Business Client FX Trading Facility - Terms and Conditions

1 DEFINITIONS

Novus Exchange is a trading name of Premaeus Investments Limited “We, us and our” means Premaeus Investments Limited of 3rd Floor, 207 Regent Street, London, W1B 3HH. “You and Yours”means you, our business client, as identified on the Application Form. “Authorised Persons” means any person who we reasonably believe to be authorised to give any order or instruction to us by or on behalf of the client. “Agreement” means an agreement between us and you to be bound under these Terms. “Application Form” means the account opening documentation you need to complete before Trading, and this application form and AML documents supplied by the client supersedes any online information you have previously filled in. “Business Day” means any day when the clearing banks in the City of London are open for business. “Trade Confirmation” means the written document we provide you detailing the service you ordered.

Forward Contract” means a transaction where the latest settlement date is later than 2 business days after the date when the Trade was agreed. “Margin” means a 10% deposit payment of the full Forward contract size or a 3% margin for a Spot trade you pay us. “Margin Call means our request for you to pay additional funds to maintain the value of the Margin for the Forward and Spot contract. “Order” means your request for us to provide our services to you. “Sale Currency” means the currency you sell to us in consideration of the Service. “Service” means the making of a trade on your behalf in accordance with the trade confirmation. “Spot Contract” means a transaction where the latest settlement date is two Business Days after the date when the trade was agreed. “Terms” means the way we do business as set out in these terms and conditions. The terms on the paper application supersedes any other communication or agreement. “Trade” means any transaction we enter with you to purchase and deliver currency under, without limitation, Spot, Forward or Limit or Stop order contracts. “Transaction Account” means the nominated bank account into which you transfer your sale currency and/or Margin. “Latest Settlement Date” means the date the trade needs to be fully settled by the client. “Writing” includes letter, email and facsimile but not telephone conversations.

2 CLIENT INSTRUCTIONS

2.1 We agree to accept in writing or verbally, orders placed by you in writing or verbally. Each order will be subject to these terms, and the terms on the paper application which you sign supersedes any other terms or agreements.
2.2 We are not obliged to accept an order from you and reserve the right to refuse any order at our discretion and have no liability whatsoever to you as a result of our refusal to accept an order.
2.3 Each order is a separate agreement, which will not come into force until the order has been agreed and confirmed either verbally or in writing by us to you.
2.4 Once we have received an order by or on behalf of you it cannot be cancelled, withdrawn or amended without the express consent, in writing, of one of our company directors.
2.5 Whilst we accept verbal instructions for an order, we reserve the right to require written confirmation of such prior to acting on the order.
2.6 All information you supply to us which we require to perform and provide our service to you, must be true and accurate and you will not withhold or omit any information that would render these details false or inaccurate in any material respect.
2.7 Should any information you have supplied change, by error or otherwise, it is your responsibility to notify us immediately.
2.8 You will provide us with a specimen list of names and a signature list, where appropriate, to enable us to authenticate any instruction you may give. We reserve the right to confirm order details by phone if there is any doubt over the order instructions given by the client. If the order is not executed prior to our verification, we will not be held liable to for any reason whatsoever.

3 OUR SERVICE

3.1 In completing the online application form and in requesting to use our service, you warrant to us:
3.1.1 You have power and authority to lawfully make this application and perform under these terms and have full capacity to place an order.
3.1.2 You are acting as a principal for your own account and are not operating as an agent for any third party whose identity has not been disclosed to us.
3.1.3 You are authorised and have approval as principal to make any payments having placed an order.
3.1.4 All funds held as security (i.e margins) against your obligations are and will remain beneficially owned by you and you warrant not to create any charge or other encumbrance over or in respect of such money or assets.
3.1.5 Your order is in relation to your genuine payment liabilities only and is for non-speculative purposes.
3.1.6 You will take physical delivery of the currency on the latest settlement date following payment in full of cleared funds of your order. If your funds do not clear by the latest settlement date you are risk of a cancelled order and/or fees and charges of late payment of the unsettled order.
3.1.7 You shall rely solely on your own judgement when undertaking an order and whilst we may provide you with information, we will not provide you with any investment, or other advice including, without limitation, the merits or likely consequences of your order.
3.2 We will, at such time as we may agree, enter into contracts with you relating to either Spot, Forward, Limit or Stop currency transactions which provide in each case for delivery of currency. You agree to undertake and pay for the currency in accordance with the latest settlement date or dates and amounts specified in the relevant Trade Confirmation and to take delivery of the currency on latest settlement date and in the event that we call for further funds you shall pay over these funds when we specify.

4 DOCUMENTATION

4.1 Confirmation of your order will be confirmed by the Trade Confirmation document. We will send you a Trade Confirmation in respect of each trade you conduct with us and this shall be irrefutable evidence of the agreement formed between us and you.
4.2 For the purposes of good practice, the Trade Confirmation will be sent to you after the execution of the trade and you will be requested to keep this as evidence of your acceptance, however, your failure to accept the transaction will not alter the fact that in providing us with your verbal or written order you have entered into a legally binding and enforceable agreement.
4.3 You are required to check the Trade Confirmation at the time of receipt and give us immediate notice if you consider that the details of the Trade Confirmation are incorrect. Unless we receive from you notification of any errors or omissions within 24 hours of receipt, your Trade Confirmation will be deemed correct in all respects.
4.4 By making payment to us, you are acknowledging that we have correctly understood your order as shown in the Trade Confirmation.
4.5 We will send documentation to you by hand, first class post, by fax or by email to your last known address, fax number or email address as provided by you. Any document or other communication will be deemed to have been served on and received by you a) if sent by personal delivery, upon delivery at the address of the relevant party b) if sent by first class post, two Business Days after the date of posting within the UK and five Business Days internationally c) if sent by facsimile or email, the day of despatch.

5 PAYMENT AND MARGIN

5.1 Upon entering into a:
5.1.1 Spot Contract, you shall pay a margin of 3% of the full sale of the currency plus any charges into our designated Transaction Account before a contract is executed by Novus Exchange, and the full spot contract value, minus the 3% margin and charges must be settled within two Business Days (or on such date as you and we agree) and no later than 12.00pm (Midday) on the second Business Day following the execution of your order.
5.1.2 Spot Contract for same Business Day delivery, you shall pay in full the sale currency plus any charges into our designated Transaction Account no later than 12.00pm (Midday) on the same Business Day of your order, unless we otherwise direct. The Spot contract will not be executed before full client funds of the contract size have cleared.
5.1.3 Forward Contract, you shall pay Margin equal to 10% of the face value of the sale currency prior to the execution of your forward contract, or other percentage as we may direct of the value of the currency you are selling, plus charges into our designated Transaction Account. You shall pay any outstanding balance of the sale currency contract value, minus the 10% margin and charges in cleared funds into our designated Transaction Account no later than one Business Day preceding the Latest Settlement Date of the Forward Contract or upon such dates as we may direct. The 10% margin with be added to the last settlement payment of the full forward contract
5.2 We will not make any payments to you or on your behalf until you have paid your sale currency in full in cleared funds into our designated Transaction Account.
5.3 All payments we are due from you to us under these terms shall be made in full without any set off, counter-claim, deductions or withholding whatsoever.
5.4 Failure to transfer funds to us in accordance with these terms of our service or the late arrival of your onward payment details or incorrectly and inaccurately completed outbound payment details could delay the delivery of your funds to your nominated beneficiary and as such we accept no responsibility nor liability for any losses, costs, charges or expenses that you or your beneficiary may incur. In this regard, your attention is drawn to the fact that banks have specific cut off times for the receipt and dispatch of electronic payments.
5.5 Should the Margin fall below 3% on Spot Contracts and 10% on Forward Contracts, or other originally agreed thresholds, as a consequence of exchange rate fluctuations, we reserve the right to request a Margin Call from you and request additional funds to maintain the value of the Margin at the stipulated percentage of the sale currency. Market fluctuations can occur and you accept full responsibility to add additional funds as margin when requested by us to mitigate FX risk or the potential of your contract being terminated if the margin requested isn’t maintained.
5.6 Following a Margin Call, you shall pay the requested Margin, pursuant to the Margin Call, to us in cleared funds by 5.00pm the following Business Day we request the funds.
5.7 You shall not be entitled to any interest on the Margin.

6 SET OFF AND INTEREST

6.1 We may deduct from any payments we make to you such amounts as we may be required by law to deduct in respect of any taxation liabilities, bank or other charges that we may incur.
6.2 Any default on your obligations, as described in clause 5, these Terms will entitle us to terminate the relevant Trade, without notice, by its closing out or unwinding and in this event you shall fully indemnify us against any losses, costs, charges or expenses which we may incur.
6.3 The Margin shall vest automatically in us in any of the following situations:
6.3.1 On the last settlement date;
6.3.2 If you are not able to comply with or have defaulted under these Terms;
6.3.3 In the occurrence set out in Clause 7.1.4.
6.4 Should we incur any liability, or are exposed to any risk (as we in our absolute discretion decide) in respect of any Trade or should you be unable to pay your debts, fail to comply with or default on these Terms, then we have the right to set off all funds you have provided, whether Margin or otherwise, under our agreement. Should any balance be left, we will return this to you.
6.5 For late payment of any sum you are requested to make under these Terms, we reserve the right to charge you interest (after as well as before judgement) calculated on a daily basis at a rate of five per cent per annum over the base rate from time to time of the Bank of England.

7 TERMINATION

7.1 We shall have the right to terminate any Trade, in full or part, irrespective of whether we have issued a Trade Confirmation or have received your funds, without prior notice or further liability to you upon or at any time after the happening of any of the following circumstances:
7.1.1 You fail to make any payment for a service when due and in accordance with these Terms.
7.1.2 You default under the Terms or fail to comply with your obligations to us in respect of a Trade or have defaulted against any statute or regulation.
7.1.3 It becomes or may become unlawful for us to maintain or give effect to all or any of the obligations under these Terms or otherwise to carry on its business or if we or you are requested to close out a Trade (or any part thereof) by any regulatory authority whether or not the request is legally binding.
7.1.4 In the event you suspend payment of your debts, are declared bankrupt, make any composition or arrangement with your creditors, a receiver is appointed or a similar bankruptcy or insolvency event occurs in relation to some or all of your assets or if you cease or threaten to carry on all or a part of your business;
7.1.5 You die or become of unsound mind or suffer from a mental disorder and are admitted to hospital in pursuance of an application for treatment under the Mental Health Act 1983;
7.1.6 Anything analogous to any of the circumstances specified above occurs under the laws of any applicable jurisdiction; or
7.1.7 We consider it necessary or desirable to do so for our own protection, in particular if we are at FX, liquidity or there is potential default risk of our client payment obligations.
7.2 You shall give us immediate written notice if you become aware of the occurrence of any circumstance referred to in clause 7.
7.3 After termination of a duly accepted Trade under clause 7, we shall inform you as soon as we can.

8 INDEMNITY AND LIABILITY

8.1 This clause 8 sets out our entire liability to you in respect of any losses (whether direct or indirect), costs, expenses (including without limitation legal fees), damages, taxes, charges, claims for consequential compensation, commissions or any other liability whatsoever whether caused by our negligence, our employees, agents or otherwise and our limitation and exclusion of liability is set on the basis that you are aware of the volatility of the foreign currency market and understand the risks involved.
8.2 We shall not be liable to you for the non-performance of our obligations or our failure to execute our service in accordance with your instruction by reason of any cause beyond our reasonable control.
8.3 We shall not be liable to you for any claim that occurs as a consequence of any currency fluctuation that occurs between the deposit of you margin, the order confirmation and the last settlement date, or your non-compliance with clauses 2.6 and 2.7 above.
8.4 We exclude all further liability including indirect loss of profits, goodwill, anticipated savings, loss caused by the failure or delay of any third party in the transmission, provision or delivery of any service or any other type of special indirect or consequential loss (including loss or damage you suffer as a result of action brought by a third party) to the fullest extent permitted by law even if such loss was reasonably foreseeable.
8.5 You will indemnify and keep us indemnified against all liabilities we incur or suffer in the proper performance of our service or the enforcement of our rights hereunder and, in particular, without prejudice to the generality of such indemnity, against all amounts which we may certify to be necessary to compensate us for all liabilities we sustain or incur (including but not limited to our loss of profits and any loss or expense which we may suffer or incur on taking such action as we in our absolute discretion consider necessary or appropriate in the circumstances to cover, reduce or eliminate our exposure in respect of any contracts where you fail to honour your obligations hereunder) as a result of:
8.5.1 Your failure to pay any sum to us under these Terms when due or any default of any other of these Terms;
8.5.2 Us doing and taking all and any actions and steps whatsoever to carry out the terms of any verbal or written instruction from you or purporting to be from Authorised Persons for such purpose pursuant to and in accordance with clause 3 above;
8.5.3 In exercising our rights as described under these Terms to close out all or part of any contract and in such event we will have the right, as an alternative to our right to seek an indemnity from you, to set-off any monies you owe us in respect of any service, against any of your monies we may be holding.
8.6 The indemnity provided under this clause 8 shall survive termination of any order made under the Terms.

9 COMPLIANCE AND ANTI-MONEY LAUNDERING

9.1 With regard to your order, you agree to acknowledge and adhere to all applicable Anti-Money Laundering regulations and you warrant that you will, on request, provide us with all such information and documentation which we consider to be necessary or desirable to fulfil our regulatory and operational obligations under applicable laws, rule or regulation, including without limitation the Money Laundering Regulations 2003 and any new law that takes effect after this.
9.2 You warrant that the information provided on the Application Form and the additional AML documents you have provided to endorse your address and identity, as well as in relation to your order is accurate and the subsequent transfer of funds will not constitute a breach of any Anti-Money Laundering regulations.
9.3 In the event you breach Anti-Money Laundering regulations you irrevocably agree that we may retain any monies (which shall not bear interest against us) we hold pursuant to these Terms and/or following a request by any legal or regulatory authority, we will not be obliged to continue providing our service to you and will terminate your account with immediate effect, without any liability to Novus Exchange whatsoever.

10 DATA PROTECTION

10.1 Any personal information or data which you provide us in connection with your application to use our service for the purpose of entering into or performing the contract between us is protected by the Data Protection Act 1998 and is obtained to enable us to prevent or detect fraud and assess the risk of performing our service (including conducting credit searches) and to enable us to enhance our right under the Terms if necessary.
10.2 We may use your contact and other details from your Application Form or from our records of our dealings with you, to obtain your views on our products and services, and to identify our products and services, and those of our strategic partners, which may interest you. We may also share this information (but not your bank details) with these organisations so that we or they may contact you by letter, telephone, email and other reasonable electronic methods, with news and promotional information about FX, fund management or private equity related services, as well as other services such as real estate, legal, financial advice, risk management and other forms of financial planning.  By submitting your Application Form you agree that we may use your information in this way and you consent to the transmittal of your data outside of the EU/EEA, unless you have indicated to us in writing that you do not agree to this, or you subsequently write requesting us to stop. We will accept your request with immediate effect.

11 GENERAL

11.1 Nothing in these Terms are intended to confer any benefit on any third party (whether referred to herein by name, class, description or otherwise) or any right to enforce an Agreement.
11.2 You agree that nothing in these Terms will be deemed to create a partnership, joint venture or agency relationship between the parties.
11.3 These Terms constitute the entire agreement and understanding between us and you and supersede all verbal communications and prior written agreements relating to it (with the exclusion of the Trade Confirmation).
11.4 We may alter these Terms by giving you written notice of the modifications, signed by two of our company directors. Any such amendment will not be retrospective or affect any rights or obligations that may already exist in respect of any order.
11.5 Once we have given you notice of any alterations of these Terms in accordance with clause 11.4 above, if you use or continue to use our service then you will be deemed to have accepted and to use our services in accordance with these Terms as so modified.
11.6 Should any of these clauses be deemed unenforceable or illegal, the remaining clauses will nevertheless continue in full force and effect.
11.7 You may not assign or otherwise transfer the benefit of any Agreement without our express written consent. We may assign and/or novate our rights and obligations under the Terms to any third party and you hereby consent without reservation to any such assignment or novation.
11.8 Any failure by either party to exercise and any delay, forbearance or indulgence by any party in exercising any right, power or remedy under this Agreement will not operate as a waiver of that right, power or remedy or preclude its exercise at any subsequent time.
11.9 If any of the clauses conflict with the Trade Confirmation, the Trade Confirmation will prevail.
11.10 If your trading facility is a joint trading facility, your obligations under these Terms will be joint and several and any notice given to any joint trading facility holder will be deemed to be given to all joint trading facility holders and we may act on the instruction of any of them.
11.11 You acknowledge, agree and consent to the fact that we may record all telephone calls we have with you with or without an automatic warning tone and, to protect both your and our interests, the use of such recordings or transcripts from such recordings as evidence in any dispute or anticipated dispute between us and you or to verify the details of an order.
11.12 Any such recordings or transcripts we make may be destroyed by us in accordance with our normal practice.
11.13 These Terms will be governed and construed in accordance with English Law and any dispute pursuant to these Terms shall be subject to the exclusive jurisdiction of the English Courts.