (including anonymous and/or aggregated information derived from Client Personal Data) obtained in connection with the provision of the Services for GCEN’s own purposes.
11.8 The Client shall indemnify GCEN on demand against all claims, liabilities, costs, expenses, damages and losses (including all interest, penalties and legal costs and all other professional costs and expenses) suffered or incurred by GCEN arising out of the Client’s breach of this clause 11. Each party acknowledges that Claims include any claim or action brought by a data subject arising from the Client’s breach of its obligations in this clause.
12. FORCE MAJEURE
12.1 GCEN shall not be deemed to be in breach of this Agreement or otherwise have any liability to the Client for any failure or delay on the part of GCEN in performing its obligations under this Agreement arising from or attributable to abnormal and unforeseeable circumstances beyond the control of GCEN, the consequences of which would have been unavoidable despite all effort to the contrary (a “Force Majeure Event”). GCEN shall notify the Client of the occurrence of a Force Majeure Event as soon as is reasonably practicable following the occurrence of such Force Majeure Event.
12.2 Where a Force Majeure Event occurs, GCEN may (at its option), on the subsistence of such Force Majeure Event for fourteen (14) consecutive days, and will, on the subsistence of such Force Majeure Event for twenty eight (28) consecutive days, cancel any as yet unexecuted money remittance and refund to the Client’s payment account at its credit institution any such amount. The Client shall not be entitled to compensation in respect of any Force Majeure Event occurring.
13.1 GCEN shall have the right to close any Contract by entering into an equal but opposite Contract or, at its absolute discretion, by any other actions deemed necessary, or to terminate this Agreement in its entirety, in each case without any further liability for any loss or otherwise in the event of any of the following:
13.1.1 any default of payment by the Client of any sum due to GCEN;
13.1.2 any other breach by the Client of this Agreement;
13.1.3 if the Client is an individual, it is declared bankrupt or enters into an arrangement with its creditors;
13.1.4 if the Client is a legal entity, it enters into any form of insolvency or administration procedure (other than for the purposes of a reconstruction which has been agreed in advance with GCEN) or is unable to pay its debts as they fall due (as defined in section 123 of the Insolvency Act 1986);
13.1.5 it becomes unlawful for GCEN to give effect to any or all of its obligations to the Client under this Agreement or where GCEN or the Client is ordered by any governmental or regulatory body to cease to perform this Agreement; or
13.1.6 GCEN considers it desirable to do so for its own protection or for the protection of its other Clients.
13.2 Where a Contract is closed out by GCEN in accordance with clause 13.1, a Contract note will be issued and dispatched to the Client detailing the specifics of the closure and any loss suffered by GCEN as a result of such closure.
13.3 GCEN is entitled to a full indemnity from the Client in relation to all costs incurred by GCEN in reversing or otherwise terminating all Contracts still subject to execution.
14. DURATION, TERMINATION
14.1 Subject as set out below, these terms shall continue in force until terminated by the Client giving to GCEN written notice of one (1) month or by GCEN giving to the Client two (2) months’ written notice. Such written notice shall be given in accordance with clause 16.
14.2 Either party shall be entitled to terminate this Agreement forthwith by written notice to the other if:
14.2.1 that other party commits any material breach of any of the provisions of these terms and, in the case of a breach capable of remedy, fails to remedy the same within fourteen (14) days after receipt of a written notice giving full particulars of the breach and requiring it to be remedied;
14.2.2 either party enters into any form of insolvency or administration procedure (other than for the purposes of a reconstruction which has been agreed in advance with the other party) or is unable to pay its debts as they fall due (as defined in section 123 of the Insolvency Act 1986); or
14.2.3 if GCEN ceases to be regulated by the FCA in accordance with the Payment Services Regulations.
14.3 GCEN may terminate this Agreement as provided for in clause 13.1 (default by the Client) or in clause 17.3 (termination where modification is not agreed).
14.4 Any waiver by either party of a breach of any provision of these terms shall not be considered as a waiver of any subsequent breach of the same or any other provision thereof.
14.5 The rights to terminate given by this clause 14 shall be without prejudice to any other right or remedy of either party in respect of the breach concerned (if any) or any other breach.
14.6 In the event of termination, however arising, GCEN has the power and right to ensure that all Contracts entered into for the Client prior to termination taking effect shall be executed and settled for the Client’s account.
14.7 Subject as otherwise provided in the Contract, upon the termination of these terms for any reason and following the conclusion of any foreign currency transacted under these terms, neither party shall have any further obligation to the other save for any rights, obligations and/or liabilities which have arisen under these terms but have not been discharged prior to termination.
15.1 The Client shall notify GCEN if at any time it is dissatisfied with GCEN’s performance of this Agreement or otherwise disputes the validity or enforceability of it (the “Dispute”).
15.2 Without prejudice to their rights under this Agreement, GCEN and the Client shall attempt to resolve any Dispute in good faith. GCEN will make every possible effort to address all points of the Client’s dispute, and will send a written reply to the Client within an adequate timeframe and no later than fifteen (15) business days after the day on which GCEN is notified by the Client.
15.3 In exceptional circumstances, if GCEN cannot give the Client a full written reply in accordance with clause 15.2, then GCEN must give the Client a holding reply, clearing indicating the reasons for the delay, and specifying a deadline by which to send the full written reply which is no later than thirty five (35) business days after the day on which GCEN is notified by the Client.
15.4 If the Dispute remains unresolved, you may be entitled to refer it to the Financial Ombudsman Service (“FOS”). Further information, contact details and eligibility requirements are set out on www.financial-ombudsman.org.uk.
16.1 Any notice, document or other information to be given by one party to the other party under or in connection with this Agreement (a “Notice”):
16.1.1 shall be in writing (which shall include email);
16.1.2 shall be in the English language; and
16.1.3 shall be delivered personally, or sent by first class post (or air mail if overseas) or by email to the party due to receive the Notice to the address specified in clause 16.2 (or to another address, person, or fax number specified by that party by not less than seven (7) days’ written notice to the other party and received by the other party before the Notice was despatched).
GCEN may require the Client to provide documents in a particular format, such as a spreadsheet or PDF.
16.2 The address referred to in Clause 16.1.3 is:
16.2.1 in the case of GCEN:
Address: Global Currency Exchange Network Limited
20 Dering Street
London W1S 1AJ
Email: [email protected]
Marked for the attention of: Account Management: Termination
16.2.2 in the case of the Client, such details as the Client has notified to GCEN.
16.3 Unless there is evidence that it was received earlier or later, a Notice is deemed given:
16.3.1 if delivered personally, when left at the address referred to in clause 16.2;
16.3.2 if sent by post, except air mail, two (2) business days after posting it;
16.3.3 if sent by air mail, six (6) business days after posting it; and
16.3.4 if sent by email, when received in full by the recipient.
16.4 In the event of suspected or actual fraud or security threats, GCEN will contact the Client using a secure procedure via a recorded telephone line and/or via [email protected].
17. MISCELLANEOUS FURTHER PROVISIONS
17.1 Nothing in these terms shall create, or be deemed to create, a partnership or the relationship of employer and employee between the parties.
17.2 This Agreement, of which these terms and the Fees and Charges Annex form part, together with any documents referred to in this Agreement or annexed hereto, represents the entire agreement between the parties and supersedes all previous arrangements, agreements and understandings between the parties in respect of the Services.
17.3 This Agreement may be modified by GCEN providing written notice to the Client no later than two (2) months before the date on which the proposed changes are to take effect. Any such proposed changes will apply automatically from the date set out in the written notice from GCEN to the Client, unless the Client notifies GCEN to the contrary before the date on which the proposed changes are to take effect. The Client will be deemed to have accepted such proposed changes if it does not notify GCEN to the contrary before the date on which the proposed changes are to take effect. The Client has the right to terminate this Agreement in accordance with clause 14 at any time before the date on which the proposed changes are to take effect.
17.4 Each party acknowledges that, in entering into this Agreement, it does not rely on any statement, representation, assurance or warranty of any person (whether party to this Agreement or not) except as expressly provided herein, and that all conditions, warranties or other terms implied by statute or common law are hereby excluded to the fullest extent permitted by law.
17.5 A person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement but this does not affect any right or remedy of a third party which exists or is available apart from that Act.
17.6 If any one or more of the provisions contained in this Agreement shall be or become invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained in this Agreement shall in no way be prejudiced or otherwise affected.
18. THIRD PARTY RIGHTS
18.1 A person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement but this does not affect any right or remedy of a third party which exists or is available apart from that Act.
19. GOVERNING LAW AND JURISDICTION
19.1 This Agreement and all non-contractual obligations arising out of or in connection with it shall be governed by and construed in accordance with the Laws of England.
19.2 Other than where clause 15.2 applies in relation to dispute resolution by alternative means, each party hereby submits to the exclusive jurisdiction of the English Courts to settle any dispute arising from or connected with this Agreement (including a dispute regarding the existence, validity or termination of this Agreement or relating to any non-contractual or other obligation arising out of or in connection with this Agreement) or the consequences of its nullity. The parties agree that the courts of England are the most appropriate and convenient courts to settle any such dispute and, accordingly, that they will not argue to the contrary or bring proceedings to that effect.