Application Terms and Conditions
A – LANSDOWNE PAYMENTS (M23156809) registered office 422 RICHARDS ST #170 Vancouver, BC V6B 2Z4, Canada (“LANSDOWNE PAYMENTS”) is an arranger of foreign exchange transactions
B – The Client is contemplating a transaction of that nature
C – These general terms and conditions set out terms (other than as to dates, exchange rates and amounts) which are to be incorporated into any FX Contract between them
D – These Terms supersede any other terms previously supplied by LANSDOWNE PAYMENTS to the Client
Operative Provisions:
1 No oral arrangement between LANSDOWNE PAYMENTS and the Client shall constitute an FX Contract between them unless the CPs have been fulfilled.
2 The process by which an FX Contract between the parties incorporating these terms is made is as follows:
2.1 the Client informs LANSDOWNE PAYMENTS by telephone, and provides the amounts and dates for delivery of the currencies it wishes to acquire;
2.2 LANSDOWNE PAYMENTS indicates the prices for those amounts and dates.
2.3 the Client makes an offer based on that information to transact for those relevant amounts at the relevant dates at market rates;
2.4 If it is unable to do so for whatever reason due to changes in market conditions or otherwise since the indicative figures given in accordance with Clause 2.2 gives revised indicative figures and the process proceeds as if these had been given in accordance with Clause 2.2.
3 That process shall continue until one of the parties declines to continue or an offer from the client has been unconditionally accepted by LANSDOWNE PAYMENTS (that being unconditionally because it has placed the matching order which will enable it to fulfil the relevant transaction in the normal course) whereupon LANSDOWNE PAYMENTS shall in the normal course, issue a Trade Confirmation Document (TCD) to the Client.
4 Each TCD shall have allocated a unique reference number.
5 A failure by LANSDOWNE PAYMENTS to issue a TCD to the Client will not prejudice the rights and obligations of either party under the FX Contract.
6 Any error, or omission in a TCD must be notified to LANSDOWNE PAYMENTS within 48 hours of its receipt by the Client. Thereafter, in the absence of manifest error on the face of the TCD, the Client may not dispute the terms of the FX Contract as evidenced by the TCD.
7 The parties each acknowledge that:
7.1 any FX Contract is solely for the purpose of sale and/or purchase and delivery of Currency to the Client or their nominated third party;
7.2 no representations or warranties are given by or accepted from LANSDOWNE PAYMENTS or relied on by the Client in connection with any FX Contract save as to amounts dates and prices or as set out therein;
7.3 the Client in entering into an FX Contract will rely solely on its own judgment and not on any statement expressed by LANSDOWNE PAYMENTS relating to any aspect of the FX Contract other than as set out in Clause 2.
8 The Client will take physical delivery, or procure that a nominated third party will take physical delivery, of the Currency on the relevant delivery date.
9 The Client represents and warrants to LANSDOWNE PAYMENTS that both at today’s date and at any time from the making of an FX Contract until that contract has been fulfilled and terminated:
9.1 the Client is acting as principal on its own account and has full power and authority and has taken all necessary steps to enable it lawfully to enter into and comply with the terms and conditions of an FX Contract;
9.2 all sums held in the Trading Account of LANSDOWNE PAYMENTS for the Client (until those monies become due to LANSDOWNE PAYMENTS) are and will remain beneficially owned by the Client and the Client will not create any charge or other encumbrance over or in respect of those monies;
9.3 all information supplied to LANSDOWNE PAYMENTS is, or at the time it is supplied, was true and accurate in all material respects and to the extent that it ceases to be so, the Client will immediately notify LANSDOWNE PAYMENTS of the facts and circumstances which give rise to it no longer being so;
9.4 the Client will provide LANSDOWNE PAYMENTS upon request any information regarding the Client, its financial and business affairs and identity in which LANSDOWNE PAYMENTS requires to comply with its obligations with the Proceeds Of Crime (Money Laundering) and Terrorist Financing act (PCMLTFA) or other legislation or regulations which apply to it.
10 The Client must quote the relevant TCD reference at all times in all communications with LANSDOWNE PAYMENTS.
11 The Client shall pay into LANSDOWNE PAYMENTS’s Trading Account: 11.1 the Currency Value by the date agreed under any FX Contract; 11.2 the Deposit by the date agreed under any FX Contract;
11.3 on demand any margin (on account of the Currency Value) as set out in the relevant FX Contract. The Client acknowledges that any margin or Deposit paid under an FX Contract may be forfeited by the Client if the FX Contract is terminated due to any fault of the Client.
12 The Client acknowledges that in the event of any adverse currency fluctuation between the date of the contract and the value date, LANSDOWNE PAYMENTS shall be entitled to require the client to provide additional funds (not exceeding the full amount of the sold currency ). Such funds shall be paid by the client to an account specified by LANSDOWNE PAYMENTS no later than one business day after LANSDOWNE PAYMENTS’s request for such additional funds.
13 LANSDOWNE PAYMENTS shall not have to fulfil any of its obligations under an FX Contract until it has received confirmation from its bank that the Currency Value has been credited to the Trading Account as cleared funds without recourse.
14 Time is of the essence in relation to any payments due to LANSDOWNE PAYMENTS by the Client under an FX Contract.
15 All payments due from the Client to LANSDOWNE PAYMENTS under an FX Contract shall be made in full without any set-off, counterclaim, deduction or withholding whatsoever.
16 LANSDOWNE PAYMENTS may deduct from any payment to be made to the Client under an FX Contract any amounts which it is required to deduct by law, including by way of example tax, or any other sums such as bank charges that may be properly incurred by LANSDOWNE PAYMENTS in fulfilling its obligations under the FX Contract and effecting delivery.
17 If a Client’s cheque or other form of payment is dishonoured, not met on first presentation or stopped for whatever reason, LANSDOWNE PAYMENTS may charge an administration charge in respect of each such cheque or other payment made. The administration charge will be payable by the Client as part of the amount of the Currency Value due under the relevant FX Contract.
18 If the Client fails to make, in full any payment of the Currency Value, as and when such payment becomes due and payable under an FX Contract, the amount outstanding of the Currency Value shall bear interest accruing day to day from the Delivery Date to the date of payment at a rate of 12% compound over the base rate of the Bank of England as varied from time to time. There will also be a ‘rollover charge’ of CAD 50 per day. By rollover charge it is meant the full funds have not been received by settlement date/value date therefore there is a roll charge to change the settlement date to the next day.
19 LANSDOWNE PAYMENTS assumes no responsibility whatsoever for any delay in payment under an FX Contract caused by any act or omission of the Client or any other third party, including by way of example bank, postal delay and/or delay caused due to accident, emergency or Act of God. For the avoidance of doubt, the Client accepts that it is the Client who is solely responsible for ensuring that all payments required under an FX Contract are made promptly and within the time limits specified in the FX Contract.
20 You may lose your deposit if your forward is not drawn down by the above value date. We advise you contact us if your funds will not arrive.
21 If there is a conflict between these Terms and the terms and conditions of an FX Contract, the FX Contract prevails unless otherwise agreed.
22 If there is a dispute relating to an FX Contract (a “Disputed FX Contract”), LANSDOWNE PAYMENTS may at any time, in its absolute discretion and without prior notification to the Client close-out the
Disputed FX Contract or take whatever other action LANSDOWNE PAYMENTS deems appropriate in relation to its obligations thereunder. LANSDOWNE PAYMENTS will notify the Client (orally or in writing) as soon as possible thereafter of any action it has taken but any failure by LANSDOWNE PAYMENTS to give such notice will not prejudice the validity of such action. If the closed-out position is because of late payment, and the money is received thereafter, the same position may be immediately re-opened at the market price.
23 The liability of the party found to be at fault in respect of any Disputed FX Contract shall not exceed the actual amounts due under the Disputed FX Contract together with interest accrued at the rate of 4% above the Bank of Canada base rate as varied from time to time.
24 LANSDOWNE PAYMENTS may terminate an FX Contract and take whatever action it deems necessary upon or at any time after the happening of any of the following without giving prior notice to the Client:
24.1 a failure by the Client to comply with any of its material obligations under an FX Contract (including by way of example a breach of any of the representations and warranties contained or contemplated herein;
24.2 where the Client is an individual:
• the death of the Client;
• the Client becomes of unsound mind or suffers from a mental disorder and is admitted to hospital in pursuance of an application for treatment under the Mental Health Act 1983 or has an order made by any court of competent jurisdiction in matters of mental disorder for his/her detention or for the appointment of a receiver, curator bonis or other person to exercise powers with respect to his/her property or affairs;
• whether in the United Kingdom or elsewhere, the Client suspends payment of its debts, make any formal or informal composition with its creditors generally, suffers a Receiver to be appointed over some or all of its assets, takes or has any proceeding taken against it in bankruptcy.
24.3 if the Client is not an individual:
• has a receiver or administrator appointed of any part of its assets;
• enters into any arrangement (formal or otherwise) whereby it compounds with its creditors generally;
• has a petition advertised for its winding up;
• goes into liquidation other than for the purposes of a solvent bona fide reconstruction or amalgamation.
24 LANSDOWNE PAYMENTS may terminate an FX Contract forthwith if it becomes or is likely to become unlawful for LANSDOWNE PAYMENTS to maintain or give effect to all or any of the obligations thereunder or otherwise to carry on its business or if LANSDOWNE PAYMENTS or the Client is requested to close-out and terminate an FX Contract (or any part thereof) by any regulatory authority whether or not that request is legally binding.
25 LANSDOWNE PAYMENTS shall not be liable to the Client for the non-performance of LANSDOWNE PAYMENTS’s obligations under an FX Contract or the failure to execute any FX Contract in accordance with the instructions of the Client by reason of any cause beyond the reasonable control of LANSDOWNE PAYMENTS.
26 The Client indemnifies LANSDOWNE PAYMENTS and keeps it indemnified from and against all liabilities, damages, losses and costs (including legal costs), duties, taxes, charges or commissions incurred or suffered by LANSDOWNE PAYMENTS in the proper performance of its services or the enforcement of its rights under any FX Contract and, by way of example, against all amounts which LANSDOWNE PAYMENTS may properly certify to be necessary to compensate it for all costs, expenses, liabilities and losses sustained or incurred by LANSDOWNE PAYMENTS (including but not limited to LANSDOWNE PAYMENTS’s loss of profit and any loss or expenses which LANSDOWNE PAYMENTS may suffer or incur in taking such action as LANSDOWNE PAYMENTS may, acting reasonably, consider necessary or appropriate in the circumstances to cover, reduce or eliminate its exposure in respect of any FX Contract where the Client fails to honour its obligations thereunder) as a result of:
26.1 late or non-payment by the Client of any amount payable under an FX Contract or any other material breach by the Client of its obligations thereunder;
26.2 LANSDOWNE PAYMENTS effecting and taking all and any action and steps whatsoever to carry out the terms of any telephone instruction from or purporting to be from a person duly designated or authorised by the Client; or
26.3 LANSDOWNE PAYMENTS exercising its rights under an FX Contract to close-out all or any part of any FX Contract before its applicable Delivery Date;
The indemnity provided under clause 26 shall survive termination of any FX Contract.
27 No failure or delay on the part of any party in exercising any right or remedy under an FX Contract shall operate as a waiver thereof. The rights and remedies provided in an FX Contract and the indemnities incorporated therein are cumulative and not exclusive of any rights or remedies provided by law.
28 The parties agree and consent to the recording of telephone conversations between the parties and the use of such recording as evidence by either party in any dispute between them relating to dealings between the parties.
29 Any such recording or transcript of the same made by LANSDOWNE PAYMENTS may be destroyed by LANSDOWNE PAYMENTS in accordance with generally accepted market practice.
30 No amendment or variation of this agreement or any FX Contract shall have effect until reduced to writing and signed by the parties.
31 This Agreement and any FX Contract shall be governed by Canadian law and are subject to the exclusive jurisdiction of the court of Canada
32 When the client is more than one person the obligations of the Client under any FX contract shall be joint or several, and joint clients acknowledge that instructions can be taken from any of them and any communications with them may be given only to the first named of them on the application from.
33 KYC information of Client’s clients and Transactions are confidential and provided to LANSDOWNE PAYMENTS solely to facilitate its KYC and AML purposes. LANSDOWNE PAYMENTS shall not use the Client data for any purposes other than the purposes mentioned in this clause. Without the consent of the Client, LANSDOWNE PAYMENTS shall not disclose any Confidential Information to any third party. LANSDOWNE PAYMENTS shall process all client data of Client and Confidential Information in compliance with FINTRAC regulations and PIPEDA regulatory requirements.
This client data protection clause shall survive suspension (if applicable) and after termination or expiration of this Agreement.
Definitions:
“Agreement” means the ratification constituted by the terms and clients written acceptance of the terms and, where the context allows, includes any contract entered into under the Agreement
“Business Day” means a day when the banks in the City of London are open for business excluding Saturdays, Sundays and public holidays
“Client” means the person or persons whose detail are set out in and has signed the Application form to which these terms are annexed
“Client” means the person whose details are set out herein who has executed this Agreement “CP” means all of either
• the delivery to and acceptance by LANSDOWNE PAYMENTS of an executed copy of these terms and condition
• the allocation by LANSDOWNE PAYMENTS of and delivery to the Client of a Dealing Reference
“Currency” means money purchased in accordance with the terms of the relevant FX Contract
“Currency Value” means the amount of funds required from the Client by LANSDOWNE PAYMENTS to fulfil its payment obligations under an FX Contract
“Dealing Reference” means the unique confidential transaction number issued to the client referred to in the CPs
“TCD” means the trade confirmation document which may be issued in respect of an FX Contract in accordance with Clause 2.2
“Delivery Date” means a date on which the Currency or an agreed part thereof is to be delivered to the Client or a nominated party under the FX Contract and as may be detailed in the TCD