Hermex International Terms and Conditions of Service
1 General1.1 The terms and conditions set out in this agreement (as amended in accordance with clause 11 from time to time) (“Terms”) shall apply as between Hermex International Ltd (“HERMEX”) and the Client named above or the person named in any document evidencing an order for Services (as defined in clause 2.1 below) to any such order, howsoever placed, where that order is accepted (whether expressly or impliedly, verbally or in writing) by HERMEX (“Contract”) and shall prevail in the event of any inconsistency with the terms of any other agreement between the parties. 1.2 These Terms shall come into force on the date set out above. 1.3 Any reference to HERMEX or the Client in these Terms shall be deemed to include that party’s officers, employees and/or agents. 1.4 References to clauses are to the clauses and sub clauses of these Terms and the headings in these Terms are for convenience only and shall not affect the interpretation. 1.5 Any obligation in these Terms on a person not to do something includes an obligation not to agree, allow, permit or acquiesce in that thing being done.
2 The Services2.1 HERMEX’s services shall be limited to providing facilities for the sale, purchase and physical delivery of foreign currencies for use in connection with a trade or business or for other commercial (but not, for the avoidance of doubt, investment) purposes only (the “Services”). Such Services include, without limitation to the foregoing, forward contracts, forward time option contracts and limit orders. 2.2 HERMEX shall record all Contracts in writing and send a copy to the Client at the time the Contract is concluded. 2.3 HERMEX shall unless otherwise agreed, contract as principal with the Client for the delivery of the currency in question and deal with the Client on an execution only basis. 2.4 HERMEX may from time to time provide the Client with information concerning the foreign exchange markets, but will not at any time offer advice to the Client on taxation, investment products or markets or the merits or otherwise of any currency transaction. The Client accepts that any such information does not constitute advice and does not form part of the Services and agrees that it shall rely purely on its own judgement when entering into any Contract. 2.5 In providing the information referred to in clause 2.4 above, HERMEX makes no warranty or representation as to its accuracy, and hereby excludes to the fullest extent possible any and all losses suffered by the Client in relying on such information. 2.6 The Client hereby warrants and represents that all orders are placed in pursuance of the Client’s usual trade or business; that the Client is not acting for any third party; and that the transactions are for commercial purposes (in the case of businesses) and private purposes (in the case of individual clients and, as such, do not amount to futures contracts under article 84 of the Financial Services & Markets Act 2000 (Regulated Activities) Order 2001. 2.7 Each order shall stand as a separate Contract and the Client will take physical delivery of the purchased currency upon payment of the full amount of the sold currency as specified by HERMEX on the occasion of each Contract. 2.8 It is the clients responsibility to promptly supply us with all information and documentation which we may ask you for at anytime to enable us to comply with any legal requirements on us relating to our services including by the Money Laundering Regulations. This process may require sight of certain documentation to verify the identity and place of residence of the Client. We may also request that the Client inform us how any currency being exchanged was obtained/accumulated. If the Client provides false or inaccurate information and we suspect fraud or money laundering we will record this. We will not implement any transactions until our verification requirements have been met. We take no responsibility for any delay where money laundering verification is outstanding. In circumstances where sufficient verification is not received in a timely manner after we have received completed applications, the application(s) and any monies may be returned to the Client.
3 Instructions3.1 HERMEX may, at its absolute discretion, accept or refuse (without attributing any reason or being liable for any claims, loss of profits, loss of goodwill or damage (whether direct, consequential or anticipated) occasioned as a result) any order for Services or any instruction relating to Services from any officer, employee or agent of the Client. Where only certain named personnel are authorised by the Client to place orders and give instructions to HERMEX, an “authorised personnel” list shall be annexed to these Terms, and where such a list is annexed, HERMEX shall only deal with those authorised persons. 3.2 Orders may be placed and instructions may be given orally or in writing (by post or by electronic mail or facsimile (“electronic transmission”)), save that in the case of an oral order or instruction, HERMEX may at any time and for any reason (including, without limitation, to clarify an ambiguous order or instruction, to close the Client’s account and/or to remit the Client’s funds to a third party), require the Client to confirm such order or instruction in writing in such form as HERMEX may specify from time to time. Alternatively, HERMEX may (but will not be obliged to) confirm the order or instruction to the Client in writing (by post or by electronic transmission), which shall be final and conclusive evidence (in the absence of manifest error) of the order or the instruction. 3.3 Once an order or instruction has been accepted by HERMEX it can be rescinded, withdrawn or amended by the Client only with the express written consent of HERMEX. 3.4 HERMEX will issue a contract note in respect of each Contract entered into with the Client. The contract note may be sent to the Client by post or by electronic transmission and will not prejudice in any way the rights of either party. 3.5 Unless the Client notifies HERMEX of any error or omission within 24 hours of receipt of any contract note issued by HERMEX (time being of the essence), the Client shall be deemed to have agreed and accepted the contents of that contract note and such contract note will be incorporated into the Contract and will be legally binding on the Client. 3.6 On accepting the first order from a new Client, HERMEX will set up an account for that Client and may (at its absolute discretion and without any obligation to do so) set up separate accounts for separate Contracts for both new and existing clients. 3.7 For each account that HERMEX operates in the Client’s name, HERMEX may, but shall not be obliged to, send the Client a monthly statement detailing the transactions that took place during the preceding calendar month.
4 Financial provisions 4.1 The Client shall facilitate payment of cleared funds into HERMEX’s Safeguarded Segregated Client Account , held at a bank chosen by HERMEX (the “transaction account”) to the value of the currency to be sold by the Client (the “sale currency”) in order to secure payment. HERMEX may, in its absolute discretion and without assigning a reason there for, request a deposit from the Client in respect of any order for currency, in which case the deposit shall be payable immediately into the transaction account. 4.2 The Client shall pay any outstanding amount of the sale currency into the transaction account in cleared funds prior to the specified value date set out in the contract note (being the date on which the currency becomes available and the Client becomes obliged to pay). 4.3 Any funds held in a transaction account will be held as collateral for the purpose of securing or otherwise covering present or future actual or contingent or prospective obligations owed by the Client to HERMEX or counterparty to a Contract. 4.4 HERMEX shall not be required to settle any Contract or to pay to the Client, or to the Client’s order, any amount in respect of such Contract without HERMEX first having received from the bank where the transaction account is held or from any broker or dealer with or through whom HERMEX executes currency transactions (the ‘broker’) notice to the effect that the amount of sale currency due and payable by the Client to HERMEX in respect of the Contract, has in fact been received. 4.5 Without prejudice to and notwithstanding the rights of HERMEX set out in clause 7 below, where HERMEX has not received payment of any sale currency that is due in full from the Client, HERMEX may (but shall not be obliged to) delay any Contract between HERMEX and the Client until HERMEX has received the sale currency, at which time HERMEX may sell such sale currency at the rate of exchange prevailing on the actual date of sale. 4.6 All payments due from the Client to HERMEX under these Terms shall be made in full without any set-off, counterclaim, deduction or withholding whatsoever. HERMEX may deduct from any payment to be made to the Client such sums as HERMEX is required by law to deduct or is otherwise obligated to pay in respect of taxation liabilities, broker transfer charges, the Client’s failure to pay the sale currency due or any other costs incurred in the performance by HERMEX or non-performance (including, but not limited to, non-payment) by the Client of that Contract or any other contract between HERMEX and the Client. 4.7 Banks have specified times of cut off for the receipt and dispatch of electronic payments. HERMEX accepts no responsibility or liability for any delay in onward payment attributable to the late arrival of funds or instruction of payment relative to the cut off times of the designated bank. 4.8 In the event of any significant exchange rate fluctuations occurring between the date of Contract and the value date HERMEX may require the Client to provide additional funds to maintain the value and level of the deposit at the stipulated percentage rate on the original contract note. Such funds shall be paid by the Client immediately and in full. Such funds relating to forward purchase contracts will be used as collateral (deposit) and deposited into a separate segregated deposit account held for forward contracts. 4.9 The Client undertakes warrants and represents that all funds to be provided by the Client will be beneficially owned by the Client and will not be subject to any charge, lien or other encumbrance, and the Client will not create or permit the creation of any charge, lien or other encumbrance over any funds so provided.
5 Limitation of liability and indemnity 5.1 Nothing in this clause 5 seeks to limit or exclude HERMEX’s liability to the Client for: any liability which cannot be excluded or limited under applicable law including without limitation fraud or fraudulent misrepresentation. 5.2 Subject to sub clause 5.1 above and sub clause 5.3 below, HERMEX’s total aggregate liability to the Client in contract, tort or otherwise (including for negligence, breach of statutory duty and wilful default) for any loss arising out of or in connection with any Contract shall be limited to damages of an amount equal to the direct loss incurred out of or in connection with such Contract, provided that HERMEX’s liability shall in no circumstances exceed the value of currency as at the Contract date to be purchased by HERMEX from the Client. 5.3 HERMEX shall not under any circumstances be liable to the Client for loss of profits (whether direct or indirect) or loss of goodwill, anticipated savings, business opportunity or any type of special, indirect or consequential loss (including loss or damage suffered by the Client as a result of an action brought by a third party) arising in connection with any Contract, even if such loss was reasonably foreseeable. 5.4 The Client will, on demand by HERMEX, indemnify HERMEX and keep it indemnified against all losses, claims, proceedings, expenses, damages and costs (including reasonable legal costs) of any nature incurred or suffered by HERMEX including any costs suffered by HERMEX in covering, reducing or eliminating its risk, howsoever arising out of or in connection with any breach by the Client of these Terms.
6 Force majeure 6.1 HERMEX shall not be deemed to be in breach of these Terms or otherwise have any liability to the Client for any failure or delay on the part of HERMEX in performing its obligations under these Terms arising from or attributable to any act, event, omission or accident beyond the reasonable control of HERMEX (“force majeure event”). HERMEX shall notify the Client of the occurrence of a force majeure event as soon as is reasonably practicable following such occurrence. 6.2 Where a force majeure event occurs, HERMEX may (at its option), on the subsistence of such force majeure event for fourteen (14) consecutive days, and will, on the subsistence of such force majeure event for twenty-eight (28) consecutive days, cancel the Contract and refund any sale currency paid under that Contract to the Client. The Client shall not be entitled to compensation in respect of any force majeure event.
7 Default 7.1 In addition to the rights of HERMEX in clause 4.5 above, HERMEX shall have the right to close any Contract by entering into an equal but opposite contract or, at its absolute discretion, by any other actions deemed necessary without any further liability for any loss or otherwise in the event of any of the following: 7.1.1 Any default of payment by the Client; 7.1.2 Any other material breach by the Client of any Contract; 7.1.3 the Client entering into any form of bankruptcy or insolvency procedure (except for the purposes of solvent amalgamation or reconstruction and in such manner that the company resulting there from effectively agrees to be bound by or assume the obligations imposed on that other party under these Terms) or is unable to pay its debts as they fall due (as defined in section 123 of the Insolvency Act 1986); 7.1.4 it becomes unlawful for HERMEX to give effect to any or all of its obligations to the Client under these Terms or where HERMEX or the Client is ordered to close out a Contract by any governmental or regulatory body or by order of a court of competent jurisdiction; or 7.2 Where a Contract is closed out by HERMEX in accordance with paragraph 7.1, a contract note will be issued and dispatched to the Client detailing the specifics of the closure and any loss suffered by HERMEX as a result of such closure. In the event that HERMEX suffers any loss as a result of such closure, the Client will indemnify and keep indemnified HERMEX in respect of that loss and HERMEX shall be entitled to deduct that loss in accordance with clause 4.6 above.
8 Duration, termination 8.1 Either party shall be entitled to terminate these Terms forthwith by written notice to the other if:- 8.1.1 that other party commits any material breach of any of the provisions of these Terms and, in the case of a breach capable of remedy, fails to remedy the same within 14 days after receipt of a written notice giving full particulars of the breach and requiring it to be remedied; 8.1.2 either party enters into any form of insolvency or bankruptcy procedure (except for the purposes of solvent amalgamation or reconstruction and in such manner that the company resulting there from effectively agrees to be bound by or assume the obligations imposed on that other party under these Terms) or is unable to pay its debts as they fall due (as defined in section 123 of the Insolvency Act 1986). 8.2 For the purposes of clause 8.2.1, a breach shall be considered capable of remedy if the party in breach can comply with the provision in question in all respects other than as to the time of performance (provided that time of performance is not of the essence). 8.3 Any waiver by either party of a breach of any provision of these Terms shall not be considered as a waiver of any subsequent breach of the same or any other provision thereof. 8.4 The rights to terminate given by this clause 8 shall be without prejudice to any other right or remedy of either party in respect of the breach concerned (if any) or any other breach. 8.5 Subject as otherwise provided in the Contract, upon the termination or expiry of these Terms for any reason and following the conclusion of any foreign currency transacted under these Terms, neither party shall have any further obligation to the other save for any rights, obligations and/or liabilities which have arisen under these Terms but have not been discharged prior to termination or expiry of the Contract.
9 Disputes 9.1 The Client shall provide HERMEX with written notice if at any time it is dissatisfied with HERMEX’s performance of these Terms or otherwise disputes the validity or enforceability of it. Without prejudice to their rights under these Terms, HERMEX and the Client shall attempt to resolve the dispute in good faith, save that where the dispute remains unresolved for a period of 28 days from the date of notice being served on HERMEX, either party may initiate court proceedings.
10 Notice 10.1 Any notice, document or other information (“notice”) to be given by one party to the other under these Terms shall be in writing and shall be deemed to have been duly served if delivered by hand or by first class pre-paid recorded delivery post or sent by electronic transmission to the other party at such postal or electronic address or telecommunications number set out in these Terms or otherwise notified to the other party from time to time. Notice shall be deemed to have been received by the recipient: if delivered personally, when left at the proper address for that party; if sent by first class pre-paid recorded delivery post, at 10.00am on the second business day after posting; or if sent by electronic transmission, simultaneously with effective transmission.
11 Nature of agreement 11.1 Nothing in these Terms shall create, or be deemed to create, a partnership, joint venture or relationship of employer and employee between the parties. 11.2 These Terms, together with any contract note(s) or other documents referred to in these Terms or annexed hereto, contain the entire agreement between the parties and supersede all previous arrangements, agreements and understandings between the parties in respect of the Services, and may not be modified except by an instrument in writing signed by a duly authorised director of HERMEX and a duly authorised representative of the Client. 11.3 Each party acknowledges that, in entering into these Terms, it does not rely on any statement, representation, assurance or warranty of any person (whether party to these Terms or not) except as expressly provided herein, and that all conditions, warranties or other terms implied by statute or common law are hereby excluded to the fullest extent permitted by law. 11.4 The Client shall not, without the prior written consent of HERMEX, assign, transfer or subcontract all or any of its rights or obligations under the Contract. 11.5 These Terms do not confer any rights on any person or party (other than the parties to these Terms) under the Contracts (Rights of Third Parties) Act 1999. 11.6 It is intended that these Terms shall be reasonable as between HERMEX and the Client having regard to the nature of them, but if any term of these Terms (or any part of any term) is found to be invalid or unenforceable, that term or part term shall to the extent required be deemed to be severed from and not affect nor impair the validity or enforceability of any other section of these Terms and the parties shall use all reasonable endeavours to replace that term or part term with a valid and enforceable substitute term or part term that gives effect (in so far as possible) to the intended meaning behind the severed provision(s).
12 Regulatory 12.1 Hermex International Limited is authorised by the Financial Services Authority under the Payment Service Regulations 2009 (534547) for the provision of payment services. Our permitted business includes money remittance. You can check this on the FSA’s Register by visiting the FSA’s website www.fsa.gov.uk/register/ or by contacting the FSA on 0845 606 1234. Customers of small payment institutions do not have access to the Financial Services Compensation Scheme, but eligible customers can refer complaints to the Financial Ombudsman Service. 12.2 HERMEX is registered under the Data Protection Act. Information provided by the Client may be held, processed, disclosed and used by ourselves, professional advisers and any associated companies in servicing our relationship with the Client. However, strict confidentiality will be maintained at all times. It is understood that, unless the Client notifies us otherwise, the Client agrees to the storage, use and disclosure of such information. This information may be disclosed to third party product providers in the course of providing our analysis and servicing of our relationship with the Client. No information will be passed to another party without the Client’s prior consent unless we are legally obliged to do so. The Client also agrees that for the purposes described above data may be transferred to countries outside the European Economic Area (EEA). We may use and analyse the Client’s data, including the nature of transactions, to provide the Client with information by post, telephone fax or e-mail to service and update the Client, as well as informing the Client of new opportunities. To be excluded from these services, the Client should write to us at 30 Crown Place, London EC2A 4EB. Please be aware that telephone calls may be recorded and possibly monitored. 12.3 To register a complaint, please contact the Compliance Officer in writing at 30 Crown Place, London EC2A 4EB or by telephone on 020 7856 2490. We will acknowledge receipt of the complaint and will send you a copy of our complaints handling procedure. The matter will be investigated in line with that procedure and our findings will be reported to you. If the Client is not satisfied with our findings, the Client may be entitled to refer it to the Financial Ombudsman Service, subject to certain time limits, unless the complainant is a business, charity or trust with turnover/assets over €2 million or at least ten employees.
13 Governing Law and Jurisdiction 13.1 These Terms and any dispute or claim arising out of or in connection with them or the subject matter, whether of a contractual or non-contractual nature, shall be solely governed by and construed in accordance with the laws of England and Wales, and each party hereby submits to the exclusive jurisdiction of the courts of England and Wales.
