Usage Agreement
These are the terms and conditions to which you agreed when signing up to the XEtrade system. If you have not already done so, please print this page and retain it for your reference. To review the general XE.com Terms of Use, click here.
XEtrade Usage Agreement
1. Definitions
In this Agreement the these terms have the following meanings:
"Application Form" means the application form which you completed and submitted to CH for the purpose of using the System;
"Business Day" means a day on which commercial banks are open for business (including dealings in foreign exchange) in the place specified for that purpose;
"CH" means Custom House Ltd., the party with which the you are entering into this Agreement. XE.COM has selected CH to be the provider of the foreign exchange services offered via the System. As such, this Agreement is between you and CH, the provider of the foreign exchange service. XE.COM's role is as a facilitator.
"Currency" means money denominated in the lawful currency of a country;
"Customer Support Number" means the customer assistance phone number located in the "Contact" section of the System (which is accessible at the top of most pages in the System);
"Electronic Access Device" means any device which allows you to use or to access the System including, but not limited to, a personal computer;
"Information Provider" means any entity providing XE.COM or CH, whether directly or indirectly, with Market Information including, but not limited to, stock exchanges and news service providers;
"Market Information" means information relating to the financial markets, including market data, research, analysis, forecasts and commentary;
"Password" means the combination of numbers and/or letters that you select from time to time that, together with your Account Number, enable you to access the System;
"Principal" means each person or entity for or on behalf of which you have the right to purchase or sell Currency;
"Software" means any software program provided to you by XE.COM or CH which enables you to access or use the System;
"The System" means the XE.COM XEtrade Discount On-Line Foreign Exchange system, a web-based system facilitating foreign exchange transactions, including without limitation the following services: basic trades, bids, forward contracts, and drawdowns on forward contracts.
"Trade" means a transaction in which you agree to purchase or sell Currency from or to CH using the System.
"XE.COM" means XE.com Inc.
"you" and "your" refer to the party which is entering into this Agreement with CH.
2. TRADES
a. In order to complete a Trade using the System, you will first have to review and specifically confirm that Trade. Once you confirm the Trade, by clicking on the appropriate button, you will have accepted the Trade and the Trade will have been entered into and will be your binding obligation.
b. You will be responsible for each Trade that is entered into, whether or not it was entered into with your authorization, including any Trade that is entered into by any person who uses a Password without your proper authorization, and any Trade that is entered into by any unauthorized person through a computer which the System has been accessed is left unattended. However, you will not be responsible for any unauthorized Trade that is entered into after you have given CH written notice by mail, courier, or fax (in the manner described below) to terminate use of Password that was used to enter into the Trade in question.
c. If for any reason you wish to cancel a Trade that has been entered into, you must notify CH immediately by calling the Customer Support Number. In certain circumstances, CH may have the ability to cancel the Trade, and in these cases, CH will use its reasonable best efforts to cancel the Trade. However, you understand that once the Trade has been entered into, the Trade is your binding obligation and that the cancellation of any such Trade will be entirely within the sole and absolute discretion of CH. In addition, for any Trade that is cancelled by CH, you must reimburse CH for any breakage costs and other expenses that may have been incurred by CH to cancel the Trade.
d. The terms of each Trade will be set out in the Trade confirmation presented to you on the Trade Confirmation Screen following your acceptance of the Trade. The Trade confirmation is evidence of the terms of a completed Trade. The Trade will not be invalidated if for any reason the Trade confirmation is not presented to you by the System, including (without limitation) as a result of any computer malfunction. If for any reason the Trade confirmation is not presented to you, the records of CH with respect to that Trade will constitute conclusive evidence of the terms of the Trade. If a Trade confirmation is not presented to you for any reason, you should notify CH immediately by calling the Customer Support Number, and CH will provide you with a confirmation setting out the terms of the Trade.
e. The terms of each Trade set out in the related Trade confirmation are incorporated into this Agreement and form a part of this Agreement. This Agreement and the terms of each Trade together form the agreement between you and CH and together constitute a single agreement between you and CH. If there is any inconsistency between this Agreement and a Trade confirmation, the Trade confirmation will govern.
f. Once a Trade has been entered into, you must make each payment or delivery required to be made by you under the terms of the Trade in the Currency, in the amount, on the date and in accordance with the settlement instructions for the Trade, as set out in the related Trade confirmation. You must ensure that any account from which your payment obligations under a Trade are to be made contain sufficient cleared funds to settle the Trade on the value date for the Trade. If the account does not contain sufficient cleared funds to settle the Trade, you will be liable for any resulting fees payable with respect to the account in accordance with the terms under which you hold such account. In addition, if you fail to settle the Trade on the value date for the Trade, CH may, without limiting any other remedies that it may have, in its absolute discretion cancel the Trade, in which case you will have to reimburse CH for any breakage costs and other expenses incurred by CH to cancel the Trade.
g. If you select a value date for the settlement of a Trade and that date is not a Business Day in the locality in which any of the accounts from which you will be making or receiving payment for a Trade resides (that is, if the account is maintained at a branch in that province), the value date for the Trade will be the first day following the value date that you selected that is a Business Day in each of the localities in which such accounts reside, notwithstanding anything to the contrary in the Trade confirmation.
h. CH will use its reasonable best efforts to process your transactions on the same day they are submitted through the System. CH cannot control nor be responsible for the time it takes financial institutions to settle accounts. In the event that a transaction is processed on the next business day for whatever reason, neither XE.COM nor CH shall, in the absence of gross negligence or willful misconduct, be responsible for failure, delays or errors in the completion of the transaction and neither XE.COM nor CH shall have any liability for consequential or special damages.
3. AUTHORITY TO TRADE - BUSINESSES OR ORGANIZATIONS
a. You must provide CH with a list of one or more employees who have authority to enter into Trades on your behalf and/or who have authority to provide CH with settlement and delivery instructions for completed Trades. You represent that each such employee has authority to enter into Trades on your behalf and/or to provide CH with settlement and delivery instructions for completed Trades and that any such Trade will be enforceable against you. Any restrictions on an employee's authority to deal with CH previously communicated by you to CH are deemed to be superceded by your representation in this Agreement as to that employee's authority to enter into Trades, unless you specifically advise CH that those restrictions are also applicable to that employee's authority to enter into Trades.
b. You must also provide CH with a list of one or more Principals on behalf of which you intend to purchase or sell Currencies. You represent that you have full discretionary authority to purchase and sell Currencies on behalf of each of those Principals and that each Trade entered into on behalf of a Principal will be enforceable by CH against the Principal in accordance with its terms.
c. These representations are deemed to be repeated on each date on which you enter into a Trade. You will indemnify and hold harmless both XE.COM and CH from and against all claims, costs, losses and expenses incurred by either XE.COM or CH arising out of, or in respect of, any claim that an employee was not authorized to enter into a Trade on your behalf and/or provide CH with settlement and delivery instructions for completed Trades, or that you were not authorized to enter into or perform a Trade for a Principal or that a Trade for a Principal is otherwise not enforceable against the Principal by CH. This indemnity will survive the completion of any Trade or the termination of this Agreement.
4. RECORDS
a. XE.COM and CH may maintain a database of all your instructions for the System. CH's records will be conclusive and binding on you in any dispute, including in any legal proceeding, as the best evidence of your Trades using the System, in the absence of clear proof that CH's records are erroneous or incomplete.
b. Neither XE.COM nor CH will be liable to you as a result of any payment made pursuant to incorrect settlement or delivery instructions provided by you when using the System.
c. You hereby authorize XE.COM and CH to use the information you provide to obtain credit reports or other information of a credit nature. All information provided is considered private and confidential, and will not be copied, sold, or distributed to any other firm or organization.
5. SET OFF
If you fail to make a payment or delivery when due under this Agreement or under a Trade, CH may without prior notice set-off any amount owing by you to CH under this Agreement or under a Trade, against any amount owing by CH to you, whether or not the amount is owed to you under this Agreement or under a Trade.
6. INFORMATION SOURCES
Certain Market Information provided through the System has been independently obtained from various Information Providers through sources believed to be reliable. Neither XE.COM, CH, nor the Information Providers guarantee the timeliness, sequence, accuracy or completeness or fitness for a particular purpose of any Market Information provided through the System. The Market Information may include views, opinions, and recommendations of individuals or organizations. You understand that neither XE.COM, CH, nor the Information Providers necessarily endorse such views or opinions, or are providing any investment, tax, accounting or legal advice to you by including such Market Information in the System.
7. LIMITATION OF LIABILITY
Neither XE.COM nor CH will be liable to you for any loss, costs or damages which you incur as a result of your use of the System or if the System is not available, including if for any reason it is not available during its normal hours of operation. For example, and without limitation, neither XE.COM nor CH will be liable:
a. for communication malfunctions that affect the accuracy or timeliness of messages or instructions between you and CH and/or which prevent messages from being transmitted in whole or in part;
b. if you make a mistake when entering information when using the System;
c. if any person fails to log off a personal computer and an unauthorized Trade is entered into using the System;
d. if, for any reason, you cannot access any part of the System or the System does not function or is not available; or
e. for any harm or loss to your personal computer records or data.
Neither XE.COM nor CH will be responsible for any loss, damages or injury suffered by you by reason of any act or omission in the course of or in connection with the operation of any Electronic Access Device.
8. SERVICE MODIFICATIONS AND INTERRUPTIONS
XE.COM or CH may modify any or all of the System at any time. The System may periodically be unavailable to you during its normal hours of operation in order to allow for maintenance, updates, or other cause. Neither XE.COM nor CH will be responsible for delays or failures in performance resulting from acts beyond its reasonable control. Such acts include but are not limited to, acts of God, strikes, postal interruptions, lockouts, riots, acts of war, epidemics, fire, communication line failures, power failures, equipment or software malfunction, earthquakes or other disasters.
9. GENERAL
This Agreement is in addition to, and not in substitution of, any other present or future agreement between you and XE.COM or CH.
10. JURISDICTION
This Agreement shall be governed exclusively by the laws of the Province of British Columbia. The courts of the Province of British Columbia shall have exclusive jurisdiction for settling disputes arising from theAgreement and both parties irrevocably will submit to that jurisdiction.
11. CHANGES TO THIS AGREEMENT
Upon prior notice to you, which may include communication via the System, XE.COM or CH may amend any provision of this Agreement at any time, and your continued use of the System after the date of any such amendment will constitute for all purposes your agreement and consent to such amendment.
12. TERMINATION
CH may terminate this Agreement at any time without notice. You may terminate this Agreement at any time by notifying CH in writing in accordance with Section 13. Termination of this Agreement by either CH or you will not affect any Trades that were entered into prior to such termination, in respect of which this Agreement shall continue until all obligations under those Trades have been performed.
13. NOTICES AND COMMUNICATION OF INSTRUCTIONS
Notices which you need to deliver to CH must be delivered by mail, courier or fax as follows:
XEtrade - CH
International Trade Centre
517 Fort Street
Victoria BC V8W 1E7
Canada
Toll Free Fax: 1-877-932-6684 (US and Canada only)
Fax: (250) 412-1779
Any notice will be deemed effective (a) if delivered by mail, on the date it is received by CH; (b) if delivered by courier, on the date it is delivered to CH; and (c) if delivered by fax, on the date that transmission is received in legible form by CH.
CH may, but is not obliged to, rely and act upon telephone, fax and any other electronically transmitted instructions from or purporting to be from a person authorized by you and which CH believes in good faith to be genuine. Neither XE.COM nor CH shall, in the absence of gross negligence or willful misconduct, be responsible for failure, delays or errors in the receipt of such instructions and neither XE.COM nor CH shall have any liability for consequential or special damages.
14. LANGUAGE
You confirm that you have requested this Agreement and all related documents to be drawn up in the English language only. Vous confirmez avoir exigé que ce contrat et tous les documents s'y rapportant soient rédigés en anglais seulement.
