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Relationship Agreement – Private Customers
PART A: BACKGROUND
1. OUR RELATIONSHIP WITH YOU
1.1 The Ebury Relationship Agreement (the “Agreement”) comprises terms and conditions governing the relationship between the individual (acting outside the course of a business or profession) named in the Application Form (the “Customer”, “you”, “your”) and Ebury Partners UK Limited (“Ebury” “us”, “we”, “our”), that apply to certain of our products and services. Our products and services allow you to:
1.1.1 load funds onto an Account;
1.1.2 make payments to one or more Beneficiaries nominated by you; and
1.1.3 enter into foreign exchange transactions (including spots and commercial forwards),
collectively, the “Services”.
1.1.4 we may provide assistance and make arrangements for you to borrow money (“Arranging Services”).
1.2 The following documents are incorporated into and form part of the Agreement:
1.2.1 the terms and conditions set out in this document (the “Terms”); and
1.2.2 any terms and conditions set out in the Application Form.
We will provide you with separate terms and conditions for any services that fall outside the scope of the Agreement.
1.3 We recommend that you retain a copy of all of the documents that make up the Agreement. If you would like a copy of any of the documents, you can contact us (using the details at Clause 11.1). You can also find a copy of the latest version of these terms and conditions on our website.
1.4 In the event of any conflict, any terms and conditions in the Application Form shall prevail over the provisions of the Schedule and the terms and conditions of this Agreement.
1.5 While this Agreement is in force, we will provide a copy of this Agreement to you on request.
1.6 These Terms are divided into four separate parts:
1.6.1 Part A sets out the terms and conditions governing our relationship with you;
1.6.2 Part B sets out the specific terms governing your Account with us (and any Orders you may place using that y Account);
1.6.3 Part C sets out the specific terms governing the FX Services which we provide, including Spots and Forwards; and
1.6.4 Part D sets out some general information and other importance terms governing the Agreement.
2. DEFINITIONS AND INTERPRETATION
2.1 Where the words set out below are used with capital letters in these Terms, they mean as follows:
2.1.1 “ADGM” means the Abu Dhabi Global Market, the financial free zone located in the UAE Emirate of Abu Dhabi.
2.1.2 “Account” means the electronic money account which we shall provide to you and which is to be operated and used in accordance with these Terms.
2.1.3 “Applicable Laws” means any applicable law, statute, regulation or legally binding requirement or order as interpreted taking appropriate account of regulatory policy, guidance or industry code, relating to either of the parties or subject matter in question, including (as amended from time to time) (i) the FSMR; (ii) the FSRA Rules; (iii) UAE Federal Decree-Law No. (20) of 2018 on Combating the Crimes of Money Laundering, Terrorist Financing and the Financing of Illegal Organisations; (iv) UAE Cabinet Resolution No. (10) of 2019 on Combating the Crimes of Money Laundering, Terrorist Financing and the Financing of Illegal Organisations; (v) the laws of the ADGM; and (vi) the UAE laws which apply in the ADGM including but not limited to the UAE criminal laws.
2.1.4 “Application Form” means Part 1 of the Application Form, any supplemental terms and any other information submitted by you therein.
2.1.5 “Arranging Services” means carrying out the regulated activity of “Arranging Credit”, as defined under the FSRA Rules, for you or on your behalf, as set out at sub-Clause 1.1.4.
2.1.6 “Authorised Party” means any natural person listed as an “Authorised Party” in Part 1 of the Application Form.
2.1.7 “Beneficiary” means you or any third party payee which you include in your Order.
2.1.8 “Beneficiary Account” means the bank account to which you are sending funds.
2.1.9 “Business Day” means Monday – Friday inclusive, excluding any public holidays or days when private institutions remain closed in accordance with an order of the government of the Emirate of Dubai, of the federal government of the UAE, or of the relevant ADGM authority.
2.1.10 “Close Out” means reversing a Trade in the circumstances set out in Clause 21 or otherwise pursuant to this Agreement.
2.1.11 “Confidential Information” means all information disclosed by you in connection with this Agreement unless it is, or later becomes, publicly available through no fault of ours, or it was or later is rightfully developed or obtained from independent sources free from any duty of confidentiality.
2.1.12 “Credit Bureau” means the relevant body, in the UAE or elsewhere, including but not limited to Al Etihad Credit Bureau PJSC, which aggregates and analyses a person’s credit information to calculate credit scores and produce credit reports, or any other similar institution.
2.1.13 “Delivery Date” means the Business Day on which we will send funds to the Beneficiary Account.
2.1.14 “Ebury Representative” means any of our representatives who you may contact with respect to the Services.
2.1.15 “Effective Date” means as set out at Clause 4.1.
2.1.16 “Force Majeure Event” means an event which is due to abnormal and unforeseeable circumstances beyond a party’s control, the consequences of which would have been unavoidable despite all efforts to the contrary, which may include an act or omission of government, any regulatory body or other competent authority, an interruption, failure or defect, or non-operation of our internet and telephone connections or other communication services..
2.1.17 “Forward Contract” means a foreign exchange contract under which we agree that on a specific date or specified range of dates in the future, to exchange money at an agreed exchange rate, and make the exchanged money available at an agreed time for commercial and business purposes, which shall be to facilitate payment for identifiable goods, services or direct investment and cannot be facilitated for speculative purposes.
2.1.18 “FSMR” means the ADGM Financial Services and Markets Regulations 2015.
2.1.19 “FSPN” means Financial Services Permission Number.
2.1.20 “FSRA” means the Financial Services Regulatory Authority, the financial services regulator in the ADGM.
2.1.21 “FSRA Rules” means the rules made by the FSRA for carrying out the purposes of the FSMR.
2.1.22 “Insolvent” means you or any other person takes (or threatens to take) any step in connection with:
(a) your bankruptcy (including, for the avoidance of doubt, if a bankruptcy petition is presented against you, or you petition for your own bankruptcy);
(b) the making of any composition, compromise, assignment or arrangement with any of your creditors;
(c) the appointment of any other, receiver or manager of any of your assets;
(d) any analogous procedure in any jurisdiction; or
(e) you are unable or admit inability to pay your debts as they fall due or you are deemed to or declared to be unable to pay your debts under applicable law.
2.1.23 “Limit Order” means an order to exchange money at a specified exchange rate and within a specified time period.
2.1.24 “Margin” means funds (in any currency which we may specify) that we may require you to provide to us as security for us entering into a Forward Contract with you.
2.1.25 “Margin Call” means a request by us for such sum as we consider will be necessary to maintain the amount of Margin relative to the value of the Purchase Currency.
2.1.26 “Nominated Account” means the Ebury bank account which we specify in the Payment Confirmation.
2.1.27 “Online System” means the electronic platform and interface (hosted by us) through which you can access most (but not all) of the Services.
2.1.28 “Order” means such information as you may supply to us in respect of (a) a Transfer; or (b) a Trade.
2.1.29 “Payment” means cleared funds received by us from you in respect of a Trade in accordance with Clause 18.
2.1.30 “Payment Amount” means the full amount which you are required to pay us to fulfil your Trade as specified in your Payment Instruction Confirmation.
2.1.31 “Payment Instruction Confirmation” means the email we shall send you for the purpose of confirming the Payment Amount and the Beneficiary Account.
2.1.32 “Professional Client” means a person which satisfies the criteria to be classified as a “Professional Client” as defined under the FSRA Rules.
2.1.33 “Purchase Currency” means the currency which you shall buy from us.
2.1.34 “Sell Currency” means the currency which we shall sell to you.
2.1.35 “Services” means those currency exchange and related services as set out at Clause 1.1.
2.1.36 “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.
2.1.37 “Trade” means a Spot Contract, Forward Contract entered into in accordance with Clause 17.
2.1.38 “Transfer” means a transfer of funds to a Beneficiary nominated by you.
2.1.39 “Transaction Receipt” means a confirmation sent by us (by email) setting out details of a Trade.
2.2 We have split the Terms into sections and inserted a number of headings in order to make them easier to read. The headings are not intended to affect the way that the Terms are interpreted.
2.3 In these Terms:
2.3.1 when we refer to a statute or statutory provision, this includes any subordinate legislation made under it and any modifications, amendments, extensions, consolidations, re-enactments and/or replacements of that statute, statutory provision and/or subordinate legislation which are in force from time to time;
2.3.2 any references that we make to the singular include the plural and vice versa;
2.3.3 any references that we make to any gender include every gender;
2.3.4 any references to a time of day are to UAE time;
2.3.5 any words following the words include, includes, including, in particular or any similar words or expressions are for illustration or emphasis only and are not intended to limit the meaning of the words preceding them; and
2.3.6 any references to a “party” or to the “parties” means you and/or us as the context requires.
3. HOW TO ACCESS OUR SERVICES
3.1 To use our Services, you must register to create an Account by either:
3.1.1 using our Online System, clicking on “Open Account” and following the instructions; or
3.1.2 completing a paper Application Form (which we shall provide to you) and signing and returning your Agreement to us.
3.2 When using the Online System:
3.2.1 you must take all reasonable steps to keep your Account log-in details safe at all times and never disclose them to anyone (Note. It is advisable to change your password regularly (at least every three (3) to six (6) months) in order to reduce the risk of a security breach in relation to your Account);
3.2.2 if you have any indication or suspicion of your log-in details, password or other security features relating to your Account being lost, stolen, misappropriated, used without authorisation or otherwise compromised, you must contact us without undue delay on becoming aware of the loss, theft, misappropriation or unauthorised use and change the password; and
3.2.3 if you think someone else knows your password, you must change it as soon as you can.
3.3 We may request additional documentation from you to comply with our obligations to our regulators or otherwise under Applicable Laws.
4. YOUR RELATIONSHIP WITH US
4.1 This Agreement shall take effect immediately upon:
4.1.1 when you register via our website and click to accept the Terms; or
4.1.2 if we communicate by phone or by email, receipt of a signed scanned copy of this Agreement (if we communicate by phone or by email),
each the “Effective Date”.
4.2 This Agreement shall commence on the Effective Date and continue in full force and effect indefinitely unless and until terminated by you or us under Clause 9.
4.3 You must tell us as soon as possible if any of the information you have given us changes, including:
4.3.1 a change of name, address or Authorised Parties; or
4.3.2 a material change to your financial position.
5. YOUR WARRANTIES
5.1 You represent and warrant to us that as at the time of entering into this Agreement (and on an ongoing basis):
5.1.1 you will at all times comply with all Applicable Laws and you will not use the Services for the purposes of money laundering, tax evasion or terrorist financing;
5.1.2 you will not use our Services for any speculative trading; and
5.1.3 all of the information provided to us (including in the Application Form) from time to time, is true, accurate and complete.
6.1 As these Terms are provided to you as an individual, we will not be liable for any business losses or costs you suffer (such as loss of business profits or opportunities).
6.2 We shall not be liable to you for any losses you incur:
6.2.1 if we are prevented by Applicable Law from fulfilling any of our obligations under this Agreement;
6.2.2 arising out of or in connection with a Force Majeure Event; or
6.2.3 arising out of or in connection with any Transfer or Trade where we have acted on your direct instructions.
6.3 Nothing in this Agreement shall operate to exclude or restrict either party’s liability for:
6.3.1 death or personal injury resulting from negligence;
6.3.2 fraud, fraudulent misrepresentation or deceit; or
6.3.3 anything else which cannot be restricted or excluded under Applicable Laws.
7. SET-OFF RIGHTS
7.1 We may at any time set-off any amounts which you owe to us against:
7.1.1 any liability we have towards you (whether under this Agreement or otherwise) if the liabilities to be set-off are expressed in different currencies, we may convert either liability at the market rate for the purpose of the set-off; and/or
7.1.2 any amount then attributed to you held in the Account.
7.2 All amounts due to us under this Clause 7 shall be paid to us in full and you shall only be able to deduct or withhold any amounts subject to tax as required by Applicable Laws.
7.3 If a payment is overdue for more than seven (7) days, you shall pay interest on the overdue amount at the rate of 4% p.a. above Barclays Bank PLC base rate (or any successor rate) from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount.
7.4 If any amount remains unpaid, we may take debt collection measures including appointing a debt collecting agency or other third parties to assist with the recovery of any amounts due and payable by you to us.
8. CHANGES TO THIS AGREEMENT
8.1 We will from time to time need to change the terms of this Agreement. We can anticipate some of the reasons why it’d be fair for us to do this, and have listed them below, but may in the future also want to make changes for other reasons.
8.2 We can make a change to this Agreement for any reason (including the following), with any change being a reasonable and proportionate response to a change that is affecting us or that we reasonably think will affect us:
8.2.1 because of a change in Applicable Laws, for example we may have to change our requirements for keeping your Account safe to meet new, higher standards set by law;
8.2.2 if the change benefits you, for example when introducing new products or services or improving existing ones;
8.2.3 to reflect a change in our costs of running your Account or providing you with related services, for example by introducing a new fee;
8.2.4 in response to possible risks to the security of your Account, for example by changing the security steps you need to follow to access your Account or submit an Order; or
8.2.5 to respond to any other change that affects us, if it’s fair to pass on the effects of the change to you, for example to reflect developments in digital payments.
8.3 We may make changes for any other reason we cannot foresee, for example to respond to changes among our competitors that affect how we wish to deliver our services to you.
8.4 We shall notify you of any change to this Agreement in writing (either by post or email). The proposed variation shall come into effect automatically on the date stated in our notice, such date to be at least two (2) months after the date of receipt of the notice.
8.5 You can then tell us at firstname.lastname@example.org that you wish to end this Agreement (and close your Account) before the change takes effect; otherwise, you’ll be treated as having accepted the change.
9.1 You may terminate this Agreement at any time without reason by giving at least one (1) month’s prior notice to us.
9.2 We may terminate this Agreement at any time without reason by giving at least two (2) months’ prior notice to you.
9.3 We may terminate this Agreement immediately without notice (in whole or in part) if:
9.3.1 you are using our Services fraudulently or illegally;
9.3.2 if we are required to do so by law or a regulator;
9.3.3 in our view (acting reasonably), we must do so to fulfil our legal or regulatory obligations; or
9.3.4 you breach this Agreement.
We will tell you that we’re doing this as soon as we can if the law allows us to.
9.4 Otherwise, we may suspend or terminate this Agreement or the Services or the Arranging Services (in whole or in part) at any time with immediate effect by giving notice if:
9.4.1 you breach any material representation or warranty or are otherwise in material breach of this Agreement;
9.4.2 you breach or otherwise fails to comply with any Applicable Laws;
9.4.3 we have any material concerns over the adequacy of the information you have provided to us;
9.4.4 you are Insolvent;
9.4.5 an applicable regulatory or law enforcement authority initiates a regulatory or enforcement action, or investigation against you;
9.4.6 there is any other change in your circumstances (including a deterioration in or change to your financial position) which we consider materially adverse to the continuance of the Services or the Arranging Services, or in your classification as a Professional Client;
9.4.7 a Force Majeure Event continues for more than three (3) successive calendar months; or
9.4.8 in our reasonable opinion, you are no longer suitable to receive the Services or the Arranging Services.
10. CONSEQUENCES OF TERMINATION
10.1 On the expiry or termination of this Agreement for any reason you shall:
10.1.1 immediately make payment in full for all pending Trades (for the avoidance of doubt, we shall remain entitled to set-off or deduct sums in accordance with Clause 7); and
10.1.2 except as otherwise expressly provided in this Agreement and subject to any rights or obligations which have accrued prior to termination, neither party shall have any further obligation to the other under this Agreement.
10.2 Following termination of this Agreement, we will:
10.2.1 Close Out any pending Trades; and
10.2.2 deduct from the Account all fees and other amounts owing under this Agreement and transfer any remaining funds to your nominated bank account (without prejudice to the other provisions of this Agreement).
10.3 The termination of this Agreement shall not affect any provisions of this Agreement that are expressly or by necessary implication intended to survive such termination.
11. CONTACTING US / COMPLAINTS
11.1 If you wish to contact us regarding your Account or any of the Services and Arranging Services, you can do so (unless we say otherwise) through an Ebury Representative or otherwise by contacting email@example.com.
11.2 If you are unhappy with any of our Services or Arranging Services, you can contact us in writing by using any of the following details:
Telephone: +971 2 412 0666
Post Compliance Department
Office 614 Al Khatem Tower,
Abu Dhabi Global Market Square
Al Maryah Island,
Abu Dhabi, UAE
PO Box 764629
11.3 If you want to speak to an Ebury Representative directly, please use the contact telephone numbers at the following link: https://www.ebury.com/contact-us/.
11.4 For further information on our Complaints Policy, please see www.ebury.com/complaints-policy/.
11.5 If your complaint remains unresolved, you may be entitled to submit your complaint to the FSRA
Part B: Your Account
12. THE ACCOUNT
12.1 Your Account is a money account which enables you to send and receive electronic payments in accordance with the terms of this Clause 12.
12.2 Your Account is not a personal bank or deposit account and you will not earn any interest on the funds held in the Account.
12.3 As the provider of your Account, we are authorised by the FSRA (FSPN: 190010) to provide money services.
12.4 The funds received by us from you are subject to the protection conferred by the FSRA’s “Client Money Rules” as provided for under the FSRA Rules, and therefore will be held in one or more segregated bank accounts separately from our own funds, and in accordance with our Client Money Policy and Procedures, a copy of which is available to you upon your request. You acknowledge and understand that when and if we hold your funds in a jurisdiction outside the ADGM: a) the market practices, insolvency and legal regime applicable in that jurisdiction may differ from the regime applicable in the ADGM; and b) we may hold your funds in an account with an Affiliate. In the event of our insolvency, winding up or any “Pooling Event” as defined under the FSRA Rules and stipulated by the FSRA, these funds will be subject to the FSRA’s “Client Money Distribution Rules” as provided for under the FSRA Rules.
12.5 Your Account(s) are denominated in the currency as selected by you.
13. USING THE ACCOUNT
13.1 We will credit any funds received from you to your Account.
13.2 Your Account can be used to:
13.2.1 make Transfers (alone or in combination with a Trade);
13.2.2 make Payment in connection with one or more Trades; and
13.2.3 pay Margin.
13.3 We will not allow you to make any Transfer or Payment Out of your Account where this would put your Account into a negative balance. You should therefore ensure that you have sufficient funds, including in respect of Margin Calls which may be made from time-to-time, in your Account before placing an Order.
13.4 We may apply spending limits on your Account (for example, the maximum amount of Transfers or Trades that you can make in one day or the maximum exposure you can have to a single currency), and we’ll tell you if we do so.
13.5 We do not impose fees or charges for our Services or the Arranging Services save for same-currency Transfers or Trades, where we may impose a reasonable charge which we will negotiate with you. We will let you know of our fees in advance of accepting any Trades or Transfers.
13.6 However, others might impose fees, charges or taxes. For example, a correspondent bank who is involved in processing your Transfer charge you a fee to transmit funds to the Beneficiary Account.
13.7 The exchange rates we use are variable exchange rates which are changing constantly throughout the day (for example, to reflect movements in foreign exchange markets). The exchange rate applied to your payments will appear on your statement. Unless otherwise agreed with you, the exchange rate we will apply to Transfers (including any future dated payments) and Trades which are in a different currency to the denomination of your Account will be the rate applicable at the time that your payment is processed. You can contact us to find out the rate which will apply by contacting your Ebury Representative.
13.8 You can place an Order from your Account online, by telephone or by email:
13.8.1 Online: You must log on to the Online System (using your password and log-in details) and follow the instructions to submit your Order.
13.8.2 Telephone: You must call an Ebury Representative and specify your Order, together with such other information as we may reasonably request.
13.8.3 Email: You must email us and specify your Order.
13.9 If you confirm an Order (and make Payment in accordance with Clause 18) on a non-Business Day (or after our cut off times (which we shall make available on our website)), we’ll process your Transfer on the next Business Day.
13.10 We will send the funds to the Beneficiary Account nominated by you.
13.11 The Beneficiary’s account provider may apply its own charges to the Transfer.
13.12 Where you make Payment using your Account, the amount of the Payment will be deducted by us from your Account balance. You must ensure that you have sufficient funds in your Account to cover the amount of any Trade or Transfer you want to make using the Account. If you do not have sufficient funds in your Account, we reserve the right to postpone the execution date of the Trade or Transfer and we may impose a charge to cover the costs of us doing so.
13.13 We will make available to you through the Online System key information relating to all transactions on your Account and a transaction history at any time and such information may also be downloaded as a report which can be stored and reproduced in an unchanged manner.
13.14 Each transaction made using the Account will be given a unique transaction ID which will be set out in the transaction history. You must quote this transaction ID when communicating with an Ebury Representative about a particular transaction.
13.15 Unless we agree otherwise, we’ll provide you with statements every month and free of charge, provided that there have been payment transactions on the account during the month.
13.16 Any redemption from the Account will be to the bank account which you notified to us when you first registered to use our Services and you can request a redemption through the Online System, unless we agree otherwise.
14.1 In the case of a Transfer that is improperly executed due to our mistake, we shall at your request immediately refund the Transfer amount to the Account. However, where you identify an error in a Transfer from the Account (or a payment received to the Account), you have up to seven (7) days from the date of becoming aware of the error to notify us of it, after which time we will have no obligation to investigate or act upon your notification or provide a refund.
14.2 In the case of an unauthorised payment from the Account, we shall at your request immediately refund the payment amount to the Account. We will not however be required to refund such a payment:
14.2.1 where the unauthorised payment arises from your failure to keep your Account log-in, password or other security details safe;
14.2.2 if you fail to notify us without undue delay of any loss or misuse of a log-in or password or another event that could reasonably be expected to have compromised the security of your Account after you have gained knowledge of such event in which case you shall remain liable for losses incurred after gaining such knowledge; or
14.2.3 if you fail to dispute and bring the unauthorised transaction to our attention within seven (7) days from the date of the transaction.
15. LIMITING USE OF YOUR ACCOUNT
15.1 We may suspend the Account or otherwise restrict its functionality on reasonable grounds relating to the security of the Account or any of its security features or if we reasonably suspect that an unauthorised or fraudulent use of the Account has occurred or that any of its security features have been compromised.
15.2 We will notify you of any suspension or restriction and of the reasons for such suspension or restriction in advance or, where we are unable to do so, immediately after the suspension or restriction has been imposed, unless that would be unlawful or compromise our reasonable security interests.
15.3 We will lift the suspension and/or the restriction as soon as practicable after the reasons for the suspension and/or restriction have ceased to exist.
15.4 If we suspect or become aware that your Account may be subject to fraud or security threats we’ll contact you using the contact details we hold for you.
16. CLOSING THE ACCOUNT
16.1 Following termination of this Agreement, you or we may close your Account once we have paid any remaining balance on the Account to your nominated bank Account.
16.2 After the Account is closed, we shall pay any other amounts which we owe to you to your nominated bank account (unless we agree otherwise).
PART C: FX SERVICES
17. PLACING TRADES
17.1 How to Place and Confirm a Trade
17.1.1 You can place an Order by using one of the methods at Clause 13.8 online, by telephone or by email.
17.1.2 Once we have received your Order, we will confirm:
(a) the amount of the Sale Currency and the Purchase Currency;
(b) the foreign exchange rate which we intend to apply;
(c) any Payment to be made in accordance with Clause 18;
(d) any Margin payable by you in accordance with Clause 19; and
(e) any additional terms which we intend to apply to the Trade.
17.1.3 Upon receipt of an Order, we will provide you with a Transaction Receipt and a Payment Instruction Confirmation, which we may provide in a single communication.
17.1.4 You must carefully review the Transaction Receipt and the Payment Instruction Confirmation and tell us before Payment if you think any of the details are incorrect. If you are placing an order by telephone or by email, you must tell us within one (1) hour of receipt of your Transaction Receipt and Payment Instruction Confirmation. We’ll provide you with a revised Transaction Receipt and/or Payment Instruction Confirmation as soon as possible.
17.1.5 Except in the case of Limit Orders (see Clause 20 below), we will execute the Trade upon receipt of Payment.
17.1.6 You may not cancel a Trade which you have placed with us. However, if we haven’t yet processed the Trade:
(a) you can correct any incorrect Beneficiary Account details (though we may charge a fee for this); or
(b) we may at our discretion permit you to cancel the Trade.
17.1.7 If we permit you to cancel an Order:
(a) if we’ve already received the Payment Amount, we’ll return it to the account from where it came. However, if the Sale and Purchase Currencies are different, we’ll convert the Purchase Currency back to the Sale Currency using an agreed exchange rate at the time of cancellation, which means the amount we return to you may be more or less than the original Payment Amount;
(b) we won’t refund any fees you’ve paid us; and
(c) we may require you to pay an additional fee that we agree with you at the time of permitting cancellation.
17.2 Trade Suspension or Cancellation
17.2.1 We may reject, suspend, disregard or cancel a Trade, or refuse to issue a Transaction Receipt in our sole discretion for any of the following reasons:
(a) if (in our reasonable opinion) the Order is unclear;
(b) if (in our reasonable opinion) the Order was not authorised by an Authorised Party;
(c) you are Insolvent;
(d) you breach any material representation or warranty or are otherwise in breach of this Agreement;
(e) we may otherwise breach Applicable Law or face action from a regulator or other authority;
(f) the Trade may be linked to activity that breaches Applicable Law;
(g) you have failed to pay make Payment when due or are otherwise in breach of this Agreement or any other agreement you have with us;
(h) you fail to provide us with sufficient information to allow us to fulfil the Trade; and
(i) the Trade is outside our financial crime risk appetite.
17.2.2 We’ll notify you of the reason for declining, cancelling or delaying a Trade (if the law allows us to) and also, if possible, our reasons for doing so and how you can put right any factual errors that led to our action.
17.2.3 If we cancel a Trade after receiving the Payment, we’ll return the relevant amount and any related fees we’ve received (less our reasonable costs) to the account from which it was sent.
18.1 You must pay the full Payment Amount to us from your Account on or before the Delivery Date. If we have not received the Payment Amount by the Delivery Date (or any agreed change to the Delivery Date agreed pursuant to Clause 19.7), we may:
18.1.1 refuse to fulfil the Trade; and/or
18.1.2 Close Out the Trade in accordance with Clause 21.
Failure to make Payment in accordance with this Clause 18 will be a material breach of this Agreement.
18.2 Without prejudice to any other rights and remedies available to us under Applicable Laws, we may charge interest on any sum due to us under this Agreement after they become due and payable, of 4% per annum above the base rate of the Bank of England. This interest will accrue daily from the due date until we receive payment of the overdue amount in full in cleared funds.
19. FORWARD CONTRACTS
19.1 Where you wish to enter into a Forward Contract, we may require you to make an initial Margin payment within twenty-four (24) hours of you receiving the Transaction Receipt.
19.2 From time to time during the term of the Forward Contract, we may require you to pay to us additional Margin (by making a Margin Call) to maintain the relative value of the Purchase Currency.
19.3 In the event of a Margin Call, you must pay such additional Margin to our Nominated Account within twenty-four (24) hours of our demand from your Account and/or by some other means.
19.4 If you do not satisfy the Margin Call, we may cancel the Forward Contract with immediate effect or Close Out.
19.5 Any Margin paid by you or on your behalf will be paid to us for the purpose of securing or covering all your present or future, actual or contingent, or prospective, obligations to us under this Agreement or otherwise. We will acquire full ownership of such Margin and we will shall not hold any Margin on your behalf (whether on trust or otherwise) and we can deal with it as our own. In the event of our insolvency, you will rank as a general creditor of ours in relation to such Margin paid to us.
19.6 We will owe you a debt equal to the amount of Margin received by us, subject to any set-off rights under, or other terms of, this Agreement, or under general law. We shall pay to you all or part of any amount of Margin owed to us by you (e.g. upon fulfilment of a Trade) under this clause to the extent that we consider, in our discretion, that the amount of Margin you have transferred to us exceeds the amount required by us to secure or cover all your present or future, actual or contingent, or prospective obligations to us under this Agreement or otherwise.
19.7 You may ask us to bring forward (pre-deliver) the Delivery Date or to extend (roll over) the Delivery Date in relation to the whole or only part of your Forward Contract. We may agree to such a request entirely at our discretion. If we agree, you acknowledge that we may adjust the Payment Amount to reflect new Delivery Date.
20. LIMIT ORDERS
20.1 We will execute a Limit Order when we achieve the rate nominated by you within the agreed time period.
20.2 If the last day of the agreed time period falls on a non-Business Day, your Limit Order will expire on the following Business Day.
20.3 You may cancel a Limit Order at any time (by telephone or by email), up until the agreed exchange rate is achieved by us.
20.4 Upon successful execution of a Limit Order, we will provide you with a Transaction Receipt setting out the details of the Trade.
20.5 Whilst we will try to achieve the agreed exchange rate within the agreed period, we cannot guarantee that the agreed exchange rate will be met.
21. CLOSE OUT
21.1 We may Close Out a particular Trade or all current Trades that you have with us, without notice to you:
21.1.1 if you fail to make any Payment when it is due, including payment of Margin;
21.1.2 if you fail to provide any information we have requested or any warranty/representation you have given us is or becomes, in our opinion, materially inaccurate, incorrect or misleading;
21.1.3 in the event of your death or loss of mental capacity;
21.1.4 in the event that you are Insolvent;
21.1.5 if you take some action (or refrain from doing something) which places us in breach of our legal or regulatory obligations;
21.1.6 if the performance of our obligations under this Agreement become illegal;
21.1.7 if you breach this Agreement;
21.1.8 if you terminate this Agreement in accordance with Clause 9; or
21.1.9 the Trade is outside our financial crime risk appetite.
21.2 You may ask us to Close Out a particular Trade or current Trades by giving us notice in writing. If we permit you to Close Out:
21.2.1 we will buy back the currency that we have bought for you when you entered into the Trades at prevailing market rates. If the value of the Purchase Currency has strengthened, this means that a loss will be incurred on the Trade and you will be liable to us for the amount of that loss (as well as any costs incurred by us);
21.2.2 we will not pay you any profit arising the Close Out;
21.2.3 you acknowledge that the amount of any loss realised on the Closing Out of a Trade is a debt payable by you and agree that we may immediately deduct the total amount of any loss (together with any costs) from your Account;
21.2.4 if the amount we are seeking to recover exceeds the amount of any Margin or funds available in your Account, you must pay the balance within seven (7) days of being notified by us of the total amount due;
21.2.5 we may charge you interest on any sum that remains payable to us after we Close Out at a rate of 4% per annum over the Bank of England base rate. 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; and
21.2.6 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.
Part D: GENERAL
22. OTHER IMPORTANT TERMS
22.1 Ebury Partners UK Limited is a branch of a foreign company registered in the ADGM (Commercial License Registered Number 000002365), whose registered office is at Office 614, Al Khatem Tower, Al Maryah Island, Abu Dhabi Global Market, UAE, which is authorised under its FSRA license to “Provide Money Services” and “Arrange Credit” (FSPN: 190010).
22.2 No express term of this Agreement (nor any term implied under it) is enforceable pursuant to the Contracts (Rights of Third Parties) Act 1999 as it applies in the ADGM under the ADGM Application of English Law Regulations 2015, or otherwise by any person who is not a party to it.
22.3 We may agree to communicate with you in one or more languages depending on the location of the Ebury Representative which provides Services or Arranging Services to you. The primary business language used by Ebury is English, and so if we have not expressly agreed otherwise, communications from you to us (in particular legal notices, correspondence and documentation) should be in the English language.
22.4 We may listen in to or record phone calls with you (or any of your Authorised Parties) to:
22.4.1 check we are carrying out your instructions correctly and that we are meeting our regulatory obligations;
22.4.2 help detect or prevent fraud or other crimes; and
22.4.3 improve our Services or Arranging Services.
22.5 If any part of this Agreement is disallowed or found to be ineffective by a court or regulator, the rest of it shall continue to apply.
22.6 We may choose not to enforce our rights against you and make this contractually binding against us by giving you a notice which expressly states that we have chosen to do so under this term of the Agreement. In all other cases, if we choose not to exercise rights against you, we can still do so later.
22.7 We may:
22.7.1 assign any or all of our rights under this Agreement to any third parties; and
22.7.2 transfer (by novation or otherwise) all or any of our obligations under this Agreement to any person (a Transferee) provided that no transfer or our obligations will be effective until the Transferee has confirmed to you in writing that it is bound by the terms of this Agreement.
22.8 In the event of our insolvency, a third party back-up servicer shall be appointed such and – to the extent permissible under Applicable Laws – shall be entitled to administer any pending Transfers, Trades (including by effecting Close Outs) and handle any Payments paid or payable.
22.9 You may not transfer any of your rights or obligations under this Agreement.
22.10 The laws of the ADGM will decide any legal questions about this Agreement, and our dealings with you leading up to when you entered into this Agreement, and the courts of the ADGM will also be able to deal with any legal questions connected with this Agreement.
23. CLIENT CLASSIFICATION
23.1 The FSRA Rules require us to classify our clients as a Retail Client, Professional Client or a Market Counterparty, as each of these terms are defined under the FSRA Rules, and to notify clients of their categorisation. This ensures that when carrying out relevant business with such clients, we can provide the level of information, services and protection that is appropriate to and consistent with that client’s classification.
23.2 Accordingly, the purpose of this Agreement is also to inform you of your client classification.
23.3 We have classified you as a Professional Client in relation to all of the Services or Arranging Services that we may provide you.
23.4 You agree that you are responsible for keeping us informed about any change that could affect your categorisation as a Professional Client
23.5 As a Professional Client, you acknowledge and agree that, when dealing with us, you will not be afforded the retail customer protections and compensation rights that may generally be available to a Retail Client in the ADGM or other jurisdictions.
23.6 You have a right under FSRA Rules to elect to be classified as a Retail Client. If you wish to exercise your right to elect to be classified as a Retail Client, you must notify us in writing before this Agreement comes into force under Clause 4. However, note that we do not carry out business with or for Retail Clients in the sense specified in the FSRA Rules. If you request classification as a Retail Client, or if you no longer meet the relevant requirements for categorisation as a Professional Client, we will not, or no longer be able to provide you with, the Services or the Arranging Services. Accordingly, upon receipt by us of any such request, or if you no longer meet the relevant requirements for categorisation as a Professional Client, this Agreement will be terminated under Clause 9.
24.1 We will hold in strict confidence your Confidential Information (whether obtained in the course of providing the Services or the Arranging Services or otherwise), and we will take all steps reasonably necessary to preserve its confidentiality. Confidential Information shall not be used or disclosed for any purpose except:
24.1.1 with your consent;
24.1.2 to our insurers where disclosure is necessary either to comply with the relevant insurance policy or to preserve rights thereunder;
24.1.3 to any of our Affiliates, and each of their respective officers, directors, employees, agents and any professional advisers with whom we may consult at any time in connection with this Agreement and other third parties (so appointed by you or retained by us) to the extent relevant and necessary for the provision of the Services and the Arranging Services; or
24.1.4 where we are permitted or required to do so under Applicable Laws or where we are required by a regulatory or judicial body to do so. Where disclosure is permitted or required in accordance with this Sub-Clause 24.1.4, we will endeavour to give you not less than two (2) Business Days’ notice of the same (provided such notice is permitted).
25. DATA PROTECTION
25.1 We are required to comply with the provisions of the ADGM Data Protection Regulations 2015 (the “Data Protection Regulations”) when “processing” any “Personal Data” and “Sensitive Personal Data” about you (each of which has the meaning given to it in the Data Protection Regulations). In order to carry out the Services and Arranging Services, and for related purposes such as our compliance with the Applicable Laws, the marketing of products (managed and offered by us, and/or by our Affiliates) and other related tasks, you consent to us being permitted to collect (either from you or from other sources), process, use, store, transfer and disclose Personal Data and Sensitive Personal Data (including medical or financial data) (collectively referred to as “Protected Data”) about you, your , employees, and any other relevant data subjects that would be within the remit of this Clause (the “Data Subjects”).
25.2 You agree that, where necessary, you have obtained the consent of all relevant Data Subjects for the collection, processing, use, storage, transfer and disclosure of any information relating to them, including Protected Data, in the manner described in Clause 25.1 and you further agree that we are not responsible or accountable for the consequences of any occasion where such consent has not been obtained.
25.3 We may from time to time use the contact details you and any of your representatives have provided to us to send invitations, marketing materials or other publications (“Marketing Communications”) to you that we feel may be of interest to you. Should you not wish to receive Marketing Communications, please notify us.
25.4 In connection with any of the purposes described above, and any other legitimate processing of Protected Data, we may process Protected Data for the purposes of our relationship with you, any outsourcing agreement we may have, adherence to both our internal policy and external legal and regulatory obligations, compliance with our anti-money laundering requirements, compliance with applicable legal or regulatory requirements including with present or future contractual or other commitments with local or foreign regulatory or law enforcement authorities, whether that information concerns you and the relevant Data Subjects collectively, and whether obtained from you or from third parties, including credit reference and fraud prevention agencies.
25.5 You agree and expressly consent to the following:
25.5.1 that Protected Data may be shared with us and any of our Affiliates, and our professional advisors inside and outside the ADGM;
25.5.2 that we may:
(a) request and obtain your credit information, such as but not limited to your credit score or credit report, from the relevant Credit Bureau, keep copies of this information, and transfer this information to our Affiliates for the purposes of providing the Services or the Arranging Services to you; and
(b) disclose the Protected Data of any Data Subjects to the relevant Credit Bureau for the purposes of making the request in sub-Clause 25.5.2 (a) above;
25.5.3 that we may also transfer Protected Data to third parties located anywhere in the world, for example and without limitation, for outsourcing purposes, to facilitate the execution of your requests, to provide any services to you, for anti-money laundering and know your customer requirements, to manage your relationship with us or otherwise in accordance with our privacy and data protection policies and procedures (which are available on request). This is provided that we are satisfied that the Data Protection Regulations expressly permit the transfer, or that:
(a) an adequate level of protection for the Protected Data is ensured by laws and regulations in the recipient jurisdiction; or
(b) adequate safeguards have been put in place by us to ensure the security of the Protected Data.
25.6 In agreeing to the foregoing, you acknowledge that data protection laws may be weaker outside the ADGM than inside it. We will transmit Protected Data as described in this notice by means of mail, facsimile, phone, electronic means or otherwise. Electronic means includes email and the use of our own and third party networks.
Ebury Partners UK Ltd
Office 614, Al Khatem Tower
Abu Dhabi Global Market Square
Al Maryah Island
Abu Dhabi, UAE
T +9712 412 0666
firstname.lastname@example.org | www.ebury.ae