MatchPlace IF – Terms of use
CROWDFUNDING
PAYMENT SERVICES FRAMEWORK AGREEMENT
GENERAL TERMS AND CONDITIONS OF USE OF PAYMENT SERVICES
CROWDFUNDING
2017 VERSION
Concluded between
The Account Holder on one hand
and,
LEMON WAY, a simplified joint stock company [société par actions simplifiée – SAS], registered under the SIREN number 500 486 915, with capital of 867.169,89 euros and registered office located at 15 rue de la Beaune, 93100 Montreuil, in France, (hereinafter referred to as ‘LEMON WAY’), registered with the ACPR, France, website http://acpr.banque-france.fr/) 61 rue Taitbout 75009 Paris, as a hybrid Payment Institution, under the number 16 568 J, on the other hand.
NOTICE
The payment services Framework Agreement is formed of these General Terms and Conditions of Use and the pricing conditions included in Appendix A.
These documents form an indivisible package and govern the Conditions of Use to be abided by Account Holders when using the payment Services provided by LEMON WAY.
In order to keep a copy of these documents, the Account Holder may, at any time, consult them, reproduce them, store them on their computer or any other device, send them by email or print them on paper. They may also request that a copy be sent to their address, free of charge, by LEMON WAY.
In accordance with applicable law, it is possible, at any time, to check LEMON WAY’s authorisation as a payment institution on the regafi.fr website. LEMON WAY’s internet site, as a payment institution, is as follows: www.lemonway.com
1 – SUBJECT
These “General Terms and Conditions of Use of Payment Services” may, at any time, be consulted on LEMON WAY’s website (https://www.lemonway.com). The aforementioned conditions govern the way in which LEMON WAY opens a Payment Account for an Account Holder and provides its payment services. Account Holders should read said conditions carefully before accepting them.
2 – DEFINITIONS
When the first letter of the terms used in these General Terms and Conditions of Use take a capital letter, regardless of whether they are in singular or plural form, they are taken to mean the following:
- Beneficiary: legal or moral entity appointed by the Account Holder as the recipient of a transfer originating from their Payment Account. The Beneficiary must have an account opened with a third-party payment services provider. The Beneficiary may be the Account Holder.
- Framework Agreement: a payment services Framework Agreement as defined in article L.314-12 of the French Monetary and Financial code, concluded between LEMON WAY and the Account Holder, comprising these General Terms and Conditions of Use and the pricing conditions included in Appendix A.
- Payment Account: an account opened with LEMON WAY in order to record ingoing and outgoing payment Transactions, the fees owed by the Account Holder and any chargebacks related to these Transactions, as well as to settle said amounts on the date of their recording in order to produce a net balance.
- Payment Transaction: an action involving the wiring, transfer or withdrawal of funds from or to a Payment Account, regardless of any underlying obligation between the payer and the Beneficiary.
- Payment Order: approval from the Account Holder granted in accordance with the customised plan and procedures agreed between the Account Holder and LEMON WAY, in order to authorise a payment Transaction.
- Partner: a trading company operating from the Partner Website, appointed as an agent by LEMON WAY.
- Provision: amount available as credit on a Payment Account that may be allocated to the execution of future payment Transactions, as determined by LEMON WAY after taking into account pending payment Transactions and blocked fund amounts, set out in article 5.
- Third-party payment services provider: a payment services provider, approved by a competent authority within the European Economic Area, that has opened a bank or Payment Account for the Account Holder.
- Payment Services: services provided by LEMON WAY under the Framework Agreement, including the execution of transfers and the acquisition of payment orders by card and bank transfer, as well as the cashing of cheques.
- Internet Site: Refers to the website https://www.lemonway.com/, through which LEMON WAY provides its payment Services.
- Partner Website or Website: Refers to the website and/or application operated by the Partner to enable people, the details of whom are indicated in the Open an Account form, to participate in crowdfunding or make donations.
- Account Holder: Person or entity with a Payment Account that enables them to pay and/or receive crowdfunding or donations.
3 – OPENING A PAYMENT ACCOUNT
The Account Holder must comply with the conditions of opening an account, as described below.
3.1 – Account Holder’s Prior Statement
The Account Holder, a moral or natural person of legal age and capacity, expressly states that they are able and/or have received the necessary authorisation to use the payment Services provided by LEMON WAY and guarantees the latter against any liability resulting from a false statement.
The Account Holder declares that they are acting on their own behalf. The Account Holder must use the services provided by LEMON WAY in good faith, solely for legal purposes and in accordance with the provisions of the Framework Agreement.
The Account Holder, a natural person, states that they are a resident in France or the European Economic Area.
The Partner states that they are registered to operate and market its business in France or in a member State within the European Economic Area, pursuant to LEMON WAY’s approval.
For any other country of residence or registration, LEMON WAY may still inspect the request to open a Payment Account in order to ensure its compliance with the geographic scope of its accreditation. The list of countries in which LEMON WAY is authorised to operate as a Payment Institution is available, at all times, on the website https://www.regafi.fr.
The Account Holder states that they meet the VISA and MASTERCARD rules, particularly with regard to their commercial activity. Upon entering into a business relation, the Partner is provided with a business declaration and risk classification form, which they then sign. The Partner’s business must be legal at all times and match the nature of business declared in the aforementioned form. All commercial activities that LEMON WAY does not accept, including those that are legal, are listed on the aforementioned form.
3.2 – Communication of identification documents
A new customer, as a legal entity, wishing to become a Payment Account Holder, must provide the following information (The list of documents required at the start of the relationship is non-exhaustive):
- A description of the business,
- A K-BIS document or equivalent under foreign law,
- The company statutes, certified as true copies by the managing partner,
- A proof of identity and address from the officer who signed the Framework Agreement,
- The list of people in possession of more than 25% of the company’s capital.
A new customer, in the form of an association wishing to become a Payment Account Holder, must provide the following information (The list of documents required at the start of the relationship is non-exhaustive):
- A copy of a valid, legible form of identity, deemed acceptable by LEMON WAY, from the officer who signed the Framework Agreement.
- A proof of address from the signee dated less than 3 months (bill from a utility company, landline telephone operator or ADSL/cable TV provider or tax payment receipt received within the last 3 months, or a rent receipt including the lessor’s full details),
- A copy of the association’s activity authorisation,
- The association’s statutes.
A new customer, in the form of a natural person, wishing to become a Payment Account Holder, must provide the following information (The list of documents required at the start of the relationship is non-exhaustive) :
- A copy of a valid, legible form of identity, deemed acceptable by LEMON WAY, such as an identity card or passport.
- A proof of address from the signee dated less than 3 months (bill from a utility company, landline telephone operator or ADSL/cable TV provider or tax payment receipt received within the last 3 months, or a rent receipt including the lessor’s full details),
It is duly specified that any new customer or Account Holder may be requested to provide the following documents:
- Prior to certain transfers being debited from the Payment Account, a copy of the 1st page of the bank statement, confirming the bank identification information for the Beneficiary’s account.
- Beyond a certain threshold, a copy of a second form of identity.
The Account Holder may authorise a third party, either in writing or on a durable medium, to communicate these documents to LEMON WAY on their behalf. They will use the Open an Account form to indicate the legal name of the trading company appointed for this purpose. LEMON WAY reserves the right to request any other document or additional information that may be required to carry out the necessary checks and ensure compliance with legal obligations, including those involving anti-money laundering.
The Account Holder accepts that the Partner Website may be used to send these documents to LEMON WAY by email (emails sent to justificatif@lemonway.com), by digital transmission and upload onto LEMON WAY’s computer systems, or by post to the address of the headquarters indicated on the first page.
3.3 – Terms of signature of the Framework Agreement
The form for opening a Payment Account must be signed by the Account Holder after they have read and understood the terms of the Framework Agreement. In doing so, the Account Holder may either insert their handwritten signature on a printed version and send it to LEMON WAY’s headquarters by post, or use the electronic signature module provided on the Partner’s Website. However, if the Account Holder is acting on behalf of a business, they may accept the Framework Agreement by any other means. In such a case, the Account Holder must have carefully read, understood and accepted the Framework Agreement in its entirety.
3.4 – Acceptance/refusal to open a Payment Account
LEMON WAY may refuse to open a Payment Account for any reason without having to justify their decision. Such a refusal shall not result in the payment of damages.
Subjected to the express and written authorisation of the legal representative, the minor under eighteen (18) years old may open a payment account.
The required identification documents shall be those of the legal representative who has given his or her express and written authorisation.
The Partner Website may inform the Account Holder by email of LEMON WAY’s acceptance or refusal to open their Payment Account. As soon as their request to open a Payment Account has been accepted, the Account Holder will be able to log into the Partner’s Website to check that their Payment Account is open.
4 – CREDITING A PAYMENT ACCOUNT
4.1 – By cheque, bank transfer or card
As soon as the account has been opened in their name by a third party payment services provider, the Account Holder may begin paying money into its Payment Account by bank transfer, endorsed checks made payable to LEMON WAY or by bank card, with a view to transferring the funds by credit transfer to the Payment Account of another Account Holder. These two payment Transactions are considered indissociable.
LEMON WAY may refuse to register a bank card or payment card or may, at any time, cancel the backup of such information as a security measure. In this case, the Account Holder must enter their bank card or payment card details each time they wish to pay money into their Account.
LEMON WAY may at any time refuse to accept an incoming payment from a high risk and non-cooperative jurisdiction in accordance with the FATF public statement; from countries considered as tax havens by the European Union; from persons appearing on the Unique Freeze List from the Directorate-General for the Treasury, the European Union Freez List and the FOCA Freeze List.
In order to protect the Account Holder, LEMON WAY sets credit ceilings, which may be more restrictive than the Account Holder’s ceilings. LEMON WAY sets single ceilings per day, per month and per year, as well as all forms of restriction necessary to prevent fraud.
The Account Holder is hereby informed that any payment Transaction that is likely to surpass the ceilings applied will be automatically rejected by LEMON WAY.
For any Transaction made by bank or payment card that may entail an outstanding, rejected or blocked payment, LEMON WAY will automatically deduct the corresponding amount from the net balance of the Payment Account. If the net balance does not contain sufficient funds, LEMON WAY is authorised to use all necessary means against the Account Holder in order to recover the outstanding amount. Furthermore, LEMON WAY is entitled to refuse to carry out all future remittances made using the card that gave rise to the incident.
In addition, LEMON WAY will debit the Account Holder’s Payment Account for rejected payment Transactions and other penalties that may be imposed by VISA or MASTERCARD.
4.2 – Deadline for registering funds on the Account
LEMON WAY will register the funds resulting from the acquisition of a payment Order by card or credit transfer as soon as possible, and no later than by the end of the working day they were received by LEMON WAY, in accordance with article 4.1.
5 – DEBITING A PAYMENT ACCOUNT BY TRANSFER
5.1 – Initiating a payment Order
LEMON WAY provides a payment service that enables Account Holders with a Payment Account to instruct LEMON WAY to carry out a transfer, on the condition that the Account Provision is greater than the total transfer amount (fees included). In the event that the Provision is insufficient, the payment Order will be automatically refused.
The available Provision corresponds to the net balance of the Payment Account, excluding the blocked Provision and outstanding Transactions. The blocked Provision amount is determined by LEMON WAY in order to cover possible chargebacks arising from a stop payment Order. Such a stop payment order may take effect within 13 months of the debit being made on the Account.
The payment Order must include the following information:
- The amount in euros (€)
- The surname and forename of the Beneficiary;
- The number of the account opened with the Beneficiary’s payment services provider.
The Account Holder recognises that the currency of its Payment Account is different to that of the Beneficiary’s account, into which it is transferring the funds. As such, currency exchange charges will be deducted by the Beneficiary’s payment services provider. The Partner and the Beneficiary’s payment service provider are responsible for informing the Beneficiary of the fees and execution times before any acquisitions of Orders involving currency exchange charges are carried out. The Partner must communicate this information to the payer Account Holder
LEMON WAY shall not be held liable if the bank details sent for transfer requests are incorrect or not up to date.
5.2 – Irrevocability of a payment Order
In accordance with article 5.1, a payment Order effectively issued by an Account Holder is irrevocable once the single-use code has been entered, after which the Account Holder cannot request its cancellation.
It is hereby specified that the Account Holder may initiate a batch Order, including a transfer of funds by card (initiated in compliance with article 4.1 above) and a payment Order by transfer to the Payment Account of the Beneficiary selected on a given date. As explained in article 4.1, the payment Order will be deemed irrevocable as soon as the card details have been entered.
5.3 – Applicable standard in the identification of the Account Holder
The Account Holder is subject to the following standard:
– If the Account Holder is a private individual, they are hereby informed that
LEMON WAY will ask the Account Holder to provide additional identification documents.
– If the Account Holder is a legal person, LEMON WAY will automatically request all the identification documents required prior to opening their Payment Account.
Any payment Transaction without identification documents will be automatically rejected by LEMON WAY.
In the event of a risk of fraud, LEMON WAY may, at any time, activate other ceilings or blocks applied to Orders.
LEMON WAY reserves the rights to reverse a payment Transaction if the transfer of funds made by bank or payment card for the purposes of crediting the Payment Account is rejected or cancelled by the card issuer.
5.4 – Execution times
In accordance with the decree of 29 July 2009 and under article L.314-2 of the Monetary and Financial code, the maximum execution times for payment services are as follows:
- If it is made out in euros and intended for a credit institution located in a European Union member state, a payment Transaction initiated on a given working day will be executed by LEMON WAY no later than the following working day;
- If it is made out in euros and intended for another Payment Account, a payment Transaction initiated on a given working day will be executed by LEMON WAY no later than said working day.
6 – REPORTING
6.1 – By transaction
When a payment Transaction is carried out, LEMON WAY or the Partner Website automatically sends a Transaction confirmation email to the Account Holder who initiated the payment Order. This email contains all information relating to the payment Transaction that was communicated to LEMON WAY, such as: the Beneficiary’s identity, the payment Transaction description, amount, date and time, as well as the applicable payment conditions.
6.2 – Account statements
All payment Transactions are displayed within an account statement, which is updated in real time for each Payment Account. The Account Holder may consult their account statement through the Partner Website.
The Account Holder will have access to the Payment Account statements, displaying all registered incoming and outgoing payment Transactions for this Account.
The consultation period lasts for two (2) years, in addition to the current year. LEMON WAY will keep all records and documents relating to the payment Transactions carried out on an electronic archiving medium for the statutory time limits.
7 – CONTRACT DURATION AND DATE OF EFFECT
The Framework Agreement comes into effect for an indefinite period as soon as the Account Holder has accepted these terms and conditions.
If the Account Holder is a natural person or meets the requirements of article D 341-1 of the Monetary and Financial Code for legal entities, they have fourteen (14) calendar days to withdraw from the Framework Agreement, free of charge. This short time frame starts the day the Framework Agreement is concluded, that is to say the day the Account Holder accepts these General Terms and Conditions. Within this withdrawal window, the fulfilment of the Framework Agreement cannot start unless expressly requested by the Account Holder. The Account Holder expressly acknowledges and accepts that any payment instruction they send to LEMON WAY prior to the expiration of this withdrawal window, constitutes an express request for the fulfilment of the Framework Agreement. The Account Holder will therefore not be entitled to cancel any payment instructions they send and confirm during this withdrawal window.
The Account Holder may exercise their right to withdraw without penalty or need for justification.
The Account Holder must notify LEMON WAY of their decision to withdraw by sending a registered letter with acknowledgement of receipt to LEMON WAY’s headquarters before the end of the fourteen-day window. If the Account Holder does not exercise their right to withdraw, the contract shall be maintained in accordance with the provisions of these General Terms and Conditions. Beyond this point, in order to terminate the Framework Agreement, the Account Holder must follow the termination conditions specified in article 19-.
8 – COMPLAINTS
LEMON WAY will not accept complaints pertaining to relations between Account Holders or between an Account Holder and a third party. This article of the Framework Agreement only covers complaints pertaining to the lack of or poor execution of a payment Transaction carried out by LEMON WAY.
Complaints (disputes, right to opposition, access and rectification, etc.) may be made freely, upon request and addressed to LEMON WAY at the email address: reclamation@lemonway.com or by written letter to the following address:
LEMON WAY
Complaints Department
14, rue de la Beaune
93100 Montreuil
Any dispute or request relating to:
- information communicated by LEMON WAY under the Framework Agreement,
- an error committed during the fulfilment of the payment Services or lack thereof,
- an error committed by LEMON WAY in the deduction of commission, tax or fees,
must be notified to LEMON WAY by the Account Holder as soon as possible after the day the Account Holder becomes aware or is believed to have become aware of such an event or within any longer time frame specified by special provisions or by law.
In accordance with the ACPR’s 2011-R-05 recommendation of 15 December 2011, an acknowledgement of receipt will be sent within a maximum of ten (10) days. Complaints will be processed within a maximum of two months after receipt.
A complaints form is also available on our internet site: http://www.lemonway.com/reclamation
If an amicable agreement cannot be reached, the Account Holder, acting for non-professional purposes, may write to and approach an independent mediator to resolve disputes arising from this contract. The AFEPAME Mediator at 36 rue de Taitbout, 75009 Paris may be used without prejudice to other avenues of legal action.
9 – FEES
In return for providing the Account Holder with payment Services, LEMON WAY will receive remuneration, the amount and conditions of which are indicated on the Partner’s Website under the “PRICING CONDITIONS” tab. The prices indicated are final and include the Partner website’s and LEMON WAY’s commissions. They are not inclusive of tax.
Invoices, which are deducted from the Payment Account at the frequency indicated in the Pricing Conditions, are payable by the Account Holder in cash. If necessary, they will be deducted at the end of each month. The invoices are deemed to be net amounts and not inclusive of discounts.
The Account Holder is hereby informed that the processing fees for outstanding payments, rejections or oppositions may be deducted by LEMON WAY but no more than €150, in accordance with article L.133-19 of the Monetary and Financial Code.
Failure to pay an invoice by the required date will incur a late payment interest equal to three times the (EONIA) legal interest rate. Interest payments are calculated pro rata temporis over the period of a month (each month that has begun to be paid in full) and are accrued at the end of each calendar year.
LEMON WAY may amend the prices in Appendix A, subject to sending any form of notification to the Partner. The amendment may take effect within two months of the notification being sent to the Partner. If the monthly fraud rate exceeds 0.2% in volume, LEMON WAY may immediately amend the prices by simple notification or by terminating this contract in accordance with article 19-.
10 – SECURITY
10.1 – Notification obligation
It is the Account Holder’s duty to immediately inform LEMON WAY of any suspected fraudulent access or use of their Payment Account or of any event that is likely to result in such a use, including but not limited to: loss, accidental disclosure or hacking of their Payment Account login details or a non-authorised transaction.
This notification must be sent by email to the following email address: fraude@lemonway.com and must be confirmed by written post to the following address:
LEMON WAY
14, rue de la Beaune
93100 Montreuil
France
10.2 – Prevention
LEMON WAY undertakes to make every effort to prevent any other use of the Payment Account. The Partner is also responsible for the use of its own secure means of communication with the Account Holder.
10.3 – Use of cookies
LEMON WAY hereby informs you that cookies (files sent by the LEMON WAY server and saved on the internet browser’s computer hard drive) may be used within the framework of the payment Services. Above all, the purpose of these cookies is to improve the functioning, and particularly the speed, of the payment Service.
The Account Holder is hereby informed that they may refuse LEMON WAY’s use of cookies by modifying its browser settings, however this may affect the quality of their use of the payment Services.
10.4 – Disruption to payment Services
LEMON WAY undertakes to implement all reasonable means available to provide a permanent service. However, LEMON WAY does not guarantee continuous, uninterrupted access to the payment Service. Consequently, LEMON WAY shall not be held liable for any delay and/or total or partial inaccessibility to the payment Services if such events are caused by factors beyond its reasonable control.
The Account Holder is hereby informed that LEMON WAY may occasionally interrupt access to all or part of the Services in order to carry out repairs, maintenance or improvements,
- in the event of a suspected hacking attempt, embezzlement or any other security risk,
- upon request or instructions from competent, qualified individuals or authorities.
LEMON WAY may not, under any circumstances, be held liable for damage caused as a result of this suspended service.
As soon as normal service is restored, LEMON WAY will implement all reasonable means to process all pending payment Transactions as quickly as possible.
10.5 – Objection to a security measure
The Account Holder may file an objection by contacting LEMON WAY by email at support@lemonway.com or by phone on: +33 1 48 18 19 30
The objection will be assigned a registration number and will be stored for 18 months. Upon written request from the Account Holder, and prior to the expiration of this storage period, LEMON WAY will send a copy of this objection to said Account Holder.
LEMON WAY shall not be held liable for the consequences of an objection that was not filed by an Account Holder. An objection request is deemed to have been made on the date it was effectively received by LEMON WAY or any other person authorised by the latter for this purpose. In the event of theft or fraudulent use, LEMON WAY is authorised to request a receipt or copy of the filed complaint from the Account Holder, who undertakes to respond as quickly as possible.
LEMON WAY will block access to the Payment Account and will make the Account Holder’s Payment Account login details inoperative. New login details will be sent to the Account Holder the same way they were sent the first time upon opening the Payment Account.
11 – LIABILITY
In accordance with article L.133-22 of the Monetary and Financial Code, LEMON WAY is responsible, under articles L.133-5 and L.133-21 of said Code, for successfully executing payment Transactions for the payer Account Holder, until the funds are received by the Beneficiary’s third part payment service provider. In the event that LEMON WAY is responsible for a poorly executed payment Transaction, it will return the amount in question to the payer and will restore the debited account to the situation that would have prevailed if said poorly executed payment Transaction had not taken place.
In accordance with article 8-, if an Account Holder, acting for non-professional purposes, wishes to dispute a payment Transaction that they have not personally authorised, they must contact customer services as soon as possible after learning of the irregularity and no later than thirteen (13) months after such a transaction is registered within the payment Transaction Account. In the event that a security measure is used, non-authorised payment Transactions executed prior to notification of the objection are deemed the responsibility of the Account Holder acting for non-professional purposes, up to a limit of €150. However, LEMON WAY shall not be held liable in case of Account Holder misconduct, such as a wilful misconduct, or constituent of a serious failure to meet its obligations, a late communication of an objection or bad faith. In the event of a misappropriation or counterfeiting of its data, the losses resulting from payment Transactions processed prior to objection by the Account Holder acting for non-professional purposes will be borne by LEMON WAY, unless such losses are a result of the aforementioned misconduct. Payment Transactions carried out after objection by the Account Holder acting for non-professional purposes are borne by LEMON WAY, except for cases of fraud.
LEMON WAY does not have the right to cancel an irrevocable payment Order on the Account Holder’s request.
LEMON WAY shall not, under any circumstances, be held liable for indirect damages, such as commercial harm, loss of customers, commercial disruption, loss of profit or damage to brand image suffered by an Account Holder or third party, that may have resulted from the payment Services it provides. Any action brought against an Account Holder by a third party is treated as indirect damage and therefore does not entitle the former to compensation.
Unless otherwise stipulated in these General Terms and Conditions or mandatory laws, and without causing prejudice to other grounds for excluding or limiting responsibility defined by this contract, LEMON WAY may not, under any circumstances, be held responsible for any damage caused by a force majeure event or event beyond its control or any measure or legislative provision enforced by the French or foreign authorities. Force majeure events or events beyond its control are deemed to include, but are not limited to: a power cut, a fire or flood, a strike held by its staff or one of its subcontractors or providers, a malfunctioning of banking systems or bank card payment systems, a war, civil unrest, a riot or occupation of the territory by foreign forces, negligence on the part of a third party with regard to jurisprudence and the doctrine, such as the persons responsible for providing electricity or telecommunications services.
12 – PROTECTION OF CUSTOMER FUNDS
LEMON WAY will hold the available funds credited to the Account Holder’s Payment Account at the end of each working day in a holding account opened with LEMON WAY’s banking partners.
13 – DEATH – INACTIVE PAYMENT ACCOUNT – MANDATE
13.1 Death
In the event of the death of the Account Holder, LEMON WAY must be notified as soon as possible by the rightful beneficiaries or their authorised representative. If such notice is given verbally, it must be confirmed in writing. Upon receipt of this written confirmation, LEMON WAY will ensure that no further payment Transactions are executed and will proceed with the closure of the Account.
If the Provision held by LEMON WAY in the deceased’s name is greater than the fees required to cover withdrawal costs, the rightful beneficiaries may receive a reimbursement if they or their authorised representative are able to produce documentary evidence that, according to applicable law, establishes the devolution of the inheritance, as well as any other documents that LEMON WAY may deem necessary.
If no such transfer is made, for whatever reason, including the failure to provide LEMON WAY with supporting documents, the provisions of article 13.2 of this contract will be applied to the Provision.
13.2 Inactive account
A Payment Account is deemed inactive if:
- the Payment Account has not processed any payment Transactions, excluding deductions made by LEMON WAY for fees and commissions of all kinds, for twelve (12) months, during which
- the Account Holder, legal representative or person authorised by them to act on their behalf has not presented themselves to LEMON WAY, in any way, shape or form, or
- within the twelve (12) months following Account Holder’s death. The Account Holder and its rightful beneficiaries are hereby informed of the consequences of such an event.
The assets registered on the inactive Payment Account are deposited in the Caisse des Dépôts et Consignations (Deposits and Consignments Fund) after a period of ten (10) years, starting from the date of the last payment Transaction, excluding amounts debited by LEMON WAY, such as fees and commissions of all kinds; except in the case of the Account Holder’s death, in which the assets registered on the inactive payment Account are deposited in the Caisse des Dépôts et Consignations after a period of three (3) years following the Account Holder’s death.
13.3 Mandate
The Account Holder may authorise and assign full responsibility to one person to carry out payment Transactions on their Payment Account, as defined in the mandate. The form is provided online by request and must be completed and sent back to LEMON WAY. The mandate will only take effect once LEMON WAY has received and accepted the duly completed form. The Account Holder will be notified of LEMON WAY’s acceptance by any means possible. It stops automatically after the Account Holder’s death. This mandate may be revoked on the initiative of the Account Holder, who will inform the authorised representative and LEMON WAY as such by registered letter with acknowledgement of receipt. The termination takes effect on the date that LEMON WAY receives the above-mentioned letter. Until said date, the Account Holder remains responsible for payment Transactions initiated on its behalf by the designated authorised representative.
The Account Holder expressly relieves LEMON WAY of professional secrecy with regard to the Payment Account data that may pertain to the authorised representative appointed by the mandate.
14- INTELLECTUAL PROPERTY
Under the General Terms and Conditions of this contract, no intellectual property rights regarding the use of payment Services or services rendered by LEMON WAY shall be transferred to the Account Holder.
The Account Holder undertakes not to infringe on the rights held by LEMON WAY, and will refrain from reproducing or adapting all or part of existing and future intellectual and hardware components and accessories produced by LEMON WAY, regardless of the medium used.
LEMON WAY has full ownership of all rights relating to the software used to provide payment Services. They are part of its trade secrets and confidential information, regardless of the fact that some of the components may or may not be protected under the current state of the law by intellectual property rights.
If applicable, the Account Holder and its staff shall regard LEMON WAY’s software and related documentation as intellectual work and will refrain from copying them, reproducing them, adapting them, distributing them free of charge or against payment, translating them into any other language or adjoining any object to them that does not comply with their specifications.
LEMON WAY has full ownership of the brand “LEMON WAY”. The Account Holder undertakes not to delete references to the “LEMON WAY” brand from any element provided or made available by LEMON WAY, such as software, documents or advertising banners.
15 – CONFIDENTIALITY
The Account Holder undertakes to respect the strictest confidentiality regarding all technical, commercial or other information to which he may become privy through the fulfilment of payment Services.
This duty of confidentiality will remain in effect for the duration of the Account Holder’s subscription to the payment Service and for the three (3) years following the termination of the Framework Agreement. This duty of confidentiality does not apply to information that is or may become available to the public through no fault of the Account Holder.
The Parties understand that payment Transactions are covered by professional secrecy, pursuant to article L.519-22 of the Monetary and Financial Code.
16 – COLLECTION AND PROCESSING OF PERSONAL DATA
LEMON WAY respects all the provisions that apply to the protection of personal privacy, particularly the law of 6 January 1978 relative to the protection of individuals with regard to the processing of personal data, as amended.
LEMON WAY collects and saves personal data that the Account Holder has willingly provided. As such, data deemed to be of a personal nature includes information regarding identity, telephone numbers, email addresses, place of residence, bank account or card number, transactions and transfers and the IP address used by a natural person’s computer.
The Account Holder is hereby informed and accepts that LEMON WAY, in its capacity as data controller, will process personal data for the purposes of:
- respecting all applicable legal or regulatory provisions, particularly with regard to the prevention of money laundering and the financing of terrorism,
- processing/managing and archiving payment Transactions,
- monitoring and preventing payment incidents and irregularities (to prevent fraud and any other forms of abuse),
- central customer management,
- processing Account Holder requests,
- carrying out tests, statistics and surveys,
- training staff appointed to carry out payment Services,
- monitoring service quality,
- and offering new services.
The Account Holder is hereby informed that their personal data may be recorded on one or several files in accordance with applicable law and accepts that the data collected will be recorded and processed for the aforementioned purposes.
The Account Holder accepts that the personal data considered strictly necessary for the fulfilment of at least one of the above-mentioned purposes or for the requirements of applicable regulations, may be communicated by LEMON WAY:
- to subcontractors and external service providers whose intervention is required,
- to the Partner,
- to the Beneficiaries of a payment Transaction,
- to LEMON WAY’s commercial partners.
The Account Holder accepts that, in compliance with the previously defined conditions, its personal information may be communicated to the above-mentioned people in another country within the European Union or a non-European Union member state that provides an adequate level of protection with regard to the law in question.
The Account Holder has the right to access their personal data and is hereby informed that they may, at any time, consult the information they have communicated to LEMON WAY. The Account Holder has the right to rectify any inaccurate data that concerns them.
The Account Holder may exercise their right to object to LEMON WAY carrying out proposed processing operations relating to payment Services or other products or services promoted by LEMON WAY.
Right to opposition, access and rectification may be made freely, upon request, and addressed to LEMON WAY at the email address: reclamation@lemonway.com or by written letter to the following address:
LEMON WAY
Complaints Department
14, rue de la Beaune
93100 Montreuil
17 – AGREEMENT ON PROOF
The Account Holder and LEMON WAY both consider communications made by email as valid forms of proof.
All information saved in LEMON WAY’s computer databases regarding payment Orders and Transactions have, until proven otherwise, the same probative value as a hand-signed paper copy, both in terms of their content and the date and time they were produced and/or received. These unalterable, secure and reliable traces are embedded and saved within LEMON WAY’s computer systems.
Documents held by LEMON WAY that replicate this information, as well as copies or reproductions of documents produced by LEMON WAY, have the same probative value as the originals, unless proven otherwise.
18 – ACCOUNT SUSPENSION
LEMON WAY may pronounce the temporary and immediate suspension of a Payment Account for any reason, particularly:
- if the Account Holder has not met the provisions of the Framework Agreement,
- if the Account Holder has provided LEMON WAY with inaccurate, expired or incomplete identification information,
- in the event of a risk of fraud, money laundering or financing of terrorism or a risk that may affect the Payment Account’s security,
- in case of a significantly heightened risk regarding the Account Holder’s inability to fulfil its payment obligations,
- in the event that LEMON WAY receives a significant number of repayments or payment Order cancellations or disputes against non-authorised Orders.
This decision shall be justified and notified to the Account Holder by any means possible. The purpose of suspending a payment Account is to protect the Account Holder and may not, under any circumstances, result in the payment of damages to the latter.
The payment Account will be reactivated at LEMON WAY’s discretion.
Depending on the seriousness of the failure to comply with the Framework Agreement, and particularly if the Beneficiary has sold illegal products, LEMON WAY reserves the right to terminate the Framework Agreement in compliance with the provisions of article 19.
19 – TERMINATION OF THE FRAMEWORK AGREEMENT
The Account Holder may automatically terminate the Framework Agreement, which will result in the closure of their Payment Account, by registered letter with acknowledgement of receipt, following compliance with a month’s notice. They must maintain a sufficient Provision in order to ensure the completion of pending payment Transactions, until they have been resolved, and all outstanding fees have been paid.
LEMON WAY may automatically terminate the Framework Agreement, which will result in the closure of their Payment Account, by registered letter with acknowledgement of receipt, following compliance with a month’s notice.
In the event of gross negligence by one of the Parties, the Framework Agreement may be terminated with immediate effect by simple written notification from the prevailing Party. Gross negligence by the Account Holder is understood to mean: communication of false information; engaging in illegal activity, contravening standards of public decency; money laundering or financing of terrorism; threats to agents of LEMON WAY or the Partner site; defaulted payment; failure to comply with an obligation of this contact; termination of relations between the Account Holder and Partner site; excessive debt or, for legal entities, the nomination of a special mediator and insolvency administrator to initiate rehabilitation or liquidation proceedings. Gross negligence by LEMON WAY is understood to mean: communication of false information; failure to comply with an obligation of these terms and conditions; the nomination of a special mediator and insolvency administrator to initiate rehabilitation or liquidation proceedings.
In the event of a modification to applicable regulations and their interpretation by the relevant regulatory authority that may affect the ability of LEMON WAY or its authorised representatives to carry out payment Transactions, the Framework Agreement will automatically be terminated. The Account Holder may no longer send payment Orders after the effective termination date. The Account may be maintained for a period of 15 months for the purpose of dealing with possible subsequent disputes and complaints. Payment Transactions initiated before the termination date will not be affected by the termination request and must be fulfilled under the terms of the Framework Agreement.
The termination of the Framework Agreement will result in the permanent closure of the Payment Account. The closure of a Payment Account will not give rise to any compensation, regardless of any possible damage caused by said closure. The Account Holder of the Account closed by LEMON WAY is not authorised, unless explicitly authorised by the latter, to open another Payment Account. Any Payment Account opened in violation of this provision may be immediately closed by LEMON WAY, without notice.
According to the Account Holder’s instructions, the Provision on the Account Payment subject to closure may be credited to said Account Holder, subject to outstanding payment Transactions and possible receivables, rejected transactions or objections. If a successor is appointed by LEMON WAY, the Account Holder may be encouraged to close their Payment Account and transfer the Provision to a new Payment Account opened with the institution designated as a successor.
LEMON WAY reserves the right to bring legal action to repair the damage suffered due to a breach of the Framework Agreement. The closure of the Payment Account may result in additional fees, within the bounds of article L.313-13 of the Monetary and Financial Code.
20 – MODIFICATION OF THE FRAMEWORK AGREEMENT
Any draft amendment to the Framework Agreement shall be communicated in paper or Email or durable form to the Account Holder no later than two (2) months before the date proposed for its entry into force.
If the Account Holder fails to communicate an objection to LEMON WAY by the end of this two (2) month deadline, the former is deemed to have accepted said amendments. If the Account Holder rejects the proposed amendment, they may freely terminate the Framework Agreement, by written request, before said amendment comes into effect. This request does not affect the debits (charges, contributions, payments) owed by the Account Holder.
21 – GENERAL INFORMATION
Should administrative formalities be necessary for the fulfilment of these General Terms and Conditions, LEMON WAY and the Account Holder will provide each other with mutual assistance to regulate such formalities.
If one of the non-substantive stipulations of the Terms and Conditions is rendered null and void with regard to an effective rule of law, it will be deemed as not written, but will not invalidate these General Terms and Conditions.
No forbearance by either Party in relying on a breach by the other Party of any of its obligations under these terms and conditions shall be construed as a waiver of the relevant obligation for the future.
In the event of a difficulty in interpretation arising between any of the titles heading the clauses of the General Terms and Conditions, the titles will not be taken into account.
22 – APPLICABLE LAW AND COMPETENT JURISDICTIONS
These General Terms and Conditions are governed by French law.
Unless contradicted by a mandatory provision, any dispute relating to their fulfilment, interpretation or validity shall, by default, be brought before the competent courts in Paris.
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MatchPlace FX – Terms of Use
1. OVERVIEW
We operate a proprietary payment engine that automates the payment lifecycle from receipt of funds through currency conversion and payment. The Services we provide comprise the Payment Engine Services which are provided by TCCS and the Account Services, Payment Services, Foreign Exchange Services and Branded Payment Engine Services which are provided by TCC. TCC is authorised by the Financial Conduct Authority (the “FCA”) under the Regulations for the issuing of electronic money and the provision of payment services with FCA register number 900199. Each of the Services is described in the document entitled “Description of Services – Terms of Use” for illustrative purposes but such descriptions shall not form part of these Terms of Use. These Terms of Use govern your use of the particular Services for which you register including without limitation your access to the Payment Engine.
2. USE OF THE PAYMENT ENGINE AND THE SERVICES
2.1 Ownership and use. We (i) own all right, title and interest in and to the Payment Engine and our proprietary technology, including our software (in source and object forms), algorithms, user interface designs, architecture, and documentation (both printed and electronic), network designs, know-how, and trade secrets, and including any modifications, improvements, and derivative work thereof (the “TCC Technology”) and (ii) have the right, at any time, to amend our operating procedures effective immediately, where appropriate in our determination. These Terms of Use do not transfer from us to you any license or ownership rights in the Payment Engine or the TCC Technology. You may only use the Payment Engine for the receipt of the Services and in a manner consistent with these Terms of Use and you shall not interfere with, disrupt, or cause damage to users of the Services, the Payment Engine or any of our equipment.
2.2 Security. It is your responsibility to ensure that the Payment Engine and the Account is only accessed by you and that you keep your login details, password or other security features associated with your access safe and secure. If you have any knowledge or any suspicion that any of these security features have been stolen or misappropriated or used without authorisation or otherwise compromised you must contact Client Support without delay. Any undue delay in notifying us may affect the security of your Account and /or result in you being liable for any losses as a result.
2.3 Suspension of Access. We may suspend your Account and/or your access to the Payment Engine and/or otherwise restrict functionality on reasonable grounds relating to: (i) the unauthorised or fraudulent or illegal or disruptive use or security of the Account or the Payment Engine; (ii) full or partial Payment Engine failure, including failure of the technology constituting the Payment Engine; (iii) a material breach by you of your obligations under the these Terms of Use; or (iv) in order to comply with applicable law. We will notify you of any suspension or restriction and our reasons for doing this (if possible in advance) and unless notifying you would be unlawful which suspension or restriction shall continue for such time as we shall reasonably determine this to be necessary.
2.4 Equipment. You must provide and/or obtain any equipment or telecommunications lines and links that may be necessary for you to use the Payment Engine and you acknowledge that certain software and equipment used by you may not be capable of supporting certain features of the Payment Engine.
2.5 Principal only. You hereby (i) confirm, represent and warrant to us at all times that that you are acting on your own account and not on behalf of any other person and (ii) acknowledge that we shall not be a principal to any transaction or be responsible for or otherwise guarantee the performance of any transaction entered into by you with an End Customer.
2.6 End Customers Responsibilities. You will be solely responsible for all services provided to End Customers including without limitation (i) all dealing services provided to End Customers, the correct inputting of trade details including trades executed via another liquidity partner (ii) End Customer limits default, spreads and permissions and the setting of trading limits, products, default spreads and user permissions for End Customers (iii) all Know Your Customer (KYC) requirements relating to End Customers and on-boarding of End Customers (iv) all operational matters relating to End Customers including inputting any manual End Customers payment details, chasing End Customers for payment details, any late arrival of funds arrival, settlement with End Customers and monitoring the open positions of End Customers (v) all sales, marketing and account management in relation to End Customers including the promotion and marketing of FX deliverable services and/or international payments services to End Customers, End Customer account management and execution of trades over the phone to End Customers and training End Customers on the use of the Branded Payment Engine Services.
3. DATA PROTECTION LEGISLATION
3.1 Personal data. By asking us to provide you with the Services you will be providing us with information which includes information that may be personal data within the meaning of the Data Protection Legislation which we as a data controller, collect, store and process in accordance with the Data Protection Legislation. We will only use any personal information to allow us to provide you with the Services and to assess our risks in doing so. We may send your personal data outside the European Economic Area but only to our Group Companies.
3.2 Identity. We may conduct searches through an identity-referencing agency and through other sources of information and use scoring methods both to allow us to provide you with the Services and to assess our risks in doing so including credit standing and compliance with all Know Your Customer (KYC) requirements. A record of this process will be kept and may be used to allow our Group Companies to similarly provide you with services and to assess our risks in doing so. Information may also be passed to other organisations or persons to prevent fraud.
3.3 Privacy Policy. Details on how we use, collect and share your information and the steps we take to protect your information are set out in our Privacy Policy. By accepting these Terms of Use, you also agree to the terms of our Privacy Policy. You should print and keep a copy of the Privacy Policy together with these Terms of Use.
3.4 Data lawfully obtained. You confirm to us that any personal data which you or any of your officers, employees, agents or sub-contractors, supply to us at any time, has been lawfully obtained and will be lawfully supplied to us in accordance with the Data Protection Legislation and that all relevant consents have been obtained from End Customers.
3.4 Responsibility for Data. You are solely responsible for (i) the content, quality, accuracy and completeness of End Customer data and (ii) any other data transmitted by you or on your behalf via or in connection with the use of the Payment Engine and the Services.
4. FEES AND AMOUNTS TO BE PAID
4.1 Fees. Transaction fees and service fees for the Services shall be as set out in the relevant Commercial Agreements and may be increased by us in accordance with the terms of the relevant Commercial Agreement. Pre-paid transaction and service fees are non-refundable.
4.2 Taxes. All Fees are stated exclusive of all taxes and similar fiscal charges now in force or enacted in the future, all of which you will be responsible for and must pay in full, except for taxes based on our net income.
4.3 Default Interest and reconnection. If you do not promptly pay any amount properly due to us under these Terms of Use we may: (a) charge you interest on the overdue amount at the rate of 5% per year above the base rate of Barclays Bank Plc from time to time (which interest will accrue daily and be compounded quarterly as well after as before judgment or any Insolvency Event); and/or (b) if the amount is due but unpaid for thirty (30) calendar days or more suspend, interrupt, or terminate your access to the Payment Engine and/or your use of the Services. In the event of disconnection, you must pay us a reconnection fee of £200 as a condition of reactivation of access to the Payment Engine in addition to full payment of all amounts due under these Terms of Use. Reactivation of service will only be performed during our regular business hours.
4.4 Set off. You agree that we may set off any amount you or any of your Group Companies owe us or any of our Group Companies against any sums owed by us or any of our Group Companies to you or any of your Group Companies.
5. CLIENT HELP CENTRE AND SERVICE LEVELS
5.1 Client Help Centre. Currencies available for conversion, settlement schedule, payment cut-off times, and failed payment procedures are described in the Client Help Centre and the Services will be provided subject to and in accordance with the terms set out in the Client Help Centre. We will also in accordance with the Regulations communicate to you the maximum execution time for a payment, the charges payable by you in respect of a payment, the cut-off time for the payment system we use to transmit your payment and (where applicable) a breakdown of the amounts of any charges.
5.2 Telephone Conversations. Any telephone conversations we have with you may be monitored and recorded by us and we may also maintain records of emails sent by or to you and your Authorised Person. You agree that we may use these telephone recordings and any transcripts or email records for training and quality control purposes or to resolve any disputes and also in the prevention and detection of crime. However we may not make or maintain such recordings or records or be able to make them available to you.
5.3 Service Levels. The service level requirements for the provision of the Services are:
Uptime Commitment: We shall use all reasonable endeavours to ensure that the Payment Engine is available 99.5% of the time during each calendar month (“Availability”). Availability excludes unavailability due to scheduled maintenance or a force majeure event.
Help Desk: You may report incidents requiring our help by contacting Client Support by telephone or by sending an email which will be acknowledged by email or telephone during UK office hours within one (1) hour of the incident report. Reported incidents will be assigned to a Client Support representative, who shall coordinate support efforts with you through resolution of the reported problem.
Limits on Support Services: We shall have no obligation under these Terms of Use to provide support services in respect of any fault or error caused by (a) the improper use of the Payment Engine, or (b) use of the Payment Engine otherwise than in accordance with these Terms of Use.
Scheduled Maintenance: We suspend access to the Payment Engine each evening at 10 p.m. (GMT) for ninety (90) minutes in order to carry out scheduled maintenance. In addition, every two weeks outside of business hours we suspend access to the Payment Engine for no more than fifteen minutes to upgrade the Payment Engine. We will provide you with at least 24 hours’ written notice of any other scheduled maintenance, including full details of the expected Payment Engine downtime. Payment Engine downtime during scheduled maintenance carried out by us in accordance with this paragraph shall not be counted as downtime for the purposes of Availability.
6. CONFIDENTIAL INFORMATION
6.1 Nondisclosure of Confidential Information. Each party agrees (i) that it will not use in any way, for its own account or the account of any third party, except as expressly permitted by, or required to enable it to perform its obligations under, these Terms of Use, nor disclose to any third party (except as required by law or to that party’s advisors as reasonably necessary), any of the other party’s Confidential Information and (ii) will take reasonable precautions to protect the confidentiality of such information, at least as stringent as it takes to protect its own Confidential Information. In addition, each party may reveal the other party’s Confidential Information only to its agents, representatives and employees who have a “need to know” such information in connection with these Terms of Use, who are informed of the confidential nature of such Confidential Information and who shall agree to act in accordance with the terms and conditions of this section. Each party agrees that the obligations under this section will survive any expiration or termination of these Terms of Use.
7. OUR AGREEMENT WITH YOU
7.1 Our acceptance of you as a client. Our obligations under these Terms of Use are conditional upon our acceptance of you as a client which is at our sole discretion and we reserve the right to decline to provide the Services or open an Account for you without specifying a reason. You acknowledge that that all regulatory requirements need to be met before any Services are provided.
7.2 Your Representations and Warranties. You hereby represent and warrant to us at all times that (i) you will comply with these Terms of Use and all applicable laws, rules and regulations regarding your use of the Payment Engine and End Customer data and the Services (ii) you will use the Payment Engine and the Services only for lawful purposes (iii) you have full power and authority to enter into and comply with these Terms of Use (iv) title to all money and assets transferred to us under these Terms of Use will vest absolutely in us and not be subject to any charge or other rights of third parties (v) you are compliant with all applicable laws in all jurisdictions in which you operate (vi) you are not buying currency for the purposes of investment or speculation and (vii) all information supplied to us by you is complete, accurate, up to date and truthful in all material respects.
8. LIABILITY
8.1 Instructions and Agreed Orders. We are entitled to act on instructions and rely on agreed Orders which are received from or made with you or an Authorised Person or appear so to be. You agree to indemnify us for all losses arising from our doing so and from any losses we may incur resulting from any errors made by you or an Authorised Person in providing instructions to us or concluding Orders with us (whether verbally or in writing) unless these arise due to our negligence, willful default or fraud. We shall not be liable to you for the non-execution of a payment or for the defective execution of the payment if the information you provide is incorrect. However, we will make reasonable efforts to recover the funds involved in the payment. You will be responsible for the costs incurred by us for any such recovery.
8.2 Non Exclusion.Nothing in this Agreement excludes our liability for fraudulent misrepresentation, death or personal injury caused by our negligence or the negligence of our employees or agents or any other liability that cannot be excluded by law.
8.3 Unauthorised or incorrectly executed payments. Under the Regulations you may be entitled to redress for any unauthorised or incorrectly executed payments. In the case of an executed payment not authorised by you or an Authorised Person we will refund the amount of the unauthorised payment to you and where applicable, restore the debited payment account to the state it would have been in had the unauthorised payment not taken place. If we fail to execute, or incorrectly execute, a payment unless we can establish that the beneficiary’s payment service provider received the amount of the payment transaction, we will refund to you the amount of the non-executed or defective payment transaction and, where applicable, restore the debited payment account to the state in which it would have been had the defective payment transaction not taken place. We will also refund to you with any direct charges for which you are responsible and any interest which you must pay as a consequence of the non-execution or defective execution of the payment transaction. Beyond this, we have no further liability to you any unauthorised or incorrectly executed payments.
8.4 Aggregate liability. Our aggregate liability to you (either directly or as a third party defendant in any action or proceeding) with respect to these Terms of Use shall not exceed the amount of fees paid by you to us under these Terms of Use within one year preceding the date you make your claim. However, our maximum liability, whether arising in contract, tort or otherwise, shall in no circumstances exceed an amount equal to the currency sold by us under the relevant Contract. In no event shall we be liable for any loss of data, loss of profits, cost of cover, or any other special, incidental, consequential, indirect or punitive damages.
8.5 Payee/beneficiary bank failure.We will not be liable if the payee/beneficiary bank fails to process the payment correctly.
8.6 Our Negligence.If a loss is incurred due to our negligence, we will attempt to correct the error. If we are unable to do so, we will be liable for any direct losses such as bank fees and interest incurred as a result of our negligence. In no circumstances will we be liable for any indirect, unforeseeable or incidental losses incurred such as loss of opportunity by you or any action for damages made against you by a beneficiary
8.7 Your Indemnities. You agree to defend any claim against us (i) that your actions in connection with your use of the Payment Engine or the Services violate any third party’s rights of privacy, or violate any privacy laws; and (ii) arising from or relating to End Customer data. You will, in either case, indemnify us (and our directors, employees and agents) against all damages awarded against us or agreed to in a written settlement agreement signed by you arising out of such claim. In addition, with regard to Contracts, you shall, on our demand, indemnify us from and against all liabilities, damages, losses and costs (including reasonable legal costs), duties, taxes, charges, commissions or other expenses incurred by us (including losses and expenses from any action we take to seek to cover or reduce our exposure under any Contracts) as a result of: (i) our acting on a written, oral, telephone, fax or electronic Order which reasonably appeared to us to be from you or an Authorised Person; or (ii) our exercising our rights to Close Out all or any part of any Contract.
9. TERMINATION
9.1 Term. These Terms of Use shall remain in effect so long as any Commercial Agreement is in force or for so long as we are providing any Services to you.
9.2 Termination for Cause. Either of us may terminate a Commercial Agreement if: (i) the other party breaches any material term or condition of these Terms of Use and fails to cure such breach within thirty (30) days after receipt of written notice of the same, (ii) the other party becomes the subject of a voluntary or involuntary petition in bankruptcy or any proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors, if such petition or proceeding is not dismissed within sixty (60) days of filing.
9.3 Additional Grounds for Termination. We may suspend Services and terminate your Commercial Agreement at any time without prior notice if: (i) a financial regulator, regulatory agency, or law enforcement agency posts a warning with regard to you: (ii) any governmental, regulatory, or judicial authority directs us to suspend or terminate your Commercial Agreement; (iii) a banking partner of ours requests that we terminate your Commercial Agreement; or (iv) we have reason to believe that you are engaged in fraud, money laundering, or terrorist financing.
9.4 Effect of Termination. Upon the effective date of termination: (i) you will immediately cease all use of the Payment Engine and return any and all copies of any documentation, notes and other materials comprising or regarding the Payment Engine; (ii) all of your payment obligations under these Terms of Use for Services will immediately become due and payable; and (iii) within thirty (30) days of such termination of your Commercial Agreement, each party will return all Confidential Information of the other party in its possession and will not make or retain any copies of such Confidential Information except as required to comply with any applicable legal or accounting record keeping requirement.
9.5 Survival. The following provisions will survive any expiration or termination of your Commercial Agreement: section 6.1 and any other provision that by their nature are intended to survive termination of your Commercial Agreement. Any sums owed by you to us under these Terms of Use shall become immediately due and payable on the expiration or termination of your Commercial Agreement.
10. MISCELLANEOUS
10.1 Independent Contractor. Our relationship under these Terms of Use is that of independent contractors and not partners, joint ventures, or co-owners as participants. Neither party has authority to contract for or bind the other.
10.2 Changes to the Payment Engine. We reserve the right to modify the Payment Engine at any time as it deems necessary to comply with applicable laws and regulations or business needs, provided that such modification shall not thereby substantially degrade the functionality of the Payment Engine.
10.3 Assignment.You consent to us assigning our rights under these Terms of Use at any time to (i) one of our Group Companies and/or (ii) any person pursuant to a merger, consolidation or sale of any substantial portion of our business to which this these Terms of Use relate. You may not assign your rights under these Terms of Use without our prior written consent.
10.4 Governing Law and Forum.These Terms of Use (and any non-contractual obligations arising out of or in connection with the same) shall be governed by and interpreted in accordance with the laws of England and the courts of England shall have exclusive jurisdiction to settle any dispute or claims which may arise in connection with these Terms of Use and/or the Services provided hereunder (including in relation to any non-contractual obligations).
10.5 Advertising.We may include your name, logo and contact information in directories of our service subscribers and other general promotional materials for the purpose of promoting the use of the Payment Engine generally. Neither party shall issue a press release relating to their business relationship without the written consent of the other party. Neither party may use the trademark or trade name of the other party without the written consent of such party.
10.6 Entire Agreement and Waiver.These Terms of Use constitute the entire agreement between you and us with respect to the subject matter hereof. All prior agreements, representations, and statements with respect to such subject matter are superseded. Any failure of either party to exercise or enforce its rights under these Terms of Use shall not act as a waiver of subsequent breaches.
10.7 Severability.The provisions of these Terms of Use are severable and the invalidity or unenforceability of any provision herein shall not affect the validity or enforceability of any other part of these Terms of Use.
10.8 Non-Solicitation. During the term of your Commercial Agreement and for a period of one (1) year thereafter, you shall not solicit or hire the services of any employee or subcontractor of us, without our prior written consent.
10.9 Amendments. We reserve the right to amend these Terms of Use by giving you no less than 2 months’ notice and sending you revised terms and conditions by post or e mail or other electronic means. Such amendments will become effective on the date specified in the notice and unless otherwise agreed by us in writing, an amendment will not affect any legal rights or obligations which may have already arisen prior to the date specified in the notice.
10.10 Force Majeure. In the event that either party hereto shall be delayed or hindered or prevented from the performance of any act required by reason of strikes, lock-outs, labour troubles, inability to procure materials or services, failure of power, riots, insurrection, war, mud-slide, fire, earthquake, tsunami, or other similar reasons of a like nature not the fault of the party delayed in performing work or doing acts required under these Terms of Use, such party shall immediately provide notice to the other party of such delay, and performance of such act shall excused for the period of the delay and the period for the performance of any such act shall be extended for a period equivalent to the period of such delay.
10.11 Third Party Rights. Nothing in these Terms of Use confers or is intended to confer a benefit enforceable by a person who is not a party to it and no term of this Agreement is enforceable under the Contracts (Rights of Third Parties) Act 1999 by a person who is not a party to these Terms of Use. Without prejudice to the generality of the foregoing you (and not any End Customer) will be the counterparty to a Contract and the recipient of the Services including without limitation the Branded Payment Engine Services.
10.12 Notices and Communications. Any notice required to be given under these Terms of Use shall be treated as having been served on delivery if by hand, 48 hours after posting (disregarding days which are not Business Days) and on completion of transmission if sent by or e mail or other electronic means. All communications in relation to these Terms of Use and the services contemplated hereunder, whether verbally or in writing, must be in the English language. All communications may be made by any reasonable means, including but not limited to, telephone, letter, electronic mail or other electronic means. We reserve the right to request that you confirm in writing any verbal communications that you may give us.
10.13 Complaints. 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. We have internal procedures for handling complaints fairly and promptly in accordance with the FCA requirements. A copy of our complaints procedure is available upon request and on the Website. If you are an eligible claimant you can take your complaint to the Financial Ombudsman Service should you not be satisfied with our final response. Eligibility criteria and the procedures involved, are available from the Financial Ombudsman Service, Exchange Tower London E14 9SR.
SCHEDULE 1
PAYMENT SERVICES AND E MONEY ACCOUNT OPERATION
The following provisions will apply to the Account Services and the Payment Services
1. Rights and obligations. These Terms of Use set out important rights and obligations including our liability to you under the Regulations when you open an Account and ask us to provide Payment Services.
2. Scope of the Regulations. The Regulations do not apply to Foreign Exchange Services or to payments made to or from a bank account in your name including withdrawals from your Account. However payment falling outside of the Regulations will be dealt with in accordance with these Terms of Use.
3. Account Status. Your Account is an electronic money account (denominated in a currency of your choice as selected by you from the available currencies) which enables you to send and receive electronic payments. The electronic money on your Account is issued in accordance with the Regulations and other applicable law. You cannot change the currency of your Account once you have attempted to process a payment and subject to closing your Account as described below the electronic money held on your Account does not expire but it will not earn any interest.
You have the right to withdraw funds from your Account at any time. However, you may be required to confirm your identity beforehand. There is no minimum withdrawal amount but the funds on your Account must be sufficient to cover any applicable withdrawal fee.
You acknowledge that electronic money accounts are not bank accounts and accordingly the UK’s Financial Services Compensation Scheme (FSCS) does not apply to your Account. We strictly adhere to the legal requirements under the Regulations which are designed to ensure the safety and liquidity of funds deposited in electronic money accounts however in the unlikely event that we become insolvent; you may lose the electronic money held in your Account. For further information on how we safeguard client funds, please contact Client Support.
The electronic money on an Account belongs to the person registered with us as the holder and no person other than the holder has any rights in relation to the funds held in an Account and you may not assign or transfer your Account to a third party or otherwise grant any third party a legal or equitable interest over it.
Your Account may be subject to upload, payment and withdrawal limits due to security and legal requirements as determined by us from time to time at our sole discretion and you may be asked to answer security questions or to complete other activities that we may reasonably require in relation to any upload, payment or withdrawal transaction.
We reserve the right in our sole discretion to carry out all and any necessary money laundering, terrorism financing, fraud or other illegal activity checks before processing any upload, payment or withdrawal transaction.
Upload, payment and withdrawal transactions may be subject to fees and currency conversion fees.
4. Opening an Account. In order to use Payment Services you must first open an Account with us.
By opening an Account with us, you are also confirming that you (i) have regular access to the internet and email and (ii) are able to store information sent to you by email and other electronic means including the Portal in a Durable Medium by printing out or otherwise retaining for future reference all electronic communications sent and information made available to you by us (via the Portal or by email or telephone). It is for you to ensure that your contact details are up to date and that you are able to access any such communications and information at all times
5. Maintaining an Account. You must ensure that the information recorded on your Account is always complete, accurate and up to date and we shall not be liable for any loss arising out of your failure to do so. We may ask you at any time to confirm and/or provide documents or other evidence as to the accuracy of this information.
We may contact you via the Portal or by email with information or notices regarding your Account and Payment Services. It is your responsibility to regularly check the proper functionality of your e-mail account or other methods of communication that you have registered with your Account and to retrieve and read messages relating to your Account and Payment Services promptly. We shall not be liable for any loss arising out of your failure to do so.
Fund uploads, payments received, payments sent and fund withdrawals are displayed in your Account and you should check your Account balance and transaction history regularly. You should report any irregularities or clarify any questions you have as soon as possible by contacting Client Support.
6. Closing an Account. You may close your Account at any time by contacting Client Support and withdrawing any balance held at that time.
7. Uploading to an Account. The balance of the sold currency will be paid into your Account and you can upload funds but we do not guarantee the use of any particular upload method and may make changes to or discontinue the acceptance of any particular upload method at any time. We shall not be responsible for the upload payment until the uploaded funds are received by us.
Uploaded funds will be credited to your Account after the funds have been received by us and have not been subject to any reversal in which case we will deduct such reversed transaction from the balance of your Account. If your Account balance is insufficient, we reserve the right to require repayment from you.
8. Sending Payments. You must notify us by telephone or in writing as soon as possible after you become aware of any unauthorised or incorrectly executed payments, otherwise we may not be liable to you and in order to claim a refund for an unauthorised or incorrectly executed payment transaction on your Account you must notify us without undue delay after becoming aware of the unauthorised or incorrect transaction and in any event no later than thirteen (13) months after the debit date of the transaction.
It is your responsibility to ensure that accurate and complete payment instructions for the beneficiary of a payment are provided to us. You are required to provide us with any additional information that we request with regard to a payment within two (2) Business Days of our request. You consent to our including your full name, address and account number (and any other details as are required to enable us to comply with our anti money laundering procedures) on the payment details to be sent to the beneficiary’s bank or payment service provider to comply with anti-money laundering regulations
If you instruct us to make payment to a new or an existing beneficiary, and your beneficiary account details are provided via an oral Instruction (such as by telephone, video conferencing or other similar means) or otherwise by a communication that is not in writing then we will send you an e mail containing the beneficiary account details you have provided. If you provide incorrect beneficiary details or you confirm incorrect beneficiary details contained in the this e mail we will not be liable for any loss you incur, although we will use reasonable efforts to assist you in the recovery of your payment; we reserve the right to charge you a fee to cover our reasonable costs for doing this.
To send a payment we may use third party intermediariesto complete the money transfer to a recipient if the recipient does not have an Account and the intermediary shall then be responsible for ensuring the onward transmission of the payment to the recipient and our obligations under these Terms of Use for the onward transmission of funds shall be complete once such funds have been credited by us to the account of the relevant intermediary. We will not be liable for losses that result from such third party charges or fees being applied to your payment
Subject to the Regulations we may refuse your payment Instruction because for example you have not satisfied your obligations under these Terms of Use or we reasonably believe the payment to be unlawful. In these circumstances we shall promptly notify you using your supplied contact details, stating wherever possible the reasons for our refusal, and the procedure for rectifying any payment detail errors that led to the refusal but we reserve the right to charge you a fee to cover our reasonable costs for doing this. We are not obliged to notify you of our refusal to execute the proposed transaction where we reasonably believe that such a notification would be unlawful.
If we receive a payment Instruction by 4.30pm on a Business Day, your payment Instruction will be deemed to have been received by us on that Business Day. If your payment Instruction is received after by 4.30pm or on a day that is not a Business Day, your payment instruction will be deemed to have been received on the next Business Day. Your payment instruction will be acted on the earliest possible payment date available once the Contract has been performed unless you have requested a specific future date.
9. Receiving Payments. If you receive funds into your Account, we will send you a notification e-mail and display the payment in your transactions history. You should regularly reconcile incoming payments with your own records.
You should be aware that receipt of funds to your Account does not necessarily mean that these transactions cannot be reversed. We reserve the right to reverse a payment in case the payer or the payer’s bank or payment service provider has reversed (or is reasonably likely to reverse) an upload or other payment which was used to fund the payment to you.
10. Prohibited Payments. We reserve the right, in our sole discretion to impose ‘acceptable use’ terms in relation to the operation of your Account and the provision of any payment service including the prohibition of certain categories of payment transactions for example payments in relation to the gaming, bitcoins and virtual currencies sectors by specifying these on the Website.
You must not use your Account for any illegal purposes including without limitation fraud and money laundering. We will report any suspicious activity to the relevant law enforcement agency.
If you conduct or attempt to conduct any transaction in violation of the prohibitions contained in this section we reserve the right to reverse the transaction, and/or close or suspend your Account and/or report the transaction to the relevant law enforcement agency and/or claim damages from you.
11. Withdrawing Funds. You can request a withdrawal of all or part of the funds held in your Account at any time by logging into your Account and following the relevant instructions. We do not guarantee the use of any particular withdrawal method and may make changes to or discontinue the acceptance of any particular withdrawal method at any time as long as there is at least one withdrawal method available to you.
You may only make a withdrawal to a bank account and where you are the named holder of such bank account. For the purposes of a withdrawal transaction, we are a payer and not a payment service provider.
You must ensure that the payment details you enter when withdrawing funds are correct and complete. We will not be liable for funds being sent to the wrong payment instrument where this is due to you providing incorrect payment details. If you have withdrawn funds to the wrong payment details payment instrument, you may request that we assist you in reclaiming the funds, however, we will charge you an administration fee and we cannot guarantee that the reclaim efforts will be successful.
12. Safeguarding.Funds received in accordance with a payment instruction will be subject to the segregation requirements as set out in the Regulations and are referred to as “Relevant Funds”.
For the purposes of this clause “Relevant Funds” means sums received from you or for your benefit from a payment service provider such as a bank for the execution of Payment Services on your behalf. Relevant Funds are held in segregated bank accounts which are independent of our business bank accounts. The purpose for so holding funds is to ensure that in the event of our insolvency, or if a financial claim is made against us, no creditor or claimant should be able to claim funds held in these accounts. This is because no other person or institution may have any rights or interest over the funds held in these accounts such as a lien over funds in these accounts. Relevant Funds are not covered under the Financial Services Compensation Scheme.
Relevant Funds do not include funds received from or to you or on your behalf in settlement of a Contract. When you transfer funds to us to pay Margin Call(s) full ownership and title to these funds transfers to us absolutely and such funds are considered as our funds. They will not be Relevant Funds and so they will placed into our business bank account and will not be afforded protection under the segregation rules of the Regulations.
Pursuant to the Regulations, we will not pay interest on funds paid to us including balances held in segregated or client bank accounts and we may retain, for our own benefit, any interest which accrues from funds held in any accounts
SCHEDULE 2
FOREIGN EXCHANGE SERVICES AND BRANDED PAYMENT ENGINE SERVICES –CONTRACTS
The following provisions will apply to the Foreign Exchange Services and Branded Payment Engine Services and to all Contracts
1. Individual contracts. Each Contract shall be an individual contract and we may at any time and at our sole discretion refuse to offer terms for any Contract.
2. No Advice.We shall not provide you with any advice in connection with the Services or in respect of a Contract such as whether to proceed or not to proceed with a transaction or in respect of timing of a transaction or the legal, regulatory, tax, business, financial, accounting or other consequence of a transaction. All Services are provided by you to us on an execution only basis. Any decision to transact is always your decision and we cannot be liable for any loss including loss if exchange rates move before or after you transact. Any market information we provide is not provided as advice and you should not infer anything from the information. Foreign exchange conditions are very complex and volatile and subject to fluctuations outside of our control and as a result we cannot accept responsibility for your decision to enter a transaction under these Terms of Use.
3. Purpose. We buy and sell currency to support personal and/or commercial purposes including, but not limited to, the buying of goods and services or property and therefore you should not use any Contract or the Services for investment or speculative purposes such as by trying to profit from fluctuations in foreign exchange rates and you should tell us if that is your intention. We may decline to deal with you if we have reason to believe that you are using any Contract or the Services for investment or speculative purposes and we shall not be liable to account to you any gains following any Close Out of a Contract or further Contract entered into by us pursuant to paragraph 6 below.
4. Instructions and Orders.You may give us electronic or verbal instructions relating to a transaction for the purchase or sale and delivery of currency and we will at our sole discretion offer the commercial terms of a proposed Contract. Once you accept the commercial terms of the Contract (by electronic or verbal or by any other means), you will become legally bound to perform the contract in accordance with the terms of the Order. Following receipt of an Order, we shall subsequently transmit electronically to you a contract note, which will confirm the details of the Order. Once we have agreed an Order, you may not amend or cancel the Contract if we expressly agree (and any such amendment or cancellation shall be on the conditions specified by us). We may require further confirmation or information from you or an Authorised Person of any Order.
5. Limit order. We may accept your instructions which include a limit order and we will use our reasonable endeavours to execute such an Order but if market conditions prevent us from executing your instruction(s) in full or at all, then we have no liability in respect thereof.
6. No Cancellation.Each Contract constitutes an irrevocable and legally binding agreement by you topurchase or buy (as the case may be)the relevant currencyand as such you will have no right to cancela Contract. However you may prior to the Maturity Date request that we Close Out a Contract or enter into a further Contract to (as the case may be), sell the currency you agreed to buy or purchase the currency you agreed to sell but we shall have sole discretion as to whether we enter into such further Contract or Close Out the Contract.
7. Funding a Contract. You must pay all funds specified by us as required to pay to us in connection with a Contract (including any applicable transfer charges by electronic transmission) in full and in cleared funds into a client account specified by us. Payment must be made on or before the Maturity Date or such earlier date as we may specify and for the full value of the currency to be sold by you under the Contract and will hold and operate such account as a client-specified account. We may deduct from any payment any fees, costs, taxation liabilities, or charges incurred by us in respect of any transaction. You should be aware that receipt of funds from us into your nominated/beneficiary bank account may result in charges being applied by the beneficiary/receiving bank which are your responsibility. We are entitled to apply default interest pursuant to these Terms of Use if you fail to make any payment when it falls due. Please see the daily cut-off times available at http://help.currencycloud.com for settlement times. If funds do not arrive we may at our discretion roll the trade to the next settlement day and apply a charge in accordance with the provisions of the Commercial Agreement.
8. Disputes.If a dispute arises between you and us relating to the existence or terms of any Contract (a “Disputed Contract”), we may at our sole discretion Close Out the Disputed Contract pending settlement of the dispute. We will notify you (orally or in writing) of such action as soon as practical but if we do not the validity of any action by us shall not be affected.
9. Default & Refusal to Perform. We may at our sole discretion refuse to perform or Close Out a Contract with or without giving prior notice to you, upon or at any time after any of the following events:
9.1 you fail to make any payment when due;
9.2 An Insolvency Event occurs or you take step to or suspend payment of your debts;
9.3 you fail in any respect to fully and promptly comply with any obligations owed to us, or if any information supplied by you or any representations made by you are or become materially inaccurate;
9.4 it becomes or may become unlawful for us to maintain or to provide any of the Services or if you or we are requested not to perform or to close out a Contract (or any part thereof) by the FCA and any governmental or regulatory authority whether or not that request is legally binding; or
9.5 we consider it necessary to do so for our own protection including (without limitation) in the following circumstances: (i) protection from fraud; (ii) protection from your default; and (iii) protection from broad-based market failure.
If you become aware of the occurrence of any such event or any circumstances that mean that any such event is likely to occur you must notify us immediately.
If any event referred to above takes place, we shall, at our discretion, be entitled to cancel any Contract then outstanding and charge you with all of the costs, expenses and losses that we may incur (including any action we may take to cover or reduce our exposure). Any excess amount held by us in respect of Contracts shall be returned to you after deducting all other sums due to us. We shall not be responsible in any way for any delay in payment by us under this schedule 2 caused by you or any other third party.
10. Close Out. You will become liable on demand for all costs, expenses and losses that we may incur as a result of any Close Out of a Contract pursuant to these Terms of Use together with interest at the rate provided for in these Terms of Use on any sums due to us but unpaid and we will have no liability for any losses that may be sustained by you as a result of a Close Out nor shall we be liable to account to you any gains.
11. Forward Contracts. For a Forward Contract we shall require immediate payment to us in cleared funds of Margin whether from the balance of the sold currency or otherwise funded by you and in all cases by payment into an account nominated by us and in amount(s) specified by us from time to time. In addition we will be entitled to require you to provide additional Margin in such amount(s) as we shall specify in the event of exchange rate fluctuations at any time prior to the Maturity Date. We also reserve the right to change the Margin requirement from time to time upon notification to you. All requests for additional Margin and increased Margin must be paid within 1 Business Day of our request. Please see the document entitled “Margin Operation Illustration – Terms of Use” for information on the operation of the Margin (including illustrations of position netting, position mark to market, pre-trade margin requirements and margin calls) which is provided for illustrative purposes but shall not form part of these Terms of Use.
12. Payment of Margin. If our Margin requirements have not been met in full Services cannot commence or continue and the Trade will not be executed and we reserve the right to Close Out the Contract if any payment of Margin is not made by the due date.Full ownership and title to all funds sent to us as Margin shall transfer to us absolutely and you shall have no interest in such funds which we will be entitled to deal with in our own right. You will have the right to be repaid any Margin held by us in excess of the minimums specified below.
13. Drawdown. With our written consent, you may draw down against a Forward Contract at any time prior to its Maturity Date. We may agree at any time prior to the Maturity Date to roll forward all or part of a Forward Contract until a later date upon agreement as to the terms and amounts payable by you to us.
14. Beneficiary details. You will need to notify us not less than 24 hours before the earlier of the Maturity Date of any Forward Contract or the date of any agreed draw down prior the Maturity Date with the details of the beneficiary, the payment means, and delivery instructions.
15. End Customers. We deal with you as Principal only and assume no obligations to End Customers and full ownership and title to all funds sent to us as Margin shall transfer to us absolutely. All and any part of Margin may be applied across all and any Contracts and we reserve the right to select which Contracts are subject to Close Out irrespective of any End Customer including without limitation in circumstances where an End Customer has made a payment of Margin direct to us. However, we will make reasonable efforts to contact you before Close Out of any Contract.
