This agreement (the “Agreement”) sets forth the terms and conditions governing your use of the Service (the “Service”) as specifically described here in Section 1. Please read it carefully as it contains important terms, including terms governing disputes and requiring use of arbitration.
Read this Agreement and keep it for your records. By using the Service, you agree to the terms of this Agreement and agree that you will comply with all applicable laws.
As used herein, the term “Bank,” means Metropolitan Commercial Bank, “Company” means Equals Group PLC, and “we,” “us,” and “our” means both the Company and Bank except where the context would require that it mean only one of us. “Client,” “You,” and “your” means the legal person that is using (through Authorized Persons, as explained further below) the Service to conduct international funds transfers under this Agreement.
1 THE SERVICE
1.1 The Service is a funds transfer service which permits you to transfer funds to recipients outside of the United States (“Recipients”) via electronic funds transfer, wire transfer or other electronic methods, which may include the use of a user interface or application program interface (“API”) operated by Company, by debiting or crediting of your bank account, buying or selling of foreign currency, including the following transaction types, and any other global payment solutions provided by us from time to time (any instruction to send money under this Agreement, a “Transaction”): • Forward Transaction – means a Transaction for which a sale and purchase rate of exchange is agreed on a particular date and for which the Settlement Date is a date falling more than two Business Days (as defined herein) after the date the Transaction is agreed, as evidenced by the Bank providing to you a Confirmation (as defined in this Agreement). • Spot Transaction – means a Transaction for which the Settlement Date is two Working Days after the Transaction is agreed or such earlier date as the Company may, in its discretion and in accordance with the practice of the London Foreign Exchange market, agree. If your Transaction is accepted by the Company, the funds will be available to the Recipient on the date and pursuant to the terms set forth in the email confirmation provided to you by the Company pursuant to Section 3.2 of this Agreement (such date, the “Settlement Date”).
1.2 The Bank is a federally insured financial institution chartered under the laws of the State of New York and an Originating Depository Financial Institution. You are responsible for transmitting funds directly to the Bank in USD in order to effect cross border transfers, as described in this Agreement. The international remittance of funds to the Recipient is performed by FairFX (trading as Equals Money) outside of the United States.
1.3 The Service, as described herein, may be amended by us at any time, upon notice to you, as set forth in this Agreement. Moreover, we retain full discretion to refuse to complete any Transaction at any time.
1.4 You must approve individuals to conduct Transactions on your behalf (each such person, an “Authorized Person”). Authorized Persons may be so designated on your registration form. You may amend such list of Authorized Persons at any time upon written notice to the Company under Section 12 of this Agreement. You agree to ensure that Authorized Persons understand and abide by all of the obligations and limitations to which you are subject under this Agreement. The acts or omissions of an Authorized Person shall be regarded as your acts and omissions regardless of whether, in fact, those acts or omissions were authorized by, for your benefit or on your behalf.
2 YOUR REPRESENTATIONS AND UNDERTAKINGS
2.1 You represent as of the date of each Transaction and its Settlement Date that:
2.1.1 You are acting as principal in the Transaction, have full power and authority to enter into the Transaction and are the beneficial owner of all Cleared Funds (as defined herein), and all other funds transferred to the Bank hereunder free from any charge or encumbrance;
2.1.2 You are located in the United States and hold a USD bank account (a) that will be the source of funds for transfers using the Service (b) that is, unless you are acting as an agent as set forth in Section 2.1(v), is held in your name and (c) over which you have legal authority and control;
2.1.3 The information you have provided in relation to the Transaction is accurate and current and that any further information required by us relevant to a Transaction will be accurate and complete;
2.1.4 You are not violating any laws or regulations by entering into or performing any part of this Agreement or by otherwise using the Service;
2.1.5 You are not an agent acting for an undisclosed principal or third party beneficiary. In the event that you seek to use the Service on behalf of a third party, you agree to provide certified copies of identification evidence of such authorizations that you have received from the third party and obtain express approval from the Bank before acting on that third party’s behalf;
2.1.6 You consent to having your – and as relevant, your Authorized Persons’ – details including confidential personal information and financial information, used by us for the purpose of the provision of the Service;
2.1.7 You are aware that the Service is managed by Company at the Bank’s direction and subject to the Bank’s rules and procedures, and that Company is operating as a service provider to Bank.
2.1.8 The Transaction is for commercial purposes only and not for purposes of market or currency speculation;
2.1.9 The Transaction is not for any prohibited purpose, as described in Section 2.4 herein.
2.2 To assist in the fight against the funding of terrorism and money laundering activities, Federal law requires us to obtain, verify and record information that identifies each person to whom we provide certain types of services. Prior to being permitted to use the Service, the Company will require you to provide, in connection with Authorized Persons, owners and other Client personnel we deem appropriate, information including name, physical address, unexpired U.S. government issued photo identification, U.S. Taxpayer Identification number, date of birth, phone number, and email address (for individuals), or the name, address, U.S. Employer Identification Number (EIN) and incorporation number (for companies), and other information that will allow us to identify such persons (the “KYC Information”). KYC Information may also include, without limitation, your documents of incorporation and bylaws, as well as and where relevant, the U.S. passport, U.S. based driver’s license, or other U.S. government issued photo identification document of your principals, key executives and beneficial owners. The Company may also contact you with additional questions and periodically ask you to re-confirm these details. You undertake to provide us, upon request, with any and all information that we may request.
2.3 All U.S. persons, including U.S. banks, must comply with the regulations of the U.S. Department of Treasury’s Office of Foreign Assets Control. This means that we may reject (return) or institute a hold on any funds sent to you if you or the Recipient (or any other party related to or benefitting from the Transaction) is a Specially Designated National or falls into the scope of a country-based or other sanction program (any such party, a “Sanctioned Person”). You agree that you will not use the Service to send funds to, or otherwise engage in any business involving, a Sanctioned Person.
2.4 You agree not to use the Service for any unlawful activity, and we reserve the right to investigate any suspicious activity or in response to any complaints or reported violations. When investigating any such activity, we reserve the right to pause a Transaction, hold funds or suspend your access to the Service, to report suspected unlawful activity to any appropriate regulatory or similar authority or person, and to provide such authority or person any relevant information, including personal data. More specifically, you are not permitted to use the Service in connection with:
2.4.1 the creation, facilitation, sale or distribution of any prohibited or illegal good or service or an activity that requires a governmental license where Recipient lacks such a license;
2.4.2 the creation, facilitation, sale or distribution of marijuana or marijuana paraphernalia, regardless of whether or not such sale is lawful in your jurisdiction or the jurisdiction of your Recipient;
2.4.3 the creation, facilitation, sale or distribution of any material that promotes violence or hatred;
2.4.4 the creation, facilitation, sale or distribution of adult content including, but not limited to, online dating or marriage services, pornographic services and goods, and adult entertainment-related activities;
2.4.5 the creation, facilitation, sale or distribution of goods or services that violate the intellectual property rights of a third party;
2.4.6 the sale, distribution or exchange of crypto currencies;
2.4.7 any Ponzi-scheme or pyramid selling;
2.4.8 any gambling or regulated financial services you or the Recipient may provide;
2.4.9 the facilitation, sale or distribution of firearms or other weapons, military or defense items (including military software or technologies), chemicals, prescription medications, seeds or plants, dietary supplements, alcoholic beverages, tobacco goods, jewels, precious metals or stones; or
2.4.10 any consumer (personal, family or household) use.
2.5 It is your responsibility to ensure that you and all Authorized Persons keep safe any password or other access credentials which you or any Authorized Person may at any time be required to use to access any part of the Service. Should you become aware of, or suspect that, an unauthorized person or third party has knowledge or access to their password, you must inform the Company immediately.
3 YOUR INSTRUCTIONS TO BANK; CONFIRMATION
3.1 To initiate a Transaction, you or an Authorized Person will use the secure website, email or give written or verbal Transaction instructions, subject to applicable security procedures, to the Company, which will form a binding and irrevocable commitment on your part.
3.2 We will email you a confirmation of each Transaction (“Confirmation”).
3.3 In the case of discrepancies, errors or omissions in a Confirmation, you must notify us immediately by telephone or email but in any event no later than the end of the Business Day on the date of the Transaction. You expressly acknowledge and agree that any failure timely to notify us of any such discrepancies, errors or omissions may prevent correction at a later time.
3.4 A Transaction, once submitted, may not be amended, altered or cancelled without our written consent. We reserve the right to withhold such consent in our sole discretion, including without limitation when we have acted on the Transaction to our detriment.
3.5 We retain the right to refuse to accept your instruction and are under no obligation to enter into a Transaction should we choose not to do so.
4 YOUR FINANCIAL OBLIGATIONS FOR TRANSACTIONS
4.1 You agree to pay for each Transaction by transferring Cleared Funds for the full amount specified in the Confirmation from your bank account into a bank account designated by us on or before the Settlement Date using an “ACH Push” (i.e., an ACH transaction you initiate) or domestic wire transfer (such funds, the “Cleared Funds”). No other payment methods are accepted. We reserve the right to require such funds transfer to be completed one (1) Business Day before the Settlement Date. You acknowledge that Cleared Funds are transferred to the Bank, as the Company does not accept funds under the Service.
4.2 On confirmed receipt of the Cleared Funds, the Bank or its designated service provider will pay to the Recipient the amount stated in the relevant Confirmation except to the extent (i) required by law to deduct sums in respect of taxation, (ii) to deduct amounts incurred in transfer fees (as set out in the Fee Schedule), or (iii) where you owe us amounts for Transactions and which have not been settled in accordance with this Agreement.
4.3 The Bank will not make, nor will cause Company or any other service provider to make, any payment on your behalf until the Cleared Funds have been received, and cannot accept responsibility for a delay in onward payment due to the late arrival of your funds. You expressly agree and acknowledge that banks have cut-off times, after which they will not accept same-day payment instructions, and that it is your responsibility to be aware of, and comply with, these cut off times.
4.4 All payments made or owed to us for the Service under this Agreement are to be made in full without set-off, counterclaim or deduction whatsoever.
4.5 If you do not remit Cleared Funds to the Bank by the Settlement Date, we reserve the right to charge you a daily penalty until such funds are received, as specified in the Fee Schedule.
5 YOUR FUNDS
5.1 You acknowledge that your funds will be held with those of other clients of the Service in an account or accounts at the Bank or another financial institution designated by the Bank.
5.2 You will have no fiduciary rights or claims against the Bank in respect of any of its funds held in such account or accounts. Once delivered to Bank or other intermediary, the funds are no longer under your control or considered your property and your only interest is in successful transfer to the Recipient in accordance with and subject to this Agreement.
5.3 You acknowledge that we are under no obligation to pay interest on any funds held on your behalf in any account.
6 COMMISSIONS, CHARGES, MARGINS
6.1 Commissions and charges such as transfer charges due in respect of a Transaction shall be included in the Confirmation and will be paid by you in full by the Settlement Date from the Cleared Funds.
6.2 An initial margin of 10% of the value of the Transaction (unless we agree in advance to a lower amount) (the “Initial Margin”) is required for each Forward Transaction to protect us against adverse exchange rate movement between the date of Transaction and the Settlement Date, and should be paid within two Business Days after the date of the Transaction. The remaining balance of the Transaction shall be paid on or before the Settlement Date.
6.3 You will be required to pay a further margin (a “Margin Call”) on demand by us in the event that the Initial Margin is insufficient (as determined in our sole discretion) to cover the risk of adverse exchange rate movements.
6.4 All margin you provide in accordance with this Agreement may be forfeited in the event that we incur any liability or loss in respect of any Transaction in which you fail to fulfil your obligations under this Agreement.
6.5 In respect of Forward Transactions, we reserve the right to transfer margin you provide to the Bank’s counterparty financial institution as margin to cover the corresponding Forward Transaction entered into by Company.
6.6 If a payment is returned to us, we may charge an administrative fee to resend the funds to the Recipient as set forth on the Fee Schedule.
7 REFUSED, TERMINATED OR REVERSED TRANSACTIONS; TERMINATION OF THIS AGREEMENT
7.1 We have the right to refuse, terminate or reverse a Transaction, or otherwise limit, suspend or terminate your use of the Service if:
7.1.1 You shall fail to make any payment in respect to a Transaction, when due and in accordance with this Agreement;
7.1.2 You breach any provision of this Agreement or any applicable law;
7.1.3 it becomes or reasonably may become unlawful for us to fulfil one or more of our obligations under this Agreement;
7.1.4 if we are requested to decline or cancel a Transaction (or any part thereof) by any regulatory authority whether or not the request is legally binding;
7.1.5 we in our absolute discretion consider it desirable or necessary to do so for our own protection, including as a result of security, reputational or legal risks associated with the Transaction or Recipient;
7.1.6 in the event that you are unable to meet your obligations as they become due or have a bankruptcy petition presented against you, or if you cease or threaten to cease all or part of your business; or
7.1.7 any of the events specified above or anything comparable thereto occurs under the laws of any applicable jurisdiction.
7.2 We will promptly notify you of such refusal, termination or reversal to the extent permissible under applicable law.
7.3 If you become aware of the occurrence of any event referred to in Section 7.1 above, you must provide us immediate notice of such event.
7.4 If you fail to make a payment due in respect of any Transaction, we shall be entitled to impose interest on such unpaid items at a rate of prime +3% calculated on a monthly basis from the date payment was due to the date payment is received.
7.5 We may immediately terminate this Agreement at any time without prior notice if:
7.5.1 we determine in our sole discretion you are not eligible to use the Service or are using the Service for an impermissible purpose;
7.5.2 you materially breach the law or the terms of the Agreement;
7.5.3 you engage in behavior that we in our sole discretion view as suspicious or otherwise of concern
7.5.4 duplicate accounts are opened for the same person; or
7.5.5 we are unable to contact you by the telephone number or email address you have provided.
7.6 You may terminate your participation in the Service at any time by contacting the Company. Termination, whether by you or by us, shall not affect prior Transactions or (except where required by law) obligations under this Agreement existing at the time of termination. Upon termination, we will retain records of your Transaction history in accordance with regulatory requirements and our retention policies.
8.1 You shall indemnify, defend and hold harmless the Bank and Company from and against all liabilities, claims, losses and costs, including but not limited to attorneys’ fees, incurred by the Bank, Company or any third party arising out of the breach by the you, or any Authorized Person, of this Agreement.
9 DISCLAIMER OF LIABILITY; LIMITATION OF LIABILITY
9.1 Disclaimer of Liability. In providing the service to you, neither we nor any of our affiliates, holding companies, subsidiaries, employees, officers, directors, agents, service providers or subcontractors, make any express warranties or representations to you with respect to the service or this agreement, and all implied and statutory warranties and representations, including without limitation any warranty of fitness for a particular purpose, merchantability and non-infringement are hereby expressly disclaimed to the maximum extent permitted by applicable law. In no event shall we or any of our affiliates, holding companies, subsidiaries, employees, officers, directors, agents, service providers or subcontractors be liable to you or any third party with respect to the service or this agreement for any indirect, special, consequential, punitive, exemplary or incidental damages, whether based on negligence, willful misconduct, tort, contract or any other theory of law, or for any damages for loss of data, loss of income, failure to realize expected revenues or savings, loss of profits or any economic or pecuniary loss. We further disclaim any and all liability for any goods or services bought or sold by you that are settled through your participation in the service.
9.2 Disclaimer of Liability. Neither we nor any of our agents, affiliates, holding companies, subsidiaries, employees, officers, directors, service providers or subcontractors will be liable:
9.2.1 For losses or damages alleged to result from our failure to properly complete a Transaction;
9.2.2 For losses or damages alleged to result from our delay in completing a Transaction;
9.2.3 If, through no fault of ours, you failed to timely deposit sufficient funds with us to make the Transaction, either with respect to the Cleared Funds or otherwise;
9.2.4 If your system or device was not working properly during use of the Service and you knew about the breakdown when it started the Transaction;
9.2.5 For errors made by you or a Recipient, such as making a transfer to an unintended person or transferring an unintended amount;
9.2.6 For errors by or related to your bank or the bank of Recipient, such as the provision of incorrect bank account information;
9.2.7 For losses or damage arising from your misuse or inability to use the Service, whether due to reasons within our control or not;
9.2.8 For losses or damage to you or Recipient from our inability to complete a Transaction because we are prohibited to do so by law or for losses or damage caused as a result of actions taken due to our obligations under applicable law or order; or
9.2.9 Due to circumstances beyond our control that prevent or affect the Transaction, despite reasonable precautions that we have taken.
10.1 You accept that foreign exchange markets are subject to volatility and that any Transaction is time critical and therefore time shall be of the essence in respect of any of your obligations.
10.2 We, at our sole discretion, may provide you with information on practical aspects of engaging in cross-border, multiple-currency transactions. However, you enter into each Transaction at your own discretion and risk and may not rely on us for advice on the timing or terms of any Transaction nor on the then current state of the foreign exchange or other market conditions or future direction of exchange rate movements.
10.3 You agree that we may, at our sole discretion, obtain a credit report on you for the purpose of ascertaining your financial status or similar purposes.
10.4 We may amend this Agreement at any time by providing you prior written notice. Such amendment shall be binding from the date of such notice. Any such amendment shall not be retrospective or affect the rights or obligations that may already exist in respect of any then-pending Transaction.
10.5 No failure or omission by either of us to carry out our obligations under this Agreement or any Transaction shall give any rise to any claim against us if such failure or omission is due to any abnormal or unforeseeable circumstances beyond the our control (such as acts of God, terrorism, war, government action or natural disaster), the consequences of which would have been unavoidable despite all of our efforts to the contrary. We shall provide you notice if we are unable to fulfill our obligations and shall resume the performance of such obligations as soon as reasonably practicable after the removal of such circumstances.
10.6 You agree that nothing in this Agreement shall be deemed a partnership, joint venture or agency relationship between the parties.
10.7 You may not assign or otherwise transfer the benefit of any agreement without our written consent.
10.8 We may from time to time – by telephone, email or other electronic communication, fax or post – provide you with information relating to other services that either of us can offer. We may also notify you of significant movements in exchange rates, but we are under no obligation to and should not be relied upon to do so.
10.9 The Bank may use agents and service providers to assist in providing the Service. The Company administers and manages the Service on behalf of the Bank, including the provision of marketing, customer service and administrative services on behalf of and under the oversight of the Bank.
10.10 For purposes of this Agreement, “Business Day” shall mean any day, other than a Saturday, Sunday, federal or New York state holiday, on which the Bank’s offices are open for business.
10.11 If any provision of this Agreement is held to be invalid or unenforceable, such provision will be deemed to be modified to the minimum extent necessary to make it valid and enforceable and the rest of this Agreement will not be affected.
10.12 This Agreement and any document expressly incorporated into it constitutes the whole agreement between us and supersedes any previous discussions, correspondence, arrangements or understandings between us.
11 GOVERNING LAW; ARBITRATION
11.1 This Agreement is entered into in order to provide the Service, which involves cross-border payment transactions. This Agreement and any claim or controversy arising out of or relating thereto, including any claim in connection with the Service (collectively, a “Claim”) is therefore governed by, and you agree to submit to, the laws of the State of New York, United States and applicable federal law without regard to conflicts or choice of laws principles, whether or not you live in New York.
11.2 Arbitration. You hereby consent to arbitration of all claims before a single arbitrator. The arbitrator will be selected and the arbitration conducted pursuant to the commercial arbitration rules of the american arbitration association, as then in effect (or any successor rules). No “class” or similar group arbitration shall be permitted. All arbitration hearings or similar proceedings shall be held in new york, new york, although you may elect telephonic proceedings or waive any hearing. The aaa commercial arbitration rules and consumer arbitration rules are available for review at: https://www.Adr.Org/aaa/faces/rules (click rules, then click commercial arbitration rules and mediation procedures, or consumer arbitration rules, respectively). Any arbitral award shall be final and binding and may be enforced by any court of competent jurisdiction. You understand that, in return for your agreement to this section, we are able to offer you the service at the terms designated, and that your assent to this section is an indispensable consideration to this agreement. You also acknowledge and understand that, with respect to any claim:
• You are giving up your right to have a trial by jury;
• You are giving up your right to have a court resolve any such dispute; and
• You are giving up your right to serve as a representative, as a private attorney general, or in any other representative capacity, or to participate as a member of a class of claimants, in any arbitration or lawsuit involving any such dispute. This Section is made pursuant to a transaction involving interstate commerce and will be governed by the Federal Arbitration Act, 9 U.S.C.1-16.
12 NOTICES TO US
12.1 If you have any problems using the Service, you should contact Equals Group Plc at +1 833-295-3757 or email@example.com. All notices permitted or required under this Agreement shall be delivered via email to firstname.lastname@example.org or via post to: 3rd Floor, Vintners’ Place, 68 Upper Thames St, London EC4V 3BJ
13 CONSENT TO TRANSACT IN ELECTRONIC FORMAT
The Service is an electronic commerce relationship. Therefore, by subscribing to the Service, you acknowledge and expressly agree that transmission of Service Communications (as defined below) and any document delivered to you in connection with the Service shall be executed using electronic signatures, as applicable, and delivered in electronic format. Such electronic documents shall suffice to bind the parties thereunder in the same manner as if an original document or signature had been delivered. Unless otherwise required by applicable law, the following categories of information (“Service Communications”) will only be provided by electronic means and not in paper format or through other non-electronic means:
(ii) your records of Transactions through the Service;
(iii) any initial, periodic or other disclosures or notices provided in connection with the Service, including without limitation those required by federal or state law;
(iv) any customer service communications, including without limitation communications with respect to claims of error or unauthorized use of the Service; and
(v) any other communication related to the Bank, Company or the Service. Access to electronic disclosures will be provided by way of the internet. Your history of use of the Service is available for viewing online from your account on the Service website. In order to view these disclosures, you will need a hardware device that can access the internet via modem or other form of connection. Your hardware device must run on an appropriate operating system. You must be able to access the internet to access our website. Additionally, standard, widely available internet browser software is required to access the disclosures from a personal computer, and to view and download certain documents (including this Agreement) Adobe Acrobat Reader software is required. If you require a printed copy of your Transaction history, you can request this by calling +1 833-295-3757 or emailing email@example.com. You may obtain these documents in paper form without charge by printing them yourself. You may withdraw your consent to receive all Service Communications and documentation electronically by contacting Equals Group at firstname.lastname@example.org or via telephone at +1 833-295-3757. If you choose to withdraw your consent, your use of the Service shall be terminated. We recommend you download or print a copy of this Agreement for your records.