Terms & Conditions
1.1 The definitions and rules of interpretation set out in the schedule will apply to the Terms.
1.2 In these Terms:
(a) “Eiger FX”, “we”, “us” and “our” means Eiger Foreign Exchange Limited, being a company incorporated in England and Wales with number 07386073 whose head office and registered office is at 22 Calvin Street, London, E1 6HF; and
(b) “you” or the “Client” means a Client who has completed the sign-procedures in accordance with Clause 3.1 and been accepted by Eiger FX as a Client.
1.3 Please read these Terms carefully to ensure that you are aware of your rights and obligations in entering into Contracts with Eiger FX. If there are any terms that you do not understand or do not wish to agree to, you should discuss it with Eiger FX and/or your legal adviser before completing the Client sign-on procedures and agreeing to these Terms. You should only complete the Client sign-on procedures and agree to the Terms and enter into Contracts if you agree to be bound by these Terms.
1.4 The PSRs regulate how Payments must be transmitted and provide protection for the clients of authorised payment institutions.
1.5 Please note that foreign exchange rates are subject to fluctuations outside the control of Eiger FX. Historical prices are not a reliable indicator of future prices.
1.6 These Terms:
(a) constitute a “framework contract” which set out the terms of you and us entering into FX Contracts and Payment Contracts;
(b) shall be incorporated into every Contract which you enter into with Eiger FX;
(c) shall come into force on the date you agree to same in accordance with Clause 3.1 and shall remain in force until terminated in accordance with these Terms.
2. INFORMATION ABOUT EIGER
2.1 Eiger FX can be contacted by post at its registered office, by telephone or by email using the relevant contact details set out in clause 25.3.
2.2 Eiger FX is:
(a) authorised by the Financial Conduct Authority (the “FCA”) under the PSRs with firm reference number 533391 for the provision of payment services;
(b) authorised by Her Majesty’s Revenue and Customs for the purposes of compliance with the Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017 and has Money Laundering Regulations registration number 12621485.
2.3 The postal address of the FCA is 25 The North Colonnade, Canary Wharf, London E14 5HS and they can be contacted on 0800 111 6768 and email@example.com for consumers and 0300 500 0597 or firstname.lastname@example.org for firms.
3. BECOMING A CLIENT
3.1 In order to become a Client and before any Services can be provided by Eiger FX, the applicant must provide Eiger FX with all information reasonably required by Eiger FX to comply with its legal and regulatory obligations and its own internal risk management processes and tick the box on the Website stating that it agrees to be bound by these Terms or sign our application form or otherwise agree to these Terms. In addition, the Client must provide Eiger FX with its preferences with regards to receipt of communications from Eiger FX. The Client warrants that all information provided to Eiger FX is true and correct to the best of its knowledge and belief.
3.2 If the Client is a business, then the Client must provide Eiger FX with the names and contact details of all Authorised Person. If the Client is an individual acting on his/her own behalf, then there is no requirement to appoint an Authorised Person. Eiger FX will only accept Orders from the Client or an Authorised Person and shall be entitled to assume that an Authorised Person is authorised to make any Order unless notified otherwise in writing by an officer or director of the Client.
3.3 At its absolute discretion Eiger FX may refuse to open an account for a Client and may do so without giving any reason.
4. OUR SERVICES
4.1 Eiger FX may in its absolute discretion provide, or continue to provide, the following services to you:
(a) entering into and fulfilling FX Contracts with you in accordance with a FX Order sent by you (“Foreign Exchange Services”); and
(b) entering into and fulfilling Payment Contracts with you in accordance with a Payment Instruction sent by you (“Payment Services”).
4.2 Eiger FX may provide information about foreign exchange markets and related matters from time to time. However, Eiger FX does not provide advice as to the merits of proposed Contracts and whilst Eiger FX may provide information, the Client relies entirely on its own judgment when making an Order.
4.3 Eiger FX will always contract directly with the Client when entering into a FX Contract with the Client. Eiger FX does not act on the Client’s behalf or as the Client’s agent when entering into a contract for foreign exchange with its counterparties.
4.4 In accordance with the permissions we have with the FCA, we are only able to sell you a Forward FX Contract which is:
(a) for deliverable currency; and
(b) for the purpose of:
(i) purchasing identifiable goods and/or services; or
(ii) direct investment.
We cannot sell you a Forward FX Contract if you are, among other things, seeking to profit by pure speculation on foreign exchange movements.
4.5 Eiger FX has sole discretion to decide whether the purpose of a Forward FX Contract is for the purchase of identifiable goods and/or services or direct investment.
4.6 FX Contracts being deliverable means that at maturity the Client must take or give instructions for delivery of funds to a bank account. Under the permission Eiger FX holds with the FCA, Eiger FX cannot pay out any profit derived from an unsettled Spot FX Contract or Forward FX Contract. This means that if a Client has not paid the money it owes to Eiger FX in relation to a FX Contract prior to the dates set out in the Contract Note, Eiger FX cannot pay out any profit which you may have made on the relevant FX Contract.
5. CLIENT ORDERS
5.1 The Client warrants that it has the full capacity to place an Order and that each of its Authorised Persons is properly and lawfully appointed and has the full capacity to place an Order on behalf of the Client.
5.2 The Client or an Authorised Person may place an Order:
(a) verbally by telephone by calling +44 (0)207 426 1495 or by using the telephone number of the Client’s designated account manager or otherwise by speaking to an Eiger FX employee via telephone;
(b) by email to email@example.com or the email address of any other employee or agent of Eiger FX; or
(c) online via the System.
5.3 An Order can be accepted by us verbally (which includes over the telephone) or in writing (which includes via email) or when you receive a confirmation that your Order has been accepted on the System (should your Order be placed using the System). Once accepted, such Order will form a Contract. We reserve the right, but are in no way obliged, to verify any Orders received or appearing to be received from the Client by way of telephone call or email to the registered details held by us.
5.4 Eiger FX is under no obligation to accept any Order and may refuse to do so without giving any reason. Eiger FX will not be liable to the Client or any other party for any loss or damages resulting from Eiger FX’s refusal to accept an Order.
5.5 Eiger FX reserves the right to:
(a) refuse to accept any Order that amends an existing Contract;
(b) limit the size of any open position that might result from a Contract which the Client may carry with Eiger FX at any time;
(c) require the Client to reduce open positions carried with Eiger FX; and
(d) require written confirmation of any Order.
5.6 Eiger FX is entitled (but no obliged) to act upon Orders which are or reasonably appear to be from the Client or any Authorised Person. In particular, an Order received from an e-mail address or telephone number registered with Eiger FX as belonging to the Client or an Authorised Person or otherwise used by the Client or an Authorised Person to communicate with Eiger FX shall be sufficient to authenticate an Order as being from the Client and shall be deemed authorised by the Client pursuant to these Terms and the PSRs. In addition, Eiger FX shall be entitled to act upon Orders and instructions received from communication channels used by the Client to communicate with Eiger FX.
TERMS APPLYING TO FX ORDERS AND FX CONTRACTS
6. PLACING A FX ORDER
6.1 The Client or an Authorised Person may from time to time provide a FX Order to Eiger FX in accordance with Clause 5. Following receipt of a FX Order, Eiger FX shall, if it is willing to accept the FX Order, agree with the Client the terms on which it is willing to enter into the FX Contract.
6.2 The Client will be solely responsible for ensuring that the details the Client or the Authorised Person supplies to Eiger FX are true, complete and accurate, and neither the Client nor the Authorised Person will withhold or omit any information that may cause those details to be false or inaccurate.
6.3 If Eiger FX accepts the FX Order, Eiger FX shall subsequently provide to the Client a confirmation of the details of the FX Order (a “Contract Note”) by email. The Contract Note shall include the following:
(a) the transaction number;
(b) details of the FX Order including the foreign exchange rate applying;
(c) the Value Date;
(d) any charges payable by the Client in respect of the FX Contract (including a breakdown of the amounts of those charges where applicable);
(e) any charges payable by the Client in respect of any associated Payment Contract (including a breakdown of the amounts of those charges where applicable);
(f) in the case of a FX Contract which is not a Spot FX Contract, instalment payments to be made by the Client as determined in Eiger FX’s absolute discretion;
(g) the currency in which payments by the Client to Eiger FX are to be made; and
(h) the currency and amount of the Purchase Monies.
6.4 A Contract remains binding whether or not the Client receives the Contract Note and the Client will notify Eiger FX if the Client has not received a Contract Note within 2 hours of making the FX Order.
6.5 The Client must inform Eiger FX of any errors or omissions within one Business Day from when the Contract Note was issued by Eiger FX to the Client, otherwise the Client is deemed to have accepted the contents of such document and shall not thereafter be entitled to dispute the contents of the Contract Note.
6.6 Eiger FX will not be bound by any FX Contract where it is reasonably determined by Eiger FX that there is a Manifest Error in the purchase or sale price stated in the Contract Note. In these Terms, a “Manifest Error” refers to a manifest or obvious misquote of the purchase or sale price quoted to the Client, including a misquote based on a published price source on which Eiger FX has relied in connection with the FX Contract.
6.7 Once Eiger FX has transmitted a Contract Note confirming a FX Order in writing, the Client may only amend or cancel the Contract Note if a director of Eiger FX expressly agrees (and any such amendment or cancellation shall be on the conditions specified by Eiger FX) or otherwise in accordance with the provisions of Clause 6.5 and 6.6.
6.8 The Client does not have any right under the Financial Services (Distance Marketing) Regulations 2004 to cancel any FX Contract. However, the Client may close-out a FX Contract entered into under these Terms prior to the Value Date of such FX Contract by giving notice in writing to Eiger FX. In such an event, the Client will be liable for all of the costs, expenses and losses and interest at the rate referred to in Clause 16, on any such sums that Eiger FX may incur, including any action it may take or has taken to cover or reduce its exposure, as a result of Eiger FX entering into such FX Contract with the Client (including the actual or hypothetical costs of unwinding any hedging arrangements which are referable to such FX Contract).
6.9 Any excess amount held by Eiger FX in respect of a FX Contract shall be returned to the Client after deducting all other sums due to Eiger FX. However, further to Clause 4.6, if any gain is realised due to a fluctuation in the foreign exchange rate in your favour, due to the regulatory permissions that we have, we are not able to pay this to you.
6.10 We may agree to notify you when we are able to provide you with a specific foreign exchange rate. Upon such notification, you may, at your discretion, place a FX Order with us. However, this service is provided on a no-liability basis, i.e. we will not be held liable for any losses you incur if we fail to notify you that we were able to offer you the specific foreign exchange rate. Providing you with this information shall by no means be interpreted as providing advice to enter into a FX Contract.
6.11 You may instruct us that, upon us being willing and able to offer you a foreign exchange rate specified by you, we will automatically execute a FX Contract. The instruction is known as a “Working Order” and the resulting FX Contract known as an “Automatic FX Order Contract”.
6.12 You are able to specify in the Working Order that either:
(a) it should be cancelled on a specific date; or
(b) it shall remain open until it is either accepted and executed by us at your chosen foreign exchange rate or it is cancelled or amended by you prior to it being accepted and executed by us (this is known as being “Good Til Cancelled”).
6.13 Notwithstanding which option is chosen in Clause 6.12, the Working Order may be cancelled at any time prior to the Working Order being accepted and executed by us. If the Working Order:
(a) is not cancelled; or
(b) does not expire in accordance with its terms, prior to us being willing and able to offer you the specific foreign exchange rate, then this Working Order may be accepted by us in accordance with clause 5.3.
6.14 In order to instruct a Working Order with us, you need to provide us with the following details:
(a) the specific foreign exchange rate you wish to obtain;
(b) the currency of the Purchase Monies and the currency you wish to use to purchase the Purchase Monies;
(c) the amount of the Purchase Monies you wish to purchase and the amount of currency you wish to use to purchase the Purchase Monies;
(d) the date the Working Order is to expire, unless you would like the Working Order to be on a Good Til Cancelled basis.
6.15 You acknowledge that, after the Working Order has been accepted and executed by us, the foreign exchange rate you could obtain by entering into a new FX Contract may be more beneficial to you than the foreign exchange rate in the Automatic FX Order Contract, but you will still be bound by terms of the Automatic FX Order Contract.
7. WHEN WE SAFEGUARD MONEY
7.1 As part of its authorisation with the FCA as an authorised payment institution, Eiger FX provides its clients with bank accounts for the receipt and safeguarding of monies received by or held on behalf of its clients.
7.2 Where Eiger FX receives money from the Client for the purpose of fulfilling a FX Contract or a Payment Contract this money shall be received into a bank account nominated by Eiger FX (the ‘Safeguarded Account’) until the FX Contract is settled or the Payment is executed.
7.3 Where the Client pays money into the Safeguarded Account in advance of entering into a Contract, such money will be held by Eiger FX until the Contract is entered into. If, following a reasonable amount of time, no Contract is entered into, then the money may be returned to the Client.
7.4 The Safeguarded Account is a designated segregated client account, separate from Eiger FX’s own funds. Eiger FX may deduct from money held for the Client any amount the Client owes to Eiger FX including any fees, costs, taxation, liabilities, margin calls or charges incurred by Eiger FX in relation to such Client, however they arise and apply such deduction in meeting such liabilities.
8. ADDITIONAL CONDITIONS FOR FORWARD FX CONTRACTS
8.1 For Forward FX Contracts the Client must deliver cleared funds (but not cash) to the Safeguarded Account covering the Initial Amount within one Business Day of the date upon which the Forward FX Contract was entered into and the remaining amount at the times specified in the Contract Note.
8.2 Eiger FX will monitor the value of the Client’s aggregate open position on Forward FX Contracts on a mark-to-market basis. In the event any material adverse foreign exchange rate movement occurs after the Client has entered into a Forward FX Contract or when there is significant volatility in the foreign exchange markets, Eiger FX may request and the Client shall immediately provide, such Additional Amount as Eiger FX may reasonably require to off-set the increased risk to Eiger FX.
8.3 Eiger FX reserves the right to make multiple calls for Additional Amounts whilst the relevant foreign exchange rate is less advantageous than at the date and time that the Client entered into the Forward FX Contract.
8.4 Where Eiger FX has requested that an Additional Amount be paid, the Additional Amount must be paid within one Business Days of the request. The Client agrees that it is the Client’s responsibility to ensure that it is contactable and has provided sufficient contact details so that Eiger FX can contact the Client in the event of a request for an Additional Amount. If Eiger FX is unable to contact the Client by the end of the day in which a request for an Additional Amount occurs, Eiger FX will be entitled to close-out the Forward FX Contract in accordance with Clause 9.
8.5 Any Initial Amounts and Additional Amounts held by Eiger FX may be applied by Eiger FX in satisfaction of all amounts owing by the Client to Eiger FX from time to time and in particular in any of the following circumstances:
(a) Eiger FX incurs any liability or loss in respect of any Contract including any other Contract the Client has with Eiger FX where the Client fails to fulfil its obligations under these Terms;
(b) the Client is in breach of any of these Terms including when the Client fails to pay the balance due as detailed in a Contract Note.
8.6 The Client will not be entitled to any interest on any Initial Amounts or Additional Amounts or any other sums held by Eiger FX.
8.7 Where a Client has failed to provide an Initial Amount or Additional Amount by 4.00 pm on the relevant Business Day, Eiger FX may refuse to keep the relevant Forward FX Contract open and the Client will be liable to Eiger FX for:
(a) any cost incurred by Eiger FX in exiting the Forward FX Contract; and
(b) any interest incurred by Eiger FX on the cost of borrowing funds in order to provide margin to any third party.
8.8 The Client will be required to notify Eiger FX not less than 2 Business Days before the Value Date of the details of any Payee(s), the payment means and the delivery instructions if a subsequent Payment Contract is going to be entered into with respect to the Purchase Monies.
8.9 Eiger FX can, at its sole discretion, extend the Value Date for a Forward FX Contract upon the request of the Client. Such an extension of the Value Date may involve an adjustment to the foreign exchange rate for the Forward FX Contract.
9. DEFAULT, CLOSE OUT & REFUSAL TO PERFORM FX CONTRACTS
9.1 Eiger FX may refuse to perform or may close out all or any part of any FX Contract, without incurring any liability to the Client for losses that may be sustained as a result and without giving notice to the Client or receiving any instructions from it, upon or at any time after the happening of any of the following events:
(a) the Client fails to make any payment when due under these Terms or any FX Contract;
(b) Eiger FX has been unable to contact the Client by the end of the day in which a request for an Additional Amount occurs;
(c) for a Client who is an individual, the Client:
(i) dies or, in Eiger FX’s reasonable suspicion, becomes of unsound mind; or
(ii) suspends payment of its debts, makes or takes steps with a view to making any moratorium, assignment, composition or similar arrangement with creditors, has a receiver appointed in respect of some or all assets, takes or has any proceedings taken against them in bankruptcy, or has anything similar to any of the events described in this Clause 9.1(c) happen to the Client anywhere in the world;
(d) for a Client who is not an individual, the Client:
(i) suspends payment of its debts;
(ii) makes or takes steps with a view to making any moratorium, assignment, composition or similar arrangement with its creditors;
(iii) has a liquidator, trustee in bankruptcy, judicial custodian, compulsory manager, receiver, administrative receiver, administrator or similar officer appointed in respect of some or all of its assets;
(iv) is the subject of a winding up, administration or dissolution;
(v) or any person takes any steps, or the Client allows any steps to be taken, for its winding up, administration or dissolution (except for a solvent amalgamation or reconstruction approved in advance in writing by Eiger FX) or gives notice to Eiger FX of an intention to appoint an administrator;
(vi) is the subject of a meeting of its shareholders, directors or other officers, which meeting was convened for the purpose of considering any resolution for, to petition for or to make application to or to file documents with a court or any registrar for, its winding up, administration or dissolution or If any such resolution is passed;
(vii) is subject to a request from its shareholders, directors or other officers for the appointment of, or giving notice of their intention to appoint, a liquidator, trustee in bankruptcy, judicial custodian, compulsory manager, receiver, administrative receiver, administrator or similar officer; or
(viii) after entry into these Terms by the Client, there is any changes in the identity of the persons who together have the right to appoint and remove a majority of the members of the governing body of the Client;
(ix) suffers anything similar to the events described in this Clause 9.1(d) anywhere in the world;
(e) the Client fails in any respect to fully and promptly comply with any obligations to Eiger FX under these Terms;
(f) if any of the representations made or information supplied by the Client are or become materially inaccurate or materially changed;
(g) if it becomes or may become unlawful for Eiger FX to maintain or give effect to all or any of the obligations under these Terms or otherwise to carry on its business;
(h) if Eiger FX or the Client is requested not to perform or to close out a FX Contract (or any part thereof) by any governmental or regulatory authority whether or not that request is legally binding; and
(i) Eiger FX considers it necessary to do so for its own protection including (without limitation) in the following circumstances: (i) protection from fraud or money laundering; (ii) protection from Client default; (iii) protection from market failure; (iv) protection from adverse or volatile market conditions; and (v) protection from loss by Eiger FX.
9.2 If the Client becomes aware of the occurrence or likely occurrence of any event referred to in Clauses 9.1(a) to 9.1(h) above, it shall notify Eiger FX immediately.
9.3 If any event referred to in Clause 9.1 above takes place Eiger FX shall at its discretion be entitled to cancel any FX Contract then outstanding and charge the Client with all of the costs, expenses and losses (and interest at the rate referred to in Clause 16 on any such sums) that Eiger FX may incur (including any action it may take to cover or reduce its exposure) as a result of Eiger FX cancelling FX Contracts with the Client (including the actual or hypothetical costs of unwinding any hedging arrangements which are referable to the FX Contracts). Any excess amount held by Eiger FX in respect of the FX Contracts shall be returned to the Client after deducting all other sums due to Eiger FX.
9.4 If for any reason a FX Contract is closed out or does not proceed to completion, Eiger FX will send to the Client a settlement notice showing any monies owing from you to us or any monies which we owe to you. We shall settle such sums as soon as reasonably possible. The Client shall bear all the losses/ expenses of Eiger FX whatsoever that may arise on account of such close out or cancellation, and Eiger FX shall have the right to use any monies of the Client held by it to offset such amounts as are owed by the Client to Eiger FX. For such purpose, Eiger FX shall be entitled to convert any currency held by it and such conversion shall be at the rate of exchange available to it. Any fee or charge which Eiger FX incurs as a result of such conversion shall be paid for by the Client. If there is a loss which is not covered by monies we already hold, you shall pay is an amount equivalent to such loss within 5 Business Days of the settlement notice being sent to you.
9.5 If the Client’s method of payment, is dishonoured, returned, not met on first presentation or stopped for whatever reason, Eiger FX shall levy an Administration Fee. This Administration Fee will become payable by the Client in addition to any other sums due under these Terms.
10. LIMITATION OF LIABILITY AND INDEMNITY FOR FOREIGN EXCHANGE SERVICES
10.1 In addition to any limitation on liability under Clause 12 or 20 which may apply to the Foreign Exchange Services, Eiger FX shall not be liable to the Client:
(a) for any delay or failure to perform its obligations under these Terms relating to any FX Contract by reason of any cause beyond the reasonable control of Eiger FX, but Eiger FX shall try to perform those obligations as soon as it reasonably can in any event;
(b) for any loss resulting from the determination of Manifest Error by Eiger FX;
(c) Eiger FX acting on a written, oral, telephone FX Order or FX Order placed via the System which reasonably appeared to Eiger FX to be from the Client or an Authorised Person; or
(d) for any consequential or indirect loss (such as loss of profits, loss of contract or opportunity) the Client may incur as a result of Eiger FX failing to perform its duties under a FX Contract; or
(e) for an amount greater than the maximum stated in Clauses 10.3.
10.2 Without prejudice to Clause 10.1 above, Eiger FX shall not be responsible in any way for any delay in payment by it under these Terms relating to the Foreign Exchange Services which is caused by the Client or any other third party, including but not limited to bank delay, postal delay, payment network delay, the failure or delay of any electronic transmission, or delay caused by accident, emergency or act of god. For the avoidance of doubt the Client accepts that the Client is solely responsible for ensuring that all payments which the Client is required to make under any FX Contract are made promptly and within the time limits specified by the particular FX Contract and these Terms.
10.3 The maximum liability of Eiger FX under a particular FX Contract, whether arising in contract, tort or otherwise, shall in no circumstances exceed the Purchase Monies under the relevant FX Contract.
10.4 The Client shall, on demand by Eiger FX, compensate Eiger FX from and against all liabilities, damages, losses and costs (including reasonable legal costs), duties, taxes, charges, commissions or other expenses incurred by Eiger FX in the proper performance of Foreign Exchange Services or the enforcement of its rights under these Terms relating to Foreign Exchange Services and, in particular, but without limitation, against all amounts which Eiger FX may certify to be necessary to compensate it for all liabilities, damages, losses and costs (including reasonable legal costs), duties, taxes, charges, commissions or other expenses incurred by Eiger FX (including loss of profit and losses and expenses from any action Eiger FX takes to seek to cover or reduce its exposure under any FX Contracts) as a result of:
(a) the Client breaching any provision of these Terms relating to Foreign Exchange Services or any FX Contract;
(b) Eiger FX acting on a written, oral, telephone FX Order or a FX Order placed using the System which reasonably appeared to Eiger FX to be from the Client or an Authorised Person; or
(c) Eiger FX or the Client exercising its rights under these Terms to close out all or any part of any FX Contract before its applicable Value Date.
10.5 Any amount certified by Eiger FX under Clause 10.4 shall, unless it is manifestly inaccurate, be conclusive evidence of any amounts payable under that provision. The provisions in this Clause 10 shall survive termination of any FX Contract or other agreement under these Terms relating to the Foreign Exchange Services.
TERMS APPLYING TO PAYMENT SERVICES
11. PAYMENT INSTRUCTIONS
11.1 The Client or its Authorised Person may from time to time provide a Payment Instruction to Eiger FX in accordance with Clause 5.2. A Payment Instruction provided in accordance with Clause 5.2 will be deemed by Eiger FX to be ‘consent’ for the execution of the Payment Instruction by the Client and therefore authorised in accordance with Regulation 67 of the PSRs. The Payment Instruction should confirm the details of the proposed Payee (the “Unique Identifiers”) including the following:
(a) full name and address of the Payee;
(b) the account details of the Payee and the Payee’s payment service provider which shall be:
(i) the sort code and account number, where the Payee’s payment service provider is located within the United Kingdom; or
(ii) the IBAN and SWIFTBIC, where the Payee’s payment service provider is located outside the UK; or
(iii) such other details that we request from you;
(c) the amount you wish to transfer to the Payee.
11.2 If the Client thinks that it has provided incorrect Unique Identifiers, it must contact Eiger FX immediately by telephone or by email to the using the relevant contact details set out in clause 25.3.
11.3 The Payment Instruction shall be deemed to be received at the time at which it is received except that:
(a) where the Payment Instruction would otherwise be deemed to be received on a day which is not a ‘Business Day’ or is received after 1.00 pm, London time on a Business Day, Eiger FX has the right to treat the Client’s Payment Instruction as having been received on the next Business Day; and
(b) if the Payment is to be made on a specified day or on the last day of a specified period and such specified day or last day of a specified period shall be on or after whichever is the later in time of the Value Date, the Business Day on which cleared funds are received in the Safeguarded Account from the Client for the full amount required and subject to the funds being received by midday that day, and the Business Day on which the converted currency from the executed FX Contract is received as cleared funds in the Safeguarded Account, the Client’s Payment Instruction shall be deemed to be received on the day stated for the making of that Payment or, if that is not a Business Day, on the Business Day immediately following that date.
11.4 Following receipt of a Payment Instruction, Eiger FX may:
(a) refuse that Payment Instruction and if it does so, Eiger FX shall (unless it would be unlawful for Eiger FX to do so) notify the Client of that refusal, the reasons for that refusal (if possible), and the procedure for rectifying any factual errors that lead to that refusal. Such notification shall be given to the Client as soon as practicable following the refusal and Eiger FX may charge the Client for such notification where the refusal is reasonably justified. A Payment Instruction which is refused by Eiger FX shall be deemed not to have been received for the purposes of Clause 11.3; and/or
(b) request further confirmation or information from the Client or Authorised Person of any Payment Instruction, including if Eiger FX considers that such confirmation or information is desirable or that a Payment Instruction is ambiguous.
11.5 The Client does not have any right under the Financial Services (Distance Marketing) Regulations 2004 or the Consumer Contracts (Information, Cancellation and Additional Changes) Regulations 2013 to cancel any Payment Instruction once given.
11.6 The Client may not revoke a Payment Instruction after it has been received by Eiger FX except if the Client has agreed with Eiger FX that the Payment is to be made on a specific day or on the last day of a certain period and the revocation is received by Eiger FX prior to the end of the Business Day preceding the specified day for the making of the Payment.
11.7 Any revocation of a Payment in accordance with Clause 11.6:
(a) must be received by Eiger FX via telephone or by email using the relevant contact details set out in clause 25.3;
(b) will be deemed to be withdrawal of consent in accordance with Regulation 67 of the PSRs.
11.8 Eiger FX may charge the Client for any revocation by the Client of a Payment. In particular, but not by way of limitation:
(a) the Client shall bear all costs, expenses and losses of Eiger FX whatsoever that may arise on account of the revocation; and
(b) Eiger FX may charge interest at the rate referred to in Clause 16 on any sums due to Eiger FX pursuant to this Clause 11.8.
11.9 Where the Payment is denominated in:
(a) Euro or Sterling, Eiger FX shall ensure that the amount of the Payment is credited to the Payee’s payment service provider’s account by the end of the Business Day following that on which the Client’s Payment Instruction was deemed to be received;
(b) a currency other than Euro or Sterling but the account of the Payee’s payment service provider is located within the European Economic Area (‘EEA’), Eiger FX shall ensure that the amount of the Payment is credited to that account by the end of the fourth Business Day following that on which the Client’s Payment Instruction was deemed to be received; and
(c) a currency other than Euro or Sterling and the account of the Payee’s payment service provider is located outside the EEA, Eiger FX shall endeavour to ensure that it actions the Payment as soon as is reasonably practicable.
12. LIMITATION OF LIABILITY FOR PAYMENT SERVICES
12.1 Subject to the remainder of this clause 12, where it is established that a Payment which has been executed by Eiger FX was executed in error and/or was not authorised by the Client in accordance with Clauses 5 and 11.1, Eiger FX shall refund to the Client the full amount debited:
(a) without authorisation, as soon as practicable and in any event no later than the end of the Business Day following the day on which Eiger FX became aware of the unauthorised or incorrectly executed Payment, unless Eiger FX has reasonable grounds to suspect fraud and notifies the appropriate authorities; or
(b) erroneously, without undue delay,
only if the Client has notified Eiger FX in a timely manner:
(c) within 13 months of the Payment being executed, if the Client is a consumer, a micro-enterprise or a charity (as such terms are defined in the PSRs); or
(d) within 6 months of the Payment being executed, if the Client is not a consumer, a micro-enterprise or a charity (as such terms are defined in the PSRs).
12.2 The Client will be liable for all unauthorised Payments:
(a) if the Client has acted fraudulently, or has intentionally or with gross negligence not complied with its obligations under Clause 15.1 and 15.2; and
(b) before it notified Eiger FX in accordance with clause 15.1 when the Client should have done.
12.3 Subject to clause 12.4, the Client will be liable for up to £35 for unauthorised Payments made by Eiger FX pursuant to a Payment Contract entered into via the System where the Client has, other than in the case set out in clause 12.2(a), failed to comply with its obligations under Clause 15.2 except where:
(a) the misappropriation of the System was not detectable by the Client prior to the Payment, unless the Client has acted fraudulently; or
(b) the loss, theft or misappropriation of the Security Information was caused by acts or omissions of any employee, agent or branch of Eiger FX or of an entity which carries out activities on behalf of Eiger FX.
12.4 Except where the Client has acted fraudulently, the Client shall not be liable for unauthorised Payments made by Eiger FX pursuant to a Payment Contract entered into via the System:
(a) after the Client has notified Eiger FX in accordance with Clause 15.1; or
(b) where Eiger FX has failed to provide the appropriate means for notification pursuant to Clause 15.1,
if the corresponding losses are directly related to the notification or inability to notify (as appropriate).
12.5 Eiger FX is not liable to the Client for the incorrect execution of a Payment if:
(a) the Payment was made in accordance with a Unique Identifier given to it by the Client which proves to be incorrect – however, Eiger FX shall make efforts to trace funds involved in that transaction and notify the Client of the outcome; or
(b) Eiger FX can prove to the Client (and where relevant, to the Payee’s payment services provider) that the Payee’s payment services provider received the Payment within the appropriate time period described in Clause 11.9.
12.6 Eiger FX shall charge the Client the Administration Fee for making efforts to trace funds pursuant to Clause 12.5(a) and/or amending the Payment. The Client understands that there is no guarantee that Eiger FX will be able to recover the funds subject to the Payment.
12.7 Under Regulation 92 of the PSRs, the Client may be entitled to a refund in certain circumstances where a Payment is initiated by the Payee. It is not anticipated that any Payment will be initiated by a Payee under any Payment Services provided by Eiger FX and the Client represents and undertakes to that effect.
12.8 The provisions in this Clause 12 shall survive termination of these Terms or any agreement under these Terms.
TERMS APPLYING GENERALLY
13. PAYMENTS TO US
13.1 For Spot FX Contracts, the Client must deliver cleared funds (but not cash) into the Safeguarded Account for the full amount specified in the Contract Note (the sale currency and any applicable charges) on or before the Value Date, whether or not specified by Eiger FX on the Contract Note.
13.2 For Forward FX Contracts, the Client must deliver cleared funds (but not cash) to the Safeguarded Account covering the Initial Amount within one Business Day of the Contract having been entered into and the remaining full amounts on the dates specified in the Contract Note or as otherwise requested by Eiger FX.
13.3 Eiger FX does not accept cash, cheques or credit / debit cards as payment. Any references in these Terms to cleared funds shall not include cash or cheques. Any funds paid into the Safeguarded Account(s) in cash or by cheque, will incur a processing fee of 3% subject to a minimum £50 charge. These funds may be returned to the Client (less the processing fee).
13.4 All payments due from the Client to Eiger FX under these Terms shall be made in full without set-off, counter-claim, deduction or withholding whatsoever unless the Client has a valid court order against Eiger FX in the amount withheld.
13.5 Eiger FX will endeavour to pay to the Client the amount due in the manner and at the date detailed in the Contract Note provided that cleared funds as detailed in the Contract Note have been received in full into the Safeguarded Account by the time set out in the Contract Note.
13.6 Eiger FX may deduct from the Payment such amounts as Eiger FX may be required by law to deduct in respect of taxation liabilities, together with any Administration Fees chargeable in accordance with these Terms and bank charges.
13.7 The Client understands that, because Eiger FX deals as principal, the foreign exchange rate it offers the Client will not be the same as the rate Eiger FX obtains itself.
13.8 The Client will ensure that all monies which it sends to Eiger FX in satisfaction of its obligations under these Terms will, at the time of such payment, be beneficially owned by the Client and not subject to any charge, lien or other encumbrance and you will not crate any charge, lien or other encumbrance over any funds so paid.
13.9 Unless expressly agreed between Eiger FX and the Client, all monies paid by the Client to Eiger FX will on such payment vest in and belong to Eiger FX free of any lien or other interest in favour of the Client or any other party.
14. THE SYSTEM
14.1 Eiger FX may, in its discretion make the System available to the Client pursuant to these Terms. For this purpose, Eiger FX may from time to time issue the Client and Authorised Persons with Security Information to access the System.
14.2 The information available on the System (the “System Information”) is produced by Eiger FX by various independent sources (“System Information Providers”) and may be protected by copyright. You agree not to reproduce, retransmit, disseminate, sell or distribute the System Information in any manner without the express written consent of Eiger FX and the relevant System Information Provider(s). You also agree to take steps to ensure that the hardware and software that you employ to access the System does not introduce any form of computer virus, worm, software bomb or similar item into the System, and agrees to indemnify Eiger FX for any loss that it may suffer as a result of such introduction.
14.3 Without prejudice to any other terms set out in these Terms, relating to the limitation of liability and provision of indemnities, Eiger FX and its directors and employees will not be liable for any loss, cost, expense or damage whatsoever which may arise directly or indirectly as a result of any technical difficulties which you may experience in connection with the System and which may lead to, but not limited to, transmission errors, malfunctions, failures, delays, hardware damage or software erosion and could possibly lead to economic and/or data loss as a result of installing, attempting to access, accessing, using, maintaining, modifying or deactivating the System or otherwise arising out of the negligence of Eiger FX. Nor shall Eiger FX be liable for the introduction of any computer virus, worm, software bomb or similar items into your computer hardware or software as a result of connection to the System on the proviso that Eiger FX has taken reasonable steps to prevent any such introduction.
15. SAFEGUARDS AND SECURITY
15.1 The Client must notify Eiger FX via telephone or by email using the contact details set out in Clause 25.3 on becoming aware of the misappropriation or unauthorised use of the System.
15.2 The Client and each Authorised Person must take all reasonable steps to keep the System safe. This includes:
(a) each Authorised Person and the Client:
(i) not writing down or telling anyone their Security Information;
(ii) notifying Eiger FX as soon as it suspects or knows that someone other than themselves knows their Security Information or can otherwise gain access to the System.
(b) ensuring that access to the System is kept safe. This will include, but is not limited to:
(i) logging off the System every time the computer (or other device used to gain access to the System) is left by the Client or the relevant Authorised Person;
(ii) always ensuring that Security Information is not stored by the browser or cached or otherwise recorded by the computer or other device used to gain access to the System;
(iii) having recognised anti-virus software out on the computer or other device you use to gain access to the System;
(iv) notifying Eiger FX immediately if a virus is found on the computer or other device the Client or any Authorised Person uses to obtain access to the System;
(c) ensuring that the e-mail account(s), phone number, mobile phone number, computer and other network the Client and each Authorised Person use to communicate with Eiger FX is secure and only accessed by the relevant Client or Authorised Person as these may be used to reset the Security Information;
(d) you and each Authorised person regularly checking your emails to that you are aware if there are unauthorised changes to your account such as new or amended Payee details or new Payment Instructions.
15.3 The Client must take all reasonable precautions to prevent fraudulent use of Services. This includes. ensuring that the e-mail account(s), phone numbers, mobile phone numbers, computers and other network the Client and each Authorised Person uses to communicate with Eiger FX are secure and only accessed by the relevant Client or Authorised Person.
15.4 The Client and each Authorised Person must also regularly check his/her emails as they may receive emails from Eiger FX relating to new Payee details being added or a new Payment Instruction having been received.
15.5 Eiger FX may stop or suspend the use of the System if it has reasonable grounds for doing so relating to:
(a) the security of the System;
(b) the suspected, unauthorised or fraudulent use of the System; or
(c) where the Payment is being made in connection with a credit line, if Eiger FX believes that there is a significantly increased risk that the Client may be unable to fulfil its liability to pay.
15.6 Unless doing so would compromise reasonable security measures or be unlawful, before stopping or suspending any use of the System or immediately after doing so, Eiger FX will securely contact the Client using one of the methods set out in clause 25.4 and give its reasons for doing so. As soon as practicable after the reason for stopping or suspending the use of the System has ceased to exist, Eiger FX will allow the resumption of the Client’s use of the System and may change or require that the Client or Authorised Person changes their existing Security Information (as appropriate).
If the Client fails to make any payment required under these Terms when it is due, interest will be charged on the outstanding sum at 5% per annum above the base rate, from time to time in force, of the Royal Bank of Scotland plc from time to time (or if this cannot be ascertained, the base rate of such other financial institution, or such other rate, as we may determine) from the date payment is due until the date payment is made and shall be compounded monthly and Eiger FX shall be entitled to claim from the Client its reasonable costs in recovering any sums overdue. Amounts due under this Clause may at our reasonable discretion be converted to Pounds Sterling or any other currency at a rate to be reasonably determined by us.
17.1 If the Client’s payment to us is dishonoured, returned, not met on first presentation or stopped for whatever reason, Eiger FX shall levy the Administration Fee (or the equivalent in a different currency) in respect of each such payment. Cash payments will be subject to a 3% processing fee, whether or not the payment is returned to the Client.
17.2 Eiger FX’s charges for entry into each Contract shall be agreed before the relevant Contract is entered into. These charges shall be set out in each Contract Note.
17.3 Our standard charges (which we may vary or waive from time to time) are as follows:
(a) each Payment made by SEPA will incur a fee of £5 (or equivalent currency); and
(b) each Payment made via SWIFT will incur a fee of £5 (or equivalent currency);
(c) next day sterling Payments are free of charge;
(d) £5 per draw down, if there is more than one draw down pursuant to a Forward FX Contract.
These charges are levied by Eiger FX to offset the costs it incurs from its banking provider for making Payments. These charges may, at Eiger FX’s discretion, be waived in part or discounted completely. These charges do not include any deductions made by intermediary payment service providers or the Payee’s payment service provider which will be deducted from any Payment made by us. For more information on these charges, please contact us using the contact details set out in clause 25.3.
17.4 Eiger FX will charge the Client an Administration Fee together with any other costs incurred or suffered by Eiger FX including bank charges if the Client instructs Eiger FX to reverse, recall or modify any Contract(s) including Payment(s) except as the result of any error on the part of Eiger FX.
17.5 If the Client requests information or materials which are not provided as part of the Services, Eiger FX may accept, or decline the request and may charge an Administration Fee to fulfil such request.
18. EXCHANGE RATES
18.1 The Client acknowledges that foreign exchange markets may from time to time be restricted, closed or otherwise impeded or that action may be taken by a counterparty in an emergency or otherwise to close out a Forward FX Contract or exercise set-off rights (an “Impediment”). Any such action may result in Eiger FX being unable to enter into or otherwise execute a FX Contract. The Client shall remain fully liable for all existing open positions, new positions or eliminated positions resulting in whole or in part from an Impediment.
18.2 Notwithstanding Clause 18.1, the Client acknowledges and agrees that foreign exchange rates may change prior to the time of execution of a Spot FX Contract or Forward FX Contract. There may be circumstances in which the foreign exchange rate captured for a Spot FX Contract or Forward FX Contract differs from the rate which was notified to the Client at the time when the Order was placed. Eiger FX shall not be liable in respect of any loss or diminution of value or profit derived from the change in any foreign exchange rate.
18.3 The Client acknowledges that the exchange rate which it is offered by Eiger FX when entering into a FX Contract is not the same as the exchange rate which Eiger FX receives from its counter-parties and is not the interbank rate. Eiger FX marks up the exchange rate it receives. This exchange rate is constantly changing pursuant to market conditions.
19. REPRESENTATIONS AND WARRANTIES
19.1 The Client represents and warrants as follows (so that the agreements and undertakings in this clause remain in force, and each warranty and representation is deemed repeated each time the Client places an Order):
(a) if the Client is a business, then all Orders are placed in pursuance of the Client’s usual trade or business;
(b) all FX Orders to enter into Forward FX Contracts will be for the purpose of facilitating payment for identifiable goods and/or services or for direct investment;
(c) all information provided by the Client to Eiger FX at any time is true, accurate and not misleading including by way of omission;
(d) you are acting as principal and not on behalf of any third party;
(e) you are duly empowered and have all necessary authorisations and consents to enter into these Terms and any Contract under these Terms;
(f) you will take physical delivery of the Purchase Monies upon payment of the full amount of the sold currency as directed by Eiger FX on the occasion of each Contract on the Value Date.
20. GENERAL LIMITATION OF LIABILITY OF EIGER FX
20.1 Where Eiger FX and another person (such as another payment services provider) are liable to the Client in respect of the same matter or item, the Client agrees that the liability of Eiger FX to the Client will not be increased by any limitation of liability the Client has agreed with that other person or because of the Client’s inability to recover from that other person beyond what the liability of Eiger FX would have been had no such limitation been agreed and/or if that other person had paid his or its share.
20.2 Where any loss, liability, cost or expense (a “Loss”) is suffered by the Client for which Eiger FX would otherwise be jointly and severally or jointly liable with any third party or third parties, the extent to which such Loss shall be recoverable by the Client from Eiger FX (as opposed to any third parties) shall be limited so as to be in proportion to the aggregate Eiger FX’s contribution to the overall fault for such Loss, as agreed between all of the relevant parties or, in the absence of agreement, as determined by a court of competent jurisdiction. For the purposes of assessing the contribution to the Loss in question of any third party for the purposes of this Clause, no account shall be taken of any limit imposed or agreed on the amount of liability of such third party by any agreement (including any settlement agreement) made before or after such Loss occurred or was otherwise incurred.
20.3 Eiger FX shall not be liable for any Loss arising as a result of any default or negligence of any other payment service provider.
20.4 The Services are provided to the Client solely and exclusively by Eiger FX. None of Eiger FX’s employees assume any personal responsibility to the Client or any other person, owes the Client or any other person any personal duty of care nor is liable to the Client or any other person for any Loss arising, directly or indirectly, as a consequence of their own acts or omissions. Accordingly, the Client agrees not to bring a claim against any of Eiger FX’s employees personally. This Clause does not exclude or limit the liability of Eiger FX for (i) the acts or omissions of any of its employees in the course of its business or (ii) the acts or omissions of its employees performed within the scope of the employee’s contract of employment.
20.5 Eiger FX accepts no responsibility for any delay in fulfilling a Contract attributed to the late arrival of funds or instruction of payment relative to the cut off times of the designated bank or for delays or faults due to the clearing banks or banking systems.
20.6 Eiger FX shall not be liable for any bank charges that the Client may incur in sending funds to or receiving funds from Eiger FX.
20.7 Eiger FX shall not be liable to the Client for the non-performance of Eiger FX’s obligations or the failure to execute any Order if the execution of the Order would be illegal.
20.8 Nothing in these Terms limits or excludes the liability of Eiger FX for death or personal injury caused by its negligence or for any damage or liability incurred by the Client as a result of fraud or fraudulent misrepresentation by Eiger FX or to the extent that the liability may not be excluded or limited by any applicable law.
21.1 If you feel that we have not met your expectations in the delivery of our Services or if you think we have made a mistake, please let us know. You may let us know by telephone, email, in writing or in person using the contact details set out in clause 25.3. We have internal procedures for handling complaints fairly and promptly in accordance with the FCA’s requirements. A copy of our complaints procedure is available upon request.
21.2 If you are an eligible complainant and the complaint relates to the provision of Payment Services:
(a) we will investigate your complaint in accordance with the FCA’s rules and our internal complaints procedures.
(b) you may be able to take your complaint to the Financial Ombudsman Service should you not be satisfied with our final response. Eligibility criteria and information on the procedures involved are available from http://www.financial-ombudsman.org.uk.
21.3 If a dispute arises between Eiger FX and the Client relating to the existence or terms of any FX Contract (a “Disputed FX Contract”), Eiger FX may take any other action it considers reasonably appropriate in relation to the Disputed FX Contract (which may include closing out or suspending the performance of the Disputed FX Contract) pending settlement of the dispute without previously notifying and/or without having received instruction from the Client. Eiger FX will try and notify the Client (orally or in writing) of the action it has taken, as soon afterwards as it practically can, but if it does not, the validity of its action shall not be affected.
22. FORCE MAJEURE
22.1 Eiger FX shall not be in breach of these Terms or the terms of any Contract nor liable for delay in performing or failure to perform, any of its obligations under these Terms or the terms of any Contract, where failure to fulfil any obligation under these Terms or the terms of any Contract is due to:
(a) abnormal and unforeseeable circumstances beyond the control of Eiger FX, impacting the ability of Eiger FX to perform any of its obligations under these Terms including without limitation, acts of God, expropriation or confiscation of facilities, any form of war, hostilities, rebellion, terrorist activity, local or national emergency, sabotage or riots, and floods, fires, explosions or other catastrophes or natural disasters, compliance with law or governmental order, rule, regulation or direction, or any failure of electronic transfer, computer equipment, software, communications systems or any form of industrial action; or
(b) the obligations of a payment service provider under other provisions of EU or national law.
22.2 If, in the circumstances described above Eiger FX is delayed or prevented from fulfilling its obligations under these Terms or the terms of any Contract, Eiger FX will take all reasonable steps to notify the Client and shall be entitled to extend the time for performance of the relevant Contract or fulfilment of the obligation for so long as such cause of prevention or delay shall continue. If the event continues to cause prevention or delay for a period of more than 28 days, both the Client and Eiger FX shall have the right, upon notifying the other, to terminate these Terms and any outstanding Contract.
23. CHANGES TO THESE TERMS
23.1 We may amend these Terms by giving you no less than two months’ notice in writing. If you object to the proposed amendments, you have the right to terminate these Terms without charge before the date proposed by Eiger FX for the entry into force of the changes. You will be deemed to have accepted the proposed amendments unless you notify us and terminate these Terms before the date proposed by Eiger FX for the entry into force of the changes. If we receive no objection from you, such amendments shall take effect from the date specified by us but may not affect any rights or obligations that have already arisen and will not be retrospective.
23.2 For the avoidance of doubt, the termination of these Terms by any means by the Client, shall not affect any Contract nor any rights or obligations that have already arisen at the date of the termination.
24.1 We may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of our rights and obligations under these Terms and any Contract, provided that we give prior written notice of such dealing to you.
24.2 You shall not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of your rights and obligations under these Terms or any Contract.
25. NOTICES AND COMMUNICATIONS
25.1 Where Eiger FX communicates with the Client, it will at all times ensure that the communication is fair, clear and not misleading.
25.2 All communications with the Client shall be in English only.
25.3 Any notice or other communication to be given by the Client to Eiger FX pursuant to these Terms shall be:
(a) if there is a requirement for the notice or communication to be in writing, sent by email to firstname.lastname@example.org;
(b) if there is not a requirement for the notice or communication to be in writing, sent by email to email@example.com or made by telephone to +44 (0)207 426 1495;
25.4 Any notice or other communication to be given by Eiger FX to the Client shall be sent:
(a) if there is a requirement for the notice or communication to be in writing:
(i) by email to any of the usual email addresses used by the Client or an Authorised Person to communicate with Eiger FX or the email address we hold as the contact email address for the Client as noted on the form completed when signing up for an account with Eiger FX, as same may be updated from time to time by the Client by written notice; and/or
(ii) by post to the Client’s address which was listed as the Client’s contact postal address on the form completed when signing up for an account with Eiger FX, as same may be updated from time to time by the Client by written notice or to its registered address (if the Client is a company or LLP).
(b) if there is not a requirement for the notice or communication to be in writing, either using a method set out in Clause 25.4(a) or by telephone to the contact telephone number we hold for the Client which was noted on the form completed when signing up for an account with Eiger FX, as same may be updated from time to time by the Client by written notice.
25.5 Any notice shall be deemed to have been received:
(a) if sent by email, at the time the email is sent;
(b) if sent by post, 2 Business Days after having been deposited in the post;
(c) if delivered in person to the postal address, at the time of delivery;
(d) if communicated over telephone in the English language, at the time of the communication.
25.6 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
25.7 Eiger FX shall use its reasonable endeavours to ensure that electronic communications that it sends are free from viruses and other material which may cause harm to any other computer system. The Client undertakes to do likewise with any electronic communications it sends to Eiger FX.
26. ANTI-MONEY LAUNDERING
26.1 The law requires us to obtain evidence of the identity of our clients, Payees and Third Party Depositors and each of their directors and beneficial owners (where such clients are incorporated entities) on a risk-based and proportionate basis.
26.2 The Client will be required to provide any documentation and information Eiger FX requests to comply with relevant legislation, including the Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017, the Proceeds of Crime Act 2002 and EU Wire Transfer Regulations (Regulation (EU) 2015/847).
26.3 Eiger FX may be unable to act for any person or continue acting for the Client if such person or the Client fails to provide Eiger FX with any documents specified by Eiger FX or fails to provide Eiger FX with information which enables Eiger FX to understand its ultimate beneficial ownership or control.
26.4 To assist Eiger FX with meeting its obligations, Eiger FX may carry out an electronic verification check and credit reference check via third party providers in order to verify the Client’s or a Third Party Depositor’s, or any shareholders or officers of the Client’s or Third Party Depositor’s, identity and credit standing. If such searches are carried out, Eiger FX may keep records of the contents and results of such searches in accordance with all current and applicable laws. You acknowledge that us carrying out an electronic verification check or credit reference agency check will leave a soft footprint on the individual or entity’s credit history. You warrant that you have obtained the consent of each individual officer and shareholder to such checks being carried out.
26.5 If, while Eiger FX is acting for the Client, it becomes necessary to make a money laundering disclosure, Eiger FX may not be able to inform the Client that a disclosure has been made or of the reasons for it.
27.1 Each party undertakes that it shall not at any time, disclose to any person any confidential information concerning the business, affairs, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs, except as permitted by Clause 27.2 and 27.3.
27.2 Each party may disclose the other party’s confidential information:
(a) to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with these Terms. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this Clause; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
27.3 Eiger FX may disclose confidential information to the person or organisation which introduced or referred the Client to Eiger FX, solely as necessary and limited to the purpose of paying such person or organisation an introductory/referral or affiliate fee.
27.4 No party shall use any other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with these Terms.
28. DATA PROTECTION
28.1 The Client authorises Eiger FX to collect, use, store or otherwise process any personal information provided by the Client or from the searches referred to at Clause 26.4 above (‘Personal Information’) to enable Eiger FX and/or the person or organisation which introduced or referred the Client to Eiger FX to provide and/or improve its Services. This may mean passing Personal Information to individuals or organisations which may be located in countries outside the EEA. Where the Client’s Personal Information is transferred outside the EEA, Eiger FX will take steps to ensure that it is appropriately protected.
28.2 Eiger FX may also use the Personal Information to provide the Client with news and other information on Eiger FX’s Services and activities which may be useful to the Client, subject to the Client’s consent. If the Client would prefer its Personal Information not to be used for such purposes, it should contact Eiger FX via email using the email address set out in clause 25.3.
28.4 If the Client wishes to obtain a copy of its Personal Information, it should contact Eiger FX in writing.
29. TERMINATION OF THE TERMS
29.1 Without affecting any other right or remedy available to it, Eiger FX may terminate these Terms on giving not less than 2 months written notice to the Client. The Client may terminate these Terms by giving Eiger FX one month’s notice via telephone or by email to the contact details set out in clause 25.3.
29.2 The termination of these Terms shall not affect any Contract entered into prior to the termination of these Terms.
30.1 Nothing in these Terms or in any Contract is intended to, or shall be deemed to, establish any partnership or joint venture between Eiger FX and the Client, constitute the Client the agent of Eiger FX or vice versa, or authorise any party to make or enter into any commitments for or on behalf of any other party. The Client confirms it is acting on its own behalf and not for the benefit of any other person.
30.2 Except in so far as the context otherwise requires, each provision in these Terms shall be construed as independent of every other provision, and if any provision or part of any provision hereof is or becomes partially or fully invalid, illegal or unenforceable then the validity, legality and enforceability of the remaining provisions shall not be affected. In such circumstances, the invalid, illegal or unenforceable provision shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this Clause shall not affect the validity and enforceability of the rest of these Terms. If one party gives notice to the other of the possibility that any provision or part-provision of these Terms is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
30.3 A failure by either party to exercise or enforce any right or remedy conferred upon it by these Terms or by law shall not be deemed to be a waiver of such right or remedy or operate so as to bar the exercise or enforcement thereof at any subsequent time or times. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy. The rights and remedies provided under these Terms are in addition to, and not exclusive of, any rights or remedies provided by law.
30.4 A person who is not a party to these Terms shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of these Terms or any Contract.
30.5 The parties agree and consent to the recording of telephone conversations between the parties with or without an automatic tone warning device and the use of such recording as evidence by either party in any dispute or anticipated dispute between the parties or relating to dealings between the parties.
30.6 If Eiger FX makes any recordings or transcript it may also destroy them in accordance with its normal procedures.
30.7 These Terms (and all documents referred to herein and annexed hereto) constitute the entire agreement between the Client and Eiger FX and supersede and extinguish all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to their subject matter.
30.8 Each of the Client and Eiger FX agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in these Terms. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in these Terms.
30.9 Subject to Clause 30.10 but notwithstanding any other provision of these Terms:
(a) to the fullest extent that is permitted by law, the provisions of the PSRs shall not apply to these Terms and any Contract; and
(b) the provisions which shall not apply as set out in Clause 30.9(a) above shall include the whole of Part 6 of the PSRs and Regulations 66(1) (charges), 67(3) and (4) (withdrawal of consent), 75 (evidence on authentication and execution), 77 (payer or payee’s liability for unauthorised transactions), 79 (refunds for direct debits), 80 (requests for direct debit refunds), 83 (revocation of a payment order), 91 (defective execution of payer initiated transactions), 92 (defective executed of payee-initiated transactions) and 94 (liability for charges and interest) of the PSRs.
30.10 The provisions of Clause 30.9 above shall not apply if (or at any time when) the Client is a consumer, a micro enterprise or a charity (all as defined in the PSRs).
30.11 Where the Client comprises two or more people, each person will be jointly and severally liable to Eiger FX in respect of all obligations contained in these Terms.
30.12 The Client may request and Eiger FX shall provide a copy of these Terms and any information set out in Schedule 4 of the PSRs at any time prior to termination of these Terms.
30.13 These Terms and any Contract to which these Terms apply and any dispute or claim arising out of or in connection with these Terms or any such Contract or its or their subject matter or formation (including non-contractual disputes or claims) are governed by and shall be construed in accordance with the laws of England.
30.14 The Client and Eiger FX agree that the courts of England and Wales shall have exclusive jurisdiction over any claim, dispute or matter arising out of or in connection with these Terms or their subject matter or formation (including non-contractual disputes or claims) and any Contract to which these Terms apply or its subject matter or formation (including non-contractual disputes or claims) or any of the documents to be entered into pursuant to these Terms.
Schedule 1 Definitions
1.1 The following definitions and rules of interpretation apply in these Terms:
“Additional Amount” means the amount of money requested by Eiger FX, from time to time, pursuant to a Forward FX Contract to limit Eiger FX’s risk under the Forward FX Contract.
“Administration Fee” means the fee of £25 charged to the Client by Eiger FX for the performance of various tasks.
“Authorised Person” means a person who is authorised to place Orders on behalf of and generally communicates and acts on behalf of the Client.
“Business Day” means a day other than a Saturday, a Sunday or public holiday in England when clearing banks in London are open for business.
“Contract” means both a FX Contract and a Payment Contract.
“Contract Note” has the meaning given to such term in Clause 6.3.
“Forward FX Contract” means a FX Contract where the Value Date does not fall within the Spot Period.
“FX Contract” means a contract between Eiger FX and the Client where the Client agrees to purchase Purchase Monies from Eiger FX, including Spot FX Contracts and Forward FX Contracts.
“FX Order” means a request from you or an Authorised Person to us to enter into a FX Contract.
“IBAN” means the International Bank Account Number.
“Initial Amount” means the security amount or advance payment required by Eiger FX upon entry into a Forward FX Contract from the Client and as specified in the Contract Note.
“Major Currencies” means US dollar, Euro, Japanese yen, Pound sterling, Australian dollar, Swiss franc, Canadian dollar, Hong Kong dollar, Swedish krona, New Zealand dollar, Singapore dollar, Norwegian krone, Mexican peso, Croation kuna, Bulgarian lev, Czech koruna, Danish krone, Hungarian forint, Polish zloty and Romanian leu.
“Order” means a FX Order and/or a Payment Instruction.
“Payee” means the person or entity which received money pursuant to a Payment, which is not the Client.
“Payment” means Eiger FX sending a sum of money, belonging to the Client, to the bank account of a Payee.
“Payment Contract” means a contract between Eiger FX and the Client whereby Eiger FX agrees to execute a Payment.
“Payment Instruction” means a request from you or an Authorised Person to us to enter into a Payment Contract.
“PSRs” means the Payment Services Regulations 2017 as same is further amended, replaced or updated from time to time.
“Purchase Monies” means the money which you purchase pursuant to a FX Contract which is in a different currency to the currency of the money you use to purchase the Purchase Monies.
“Safeguarded Account” has the meaning given to such term in Clause 7.2.
“Security Information” means any password or PIN used by the Client and/or Authorised Persons to access the System.
“Services” means the services provided by Eiger FX pursuant to these Terms.
“Spot FX Contract” means a FX Contract where the Value Date is within the Spot Period.
“Spot Period” means longer of the following periods:
(a) two Trading Days after the Trade Date in respect of any pair of Major Currencies;
(b) for any pair of currencies where at least one currency is not a Major Currency, the longer of two Trading Days after the Trade Date or the period generally accepted in the market for that currency to be paid as the standard delivery period after the Trade Date.
“SWIFTBIC” means the SWIFT Bank Identifier Code.
“System” means the electronic trading system for entering into Contracts, as set out in these Terms, accessible at https://connect.eigerfx.co.uk/.
“Terms” means these terms and conditions including the schedule (as same may be updated from time to time in accordance with Clause 23).
“Third Party Depositor” means a person who is not you who sends money to us in relation to a Contract.
“Trade Date” means the date when the currency is bought and sold.
“Trading Day” means any day of normal trading in the jurisdiction of both currencies that are exchanged pursuant to the relevant Contract and in the jurisdiction of a third currency where any of the following conditions are met:
(a) the exchange of those currencies involves converting them through that third currency for the purposes of liquidity;
(b) the standard delivery period for the exchange of those currencies references the jurisdiction of that third currency.
“Unique Identifiers” has the meaning given to such term in Clause 11.1.
“Value Date” means the date on which the FX Contract reaches value with the counter-party as specified by Eiger FX in the Contract Note.
“Website” means https://www.eigerfx.co.uk/.
1.2 Clause, schedule and paragraph headings shall not affect the interpretation of these Terms.
1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.4 The Schedules form part of these Terms and shall have effect as if set out in full in the body of these Terms. Any reference to these Terms includes the Schedules.
1.5 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.6 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.7 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.8 These Terms shall be binding on, and enure to the benefit of, the parties to these Terms and their respective personal representatives, successors and permitted assigns, and references to any party shall include that party’s personal representatives, successors and permitted assigns.
1.9 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
1.10 A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.
1.11 A reference to writing or written includes email.
1.12 Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
1.13 Any reference to an English legal term for any action, remedy, method of judicial proceeding, legal document, legal status, court, official or any legal concept or thing shall, in respect of any jurisdiction other than England, be deemed to include a reference to that which most nearly approximates to the English legal term in that jurisdiction.
1.14 A reference to these Terms or to any other agreement or document referred to in these Terms is a reference to these Terms or such other agreement or document as varied or novated (in each case, other than in breach of the provisions of these Terms) from time to time.
1.15 References to Clauses and Schedules are to the Clauses and Schedules of these Terms and references to paragraphs are to paragraphs of the relevant Schedule.
Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
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