HedgeFlows Limited ("HedgeFlows")
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
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.
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.
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;
3.3 Cookies Policy
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, and any other 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
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 INTEGRATION WITH YOUR BUSINESS SYSTEMS AND LIABILITY
You may request that we connect our platform to other sources of your data such as your accounting software, Enterprise Resource Planning software and others and/or that we extract such Personal Data or Company Data and store and/or process it within our platform. You may also upload your data to our platform through other methods such as file uploads or manual input. This data may be analysed and the results displayed to you on the platform.
You may also ask us to write data back to software packages or systems that you use.
You acknowledge and hereby permit us to disclose such information to third party providers on a confidential basis where required for the provision and development of the Services.
You hereby warrant that
- you have obtained all necessary approvals or consents required by Applicable Data Protection Law to permit the disclosure to, or use of any Company Data and/or any Personal Data by us or our third party suppliers for the purposes of providing the Services.
- where required by law or contract with any third party, you have separately obtained all necessary Company consents in writing relating to the Company Data and any Personal Data being stored and/or processed by us , including but not limited to (where relevant) the transfer of Company Data and/or Personal Data outside of the UK/EEA. You will provide written copies of Company consent to us upon our reasonable request.
- you shall defend, indemnify and hold us harmless against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with your disclosure of such Personal Data or Company Data to us for the purpose of accessing or using the platform and/or Services.
- you do not rely on any data analysis or information provided by the platform.
- you independently check and reconcile any data that you choose to have written back from our platform to software packages and systems that you use and that we do not have any liability for the accuracy or timeliness of such data.
- 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 or any other business decisions).
- we may provide market information and/or analysis but this shall not constitute investment advice and you hereby warrant that you do not rely on any such information or analysis provided by us.
- any business decision, whether financial or otherwise is your decision solely and we will not be liable for any loss or opportunity lost.
3.8 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.
3.9 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
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
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.
You may report incidents requiring our help by sending an email during UK office hours to email@example.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
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
7. OUR AGREEMENT WITH YOU
7.1 Our Acceptance of You as a Client
7.2 Your Representations and Warranties
7.3 Payment Services Regulations 2017
(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.
9.1 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 execution seven (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 only such as bank fees and interest incurred as a result of our negligence. In no circumstances will we be liable for any indirect, incidental or consequential losses incurred, such as, but not limited to, loss of opportunity.
9.6 Aggregate Liability
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.
10.2 Termination for Convenience
10.3 Termination for Cause
10.4 Additional Grounds for Termination
10.5 Effect of Termination
11.1 Relationship between the Parties
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.
11.4 Governing Law and Forum
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
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
11.11 Notices and Communications
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.
11.14 English Text Prevails
SCHEDULE A - USE OF TRANSACTION RELATED SERVICES
1. Rights and obligations
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: firstname.lastname@example.org
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.
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 email@example.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 and/or analysis but this shall not constitute investment advice and you hereby warrant that you do not rely on any such information or analysis provided by us. We cannot accept responsibility for your decision to enter into a Prebooking or Transfer. Any decision to transact is your decision solely 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.
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.
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.
We reserve the right to select which Prebookings are subject to Close Out.
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.
"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 firstname.lastname@example.org;
"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;
“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;
"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;
"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;
“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);
"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;
"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.