1.1 This Agreement employs the following defined terms:
(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;
(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;
1.2 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.
3.1 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, 100 New Bond Street, London W1S 1SP.
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.
4.1 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.
5.1 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.
5.5 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.
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 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.
6.6 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.
6.7 GCEN will provide the Client, in relation to each transaction or money remittance, with:
6.8 The information referred to in clause 6.7 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.
6.9 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’s account the relevant amount. Further details can be obtained from GCEN.
6.10 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.
6.11 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 info@GCPartners.co.
6.12 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.
6.13 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.
7.1 In the event of any significant exchange rate fluctuations occurring between the date on which a particular Contract is executed and (if different) the value date for the transaction to which such Contract relates, GCEN may require the Client to provide additional funds to be credited to the payment account to maintain the value and level thereof at the stipulated percentage rate on the original Contract note. Such funds shall be paid by the Client immediately and in full.
8.1 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.
8.2 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.
8.3 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.
8.4 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.
9.1 The Client hereby warrants and represents to GCEN as follows:
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.
10.1 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:
10.3 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.
11.1 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:
11.4 The Client shall:
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:
(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;
(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;
(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 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).
11.7 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.
12.1 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 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:
13.2 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.
14.1 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:
14.3 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”):
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:
16.3 Unless there is evidence that it was received earlier or later, a Notice is deemed given:
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 firstname.lastname@example.org.
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.
18.1 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.
18.2 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.
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