Terms of Use

HedgeFlows Limited ("HedgeFlows")

These Terms of Use govern your use of the Services provided by HedgeFlows and constitute the legal relationship between you and us. Capitalized terms in these Terms of Use are defined in the Schedule entitled “Definitions - Terms of Use” which is located at the end of these Terms of Use. You are also advised to print or download and keep a copy of the Terms of Use (including the Definitions – Terms of Use and other terms and conditions referred to herein) for future reference.

By using any of our Services described in these terms of use or available on our online platform, you are agreeing to be bound by these terms of use. Please do not use any of our services if you do not accept these terms of use. These terms of use are a legally binding agreement between you and us and it is important that you take the time to read them carefully.

 

1. OVERVIEW

1.1 The Services

We operate a proprietary software platform that provides you access to information and services related to currency conversions and payment.

1.2 Our details

HedgeFlows is registered by the Financial Conduct Authority (the “FCA”) under the Payment Services Regulations 2017 for the provision of payment services. Our Firm Reference Number is 935021

1.3 Your use of Services

Your use of the Services is subject to and governed by these Terms of Use and Schedules as well as our operating procedures.

 

2. USE OF THE SERVICES

2.1 Ownership and Use

HedgeFlows owns all rights, title and interest in the Software Platform 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 “HedgeFlows Technology”). HedgeFlows has the right, at any time, to amend our operating procedures, effective immediately, where appropriate in our determination.

2.2 Terms of Use

These Terms of Use do not transfer from us to you any license or ownership rights in the Software Platform, Services or the HedgeFlows Technology. You may only use the Software Platform for the receipt of the Services and in a manner consistent with these Terms of Use, our operating procedures, and our acceptable use policy detailed in Section 2 of the Terms and Conditions section of the Website. You shall not interfere with, disrupt, or cause damage to users of the Services, the Software Platform, or any of our equipment.

2.3 Security

It is your responsibility to ensure that the Software Platform is only accessed by you or your Authorised Persons and that you, including your Authorised Persons, employees and agents, keep your login details, passwords, 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, misappropriated, improperly disclosed to a third party or used without authorisation or otherwise compromised you must contact HedgeFlows immediately. We agree that we shall use industry standard practices to ensure that the Software Platform is kept secure and will inform you promptly of any attempted hack or unauthorised access if this has compromised your data.

2.4 Suspension of Access

We are entitled to suspend your or Authorised Persons’ access to the Software Platform and/or otherwise restrict functionality if you are in breach of these terms. We may also suspend your or Authorised Persons’ access to the Software Platform and/or otherwise restrict functionality without notice if you are using the Services in a manner that could cause us legal liability or disrupt other users’ ability to access and use the Services or if any of the events set out in Section 10.3 occur. Any suspension or restriction shall continue for such a period as we shall reasonably determine to be necessary.

2.5 Equipment

You must provide and/or obtain any equipment or telecommunications lines and links that may be necessary for you to use the Payment Platform, and you acknowledge that certain software and equipment used by you may not be capable of supporting certain features of the Software Platform. For the avoidance of doubt, we are not responsible for providing you with any equipment or telecommunications lines and links that may be necessary for you to use the Software Platform.

2.6 Principal Only

You hereby (i) confirm, represent and warrant to us at all times that you are acting on your own behalf 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.

 

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 Personal Data. In relation to such Personal Data, we shall act as: (i) a Data Controller in respect of our use of such Personal Data to

(a) conduct KYC, CDD and other checks as part of our process of accepting you as a Client

(b) comply with any legal and/or regulatory requirements to which we are subject from time to time, including but not limited to FCA requirements,

(c) determine how best to provide the Services and our risks in doing so, and

(d) prevent fraud or financial crime;

and (ii) a Data Processor in respect of our use of Personal Data relating to You in order to provide the Services, and where we so act the terms contained in our Privacy Policy (found at https://www.hedgeflows.com/privacy-policy/) apply to such processing. By accepting these Terms of Use, you also agree to the terms of our Privacy. You should print and keep a copy of the Data Processing Policy together with these Terms of Use.

3.2 Privacy Policy

Details on how we collect, use, and share Personal Data, and the steps we take to protect Personal Data are set out in our Privacy Policy (found at https://www.hedgeflows.com/privacy-policy/) You should print and keep a copy of the Privacy Policy together with these Terms of Use.

3.3 Cookies Policy

Details on how we use cookies to store and retrieve information on and from your browser/device are set out in our Cookies Policy (found at https://www.hedgeflows.com/cookie-policy).

3.4 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 KYC/CDD requirements. A record of this process will be kept and may be used to allow us and our partners 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. Additionally, information may be passed to governmental, regulatory or judicial organisations to prevent fraud or financial crime where we consider it appropriate. The foregoing use of Personal Data may render us a Data Controller.

3.5 Data Lawfully Obtained

You confirm to us that:

(i) all 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 Data Protection Legislation, and

(ii) all notices have been provided and relevant consents have been obtained (or an alternative legal ground for processing Personal Data has been relied on) as may be required under the Data Protection Legislation for us to process the Personal Data as contemplated by these Terms of Use and/or our operating procedures and/or our other policies.

3.6 Responsibility for Data

You are solely responsible for the content, quality, accuracy and completeness of any Personal Data, and any other data provided or transmitted by you or on your behalf via or in connection with the use of the Software Platform and the Services. You must tell us as soon as possible if any of the information you have given us changes, including, but not limited to:

i) a change of name, registered address, directors, Authorised Parties, shareholders or beneficial owners;

ii) a change of your status as a Charity or a Micro-Enterprise;

iii) a material change to your business activities or operations; or

iv) a material change to your financial position

3.7 Record Keeping

You shall maintain records of all processing operations under your Control that contain at least the minimum information required by the Data Protection Legislation and shall make such information available to any Data Protection Regulator on request.

3.8 Complaints, Notices or Communications

If you receive any complaint, notice or communication which relates directly or indirectly to the processing of Personal Data or to your compliance with the Data Protection Legislation, you shall as soon as reasonably practicable notify us and provide us with commercially reasonable co-operation and assistance in relation to any such complaint, notice or communication.

4. FEES AND AMOUNTS TO BE PAID

4.1 Fees

All fees for the Services shall be as set out on the Software Platform and may be increased or decreased by us.

4.2 Default Interest, Suspension, and Reconnection

If you do not promptly pay any amount due to us under these Terms of Use, we may suspend, interrupt, or terminate your access to the Software Platform and/or your use of the Services. In the event of suspension, you, or your Business Introducer if applicable, may be required to pay us a reconnection fee in an amount determined by us prior to reactivation of access to the Software Platform in addition to full payment of all amounts due under these Terms of Use (including interest at the rate of 5% over the base rate of Barclays Bank).

4.3 Set Off

You agree that we may set off any amount you owe us against any sums owed by us to you. You also agree that we may set off any amount you owe to us against any Deposit you have provided to us.

4.4 Other Costs, Taxes or Charges

Please note that other costs, taxes or charges may apply to you that aren't charged by us and/or won't be paid through us. You are responsible for paying such costs, taxes or charges where these apply. It is your responsibility to determine what, if any, taxes apply to the payments you make or receive, and it is your responsibility to collect, report and remit the correct amount of tax to the appropriate tax authorities. If we are required to withhold any taxes, we may deduct such taxes from amounts otherwise owed to you and pay them to the appropriate authority.

 

5. CLIENT HELP CENTRE AND SERVICE LEVELS

5.1 Help Centre

Currencies available for conversion, settlement schedules, payment cut-off times, and failed payment procedures are described at https://hedgeflows.com/cutofftimes, and the Services will be provided subject to and in accordance with the terms and procedures set out in the 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. In all cases, the maximum execution time to process payment instructions (as opposed to currency conversions) shall be five (5) Business Days. However, in many cases and where required by the Regulations, HedgeFlows may process a payment much faster. Please refer to the execution times set out in the Help Centre for more information.

5.2 Telephone Conversations

Any telephone conversations we have with you or Authorised Persons may be monitored and recorded by us and we may also maintain records of emails sent by or to you and your Authorised Persons. 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 for you or be able to make them available to you.

5.3 Service Levels

We shall use all reasonable endeavours to ensure that the Software Platform is during our business hours (as specified on our Website). This excludes unavailability due to scheduled maintenance or an event outside our direct control.

5.4 Support

You may report incidents requiring our help by sending an email during UK office hours to support@hedgeflows.com. We will then contact you to try and resolve the reported problem. We will use reasonable endeavours to resolve incidents or problems relating to the Services.

5.5 Limits on Support

We will 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 Software Platform, or (b) use of the Software Platform otherwise than in accordance with these Terms of Use.

5.6 Scheduled Maintenance

We suspend access to the Software Platform each evening at 10 p.m. (UK time) for approximately fifteen (15) minutes to carry out scheduled maintenance. In addition, we may suspend access to the Software Platform to upgrade the Software Platform or for other reasons.

6. CONFIDENTIAL INFORMATION

6.1 Use and dissemination of Confidential Information

You agree that you (i) will neither use in anyway, for your own account or the account of any third party, except as expressly permitted by, or required to enable it to perform your obligations under these Terms of Use, nor disclose to any third party (except as required by law or to your advisors as reasonably necessary), any HedgeFlows Confidential Information, and (ii) will take reasonable precautions to protect the confidentiality of such information, which precautions shall be at least as stringent as those you take to protect your own Confidential Information. In addition, you may reveal Confidential Information to your 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. We reserve the right to decline to provide any or all of our Services  without specifying a reason. You acknowledge that all regulatory requirements need to be met before any Services are provided by us. Before we agree to provide Services to you and at all times during the term of the Agreement, you agree to cooperate with us and provide any information and documents and do all such acts we require (i) by law, regulation or according to our internal policies, (ii) to comply with requests of local and foreign regulatory, governmental, and law enforcement authorities, (iii) to check your identity and your activities and objectives, and (iv) to explain the reasons for the (intended) use of a Service, the origin of funds used for a service or transaction, and the economic nature of (the use of) a service or transaction. You hereby agree to promptly notify usin writing of any change in your information or circumstances and to provide us with any further information which is required from time to time for the purposes of our general policies or the provision of the Services. Any information or documents that you provide to us may be provided to us directly by you. For the avoidance of doubt, no Services shall commence until (i) we have completed our compliance checks, (ii) you have agreed to be bound by these Terms of Use.

7.2 Your Representations and Warranties

You hereby represent, warrant, and covenant 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 Software Platform and the Services, and you shall procure that all Authorised Persons, agents and employees comply with these Terms of Use and all applicable laws, rules and regulations regarding your use of the Software Platform and the Services, (ii) you are compliant at all times with all applicable laws, rules and regulations in all jurisdictions in which you operate, (iii) you will and shall procure that all Authorised Persons, agents and employees use the Software Platform and the Services only for lawful purposes, (iv) you have full power and authority to enter into and comply with

these Terms of Use, (v) title to all money and assets transferred to us under these Terms of Use is not be subject to any charge or other rights of third parties, (vi) you hold all required licences, registrations and permissions to carry out your business, (vii) you are not buying currency for the purposes of investment or speculation (viii) all information supplied to us by you is complete, accurate, up to date, and truthful in all material respects (ix) you will enter into Transactions only to facilitate payment for identifiable goods, services, and direct investment, and (x) you shall not use the Services other than in accordance with such operating processes and procedures as we may prescribe from time to time.

7.3 Payment Services Regulations 2017

 Unless you are a Consumer, none of the provisions of Part 6 and 7 of the Payment Services Regulations 2017 (as amended and replaced from time to time) ("PSRs") will apply to these Terms of Use. If you are a Consumer, you will inform us of such fact prior to commencing use of the Services. You agree that, unless you are a Charity or Micro-Enterprise:

(i) while we may do so, we are not obliged to comply with the information requirements set out in Part 6 of the PSRs in relation to your use of the Services;

(ii) regulations 66(1), 67(3), 67(4), 75, 77, 79, 80, 83, 91, 92 and 94 of the PSRs do not apply to your use of the Services or the E-Money Account; and

(iii) a different time period applies for the purposes of regulation 74(1) of the PSRs.

 

8. RELIANCE ON INSTRUCTIONS

8.1 Authorised Persons

HedgeFlows is authorised and entitled to rely upon, and act in accordance with, any instruction which may from time to time be, or purport to be, given by Authorised Persons. For these purposes, an instruction includes a payment instruction or an instruction relating to a transaction for the purchase or sale and delivery of currency. HedgeFlows is entitled to treat any instruction as fully authorised by, and binding upon, you and is entitled (but not bound) to take any steps in connection with, or in reliance upon, that instruction which HedgeFlows in its absolute discretion may consider appropriate, and notwithstanding any error or misunderstanding or lack of clarity in the terms of that instruction. If HedgeFlows receives what it considers to be conflicting or ambiguous instructions from any Authorised Person, HedgeFlows may, in its absolute discretion and without any liability on its part, decline to act whilst seeking clarification of that instruction, as HedgeFlows in its discretion deems appropriate. For the avoidance of doubt, a payment instruction shall be regarded as having been authorised by you for the purposes of the Regulations if an Authorised Person has given their consent.

 

9. LIABILITY

9.1 Your Liability for Losses

You shall be liable to us, and on our demand you shall promptly pay us, for all Losses (including losses and expenses from any action we take to seek to cover or reduce our exposure under any Transaction) arising from or in connection with:

(a) our acting on your or your Authorized Persons’ instructions or apparent instructions and Orders (including, where applicable and without limitation, by e-mail, fax, telephone, or via the Software Platform);

(b) anything relating to such instructions made by or on behalf of you or an Authorised Person (including where applicable and without limitation, instructions in writing by e-mail, fax or via our website) to us or concluding Orders with us (whether orally or in writing); and (c) our exercising our rights to Close Out all or any part of any Transaction;

9.2 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 or withdrawal 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 promptly after becoming aware of the error, 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 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 for any unauthorised or incorrectly executed payments.

We will not however be required to refund such amounts or restore any payment accounts:

(i) where the unauthorised payment arises from your failure to keep your Website or Software Platform log-in, password or other security details safe;

(ii) if you fail to notify us without undue delay of any Loss or misuse of a log-in or

password or another event that could reasonably be expected to have compromised

the security of our Software Platform or Website after you have gained knowledge of such event in which case you shall remain liable for Losses incurred after gaining such

knowledge; or (iii) if you fail to dispute and bring the unauthorised transaction to our attention within or for the defective executionseven (7) days from the date of the transaction.

9.3 Incorrect Information or Payee/Beneficiary Bank Failure

We will not be liable to you for the non-execution of a payment or for the defective execution of a payment if the information you provide is incorrect. We will not be liable for errors, mistakes, or non-performance arising from the payee/beneficiary bank if the payee/beneficiary bank fails to process the payment correctly. In either case, 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.

9.4 Our Negligence

If a Loss is incurred due to our negligence, we will promptly attempt to correct the error. Subject to Section 9.6, we will be liable for any direct losses such as bank fees and interest incurred as a result of our negligence or breach of Prebooking. In no circumstances will we be liable for any indirect, unforeseeable or incidental losses incurred, such as, but not limited to, loss of opportunity.

9.5 Non-Exclusion

Nothing in these Terms of Use excludes either party's liability for any Loss to the extent it is caused by fraud, dishonesty or deceit, death or personal injury caused by a party's negligence or the negligence of its employees or agents or any other liability that cannot be excluded by law.

9.6 Aggregate Liability

Except for liabilities arising in connection with: a breach of Section 3 (Data Protection Legislation); a breach of Section 6 (Confidential Information); Section 9.1 (Your Liability for Losses); Section 9.2 (Unauthorised or Incorrectly Executed Payments) (but only up to the amount of any refund due); Section 9.5 (Non-Exclusion); and Section 9.7 (Your Indemnities), 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 or payable by you to us under or in relation to these Terms of Use within three months preceding the date that the cause of action arises, and in any case capped at £5000. Subject to Section 9.5. (Non-Exclusion), in no event shall we be liable to you for any loss of data, loss of profits. or any special, incidental, indirect or consequential Loss, howsoever arising.

9.7 Your Indemnities

You agree to fully defend us on demand from and against any third-party claim alleging that your actions in connection with your use of the Software Platform or the Services violates any third party’s rights of privacy or violates any privacy laws. You will 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. We shall: (a) promptly notify you in writing of any such claim; (b) authorise you to control the defence and all related settlement negotiations; (c) provide you with the assistance and information reasonably necessary to defend and/or settle the any such claim; (d) in no event jeopardise, settle or admit liability with respect to any such claim without your prior written consent, and (e) use reasonable endeavours to mitigate any such claim.

 

 

10. TERMINATION

 

10.1 Term

These Terms of Use shall remain in effect so long as we are providing any Services to you.

10.2 Termination for Convenience

We may terminate these Terms of Use and/or your use of the Services by giving two (2) day's prior written notice to you.

10.3 Termination for Cause

We may terminate these Terms of Use if: (i) you commit any breach of these Terms of Use, (ii) you become 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, (iii) you breach any material representation or warranty in these Terms of Use, (iv) you breach or otherwise fail to comply with any applicable laws, (v) we have any material concerns over the adequacy of the information you have provided to us, (vi) an applicable regulatory or law enforcement authority initiates a regulatory or enforcement action, or investigation against you, (vii) you cease, or threaten to cease, to carry on business, (viii) we reasonably consider your conduct to be disreputable or capable of damaging our reputation by association, (ix) there is any other change in your circumstances (including a deterioration in or change to your financial position) or in the nature of your business which we consider materially adverse to the continuance of the Services (x) a force majeure event occurs or (xi) in our reasonable opinion, you are no longer suitable to receive the Services.

10.4 Additional Grounds for Termination

We may suspend Services and/ or terminate these Terms of Use at any time without prior notice if: (i) a financial regulator, regulatory or government agency, or law enforcement agency posts a warning with regard to you (ii) any governmental, regulatory, or judicial authority directs or requests us or you to suspend or terminate these Terms of Use or Services; or (iii) a partner of ours requests that we or you terminate these Terms of Use or any Services. We may suspend Services and/or terminate these Terms of Use at any time without prior notice where we have reason to believe that you are engaged in fraud, money laundering, terrorist financing or other illicit activity or where we have reason to believe or any suspicion that you may cause us to breach our internal risk policy.

10.5 Effect of Termination

Termination of these Terms of Use shall automatically terminate the Services and termination of the Services shall automatically terminate these Terms of Use. Upon the effective date of termination: (i) you will immediately cease all use of the Software Platform and Services and return any and all copies of any documentation, notes and other materials comprising or regarding the Software Platform and Services ; (ii) all of your payment obligations under these Terms of Use or under your use of the Services will immediately become due and payable; (iii) we will promptly return

any funds of yours which we hold to you; and (iv) within seven (7) days of such termination of these Terms of Use, you will return all Confidential Information of ours in your 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. For the avoidance of doubt, termination shall not affect any Prebooking previously entered into and shall not relieve either party of any outstanding obligations arising out of these Terms of Use, nor shall it relieve you of any obligations arising out of any Transaction entered into prior to such termination.

10.6 Survival

The following provisions will survive any expiration or termination of these Terms of Use and the Commercial Agreement: sections 3, 6, 9, and 10, and any other provision that by their nature are intended to survive termination of the Terms of Use. Any sums owed by you to us under these Terms of Use shall become immediately due and payable upon termination.

 

11. MISCELLANEOUS

11.1 Relationship between the Parties

No provision of these Terms of Use creates a partnership between the parties or makes a party the agent of the other party for any purpose. A party has no authority to bind, to contract in the name of or to create a liability for the other party in any way or for any purpose and neither party shall hold itself out as having authority to do the same.

11.2 Changes to the Software Platform

We reserve the right to modify and make changes to the Software Platform at any time as we deem necessary to comply with applicable laws and regulations or business needs.

11.3 Assignment

You consent to our assigning our rights under these Terms of Use at any time to any person pursuant to a merger, consolidation or sale of any portion of our business to which this these Terms of Use relate. You may not assign your rights or obligations under these Terms of Use.

11.4 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 (including in relation to any non-contractual obligations).

11.5 Advertising

Subject to the following, 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 Software Platform and our Services generally. However, we shall immediately cease using your name, logo and contact information if you request us to do so. You shall not issue a press release relating to our business relationship without our written consent.

11.6 Entire Agreement and Waiver

These Terms of Use, together with each of the documents referred to herein, 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.

11.7 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.

11.8 Amendments

We reserve the right to amend these Terms of Use and informing you about such revised terms and conditions by post, email or other electronic means including on our website. Such amendments will become effective on the date communicated, and unless otherwise mutually 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.

11.9 Force Majeure

In the event that we are delayed or hindered or prevented from the performance of any act required by reason of strikes, lock-outs, labour troubles, failure of power, riots, acts of terrorism, insurrection, war, mud-slide, fire, earthquake, tsunami, pandemic or where such act or omission is due to our obligations under provisions of European Union or national law, or other reasons of a like nature not being our fault, we shall provide notice to you of such delay, and the performance of such act shall be 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 suchdelay. We will not have any liability to you where weare unable to perform our obligations because of factors beyond our control.

11.10 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 Prebookings (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 will be the counterparty to a Prebooking and the recipient of the Services.

11.11 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.

11.12 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 as soon as you can, preferably via email to avoid delays. 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 not satisfied with the decision in our final response, you may be able to refer 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.

11.13 Information

You may request, at any time during our relationship, a copy of our Terms of Use and any other procedures that we may publish from time to time.

11.14 English Text Prevails

In the event these Terms of Use are translated into a foreign language, in case of any conflict or discrepancy between the English language version and the foreign language version, the English language version shall prevail.

 

 

SCHEDULE A - USE OF TRANSACTION RELATED 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 ask us to provide Services.

2 Scope of the Regulations

The Regulations apply to some of our Services, including payments made on your or an Authorised Persons' instructions by HedgeFlows.

3. Funds paid in

We strictly adhere to the legal requirements under the Regulations which are designed to ensure the safety of funds that you transfer in order to execute your Transactions. However, in the unlikely event that we become insolvent, you may lose some or all of such funds (our Services are not covered by the UK Financial Services Compensation Scheme). If you require further information on the legal requirements that ensure the safety of these funds, please contact us. We shall treat the funds you pay to us as belonging to you prior to the transfer and no person other than you have any rights in relation to the funds paid in and you may not assign or transfer such rights to a third party or otherwise grant any third party a legal or equitable interest over it unless a court or competent regulatory body requires you to in which case we shall use all commercially reasonable endeavours to assist you in executing such assignment, transfer or grant. Your incoming funds may be subject to funding, payment or conversion limits due to security and legal requirements as determined by us from time to time at our discretion. You may be asked to answer security questions or to complete other processes that we may reasonably require in relation to any funding or payment transaction.  We reserve the right in our reasonable discretion to carry out all and any necessary money laundering, terrorism financing, fraud or other illegal activity checks before processing any payment transaction or providing any Services. Certain transactions may be subject to fees.

4. Becoming a HedgeFlows client

In order to use our Services, you must first register and be approved as a client of HedgeFlows. By doing so, 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 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 our Website 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 your user profile and settings

You must ensure that the information recorded on your user profile and Settings 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 email with information or notices regarding your Transactions or use of the Services. It is your responsibility to regularly check the proper functionality of your email account or other methods of communication that you have registered with HedgeFlows and to retrieve and read messages relating to HedgeFlows promptly. We shall not be liable for any loss arising out of your failure to do so. Funding, payments or conversions are displayed in your Dashboard and you should check your Dashboard and transaction history regularly. You should report any irregularities or clarify any questions you have as soon as possible by contacting the Help Centre or via email: support@hedgeflows.com 

6. Funding to facilitate a Transaction 

Funds paid by you to facilitate a Prebooking or a Transfer will be credited on the Business Day they are received. If we receive funds after 4.30pm on a Business Day or on a day that is not a Business Day, funds will be deemed to have been received on the next Business Day. We shall not be responsible for the funds until they are received by us. In the event that the funds are subject to a reversal, we will deduct such reversed transaction from your Dashboard and hold you liable for our costs incurred upon a failed Transaction. If the funds available in your Dashboard are insufficient to cover the reversal, we reserve the right to require repayment from you. You should regularly reconcile incoming payments with your own records. You should be aware that the crediting of funds to your Dashboard does not mean that these transactions cannot be reversed. We reserve the right to reverse a payment where the payer or the payer’s bank or payment service provider has reversed (or is reasonably likely to reverse) a payment you have made to us.

All payments to us must be exactly in the amount as requested by us upon confirmation of a Transaction and ascribed to a clear and complete reference that we communicate to you for the relevant Transaction so that we may credit the funds into your Dashboard and apply it to your desired Transactions. It is your responsibility to ensure that accurate, complete and correct references are ascribed for each incoming payment so that we may credit the funds into your Dashboard. If no reference or an incorrect reference is provided, then we will not be able to credit your Dashboard. In such cases, we will not be liable for any loss you incur, although we will use reasonable efforts to investigate and credit or return incorrect and inaccurately referenced payments into or from your Dashboard.

8. Sending Transfers

We will send payment Transfers in accordance with your or your Authorised Persons' instructions to third party beneficiaries or another account held in your name that you specify to us in accordance with your instructions. When making Transfers to yourself and not to a third-party beneficiary, we will only make a payment to a bank account where you are the named holder of such bank account.

All Transfer instructions must be made through the Software Platform. It is your responsibility to ensure that accurate, complete and correct payment instructions for the beneficiary of a Transfer (including payments to yourself) are provided to us through the Software Platform. This includes but is not limited to providing us with correct details for the beneficiary to which you would like the payment sent. If you provide incorrect beneficiary details 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. You are required to provide us with any additional information that we request with regard to a Transfer 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. You or an Authorised Person are responsible for confirming via the Software Platform that a payment instruction has been received and processed by us. We are not liable for any loss in circumstances where erroneous duplicate payment instructions are sent to us by you or and Authorised Person.

If we receive a payment instruction (through the Software Platform) 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 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 unless you have requested a specific future date. You must notify us by telephone or in writing as soon as is reasonably practicable 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 you must notify us without undue delay after becoming aware of the unauthorised or incorrect transaction and in any event no later than three (3) months after the debit date of the transaction.

International money transfers often require funds to be transmitted between multiple intermediaries beyond our own direct payment service providers. These intermediaries or the beneficiary bank may deduct a charge. You acknowledge that these charges cannot always be calculated in advance. We will not be liable for losses that result from such charges or deductions being applied to your payment.

Subject to the Regulations we may refuse your payment Instruction because for example you are in material breach of 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.

9. Prohibited Payments

We reserve the right, in our reasonable discretion to impose ‘acceptable use’ terms in relation to the operation of the Software Platform 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. For a full list of prohibited sectors in force at a particular time, please contact us at info@hedgeflows.com

You must not use the Services provided by HedgeFlows 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 access to Services and/or report the transaction to the relevant law enforcement agency and/or claim damages from you.

 

10. Segregation of client funds

When you transfer funds to us to pay a Booking Fee, Payment Fee, any other fee or a Deposit in respect of a Prebooking or Transfer, full ownership and title to these funds transfer to us, and such funds are considered our funds, subject to these funds being applied against your payment obligations upon the settlement or closing out of the Prebooking or Transfer. They will not be Relevant Funds under the Regulations and so they will be 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 B – PREBOOKING AND TRANSFER SERVICES

The following provisions will apply to the Prebooking and Transfer Services

1. Individual Prebookings or Transfers

Each Prebooking or Transfer shall be an individual Prebooking or Transfer and we may at any time and at our sole discretion refuse to offer terms for any Prebooking or Transfer

2. Execution Only

We shall not provide you with any advice in connection with the Services (such as, whether to proceed or not to proceed with a Prebooking or Transfer and in respect of timing). We may provide market information but this shall not constitute investment advice. We cannot accept responsibility for your decision to enter into a Prebooking or Transfer. Any decision to transact is your decision and we will not be liable for any loss or opportunity loss if exchange rates move before or after you transact. You agree that you will use Prebookings or Transfer in connection with your lawful future payment needs and not for any speculative or investment purpose. We may decline to deal with you if we have reason to believe that you are using any Prebooking or Transfer or other Services for investment or speculative purposes and we may Close Out a Prebooking or Transfer in accordance with section 7 of this Schedule.

3. Prebookings

You hereby agree to enter into Prebookings only for the purpose of facilitating payment for identifiable goods, services or direct investment. You agree that we reserve the right to decline to accept an instruction in respect of a Prebooking if we reasonably believe that you intend to enter into the Prebooking for purposes other than those listed above.

4. Instructions and Orders

Upon request, we may provide you or an Authorised Person with an exchange rate quote. This quote is given on an indicative basis only and we are not legally bound to perform a proposed Prebooking or Transfer in accordance with this quote.

You and/or Authorised Person can give us electronic or verbal instructions relating to a transaction for the purchase or sale and delivery of currency. We will at our sole discretion offer the commercial terms of a proposed Prebooking or Transfer. These terms will include amongst other things the exchange rate we are offering which may be different from a quote you have previously been given by us.

Once you or and Authorised Person accepts the commercial terms of the Prebooking (by electronic or verbal or by any other means), you will become legally bound to perform the Prebooking or Transfer in accordance with the terms of the Order. Following receipt of an Order, we shall subsequently transmit electronically to you a trade Confirmation if executed, which will confirm the details of the Order. Once we have executed an Order, you or an Authorised Person may not amend or cancel the Prebooking or Transfer unless we expressly agree (and any such amendment or cancellation shall be on the conditions specified by us). If you or an Authorised Person elects to cancel or amend a Prebooking, we will calculate an adjustment or cancellation fee to be taken from or added to your Deposit. We may require further confirmation or information from you or an Authorised Person of any Order.

5. Settling a Prebooking

You must pay all funds specified by us in connection with a Prebooking (including any applicable transfer charges by electronic transmission) in full and in cleared funds into a client account specified by us. Payment must be received by us on or before the Settlement Date and Time or such earlier date as we may specify and for the full value of the currency to be sold by you under the Prebooking or Transfer and associated confirmation Please see the daily cut-off times available at https://help.hedgeflows.com for settlement times.

If funds do not arrive on or before the Settlement Date and Time, we may at our sole discretion roll the trade to the next settlement day and apply a charge or Close Out the Prebooking or Transfer.

6. Disputes

If a dispute arises between you and us relating to the existence or terms of any Prebooking  or Transfer (a “Disputed Prebooking or Transfer”), we may at our sole discretion Close Out the Disputed Prebooking or Transfer 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.

7. Default & Refusal to Perform

Notwithstanding Sections 2, 5 and 6, we may at our sole discretion refuse to perform or Close Out a Prebooking or Transfer, including but not limited to upon or at any time after any of the following events:

(a) you fail to settle a Prebooking by the agreed Settlement Date and Time;

(b) if we have reason to believe that you are using any Prebooking, Transfer or the Services for investment or speculative purposes;

(c) either you or we cancel a Prebooking;

(d) you fail to make payments as specified in the confirmation by the due date as requested by us;

(e) you fail to pay the Deposit or Booking Fee by the due date requested by us;

(f) An Insolvency Event occurs or you take steps to or suspend payment of your debts;

(g) 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;

(h) 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 Prebooking, Transfer (or any part thereof) by the FCA and/or any governmental or regulatory authority whether or not that request is legally binding; or

(i) 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 outstanding Prebookings and Transfer and charge you all of the costs, expenses and losses that we may incur (including any action we may take to cover or reduce our exposure). Any Deposit held by us in respect of Prebookings shall be returned to you after deducting all other sums due to us (including any fees or losses resulting from closing out the Prebookings/Transfers). We shall not be responsible in any way for any delay in payment by us.

8. Close Out

We reserve the right in our sole discretion to Close Out a Prebooking at any time including without limitation where you decide to cancel a Prebooking and in the circumstances described in Section 7 of this Schedule.

You will be liable on demand for all costs, expenses and losses that we may incur as a result of any Close Out of a Prebooking pursuant to these Terms of Use 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.

We reserve the right to select which Prebookings are subject to Close Out.

9. Deposit

We shall require a Deposit payment to protect HedgeFlows from financial losses which it may incur as a result of Prebookings being Closed Out (either on your request or at our discretion).

Full ownership and title to all funds sent to us as Deposit 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. For the avoidance of doubt, this means that we have the right to pledge or grant a security interest over it, or transfer or deposit it to or with an exchange or clearing house, a broker, a bank or any other financial institution or payment service provider. All and any part of Deposit(s) may be applied across all and any Prebookings.

You shall not be entitled at any time to the return of any Margin without our prior written consent.

Deposit must be paid to us in cleared funds

10. You are the End Customer

We deal with you as Principal only and assume no obligations to any third party.

 

SCHEDULE C

 

Definitions - Terms of Use

 

"Authorised Person" means any person authorised by you to give us instructions in relation to the Services  and/or to conclude Orders on your behalf.

"Business Day" means any day other than a Saturday or a Sunday or a public or bank holiday in England;

"Client" means the person who is contracting with us for the provision of the Services;

"Client Support" means our client support service which is available by sending an email to support@hedgeflows.com;

"Close Out" means any action we may take to close out, cover or reduce our exposure in relation to the relevant Prebooking including any action we reasonably consider appropriate in the circumstances;

"Confidential Information" means confidential information of the other party concerning the other party’s business, plans, customers, clients, technology, services and products and other information held in confidence by the other party including all information in tangible or intangible form that is marked or designated as confidential or that, under the circumstances of its disclosure, should be considered confidential. Our Confidential Information will include, but not be limited to, the HedgeFlows Technology, and your Confidential Information will include Personal Data. Information will not be deemed Confidential Information if such information: (i) is known to the receiving party prior to receipt from the disclosing party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (ii) becomes known (independently of disclosure by the disclosing party) to the receiving party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (iii) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of these Terms of Use by the receiving party. We may disclose Confidential Information pursuant to the requirements of a governmental agency or by operation of law;

Confirmation means a confirmation of a Transaction displayed on the Website and emailed to you setting out the details of an executed Transaction.

Consumer” means (a) an individual who, in contracting for payment services to which the Regulations apply, is acting for purposes other than a trade, business or profession; (b) an enterprise which, at the time at which the contract for payment services is entered into, is an enterprise as defined in Article 1 and Article 2(1) and (3) of the Annex to Recommendation 2003/361/EC of 6th May 2003 concerning the definition of micro, small and medium-sized enterprise; and (c) a body whose annual income is less than £1 million and is (i) in England and Wales, a charity as defined by section 1(1) of the Charities Act 2011; (ii) in Scotland, a charity as defined by section 106 of the Charities and Trustee Investment (Scotland) Act 2005; or (iii) in Northern Ireland, a charity as defined by section 1(1) of the Charities Act (Northern Ireland) 2008;

"Data Controller" has the meaning set out in the Data Protection Legislation (or, in respect of the GDPR, means the same as "controller" in Article 4 of GDPR).

"Data Processor" has the meaning set out in the Data Protection Legislation (or, in respect of the GDPR, means the same as "processor" in Article 4 of GDPR);

"Data Protection Legislation" means (in each case as such are updated, amended or replaced from time to time): (a) the UK Data Protection Act 1998 (as amended or replaced from time to time), (b) from its effective date (25 May 2018), the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 (General Data Protection Regulation) (the "GDPR"), and any laws or regulations ratifying, implementing, adopting, supplementing or replacing GDPR (including the UK Data Protection Act 2018), in each case, to the extent in force; and (c) any other relevant data protection legislation in any jurisdiction which is applicable to the Services, including but not limited to the Privacy and Electronic Communications (EC Directive) Regulations 2003.

"Data Subject" means an individual who is the subject of Personal Data;

"Delivery Date" means the date on which we will deliver currency that has been purchased by you, provided you have fully paid for the purchased funds and complied with these Terms of Use. The Delivery Date must be a Business Day;

 

"Data Protection Regulator" means any governmental or regulatory body or authority with responsibility for monitoring or enforcing compliance with the Data Protection Legislation;

"Deposit" means funds paid by you to us used as collateral prior to the settlement of a Prebooking;

"Durable Medium" means a medium which allows you to store information in a way accessible for future reference for a period of time adequate for the purposes of the information and which allows the unchanged reproduction of the information stored;

"Fees" shall mean the charges payable by you to us for the Services as set out in these Terms of Use and specified during a Transaction.

"FCA" means the Financial Conduct Authority of the United Kingdom whose address is 25 The North Colonnade, Canary Wharf, London E14 5HS, United Kingdom; further information on the FCA can be obtained on the FCA’s website at www.fca.org.uk;

"HedgeFlows" means HedgeFlows Limited, a company incorporated under the laws of England and Wales with a registered office at 4th Floor Tuition House 27-37 St George's Road, Wimbledon, London, England, SW19 4EU with registration number 12689184 and registered with the Financial Conduct Authority (FRN: 935021);

"Help Center" means the information which is available online at https://help.hedgeflows.com.

"Insolvency Event" means: if you become insolvent or a bankruptcy petition is presented against any such person or party or any steps are taken to appoint an administrator, judicial factor or similar officer to any such party or to commence the winding up or dissolution of any such party or to otherwise apply to the court for a moratorium or make a proposal to creditors for a voluntary arrangement or any such party grants a trust deed for creditors or takes any action with a view to the readjustment, rescheduling forgiveness or deferral of any part of any such party’s indebtedness or any such person enters into any arrangement, compromise or composition with or assignment for the benefit of its creditors or any class of them (except for the purposes of a solvent reconstruction or amalgamation), or a receiver, receiver and manager, or other controller, administrator or similar officer to be appointed with respect to, or takes control of, the assets or undertakings of any such party;

"Losses" means all losses, liabilities, fines, charges, damages, actions, costs and expenses, professional fees (including legal fees actually incurred) and disbursements and costs of investigation, litigation, settlement, judgment, interest and penalties;

"Micro-enterprise" means an enterprise which is an enterprise as defined in Article 1 and Article 2(1) and (3) of the Annex to Recommendation 2003/361/EC;

"Order" means the commercial terms of a Transaction accepted by you (which will incorporate these Terms of Use);

“Party” means Person

“Person” could mean any individual, body corporate, association, partnership, firm, trust, organisation, joint venture, government, local or municipal authority, governmental or supra-governmental agency or department, state or agency of state or any other entity

"Personal Data" has the meaning given to it by the Data Protection Legislation;

"Platform Services" means the access to information and market data via the Software Platform provided by us to amongst other things, facilitate the booking and management of payments, track and report on your Transactions;

"Prebooking" means any one or more Services under which currency is bought and sold for delivery at a fixed future time which is at least 7 days (or longer) after the Prebooking is entered into;

"Regulations" means the Payment Services Regulations 2017 (as amended and replaced from time to time);

"Services" means the payment services and Software Platform provided by HedgeFlows to you as described in these Terms of Use, on hedgeflows.com and on the Help Centre, including the receipt and holding of funds pending the execution of payment services or Transactions on your behalf, including quoting and execution of foreign exchange Transactions;

"Settlement Date and Time" means the date and time specified within the Transaction Confirmation , by which cleared funds must be received by or available to HedgeFlows;

"Software Platform" means the HedgeFlows online Software Platform that provides the functionality for the Services;

“Transactions” means Transfers and Prebookings offered on the Website

"Transfer" means any one or more of the agreements between you and us for the sale, purchase, and delivery of currency within 7 days after the Transfer is entered into;

"UK Business Hours" means Monday through Friday 9:00 am to 5:00 pm;

"Website" means the website available at hedgeflows.com;

"Terms of Use" means these terms and conditions including the schedules and any other terms and conditions referred to herein, the Privacy Policy, the Cookies Policy, and the Help Centre all as amended from time to time;

"We", "us" or "our" means HedgeFlows Limited; and

"You" or "your" means you, the Person or Party who is contracting with us for the provision of the Services.