These terms of service, as amended by any special terms, provided in a Schedule (these “Terms”) set out the terms and conditions on which we (“we”, “us”)
provide, foreign currency conversion services (“FX Services”), StudyPay (which is a payments gateway operated by us, specifically for payments in the education
sector), or other payments services (each a “Payment Service”) to you, the client, (“you”).
We operate the websites www.earthport-fx.com and www.studypay.co.uk. Our full company name is EarthportFX Limited, we are a company registered in
England and Wales under company number 03910588, with our registered office at 140 Aldersgate St, London EC1A 4HY.
We are authorised by the Financial Conduct Authority (“FCA”) under the Payment Services Regulations to carry out payment services. Our firm number is 535939.
We understand that payment services may appear complicated, we hope that our support teams can answer any questions or queries you may have, please
contact us at www.earthport-fx.com/contact. Any support we may provide you with will be in accordance with our Service Support Terms available upon
Below is a brief outline of the main sections of the Terms, with links to the relevant sections of the full Terms. Please read the full Terms carefully and ensure you
understand them before using our website or a Payment Service.
You must only use the Payments Services in accordance with the Terms in Section A. You are responsible for the accuracy of the information you supply to us and the security of your Account or payment details. Both of us shall use reasonable endeavours to prevent unauthorised or illegal use.
We will not be liable if any applicable laws prohibit the processing, settlement, or transfer of any payments.
We offer two types of Payment Service: FX Services and StudyPay services. Details of how to request the relevant Payment Service, the process, how payments can be made, and the options for such Payment Service are available in Section B. Exchange rates may change, but will be confirmed before we accept a request.
You may cancel your request for Payment Service at any time until we accept the request. Typically, we cannot accept a request for Payment Service unless we have received and verified the necessary identification and anti-money laundering documentation. We may need to reject a request for a Payment Service, if this happens, we are not required to provide an explanation for the rejection. We do not guarantee the availability of our Payment Service at all times.
All sums must be paid in full before the Payment Service can be completed. You confirm that all payments will be made from your own accounts or (where applicable) payment cards, unless you have obtained prior authorisation from us. You must comply with all applicable laws. You must not use the Payment Service for investment purposes. Where agreed in advance, we may require you to pay a deposit in relation to some payments.
We place limitations on our liability to you in certain circumstances; please ensure you read and understand the limitations on our liability to you. For example, where possible, we limit our liability to direct losses up to the amount paid by you in relation to the Payment Service.
If applicable, you are responsible for any bank fees (except those caused by our breach), interest on delayed payments, taxes and other charges associated with the Payment Service. We reserve the right to charge you interest rate of 4% per annum above the Bank of England base rate if you fail to make any payment.
You are responsible for ensuring all information and instructions are correct, you must notify us of any errors as soon as possible. If you receive a payment using a Payment Service and, for any reason, the payment is then cancelled by another party (such as a bank), you will need to promptly return the payment.
Either of us can terminate a Payment Service immediately if a Default Event occurs, this includes breach of these terms or the payment is restricted in some way. You may be liable for any costs we incur if we have to terminate a Payment Service due to your fault.
This section also contains general legal provisions including, the duration of these Terms, intellectual property, data protection, jurisdiction and the complaint process. This section also places requirements on you to keep your payment and account information secure and details your liability if you fail to do so.
This section helps to ensure our compliance with applicable regulatory laws and provisions that place certain restrictions on your use of a Payment Service or may require us to amend the Terms.
These agreed provisions detailed in the relevant Schedule will override the other Terms.
1 GENERAL USE OF THE PAYMENT SERVICE
1.1 By ticking and agreeing to these Terms you agree to be bound by them and agree that they will be incorporated into, and apply to, each Payment Service you request from us.
1.2 You will be given a unique client number which may be required when communicating with us.
1.3 You are responsible for the accuracy and completeness of the information you provide to us as part of a request for any Payment Service.
1.4 You shall take all reasonable steps to keep safe all security features and authentication protocols or other credentials used to access the Payment Service and shall notify us, without undue delay, on becoming suspicious or aware of the loss, theft, misappropriation or unauthorised use of the Payment Service.
1.5 You shall use reasonable endeavours to prevent any unauthorised access to, or use of, the Payment Service and shall notify us, as soon as possible, of any such unauthorised access or use.
1.6 Both of us shall use reasonable endeavours to ensure that we do not access, store, distribute or transmit any Virus, or any material that: is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; facilitates illegal activity; depicts sexually explicit images; or promotes unlawful violence, discrimination based on race, gender, colour, religious belief, sexual orientation, disability, or any other illegal activities.
1.7 We shall incur no liability in the event that applicable laws prohibit the processing, settlement, or transfer of any payments
2 STUDYPAY SERVICES
2.1 Individual users (consumers) or business users may use the StudyPay Payments Gateway to make payment to business users. Business users may use the StudyPay Payments Gateway to make payments or receive money or make payments via MOTO (as set out below). In each case, the consumer or business user making the payment is referred to as the "End User".
2.2 If you have signed up as a "StudyPay customer" the provisions of this clause 2 will apply to any StudyPay services we provide.
2.3 We will make available our payment interface developed and owned by us for the purpose of facilitating online payments of fees associated with the provision of educational services, the payment interface is referred to as the "StudyPay Payments Gateway". You will only be entitled to use the StudyPay Payments Gateway in accordance with these Terms and applicable laws.
2.4 Before an End User submits any payment via the StudyPay Payments Gateway, we will advise the End User of the total amount they will need to transfer to us to effect the StudyPay payment ("Settlement Amount"). This Settlement Amount will include all charges to be deducted by the credit or debit card provider, relevant transaction fees and the costs of any currency conversion services.
2.5 The End User will be responsible for ensuring the accuracy of the information submitted. If the End User accepts the Settlement Amount, the End User will then enter their credit or debit card payment details. The End User will then select the 'Process Payment by Card' function, which submits the Settlement Amount for processing by either the card provider or direct to us.
2.6 The End User will then receive a transaction authorisation code or a failure message. The End User will be responsible for ensuring the accuracy of the information set out in the transaction authorisation code or a failure message. We will only process your payment when we accept your payment request and we have satisfactorily received and verified identification and anti-money laundering documents. Once we have accepted your payment request you cannot withdraw it and payment cannot be terminated unless the termination provisions at clause 16 apply.
2.7 If the End User does not accept the Settlement Amount, select the "Cancel" option to stop the processing of the payment.
2.8 You can use the StudyPay Payments Gateway to make payments by credit or debit card at any time.
3 MOTO PAYMENTS
3.1 If you have signed up as a "MOTO customer" the provisions of this clause 3 will apply to any MOTO services we provide.
3.2 "MOTO" is a payments platform solution, which allows you to process one-off or recurring payments or allow pre-authorisation on payments over the telephone using a secure payments page hosted by us.
3.3 MOTO operates using a virtual terminal, which can be accessed to take payments anywhere via an Internet connection. You or your customers can log in using your relevant account details, and enter their card details. A transaction authorisation code will be provided to the End User almost immediately.
4 CURRENCY EXCHANGE SERVICES
4.1 If you have signed up for the provision of FX Services, the provisions of this clause 4 will apply to any FX Services we provide.
4.2 You can submit a request for FX Services either by informing us online, by email or by telephone (an "Order"). For clarification, we will not be bound to provide you with the FX Services until we have accepted your Order, and sent you confirmation that we have entered into a "Transaction". We will only enter into a Transaction with you when we accept your Order and we have satisfactorily received and verified identification and anti-money laundering documents.
4.3 Once we have accepted your Order you cannot withdraw it and the Transaction cannot be terminated unless the termination provisions at clause 16 apply.
4.4 Immediately after you place an Order and, again, after the completion of a Transaction, we will send you written confirmation. You are responsible for checking the accuracy of each confirmation and you must notify us of any errors promptly, and in any event prior to the relevant Settlement Date.
4.5 We are only able to process Orders during our normal business hours, therefore, where we enter into a Transaction with you after the UK banking cut-off times, we will not be able to process such Transaction until the following business day in the UK.
4.6 If you are a consumer, we may accept or refuse an Order at our absolute discretion without any liability to you. We will notify you of the refusal of an Order at the earliest opportunity and we will try to notify you by the end of the business day following receipt of the Order (or such longer time as may be permitted by the Payment Services Regulations 2009 as amended from time to time ("PSR"). If possible, we will provide our reasons for the refusal and the procedure for rectifying any factual errors that led to the refusal. At your request (but not otherwise), we will inform you of the maximum execution time for a Transaction and any charges payable by you.
4.7 If you are a business, you agree that regulations 40 to 46 (Framework Contracts) of the PSR shall not apply.
4.8 Any Order you submit will be at your own risk. We shall be entitled to rely on and treat as genuine any Order which we believe in good faith you have placed. You agree that we are not under any duty to make enquiries about any Order or other instructions which we reasonably believe are your genuine instructions.
4.9 Notwithstanding that an exchange rate is agreed at the time we accept your Order in accordance with Section B, in relation to a Transaction we cannot guarantee the same rate of exchange will apply to any other Transaction. We will confirm the exchange rate to you immediately prior to each Transaction.
4.10 If you are a consumer, we will confirm the exchange rate (including the relevant date and index or base for determining the reference date) to you immediately prior to each Transaction.
4.11 We shall be entitled to make certain charges in connection with a Transaction. A list of our current charges will be made available to you or is available on request. Where these charges are based on reference interest or exchange rates, and unless prevented by applicable laws, we shall be entitled to apply any changes immediately and without notice.
5 MARKET ORDERS WITH FX SERVICES
5.1 If you issue an instruction that specifies an amount of currency and a desired exchange rate at which you would like us to purchase or sell currency automatically (a "Market Order"), we will execute it without further reference to you within the time period agreed, unless, sufficiently prior to execution, you cancel or vary the Market Order.
5.2 You may also ask us to issue a system of alerts to monitor for specific exchange rates (the "Rate Alert"). Whilst we try to issue Rate Alerts as promptly as possible, we shall not be liable for any delay in your receiving the Rate Alert or any fluctuation in exchange rates in the meantime.
5.3 In relation to Market Orders, the following definitions shall apply:
"Account" means the electronic records that we keep of payments and receipts of currencies during Transactions with you.
"Deposit" means an advance payment payable by you to us in relation to a Forward Contract or a Window Forward Contract.
"Forward Contract" means a Transaction where the Settlement Date is more than two UK business days after the date of a Transaction;
"Purchase Currency" means the currency which you agree to purchase from us in a Transaction.
"Sell Currency" means the currency that you agree to sell to us in a Transaction.
"Window Forward Contract" means a Forward Contract where you are allowed to take delivery of funds in part or in full between two agreed dates.
5.4 Where you have asked us to make an advance payment to you of the Purchase Currency to your Account prior to your payment of a Forward Contract or a Window Forward Contract, you must first pay us the equivalent amount of Sell Currency, calculated at the rate agreed at the time we accept your Order. Any such payment by you shall be in addition to any Deposit that we require. We are under no obligation to apply the whole or any part of the Deposit towards such payment.
6 ONLINE PAYMENTS
6.1 If you have signed up to the online services the provisions of this clause 6 will apply to your use of the system to buy or sell currency or to obtain quotations for currency exchange rates or to effect currency transfers.
6.2 You acknowledge that the internet and email may not be secure media for the communication of sensitive payment information. You agree that communication by email or your use of the online services will be at your own risk.
6.3 When you subscribe to the online services, we grant you a revocable, non-exclusive, non-transferable licence to access and use the online services.
6.4 Use of the online services or termination of the licence to use it will not affect your or our rights under any other provision of these Terms.
6.5 All intellectual property rights in the online services belong to and will remain our or our suppliers' property at all time, including copyright in our website. You may not reproduce any parts thereof, create any derivative works or incorporate the website into any other website, electronic retrieval system, publication or otherwise. You may print information from our website for your own use. You acknowledge that our website contains our copyright material and that you will not acquire any rights to such material by downloading it.
6.6 We do not warrant the availability or performance of the online services at any time nor the correctness, accuracy or completeness of any information that you receive from the online services.
6.7 We reserve the right to suspend, restrict or terminate your access to the online services or to change the configuration or functionality of the website at any time without notice to you.
7 YOUR OBLIGATIONS
7.1 You are required to pay all sums in relation to a Payment Service to us in full, in cleared funds, free from any other rights prior to the relevant settlement date (the "Settlement Date"), and prior to us providing any Payment Service.
7.2 In relation to the StudyPay services, the Settlement Date will be the date the End User agrees to pay the Settlement Amount. Settlement Amounts may be paid by credit or debit card or bank transfer on the StudyPay Payment Gateway or via the MOTO Services.
7.3 In the case of the FX Services, unless we agree otherwise (for example in relation to Market Orders or "spot trades"), the Settlement Date will be the time at which: we transmit our acceptance of your Order; we accept your Order using the online services; or our operator accepts your Order by telephone, (as appropriate).
7.4 You can make payments for FX Services by electronic transfer, direct debit from your bank account, from funds held in your Account, by cheque, in each case into the bank or other account(s) specified by us. Unless previously agreed otherwise, you should allow up to five local business days for a cheque to be cleared.
7.5 Unless you have obtained prior authorisation from us, you confirm that you will make any payment from your own bank account or (where applicable) credit or debit card.
7.6 We reserve the right to refuse to accept any payment made by a third party without the prior written consent of our Money Laundering Reporting Officer, unless you have established such third party's identity in accordance with our then current compliance policies and procedures, and satisfied all other requirements to establish the source of funds and the purpose of any payment made to your Account. Any unauthorised payment may be returned to the payer and the payment will not be credited to your Account for the purposes of the Payment Service.
7.7 You must comply with all laws and regulations relating directly or indirectly to the Payment Service, currency transactions and payments including (without limitation) the PSR and the laws and regulations of England and Wales for the prevention of money laundering and terrorist financing, including (without limitation) the Money Laundering Regulations 1993, 2003, 2007 and 2017 and the Proceeds of Crime Act 2002, and data protection (referred to as the "Applicable Regulations") in relation to any Payment Service and will promptly, on request, provide such information as may be required by any Applicable Regulations.
7.8 You confirm that you will not enter into a Transaction for the purposes of speculative activity (with the intention of profiting solely from currency movements). All payments of Sell Currency and Purchase Currency shall be paid into or withdrawn from your Account in accordance with the terms of a Transaction.
7.9 Where you have provided a Deposit for a Forward Contract or a Window Forward Contract, the amount of the Deposit can be applied by us towards any of your payment obligations in relation to your settlement of a Transaction and, provided there are no other outstanding Transactions, any balance remaining after such settlement will be repaid to you. We may use the Deposit as collateral for forward positions that we hold with regulated financial institutions in relation to any Transaction.
7.10 All Forward Contracts or Window Forward Contracts will be subject to a mark to market valuation and we may make a request to you to provide additional amounts to cover mark to market losses on a Forward Contract or Window Forward Contract (a "Margin Call") on you at any time for such amounts as we may in our discretion decide provided that the amount of a Margin Call will not exceed the market loss that we calculate at the time the Margin Call is made.
8 OUR OBLIGATIONS AND LIMITATIONS ON OUR LIABILITY
Please ensure you understand these provisions.
8.1 In relation to FX Services, we shall not be obliged to pay into or release to you from your Account any Purchase Currency until we have unconditionally received from you the full amount of the Sell Currency in relation to a Transaction in cleared funds together with any amounts payable by you under your obligations set out in Section C. Following such receipt, we will pay the Purchase Currency into your Account or in accordance with any other instructions you provide. All payments will be made as soon as is practical but if we do not receive your payment of the Sell Currency in sufficient time to make the payment of the Purchase Currency to you before the market cut-off time applicable to the Purchase Currency, we will pay the amount of the Purchase Currency to you or your beneficiary on the next following business day. No interest is payable on any balances in the Account.
8.2 We shall be entitled to assume that all information provided by you about your personal and financial circumstances remains true and accurate and complete in all material respects until you notify us otherwise. We will not be obliged to make any further enquiries about you before providing any Payment Service and our reliance on such information shall not affect any other right we may have against you under these Terms or otherwise at law in relation to a Payment Service.
8.3 Save as provided in the PSR, we shall not be liable to you for any delay, failure or error in crediting the Purchase Currency to your Account or in transmitting funds to any bank account in accordance with your instructions pursuant, where such delay, failure or error is caused by: (a) failure or error of any machine, data processing system or transmission link (whether or not under our control); or (b) any period of essential maintenance, critical change, repairs, alteration to or failure of computer systems (whether or not under our control) or (c) the acts or omissions of any third party
8.4 Where the error, failure or delay in sending any Purchase Currency to your Account pursuant to a Transaction is caused by our breach of contract or negligence, we will be responsible for any direct losses that arise as a result. This may (but will not necessarily) include bank charges, loss of interest or a fall in the value of the Sell Currency against the Purchase Currency between the business day following Settlement Date and the date of actual payment. However we will have no liability for, nor be required to compensate you against, any loss of profit or other consequential or indirect, special or economic loss or a loss of bargain howsoever arising including because you have been unable to enter into or to perform a contract with a third party, even if such losses were known to us or were reasonably foreseeable by us.
8.5 Notwithstanding any other provision of these Terms, where we have any liability to you in respect of any Payment Service (whether under statute, or in negligence or other tort, contract or otherwise), subject to any mandatory requirement of the PSR, our liability shall be limited to the amount paid by you under the relevant Payment Service.
8.6 We shall have the right to deduct from any amount to be paid into your Account, from your Account itself or from any Deposit, such sums as we may be required to deduct by law together with any other sums that you may owe to us in connection with any Payment Service or otherwise.
8.7 Nothing in these Terms excludes or limits our liability in relation to (a) death or personal injury arising as a result of our negligence; or (b) for fraud or fraudulent misrepresentation; or (c) any liability that cannot be excluded by applicable law.
8.8 For the purposes of this Section C, references to us include our directors and employees while acting in the course of our business.
9 YOUR CAPACITY
9.1 You represent and warrant on the date that you sign a copy of these Terms and on the dates on which you place an Order and on which a Transaction is entered into, that you are and will be entering into each Transaction as a principal and not as an agent.
9.2 You may not assign the benefit of a Transaction to a third party.
10 NO ADVICE
10.1 While we believe, to the best of our knowledge, that any information including any charts or market news that we supply to you by any method is accurate and reliable at the time it is given, we do not warrant the accuracy, completeness or timeliness of any such information, nor do we give any assurance or guarantee as to the outcome of any Payment Service. Market conditions and prices may change at any time. Accordingly, in placing an Order, entering into any Transaction or making use of any Payment Service, you represent and warrant that you have taken such other advice as you think necessary, that you understand the nature of such Transaction or service and your associated obligations, that you are relying upon your own skill and judgment in placing an Order, entering into the Transaction or using the Payment Service, and that you are not relying on any statement or information provided by us.
11 BANK FEES
Where such bank charges apply, you shall be responsible for all intermediary bank fees or bank fees associated with returned funds except where such return is attributable solely to our breach or error. You agree that we may deduct such fees from any amounts held on your behalf, including your Account or any Deposit.
If you fail to make any payment due to us in accordance with these Terms (including Section C) and without affecting our right to terminate a Payment Service, we reserve the right to charge interest on any monies due to us from you at a rate of 4% per annum above the base rate from time to time of Bank of England between the due date for payment and either date of actual payment or the date of termination of the applicable Payment Services.
It is your responsibility to determine what, if any, taxes apply to the payments you receive in connection with the use of the Payment Services ("Taxes"). It is solely your responsibility to assess, collect, report, or remit the correct Taxes to the proper tax authority. We are not under any obligation to, nor shall it determine whether Taxes apply, or calculate, collect, report, or remit any Taxes to any tax authority arising from any transaction. You acknowledge that we may make certain reports to tax authorities regarding transactions that we process and merchants to which we provide card payment services. We reserve the right to report to relevant revenue or taxing authorities regarding payment card transactions processed by us on your behalf, to the extent we are required to do so by applicable law.
14.1 If you are a StudyPay customer, you must provide us with a written notice of any suspected errors in relation to payments via the StudyPay Payments Gateway as soon as possible. We will conduct an investigation into the errors, and if we believe that an error was caused by us or our StudyPay Payments Gateway, we will use reasonable endeavours to refund the payment to the End User within 5 business days of the conclusion of our investigation.
14.2 When using the StudyPay Payments Gateway, if we reasonably believe that the error was a result of the End User's (or any agent or recipient's) fault, we will use reasonable endeavours to refund the payment to the End User within 20 business days, less an administration charge of 2% of the error amount.
14.3 Where such payment error involves a conversion from one currency to another then the amount returned to the End User may differ from the original Settlement Amount as a result of the application of the Currency Conversion Rate to the attempted payment.
15.1 If we have provided the Payment Service (for example, paid you any Purchase Currency or remitted a payment from an End User) and, for any reason:
(a) the relevant bank refuses payment of any of the Sell Currency or Settlement Amount, or any other sum due to us or demands the repayment from us of any sum paid to us; or
(b) the credit card issuer seeks to charge back to us any payment made by the End User using the credit card;
you will pay to us on our first written demand and/or we may deduct from any monies we hold on your behalf, including any balance in the Account or Deposit, the amount withheld or repaid under paragraph (a) or the amount charged back to us under paragraph (b) together with all losses, break costs and other costs, charges, expenses and liabilities suffered or incurred by us in connection therewith (including the cost of selling any Purchase Currency) on a pound for pound basis.
15.2 In the event that such chargeback is requested before we perform the Payment Service, we shall notify you as soon as practicable and notwithstanding anything else in these Terms, we will be under no obligation to perform such Payment Service.
16.1 Either party may terminate a Payment Service with immediate effect upon the occurrence of a Default Event in relation to the other party, by giving notice to the other party, where verbal notice is given, the party shall confirm it in writing within one hour or as soon as possible. Termination of a Payment Service shall not affect the rights of either party arising prior to termination.
16.2 A Default Event means: (i) in relation to you: (a) if you are in breach of your obligations in relation to a Payment Service; (b) if you are unable to pay your debts as they fall due; (c) if in our opinion any information provided by you is incorrect or misleading in any material respect; (d) if any event occurs which we reasonably believe will have a material adverse effect on your ability to comply with your obligations under these Terms; (e) if we reasonably believe that you or a Payment Service is or is likely to be in breach of any Applicable Regulations; (f) if we have reasonable cause to believe that a payment is being made to, from or via a Sanctioned Entity (as defined in Section G); or (ii) in relation to us: a breach by us of the terms of a Payment Service which, if capable of remedy, is not remedied within 5 business days after you have served written notice on us relating to such failure.
16.3 If we terminate a Payment Service following a Default Event in addition to your liability elsewhere under these Terms you will compensate us (on a pound for pound basis) against all costs and charges incurred by us including without limitation all intermediary or receiving bank charges and break costs which may arise in connection with the Payment Service. You may discuss the possibility of such charges arising with us at any time by contacting us. If we terminate a Payment Service under to this Section E, we will not need to explain our reasons for our decision, if we are prevented from doing so under any applicable regulations, and we will not be liability to you as a result.
16.4 In relation to the FX Services, following termination of any Transaction, we will be entitled, at our discretion, to sell or retain any Purchase Currency purchased in relation to that Transaction. Where we terminate a Transaction, we will be entitled to set off any loss or expense suffered or incurred by us against any Deposit or other monies held by us for you, without affecting the indemnity given under Section C.
17 DURATION OF CONTRACT
17.1 If you are a consumer, these Terms will remain in force until terminated by either of us giving written notice to the other at any time. Except in the case of any regulatory changes covered by Section G, we will provide you with not less than two months' notice of any changes to these Terms. If you are dissatisfied with the changes, you have the right to terminate these Terms immediately without charge before the proposed changes take place. This obligation to provide not less than two months' notice shall not apply to any changes in the interest or exchange rates or any change that is favourable to you, which we may apply immediately and without notice. If you do not terminate these Terms within the notice period we provide, the amended Terms will apply from the effective date set out in the notice.
17.2 If you are a business, these Terms will remain in force until terminated by either party giving written notice to the other at any time. We will provide you with not less than one month's notice of any changes to these Terms.
18 SAFEGUARDS AND CORRECTIVE MEASURES
18.1 You must ensure that details relating to the operation of your Account are kept secure. Should you become aware that the personal details, (sort code and bank account number, password) have been disclosed to a third party, you must notify us immediately. If we become aware that you are entering into or using a Payment Service for a restricted purpose, we will stop the Payment Service with immediate effect. If you become aware of an unauthorised or incorrectly executed payment, you must notify us immediately and no later than 13 months after the date of the Payment Service. Our liability for an unauthorised Payment Service is subject to the provisions of the PSR, as limited under Section C.
18.2 If you are a consumer, our liability for an unauthorised Transaction or payment is also subject to the provisions of the PSR. Further, if you have acted fraudulently, with intent or with gross negligence, you shall be liable for all losses incurred in respect of an unauthorised Transaction or payment. Provided you have not acted fraudulently or failed to keep your personal security details safe, your liability any unauthorised Transaction or payment shall not exceed £50 or such other limit prescribed by the PSR.
18.3 If you are a business, you agree that Regulations 60, 62(1) and 75 to 77 of the PSR shall not apply.
19 ENTIRE AGREEMENT
If you are a business, these Terms together with your Order, once it has been accepted by us, constitute the entire agreement between us in relation to each Payment Service.
20 EVENTS OUTSIDE OUR CONTROL
20.1 We will not be liable or responsible for failure to perform, or delay in performance of, any of our obligations in relation to the Payment Service where that is caused by an Event Outside Our Control.
20.2 An "Event Outside Our Control" means any act or event beyond our reasonable control (including without limitation any acts or restraints of governments or public authorities, strikes, lock-outs, or other industrial action by third parties, terrorism or threat of terrorist attack, war (whether declared or not) or threat of war, revolution, riot or civil commotion, fire, extreme weather or natural disaster and failure of public or private telecommunications, networks or other systems, loss of electricity or other utilities).
20.3 If an Event Outside Our Control takes place that affects the performance of our obligations, we will promptly notify you, and our obligations under in relation to the Payment Service will be suspended and the time for performance of our obligations will be extended for the duration of the Event Outside Our Control. You may cancel a Payment Service affected by an Event Outside Our Control, which has continued for more than 30 days. To cancel, please contact us.
21.2 In summary, by agreeing to these Terms, you agree that we may process your personal data in accordance with the Data Protection Act 1998 ("DPA") for the purposes of: providing administration, management and group services; conducting searches through credit and identity-referencing agencies and other sources of information; identity verification; crime prevention; and generally exercising our rights and performing our obligations under these Terms. We will observe the requirements under the DPA in performing our obligations under these Terms.
21.3 We may share your information with selected third parties including business partners, suppliers and sub-contractors for the performance of any contract we enter into with them or you.
21.4 We may also contact you with details of other products or promotions similar to those you have previously expressed interest in.
22 INVALIDITY OF TERMS
22.1 Each of the paragraphs of these Terms operates separately. If any court or relevant authority decides that any of them are unlawful or unenforceable, the remaining paragraphs will remain in full force and effect. If any of the rights or obligations of either of us are substantially altered to its disadvantage, it may terminate the Payment Service by written notice to the other within five business days such court decision.
23.1 When we refer, in these Terms, to "in writing", this will include e-mail.
23.2 If you are a consumer, you may contact us as described in the "About Our Terms" section.
23.3 If you are a business: any notices in connection with the Payment Service must be in writing and in English and shall be delivered personally, sent by pre-paid first class post, by fax or email to the other party's registered office address or the address, fax number or email address set out in the Order. Notice shall be deemed received: if delivered personally, at the time of delivery to the address referred to above; if sent by pre-paid first class post, on the second business day after posting it; and if sent by fax or email, at the time of its transmission.
24 THIRD PARTY RIGHTS
These Terms are between you and us and no other person shall have any rights to enforce any of its terms, whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise.
25 LAW AND JURISDICTION
These Terms are governed by English law. This means any dispute or claim arising out of or in connection with the Payment Services or these Terms will be governed by English law. You and we both agree to that the courts of England and Wales will have non-exclusive jurisdiction.
26 TELEPHONE RECORDINGS
You agree that we may record all telephone conversations with you with or without any warning tone or other notification either to record the terms upon which we enter into any Transaction with you or in connection with termination of a Payment Service (as well as for complying with obligations under the Applicable Regulations, any quality control programme and for training purposes) and such recordings may be used as evidence in any dispute arising between us.
27 COMPLAINT PROCESS
We have a Complaint and Redress procedure, a copy of which can be obtained on our website (www.earthport-fx.com) or will be sent to you on request. Complaints can be made either verbally, in writing or by email directly to us. If any complaint is not resolved to your satisfaction, you may be able, if you are eligible to do so, to refer the complaint to the Financial Ombudsman Service (FOS) for adjudication.
28.1 We are authorised by the Financial Conduct Authority under the Payment Services Regulations 2009 to carry out payment services. Our firm reference number is 535939.
28.2 However, we are not authorised to accept deposits within the meaning of Article 5 of the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001 (SI2001/544).
28.3 We are registered as a Money Service Business with HM Customs & Revenue under MLR Number 12115318 and comply with the requirements of the Applicable Regulations 1993, 2003 and 2007 Money Laundering Regulations and other legislation. This includes the obligation to report knowledge or suspicion of money laundering in accordance with the Proceeds of Crime Act 2002. We hold client monies in segregated accounts, which provide extra security for clients. Details of our current charges are available on our website (www.earthport-fx.com) or will be sent to you on request.
29 COMPLIANCE WITH FINANCIAL CRIME PREVENTION LAWS
29.1 You agree to comply with all applicable financial crime prevention laws, including anti-money laundering, combatting terrorist financing, economic sanctions, anti-bribery and corruption and fraud prevention methods ("Financial Crime Prevention Laws") and, without limitation, you will not make any payment to, from or via: (i) any person or entity named in the consolidated list of asset freeze targets designated by the United Nations, European Union and/or United Kingdom from time to time under legislation relating to current financial sanctions regimes; (ii) any country against which the United Nations, the European Union or the United Kingdom has declared a sanction or embargo; and/or (iii) any person or entity named by any other body that maintains similar lists (each a "Sanctioned Entity").
29.2 You acknowledge that:
(a) we and our partners may also apply own sanctions screening checks;
(b) we may apply additional checks in relation to high-risk payment instructions, including (i) those to or from individuals, entities or jurisdictions that are determined to be high-risk in our reasonable opinion; or (ii) in relation to any payment instructions that appear to be for an illegal or unauthorised purpose;
(c) you are responsible for reviewing and dealing promptly with any concerns arising from any such checks; and
(d) we may, as a regulated entity, be subject to audit and inspection by our regulators in relation to the provision of the Payment Services and therefore we may request that you provide, such records and other information as we may reasonably require.
29.3 In the event that you, we or any of our partners identify any activity or payment instruction as requiring further investigation, then you:
(a) shall promptly provide us with any applicable information that you hold in relation to the payment or any End User (and we may forward any such information to any relevant party (including any bank, regulator or law enforcement agency);
(b) acknowledge that any such investigation may result in delay or rejection of individual payment instructions;
(c) acknowledge that in the event that the necessary information is not provided, or there is an unreasonable delay in providing such information, then we will not process the payment and we may be obliged under applicable law to withhold payments and provide information to our regulators;
(d) acknowledge that we are under no obligation to provide any Payment Service to you, and we may terminate any Payment Service for reasons other than proven criminality, based on our own or our partner's assessment of the financial crime risk posed by you or any actual or proposed payment related to you, End Users or associated persons.
29.4 We employ automatic and manual processes to identify and investigate potentially fraudulent use of the Payment Services. If we detect fraudulent activity or suspect fraudulent activity, then we may take whatever action we reasonably believe is required under applicable laws or regulations.
29.5 In order that both parties can reasonably act to mitigate losses, in the event that either party becomes aware of any material event relating to Financial Crime Prevention that impacts upon your continued use or our continued provision of the Payment Services; then that party shall, within 5 business days, disclose details of that material event to the other party.
29.6 You agree to give all reasonable cooperation to us in relation to any periodic due diligence review that we or our parent company, Earthport plc., may undertake.
29.7 You shall promptly notify us of any breach of your obligations under these Terms.
30.1 You and we both shall:
(a) comply with all applicable laws relating to anti-bribery and anti-corruption, including but not limited to:
(i) the UK Bribery Act 2010 (as amended);
(ii) the US Foreign Corrupt Practices Act 1977 (as amended);
(b) not engage in any activity, practice or conduct anywhere in the world which would constitute an offence under sections 1, 2 or 6 of the Bribery Act 2010 if such activity, practice or conduct had been carried out in the UK;
(c) promptly report to the other any request or demand for any undue financial or other advantage of any kind received by them in connection with the performance of any Payment Service; and
(d) you and we shall each ensure that all persons who are receiving or providing Payment Services on your or our behalf in connection with an actual or proposed Payment Service shall comply with the requirements of this Section G.
31 REGULATORY CHANGE
Our Payment Services, these Terms and any associated policies and procedures are subject to amendment by us to the extent necessary to conform to any change required by any applicable law or regulatory authority. If the change materially degrades, limits, or prevents your use of the Payment Services as originally envisaged, or we cannot reasonably modify the Payment Services to meet such change, either of us may terminate these Terms by giving 30 days' written notice to the other.
31.1 You and we may agree that: additional terms apply, or the Terms set out above are varied, in relation to the provision of a Payment Service, a Transaction or for all services we provide to you. Any additional terms or variations will be set out in the Schedule and, if agreed after we start providing any services under these Terms, the Schedule must be signed by the parties (or their authorised representatives).
31.2 If there is an inconsistency between any of the provisions in the main body of these Terms any variation of these Terms set out in the Schedules and agreed in accordance with this Section H, the terms of the Schedule shall take precedence over these Terms.
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