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Terms and Conditions for the Sale of Foreign Currency and Onward Payment of Funds
This document sets out the agreement between Eris FX Ltd of West One, 114 Wellington Street, Leeds, LS1 1BA (company no. 5244316) (“Eris FX”) and the Customer in relation to the sale and purchase of currency and onward payment of funds.
These Terms will take effect from 11 January 2021 and will supersede any previous Terms and Conditions issued by Eris FX Ltd.
“Authorised Person” means a person authorised by the Customer to enter into Transactions with Eris FX and to whom a User ID and Password have been allotted by Eris FX.
“Beneficiary Bank Account” means the bank account nominated by the Customer into which Eris FX will pay the converted funds.
“Contract Note” means a note supplied by Eris FX confirming the existence of a contract between the parties and issued in accordance with these Terms.
“Customer” means a customer of Eris FX who operates as a business (whether as a limited company, limited liability partnership, partner, sole trader or howsoever) or individual and contracts in that capacity with Eris FX.
“Customer Account” means the bank account or accounts in the Customer’s name.
“Intellectual Property Rights” means trademarks, copyright, patents, design rights, database rights and all other intellectual property rights of a similar nature.
“Platform” means the Eris FX Dealer platform.
“Purchase Price” means the price (including any charges and expenses) paid by the Customer for the Sale Currency.
“Regulated Activity” means the onward payment of the converted FX funds to a third party which constitutes a payment service under the Payment Services Regulations 2017 https://www.legislation.gov.uk/uksi/2020/1275/contents/made. Eris FX is authorised as a Payment Institution by the Financial Conduct Authority under the Payment Services Regulations to perform the Regulated Activity, firm refence 591533.
“Request(s)” means the Customer’s request to trade.
“Sale Currency” means the foreign currency sold by Eris FX to the Customer.
“Services” means the foreign exchange services offered by Eris FX, further described in clause 1 below.
“Settlement Date” means the date on which the Customer pays the Purchase Price for the Sale Currency to Eris FX.
“Software” means the software supplied by Eris FX to the Customer to allow the Customer to access and use the Platform.
“Terms” means these terms and conditions.
“Transaction(s)” means an agreement for a foreign currency transaction(s) duly executed by Eris FX in accordance with any Request received from the Customer.
“User ID and Password” means the user identification and password provided by Eris FX to the Customer to enable the Customer to access the Platform and use the Services.
“Value Date” means the date specified on the Contract Note and agreed between Eris FX and the Customer for the dispatch of Sale Currency to the Customer.
- The Services
1.1 The Customer hereby appoints Eris FX to perform the Services.
1.2 Eris FX will not accept this appointment until it has satisfied itself that it has carried out all its statutory duties in respect of identifying and verifying the Customer and checking the Customer against any Sanctions or Politically Exposed Persons list on an ongoing basis.
1.3 Eris FX reserves the right to refuse to provide the Services to the Customer at any time in its sole discretion and without giving a reason.
1.4 The Customer agrees to inform Eris FX of any change of residential address as soon as is practically possible. Failure to do this may result in Eris FX withdrawing the Services from the Customer. In any event, Eris FX will periodically re-check the Customer’s address without notice to the Customer.
1.5 The scope of the Services is limited to Transactions with the Customer for the sale and delivery of currency to the Customer, or to the Customer’s nominated third-party beneficiary as a payment service. Eris FX does not hold itself out as providing advice to the Customer on the merits of any Transaction or proposed Transaction.
1.6 The Customer understands that the Platform and Services are to be used only for the purchase and sale of currency for a genuine purpose and are not to be used for currency speculation. Currency speculation means making a profit from buying or selling currency. If Eris FX suspects that the Customer is using the Services for this purpose it will immediately remove the Customer’s access to the Platform.
1.7 The Customer understands that the Sale and Purchase of foreign currency which is to be paid to a Beneficiary Bank Account in the name of the Customer themself does not constitute a Regulated Activity
1.8 Without prejudice to clause 3.8 below, the Customer acknowledges and agrees that business with Eris FX will be transacted via the Platform and that all Requests and other instructions should be made by the Customer to Eris FX via the Platform.
1.9 Eris FX reserves the right to vary, update or remove Services from the Platform from time to time for any commercial, regulatory, legal or for any other reason.
1.10 The Services may relate to either spot currency Transactions or forward currency Transactions.
1.11 Acceptance of these Terms does not create any obligation on the Customer’s part to use the Services.
2.1 Eris FX hereby grants to the Customer a nonexclusive and non-transferable licence to use the Intellectual Property Rights of Eris FX (including, without limitation, in the Software, the Platform and in any materials provided by Eris FX) for the sole purpose of enabling Eris FX to provide the Services to the Customer.
2.2 This licence will become effective from the date on which the Customer receives the User ID and Password from Eris FX and will terminate subject to clause 10 below whereupon the Customer’s right to use the User ID and Password will also terminate.
- Authorised Persons
3.1 Requests must be made by an Authorised Person using the User ID and Password.
3.2 If the Customer appoints a new or any additional Authorised Person it shall notify Eris FX in writing and the appointment shall not be effective until it has been acknowledged by Eris FX. The Customer will be responsible for all requests made by Authorised Persons.
3.3 If the Customer withdraws authorisation from any Authorised Person then it must immediately notify Eris FX in writing, upon receipt of which, Eris FX will withdraw the Authorised Person’s User ID and Password. The Customer shall be fully liable for all losses arising from any inappropriate or unauthorised use of the Platform due to the Customer’s failure to so notify Eris FX.
3.4 The Customer shall keep the User ID and Password safe and confidential and not allow it to be used by anyone other than an Authorised Person.
3.5 The Customer will be bound by any Requests made regardless of the identity of the actual sender if received by Eris FX and accepted in good faith.
3.6 Any suspected misuse of a User ID or Password must be immediately reported to Eris FX by the Customer by email or telephone.
3.7 Eris FX may (but shall not be obliged to) require additional confirmation, in such form as Eris FX may specify, from the Customer in respect of any Request or other instruction if:
- a) Eris FX, at its absolute discretion, considers that such confirmation is desirable; or
- b) the request or instruction is ambiguous; or
- c) the instruction is to close the Customer Account and/or to remit the Customer’s funds to a third party.
3.8 Notwithstanding clause 1.3 above, Eris FX may, at its sole discretion, accept oral Requests or instructions from the Customer via the telephone. In such an event, Eris FX may request further confirmation from the Customer.
3.9 Notwithstanding the above clauses, Eris FX shall be entitled to rely on the oral or written Request or communication of a person purporting to be an Authorised Person and shall be under no obligation to make further enquiries.
3.10 The Customer acknowledges and agrees that the Platform provides a commercially reasonable degree of protection against unauthorised use. Eris FX shall not be liable for any of the Customer’s losses caused by any misuse or unauthorised use of the User ID or Password or of the Platform generally.
- 4. Requests and Transactions
4.1 The Customer shall provide Eris FX with such accurate information as is reasonably required by Eris FX for the purposes of complying with Requests. Eris FX is not responsible for detecting errors in any Requests.
4.2 On receipt of a Request, Eris FX shall supply, as promptly as possible, a Contract Note to the Customer via email. The Contract Note shall form part of these Terms.
4.3 Acceptance of the Contract Note by the Customer shall constitute acceptance of a Transaction between Eris FX and the Customer and the Customer may not thereafter withdraw from, rescind or cancel such Transaction without the express agreement of Eris FX.
4.4 Eris FX shall display on the Customer’s system a message confirming the status of a Transaction. No Transaction shall be effective unless and until its status has been confirmed by Eris FX.
4.5 Eris FX may, at its absolute discretion, refuse to accept any Request for any reason and shall not be obliged to execute any Request
4.6 Eris FX shall not be liable for any refusal to accept or respond to a Request for any reason.
5.1 The Value Date, Purchase Price, Sale Currency and Exchange Rate shall be as set out by Eris FX in the Contract Note.
5.2 The Customer shall pay the Purchase Price in cleared funds into a bank account designated by Eris FX (the “Designated Account”) in time to ensure that they arrive in cleared funds on or before the Settlement Date.
5.3 Unless specifically agreed in writing in advance between the parties, Eris FX shall not accept into the Designated Account funds received from any bank account other than from the Customer Account. Eris FX shall have absolute discretion to refuse acceptance of any funds not received from the Customer Account.
5.4 Eris FX shall not remit into the Customer Account any funds in connection with the Sale Currency before it has received confirmation from its bank that the Purchase Price has been received in cleared funds into the Designated Account.
5.5 Eris FX may change its charges at any time by reasonable notice to the Customer in writing, but these will never be applied retrospectively to a deal.
5.6 In the event that the Customer requires an immediate purchase of Sale Currency, the Settlement Date shall be before 3.00pm on the working day immediately preceding the Value Date. In all other cases, it shall be as stated in the Contract Note.
5.7 If the Customer requests a forward purchase of Sale Currency, then the Customer shall pay to Eris FX a deposit equivalent to 10% of the Purchase Price. This must be received in cleared funds on the working day following the Request of the forward purchase. A margin call of 5% or more of the Purchase Price shall be made by Eris FX if the market moves adversely by 5% or more against the exchange rate stated in the Contract Note. This must be received in cleared funds on the working day following the call by Eris FX for the additional margin.
5.8 If the Customer requests a purchase of Sale Currency over a 12-month contract term payable by the Customer in regular monthly payments, the Customer shall pay the first monthly payment as an advance deposit. This advance deposit will count in lieu of the final monthly payment of the 12-month contract term.
5.9 Payment of the Purchase Price and any other sums due from the Customer to Eris FX shall be made in full without any deduction, set-off or any withholding whatsoever.
5.10 Subject to the Customer complying with the Terms set out above, Eris FX shall supply the Sale Currency to the Customer on the Value Date.
5.11 The Sale Currency shall be transferred into the Customer Account by wire transfer. Evidence of dispatch by Eris FX of the Sale Currency shall be deemed to be conclusive proof of delivery to the Customer.
5.12 If the Customer requires the converted funds to be paid to a third-party Beneficiary Bank Account which is not in the name of the Customer themself, this remittance will constitute a Regulated Activity.
5.13 When the payment of the converted funds becomes a Regulated Activity, Eris FX will safeguard the relevant funds in line with its obligations under the Payment Services Regulations 2017.
5.14 The Beneficiary Bank Account into which the Customer wishes the converted funds to be paid must be pre-registered into the Eris FX Platform and accepted as a tradable account prior to the Customer commencing the FX conversion.
5.15 Any third-party Beneficiary Bank Account must include the name and address of the beneficiary. Eris FX will check the name against relevant Sanctions and Politically Exposed Persons lists at Beneficiary Bank Account registration and on an ongoing basis.
5.16 If the Beneficiary Bank Account is a third-party account, the Customer must provide proof that they (the Customer) are a resident of the United Kingdom – Eris FX will not approve any third-party Beneficiary Bank Accounts or make any third-party payments on behalf of Customers who are not resident in the United Kingdom.
5.17 From 1 January 2021 Eris FX is only authorised to perform the Regulated Activity for Customers who are resident in the United Kingdom and will de-activate all third-party Beneficiary Bank Accounts registered by non-UK residents from that date.
5.18 After 1 January 2021, if a third-party Beneficiary Bank Account is registered and approved by Eris FX for a Customer who was resident in the United Kingdom and that Customer subsequently takes up residence outside the United Kingdom, the Customer must immediately inform Eris FX of the change of resident country. In that case, the registered third-party Beneficiary Bank Account(s) will be deactivated from the Customer’s list of approved Beneficiary Bank Accounts by Eris FX and the Customer will not be able to use it/ them to instruct a payment.
5.19 If any or all of the Purchase Price remains outstanding at the Value Date, then Eris FX may forthwith and without prior notice to the Customer take whatever reasonable steps it deems necessary in relation to the Transaction including (without limitation) reversing the trade and levying a charge to cover any losses incurred and its administration costs. Eris FX shall also be entitled, without prejudice to any of its rights under these Terms, to charge interest (before and after judgment) on any outstanding amount at the rate of 2% (two per centum) above the base rate from time to time of Barclays Bank Plc until the date of actual payment. Such interest shall accrue on a daily basis from the due date until the date of payment and shall be compounded monthly.
- The Internet
6.1 Eris FX shall provide the Customer with the Software for accessing the Services via the Platform. The Customer shall be responsible for compatible computer system. Eris FX has no obtaining and maintaining the Customer’s own responsibility for or liability with respect to the Customer’s system.
6.2 While Eris FX shall use its reasonable commercial endeavours to provide a reasonable level of security via the Platform at all times, the Customer acknowledges that the internet is not a secure medium and that it is technically impossible for Eris FX to provide fault free and totally secure Services at all times and Eris FX gives no warranty to this effect.
6.3 The Customer acknowledges that Eris FX may, from time to time, need to suspend the Services offered via the Platform for operational reasons (e.g. for upgrades, repairs or planned maintenance / outages).
6.4 The Customer acknowledges that its use of the Platform is subject to the condition that there will be no abuse or fraudulent use of it. Abuse and fraudulent use of the Platform shall entitle Eris FX to suspend the Services to the Customer and could lead to termination on the part of Eris FX.
6.5 The Customer acknowledges that access to the Platform and the Services may be restricted and/or prohibited by law and/or regulation in certain jurisdictions. The Customer undertakes to comply with all laws applicable to such access. The Customer hereby agrees to indemnify Eris FX against any liabilities, damages, expenses, costs, claims or fees, including any taxes thereon, resulting from any access or use of the Platform or Services from a jurisdiction in or from which such access or use is prohibited.
- Intellectual Property Rights
7.1 The Customer acknowledges that, apart from the licence granted under clause 2 above, it has no ownership, nor shall it acquire any ownership, of any Intellectual Property Rights in the Platform, the Software, the Services or any documents or other materials supplied by Eris FX to the Customer in connection with the Services.
7.2 The Customer undertakes to protect and keep confidential the Software and not to examine, copy, alter, reverse engineer, disassemble or tamper with the Software.
7.3 Nothing in these Terms shall give either party any rights in respect of any trade names or trademarks used by the other party or of the goodwill associated with them, and both parties acknowledge that, except as expressly provided under these Terms, they shall not acquire any such rights.
- Limitation of Liability
8.1 Eris FX makes no representation or warranty of any kind with respect to the Services, the Platform, the Software, any Transaction, or anything else supplied to the Customer under these Terms. Except as specified in these Terms, Eris FX shall not be liable to the Customer for any loss or damage whatsoever or howsoever caused arising directly or indirectly in connection with any Transaction, the Services, the Platform, the connectivity to the Internet, the Software or its use, application, support or howsoever, except to the extent to which it is unlawful under the applicable laws and regulations to exclude such liability.
8.2 In the event of default in a Transaction by Eris FX, Eris FX’s liability to the Customer shall be limited to the return of the Purchase Price, together with interest payable from the date of default at the rate of 2% (two per centum) above the base rate from time to time of Barclays Bank Plc until the date of actual repayment. Refund of any other costs incurred by the Customer shall be limited to the costs shown as payable on the Contract Note.
8.3 Notwithstanding anything else in these Terms, Eris FX shall not be liable to the Customer for loss of profits or contracts, loss of goodwill or other special, indirect or consequential losses whether arising from negligence, breach of contract or howsoever caused.
8.4 The Customer acknowledges that it is responsible for the accuracy and completeness of any Requests and that Eris FX shall not be liable for any errors, inaccuracies of incompleteness of any Requests received via the Platform.
8.5 If any exclusion of liability is held to be invalid for any reason and Eris FX becomes liable for loss or damage that it may otherwise have been lawful to limit, such liability shall not exceed £1,000 (one thousand pounds) in respect of each event or series of events.
8.6 Eris FX does not exclude liability for death or personal injury to the extent only that the same arises as a result of its negligence or that of its employees, agents or authorised representatives.
8.7 The Customer shall indemnify Eris FX and hold Eris FX harmless from and against any and all claims, costs (including legal costs), damages, losses, liabilities and expenses arising directly or indirectly from the Customer’s acts or omissions and those of the Customer’s agents, employees or representatives, including (but not limited to) arising from any abuse and fraudulent use of the internet, the Platform and from any Requests or Transactions, whether or not actually authorised by the Customer.
8.8 This clause 8 shall survive termination of these Terms.
- Errors and Disputes
9.1 Any omission or error made on any document, in any Transaction or howsoever must be notified to Eris FX within 2 working days of its occurrence. In the absence of such notification the Customer shall, in the absence of manifest error, be deemed to have accepted such document or Transaction and shall not be entitled to dispute it thereafter.
9.2 In the event of any disagreement or dispute between the Customer and Eris FX arising out of the provision of the Services or out of these Terms, the parties shall in the first instance seek to resolve the disagreement or dispute by discussions between themselves. In the event that they are unable to resolve the disagreement or dispute within 7 business days, it shall be escalated for resolution to the parties’ senior representatives.
9.3 The parties shall irrevocably submit to the nonexclusive jurisdiction of the English courts for the purpose of hearing and determining any dispute arising in connection with these Terms, if the parties cannot resolve such dispute by the procedure set out above.
9.4 These Terms shall be governed by and construed in accordance with English Law.
10.1 Either party shall be entitled to terminate these Terms forthwith upon written notice at any time.
10.2 Eris FX shall be entitled to terminate these Terms without notice and to terminate or suspend any Transaction or Services forthwith without prejudice to its own rights accrued at the date of such termination and to recover damages in the event of a) any material breach by the Customer of its obligations hereunder or b) if the Customer shall be adjudged bankrupt or has a receiving order against it, or being a company, has a petition for an administration order or winding up order presented against it, or if any administrator, administrative receiver or receiver is appointed of the whole or any part of its assets or undertaking or a winding-up order is made against the Customer or the Customer goes into voluntary liquidation (other than for the purpose of reconstruction or amalgamation) or, (in either case) if the Customer calls a meeting or makes arrangement or composition with creditors or allows execution or distress to be levied against its goods.
11.1 As an authorised payment services business, Eris FX is subject to money laundering statutes, laws and regulations. The Customer therefore agrees to provide to Eris FX on demand such information about its identity and its financial and business affairs as Eris FX may reasonably require in order to comply with all such money laundering statutes, laws and regulations.
11.2 The Customer warrants that it shall at all times deal with Eris FX in good faith and in accordance with honest business practices and in compliance with all relevant statutes, laws and regulations Eris FX reserves the right to take such further measures as it shall in its absolute discretion deem to be necessary (including, without limitation, undertaking further verification checks and freezing accounts) in order to satisfy itself that the Customer is acting in compliance with such statutes, laws and regulations.
11.3 The Customer further warrants that it is, at all times, acting as a principal on its own account and has full power and authority to enter into an agreement with Eris FX and to undertake any Transaction.
- Data Protection
12.1 Eris FX is registered under the Data Protection Act 2018.
12.2 Eris FX’s data protection policy can be found on its website at https://www.erisfx.co.uk/privacy-policy/.
12.3 Eris FX reserves the right to monitor traffic over the Platform in order a) to detect abuse and b) for billing purposes. Information gathered in this manner will be classed as confidential.
12.4 The Customer agrees and consents to a) the recording by Eris FX of telephone conversations between the parties with or without an automatic tone warning advice and b) the use of such recordings or transcripts from such recordings as evidence in any dispute or anticipated dispute between the parties.
13.1 Any notice required under these Terms or required by statute, law or regulation shall (unless otherwise provided) be in writing and shall be delivered in person, sent by first class prepaid letter, put on the Eris FX website, put on the Eris FX platform or sent by facsimile or e-mail to the respective addressee at its usual place of business or to such other address, facsimile number or e-mail address as may have been notified to the party giving the notice.
13.2 Any such notice shall be considered to have been served if by personal delivery when delivered if by first class post 48 (forty-eight) hours after posting and if by legible facsimile transmission or by successful email transmission when dispatched.
14.1 These Terms govern all Transactions and Services between the parties and include use of the Platform. Eris FX may amend these Terms from time to time but shall notify the Customer of any such amendments. The Customer may not amend these Terms except as agreed in writing between the parties.
14.2 These Terms contain the entire agreement between the parties and supersede all prior agreements, arrangements and understandings.
14.3 Both parties agree to keep confidential and not disclose to any third party any of the other party’s confidential or proprietary information received hereunder, including, without limitation, the User ID and Password and any documentation received from Eris FX.
14.4 Eris FX will have no responsibility or liability for any event which occurs under or pursuant to these Terms beyond Eris FX’s reasonable control, including without limitation, strike, lockout or other industrial action, computer or electronic system breakdown, interruption to the internet or power failure.
14.5 If any provision of these Terms is held to be invalid, the validity of the other provisions shall remain unaffected.
14.6 No failure or delay by Eris FX to exercise any right under these Terms shall be considered a waiver of that right, and no waiver by Eris FX of any breach of these Terms shall be considered a waiver of any subsequent breach of these Terms.
14.7 Eris FX reserves the right to assign or subcontract all or part of the Services to any third party.
14.8 Both parties confirm their intent not to confer any rights on any third parties by virtue of these Terms and accordingly the Contracts (Rights of Third Parties) Act 1999 shall not apply to these Terms.
14.9 Nothing in these Terms shall create, or be deemed to create, a partnership between the parties.