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TERMS AND CONDITIONS
UK / EU Introducer
Private Client and Corporate Introducer Terms V1.0 06/2020
These terms and conditions (“Our Terms”) will be incorporated into the contract that is formed when We agree to appoint you as an Introducer and explain Your responsibilities to Us and Our responsibilities to You, how and when the contract between Us and You can be terminated and the extent to which We may be liable to You.
Our Terms apply to any Introduction made by You to Us of an Individual and/or Business, with whom We contract to provide Our Services (as defined herein).
For the avoidance of doubt, Our Services are provided by Us to each Introduced Client:
(a) in the European Union by Xe Europe B.V., (trading as “Xe” or “Xe.com”) (“Xe EU”), licensed and supervised by the Netherlands Central Bank (De Nederlandsche Bank N.V.) for the provision of payment services and forms part of the Xe Group; and
(b) in the United Kingdom by HiFX Europe Limited, (trading as “Xe” or “Xe.com”) (“Xe UK”), authorised by the Financial Conduct Authority under the Payment Services Regulations 2017, reference number 462444, for the provision of payment services, each of Xe EU and Xe UK form part of the Xe Group of companies.
1. DEFINITIONS
1.1 In Our Terms the following words have the following meanings:
“Affiliate” shall mean an entity that is a successor of, controls, is controlled by or is under common control with a party;
“Appointment Form” the form which We require You to complete, sign and return to Us before We can appoint You as an Introducer;
“Business" any natural person, partnership, company, body corporate or incorporate, trust, charity or other entity but excluding any natural person acting in a personal capacity or otherwise outside of his or her trade or profession and "Businesses" shall be construed accordingly;
“Business Day” to 5.30pm Monday to Friday CET excluding Public Holidays in the Netherlands and England (please note that this is different to our office hours, details of which are published on Our Website);
“Commission" means the amount calculated as set out in the Appointment Form which may be payable to You by Us in accordance with Our Terms following an Introduction if a Transaction occurs;
“Commission Statement” the monthly written statement We produce and supply to You setting out any Commission that may be due to You relating to Transactions in the immediately preceding month;
“Competitor” any Individual or Business providing services the same as or similar to Our Services;
“Confidential Information" knowhow, trade secrets and confidential or business-sensitive information of a disclosing party however communicated and held in whatever form and on whatever media, and whether designated as confidential or otherwise which a receiving party ought reasonably to have known was of a secret or confidential nature, and which shall (without limitation) include all and any information relating to (i) any Transaction, (ii) any Commission (including what it is and how it is to be calculated), (iii) the Appointment Form (and any details in it including any specific terms which We agree with You), (iv) the Contract (including its existence), and (v) Our Terms (including any of its provisions), and where “disclosing party” and “receiving party” shall have the meanings given to them in clause 4.1;
“Contract" the contract that is formed between You and Us when, after You have properly completed, signed and returned the Appointment Form to Us and We have confirmed to You in writing Our acceptance of Your appointment;
“Contract Period” the period during which the Contract shall remain in force;
“Currency Services” the sale or purchase of currencies as part of Our personal foreign exchange services business;
“Currency Transaction” a transaction forming part of Our Currency Services executed by Us on behalf of an Introduced Client;
“Data Protection Laws” means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (“GDPR”), any applicable local implementation of GDPR and all other applicable laws relating to data protection;
“Effective Date" the date on which Your appointment becomes effective as provided for in the Appointment Form;
“Gross Revenue” means the revenue generated by us:
(a) in respect of Introduced Clients contracting with Xe UK for Our Services;
(b) in respect of Introduced Clients contracting with Xe EU for Our Services;
“Introduction" a referral to Us by You in accordance with Our Terms of any person with a view to them becoming an Introduced Client, and "Introduce" and "Introduced" shall be construed accordingly;
“Introduced Client” an Individual or Business Introduced to Us by You with whom We contract to provide Our Services;
“Individual” any living individual acting in a personal capacity outside of his or her trade or profession;
“Our Terms” these introducer appointment terms and conditions;
“Our Services” means our foreign exchange and payment services provided by Us to
Introduced Clients. For the avoidance of doubt, for the purposes of this Contract, Our Services comprise: (i) the Introduced Client selling Us currency in return for the Introduced Client buying currency through a spot trade, forward trade, market order or repeat payment abroad trade(s) with Us; and (ii) the payment by Us of the Introduced Client’s bought currency to the Introduced Client’s designated account or designated beneficiary’s account.;
“Our Website” means the website located at Xe.com;
“Prospect" as defined in clause 2.1.1;
“Payment Services” whereby we will send the Introduced Client’s money (in most cases being the money the Introduced Client purchased from us pursuant to our Foreign Exchange Services) to the account of a third party;
“Transaction” a transaction forming part of Our Services executed by Us on behalf of an Introduced Client;
“Regulations” means the Payment Services Regulations 2017 (SI 2017/752), the EU's revised Payment Services Directive (Directive (EU) 2015/2366) as implemented in Dutch law, including in the Netherlands Civil Code (Burgerlijk Wetboek), Netherlands Financial Supervision Act (Wet op het financieel toezicht), Prudential Supervision Decree (Besluit prudentiële regels Wft) and the Market Conduct Supervision (Financial Institutions) Decree (Besluit Gedragstoezicht financiële ondernemingen) (each as amended from time to time);
“VAT” value added tax as imposed by the provisions of the Value Added Tax Act 1994 and any legislation promulgated thereunder, or equivalent legislation (as applicable);
“Xe Group” refers to HiFX Europe Limited, Xe Europe B.V., HiFX Australia Pty Ltd, HiFX Limited, Xe Corporation Inc., HiFX Canada Inc. and Continental Exchange Solutions Inc. dba “Xe” or “Xe.com”, each being a wholly owned subsidiary of Euronet Worldwide, Inc.(“EWI”);
“We”, “Our” or “Us” refers to the particular Xe Group entity that contracts with the relevant Introduced Client for Our Services, specifically:
(c) in the European Union, Xe Europe B.V (trading as “Xe” or “Xe.com”), which is a company incorporated under the laws of the Netherlands; registered number: 72587873; registered office: Rozengracht 12-1, 1016 NB Amsterdam, the Netherlands and provides Our Services to EU based customers; and
(d) in the United Kingdom, HiFX Europe Limited (trading as “Xe” or “Xe.com”), which is a company incorporated in England with company number 3517451 and registered office at Maxis 1, Western Road, Bracknell, Berkshire, RG12 1RT and provides Our Services to our UK based customers.
“You” “Your” “Introducer” means the Individual or Business set out in the Appointment Form;
1.2 All references in Our Terms (unless otherwise stated):
(a) to a person or persons shall include any natural person, company, firm, partnership, trust, public body or other organisation;
(b) to “clauses” are to clauses of Our Terms;
(c) to any legislation (including statutes, statutory instruments, statutory provisions or regulations) shall include them as amended or re-enacted from time to time; and
(d) made in the singular shall include the plural and vice versa.
1.3 All headings used in Our Terms are for ease of reference only and shall not affect the interpretation of Our Terms.
2. INTRODUCTIONS
Your Responsibilities
2.1 During the Contract Period You shall:
(a) make Introductions to Us of all Individuals and/or Businesses whom You believe require or have expressed an interest in Our Services (a “Prospect”);
(b) use Your best endeavours to facilitate Our engaging with all Prospects;
(c) assess and determine the suitability of all Prospects, including (without limitation) by establishing all those matters detailed in clause 2.2;
(d) assist each Prospect with any application process which We require it to complete before the Prospect can become an Introduced Client; and
(e) in the exercise of all Your obligations to Us under the Contract at all times use due skill, care and ability (which shall not be to less than any standard required by English law) and provide such assistance to Us as We shall reasonably require.
2.2 You warrant to Us that You will only refer a Prospect to Us where, to the best of Your knowledge, information and belief, You have established that each of the following is correct
(a) the Prospect is over 18 years of age;
(b) the Prospect is in need of Our Services;
(c) the Prospect has its own bank account;
(d) the Transaction is for a non-speculative purpose;
(e) the Prospect is acting as principal;
(f) the Prospect is not a resident of any sanctioned country relevant or applicable from time to time;
(g) consent has been given to You by the Prospect in accordance with clause 5; and
(h) You have not held yourself out to be our Agent (as defined in the Regulations).
2.3 You must promptly by return sign and send to Us a copy (retaining one copy for Your records) of the Commission Statement as Your confirmation that You accept as accurate the Commission stated to be due to You in it.
2.4 When You return the signed Commission Statement to Us, You are also confirming to Us in writing that each of the steps set out in clause 2.2 were undertaken by You in relation to each Introduced Client referred to in that Commission Statement.
2.5 If You have not met all the requirements of clause 2.2 in respect of an Introduced Client, We shall treat that Introduction as invalid and no Commission will be payable by Us for that Introduced Client.
2.6 We are entitled to withhold payment of Commission on any Commission Statement until You have met the requirements of clauses 2.3 and 2.4 to Our satisfaction.
2.7 We shall pay You all Commission in cleared funds by not later than the end of the month following receipt of your signed Commission Statement.
2.8 All Commission shall be paid by Us to the bank account specified in the Appointment Form or such other account You may advise to Us in writing from time to time.
2.9 If Your appointment by Us is on an exclusive basis (as set out in the Appointment Form), You will not during the Contract Period refer any Prospect to any other person, including (without limitation), any of Our Competitors.
2.10 If Your appointment by Us is on a non-exclusive basis (as set out in the Appointment Form) You may during the Contract Period refer any Prospect to any other person for the purposes of the sale or purchase of currencies.
2.11 Whether Your appointment by Us is on an exclusive or non-exclusive basis (as set out in the Appointment Form), You will not during the Contract Period refer any Introduced Client to any other person, including (without limitation) to any of Our Competitors, in order that such person may offer or perform any sale or purchase of currency for that Introduced Client.
2.12 You warrant to Us that in referring Prospects to Us, You will:
(a) not engage in any activity, practice or conduct in the United Kingdom or elsewhere which, if carried out in the United Kingdom, would constitute an offence under sections 1, 2 or 6 of the Bribery Act 2010;
(b) maintain in place adequate procedures designed to prevent its employees and any other person providing services for it or on its behalf engaging in any activity, practice or conduct in the United Kingdom or elsewhere which if carried out in the United Kingdom would constitute an offence under sections 1, 2 or 6 of the Bribery Act 2010; and
(c) co-operate fully with any investigation or enquiry by or on Our behalf, any governmental, regulatory or other body in relation to any allegation or suspicion of any offence under the Bribery Act 2010.
Our Responsibilities
2.13 Subject to the provisions of this clause 2, and in consideration of You making Introductions to Us, an entitlement to Commission will arise to You each time a Transaction occurs during the Contract Period. No entitlement to Commission shall arise to You for any other reason, including Our making available any other services to an Introduced Client.
2.14 We will only pay Commission to You:
(a) in respect of Transactions that occur during the Contract Period;
(b) where You have met all requirements on You set out in this clause 2; and
(c) in accordance with this clause 2.
2.15 We will only pay Commission that is due to You by the method of payment designated in the Appointment Form and to a bank account held in Your name. We cannot accept payment instructions from, nor will We make any payment to, any third party, even if You ask Us to do so.
2.16 You shall be solely responsible for the payment of all taxes, duties or levies which may be payable in any country in respect of the Commission, including (without limitation), any applicable VAT. You warrant that the activities which You are required to, or which You warrant to Us that You will, undertake are exempt from VAT. For the avoidance of any doubt, We will make no deductions from Commission on account of tax or any other imposition except as required by law, unless you advise otherwise. By signing the relevant Commission Statement, you confirm the forgoing and You agree to indemnify Us against all tax payments, penalty payments or interest on these tax payments or penalty payments, required to be made by Us in relation to this Contract.
2.17 We will send You the relevant Commission Statement within 21 (twenty one) days of the end of the calendar month to which it applies.
2.18 Where the value of Commission showing due to You as set out in the Commission Statement is £50.00 (fifty pounds sterling) or less, We will not pay You this Commission in the usual payment period. The amount concerned will be carried forward and become payable to You in the next payment period or when the outstanding Commission showing due to You collectively total more than £50.00 (fifty pounds sterling).
2.19 Your entitlement to Commission set out in any Commission Statement will expire if We are not in receipt of Your signed copy of that Commission Statement within 90 days of the date of that Commission Statement being provided.
2.20 In the event that We, at any time for any reason pay any sum to You as Commission in advance of the occurrence of the Transaction on which such Commission was to be calculated and such Transaction does not proceed, You shall not be entitled to retain such sum, which shall become due and payable by You to Us as a debt.
2.21 We shall be entitled, at Our sole discretion, to set off any such sum against any amount which is, or may at any time, become due to You from Us (including by way of Commission) or require You to pay to Us any such sum on demand in full without set off or deduction.
2.22 The manner in which We provide any Introduced Client with, and the amount We charge any Introduced Client for, Our Services is entirely at Our discretion. We may, at Our entire discretion, refuse to accept an Introduction (and, as a result, the Prospect will not become an Introduced Client), if We deem a Prospect unsuitable or if a Prospect is already a prospect (being someone who We already believe requires, or who has already expressed an interest to Us in, Our Services) or existing client of Us or any of Our Affiliates or has already been introduced to Us by another person.
2.23 Without limiting any other right or remedy We may have under the Contract or in law, We shall be entitled automatically, and without any notice to You, to suspend payment to You of any Commission in the event that:
(a) We discover any breach by You at any time of any of Our Terms;
(b) it becomes unlawful for Us to make further payments to You or We are advised by any court of competent jurisdiction or any governmental or regulatory body which authorises Us to perform Our Services to cease to make further payments to You, and any such suspension will only be lifted by Us at Our discretion and subject to Us lawfully being able to do so.
2.24 We shall keep and maintain throughout the Contract Period and for a period of 12 (twelve) months after the termination or expiry for whatever reason of the Contract, full and accurate records relating to all Introductions, Transactions and Commission (including the manner in which it has been calculated) (“the Records”).
3. INTELLECTUAL PROPERTY
3.1 You shall not at any time make any use of any of Our Brands for any purpose whatsoever save as We may in advance in writing expressly permit You to do so and on such terms as We shall in Our sole discretion deem fit.
3.2 You acknowledge that all intellectual property rights whatsoever associated with Our Brands belong to and shall vest absolutely in Us.
3.3 You shall not attempt to register or register any name the same as or similar to any of Our Brands as a registered trademark or domain name anywhere in the world at any time. You shall not make use of any name the same as or similar to any of Our Brands at any time.
3.4 You shall not purchase or make use of any keyword, AdWord or other similar device available from any person (including Google, Yahoo and any other search engine operator) the same as or similar to any of Our Brands.
3.5 We agree that we shall not at any time make any use of any of Your Brands for any purpose whatsoever save as You may in advance in writing expressly permit Us to do so and on such terms as You in Your sole discretion deem fit.
3.6 We acknowledge that all intellectual property rights whatsoever associated with Your Brands belong to and shall vest absolutely in You.
3.7 We shall not attempt to register or register any name the same as or similar to any of Your Brands as a registered trademark or domain name anywhere in the world at any time. We shall not make use of any name the same as or similar to any of Your Brands at any time.
3.8 We shall not purchase or make use of any keyword, AdWord or other similar device available from any person (including Google, Yahoo and any other search engine operator) the same as or similar to any of Your Brands.
3.9 In this clause 3 and in Our Terms:
(c) the phrase “Our Brands” means the trademark “Xe” or “Xe.com”, the trade mark “HIFX”, any stylised wording or logo for “Xe”, “Xe.com” or “HIFX” and any other trading, product or service name used by Us from time to time in connection with any of Our products, services or business.
(d) the phrase “Your Brands” means any trademark used by You from time to time in connection with any of Your products, services or business.
4. CONFIDENTIALITY
4.1 Subject to clause 4.2, each party (the "receiving party") shall at all times treat all Confidential Information which it receives from the other party (the "disclosing party") as strictly secret and confidential and each receiving party shall at all times use all Confidential Information which it receives from the disclosing party solely for the purposes of the Contract and shall not disclose, whether directly or indirectly, to any third party any such Confidential Information save only to its employees, subcontractors or professional advisers where it is necessary for it to do so in order to carry out the purpose of the Contract and at all times subject to suitable conditions of confidence which it must have communicated to them.
4.2 The obligations set out in clause 4.1 shall not apply to any Confidential Information that is:
(a) already in the public domain at the date of disclosure through no fault of the disclosing party;
(b) already properly and lawfully in the receiving party’s possession prior to disclosure to it by the disclosing party; or
(c) properly and lawfully received from a third party without restriction as to its disclosure.
4.3 The receiving party shall immediately notify the disclosing party if it becomes aware of any breach by it of any of the obligations set out in clause 4.1 or of any breach of confidence in respect of any Confidential Information (whether by itself or any person to whom it may have at any time divulged any Confidential Information)and shall give to the disclosing party all reasonable information and assistance in connection with any action or proceedings which the disclosing party may wish to take against any such person.
4.4 Each receiving party recognises the importance to the disclosing party of preserving the secrecy and confidentiality of all Confidential Information and that, in addition to any right or remedy that may be available to the disclosing party in the event of any breach by it of any of the obligations set out in clause 4.1 or of any breach of confidence in respect of any Confidential Information (whether by itself or any person to whom it may have at any time divulged any Confidential Information), the disclosing party may bring action in any court, including by the seeking of temporary or permanent injunctive relief (or its equivalent in any jurisdiction).
4.5 The obligations set out in clause 4.1 shall remain in full force and effect during the continuance of the Contract and for a period of 5 (five) years thereafter.
4.6 In addition to the obligations set out in clause 4.1 with respect to Confidential Information where You are a receiving party, You agree that you shall never disclose to anyone at any time for any reason, save only with our express consent given in advance in writing signed by one of Our Directors, any information relating to (i) any Transaction, (ii) any commission (including what it is and how it is to be calculated), (iii) the Appointment Form (and any details in it including any specific terms which we agree with You), (iv) the Contract (including its existence), and (v) Our Terms (including any of its provisions).
4.7 Nothing in this clause 4 shall operate to prevent any disclosure of any information (including any Confidential Information) referred to in it to the extent which a party may be required to make by law or by order of any court of competent jurisdiction.
5. DATA PROTECTION
5.1 In this clause 5, “personal data”, “data controller”, “data subject”, “processing” and “data protection principles” has the meaning set out in Data Protection Legislation. The term ‘Us’ shall also be deemed to include our Affiliates for the purpose of this clause 5.
5.2 You warrant to Us that any 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 Data Protection Laws.
5.3 You warrant to Us that You shall obtain the consent of each Prospect to:
(a) the disclosure by You to Us and/or any of our Affiliates of any personal data relating to that Prospect;
(b) use of any personal data relating to that Prospect for the purposes of making contact with that Prospect in order to offer to them Our Services; and
(c) the disclosure by Us to You of any personal data relating to that Prospect and any other data relating to any Transaction which We may execute for that Prospect for the purposes of calculating and reporting earned Commission to You.
5.4 You warrant to Us that You shall at all times, where You are, for the purposes of the Data Protection Laws, a data controller in respect of that personal data (or its equivalent in the jurisdiction in which You operate):
(a) at all times process that personal data in accordance with all applicable Data Protection Laws;
(b) where You receive any complaint, notice or communication concerning the processing of that personal data or Your or Our compliance with the Data Protection Laws, immediately notify Us and provide Us with Your full co-operation and assistance;
(c) at Our request, co-operate reasonably with Us in the event We receive a request from a data subject in relation to any such data pursuant to any rights available to such data subject under the Data Protection Laws and take such other steps as We may from time to time reasonably require in order for Us to properly ensure Our compliance with the Data Protection Laws in respect of such data.
5.5 Where You are, for the purposes of the Act, a data processor in respect of that personal data (or its
equivalent in the jurisdiction in which it operates):
(a) process that personal data in accordance with the Data Protection Laws;
(b) at all times process that personal data only for the purposes of verifying Your earned Commission or such other legitimate purpose which We may in advance in writing permit;
(c) where You receive any complaint, notice or communication concerning the processing of that personal data by Us or Your or Our compliance with the Data Protection Laws, immediately notify Us and provide Us with full co-operation and assistance;
(d) promptly comply with any request from Us to amend, transfer, delete or cease to use it;
(e) not disclose it to, discuss or share it with or transfer it to any person other than as We expressly direct and then only strictly in accordance with Our instructions;
(f) take such technical and organisational measures as shall be appropriate and/or as We may require You to take against that personal data’s unauthorised or unlawful processing and against that personal data’s accidental loss or destruction or damage, in each case having regard to the state of technological development and the cost of implementing the measures and the nature of the personal data concerned and including (without limitation) to ensure the reliability of Your employees who may have access to that personal data; and
(g) take such other steps as We may from time to time reasonably require in order for Us to properly ensure Our compliance with the Data Protection Laws in respect of such data.
5.6 Each party hereby acknowledges to the other party that it is able only to disclose personal data as, and to the extent, permitted by the Data Protection Laws. This may mean that where a party requests data which may amount to or include personal data from the other party, the other party may have to refuse that request or only be able to meet that request in part.
6. TERM AND TERMINATION
6.1 The Contract shall come into force on the Effective Date and shall continue in force unless or until terminated in accordance with the provisions of this clause 6.
6.2 Either party may terminate the Contract at any time on 90 (ninety) days' notice in writing to the other party, unless otherwise agreed between the parties.
6.3 We may terminate the Contract at any time:
(a) immediately on notice in writing to You where it becomes or may become unlawful for Us to continue with the Contract or We are required to terminate the Contract by law or by any court of competent jurisdiction or We are required or requested to do so by any governmental or regulatory body which authorises Us to perform Our Services;
(b) immediately on notice in writing to You, in the event of Your non-compliance with any applicable statute or regulation or in the event that We discover or have reasonable cause to suspect any crime, fraud or fraudulent activity by You;
(c) on 30 (thirty) days’ notice in writing to You, where We otherwise deem it necessary for business reasons or where, in Our reasonable opinion, We consider any of Your activities or Our continued relationship with You may cause material damage to Our business or reputation;
(d) as provided by clause 9.9.
6.4 Either party may terminate the Contract immediately by notice in writing to the other party, if that other party:
(a) commits a material breach of any term or any provision of Our Terms or of the Appointment Form and, in the case of a breach capable of remedy, fails to remedy the breach within 30 (thirty) days after receipt of such notice setting out full particulars of the breach and requiring it to be remedied;
(b) ceases or threatens to cease carrying on business or enters into bankruptcy, receivership, voluntary liquidation or administration or compulsory winding up proceedings, makes any voluntary arrangement with its creditors, or enters into any similar or analogous proceedings or arrangement in any jurisdiction.
6.5 For the purposes of clause 6.4 a breach will be considered capable of remedy if the party in breach can comply with the provision in question in all respects other than as to the time of performance (provided the time of performance is not of the essence).
7. CONSEQUENCES OF TERMINATION
7.1 Termination of the Contract shall be without prejudice to any other right or remedy available to either party in law or under the Contract and shall not affect any accrued rights or liabilities of either party.
7.2 On the termination or expiry of the Contract for whatever reason:
(a) as soon as practicable thereafter (and, in any event, not less than 14 (fourteen) days thereafter) issue to You a final Commission Statement in respect of all Introductions made, all Transactions occurring and all Commission not considered in Commission Statements issued by Us prior to that date;
(b) each receiving party shall within 10 (ten) Business Days return to each disclosing party or permanently delete or destroy (as the disclosing party shall direct) all Confidential Information of the disclosing party held in any media and, save as shall be necessary for such purpose, immediately cease to use the same;
(c) We shall be entitled to continue to deal with all Introduced Clients without further obligation to You whatsoever other than payment of any properly due and outstanding Commission arising in respect of any Transaction occurring before the Contract Period ended.
(d) You may continue to deal with Introduced Clients for Your usual core business activities but shall not, for a period of 90 (ninety) days following the end of the Contract Period, solicit or deal with any Introduced Client for the purposes of referring that Introduced Client to any other person in order that such person may offer or perform any sale or purchase of currency for or offer any insurance product to that Introduced Client including (without limitation) to any of Our Competitors.
7.3 The provisions of this clause 7 and clauses 2.16, 2.24, 4, 5, 8 and 9.8 to 9.10 together with such other clauses or provisions which expressly or impliedly are to continue in force notwithstanding termination or expiry and such clauses or provisions (including without limitation any definitions) as shall be necessary to do so for their proper effect or interpretation, shall survive the termination or expiry of the Contract for any reason to the other party, if that other party:
8. OUR LIABILITY
8.1 Our total liability to You (whether in contract, tort (including negligence and breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance, or contemplated performance, of the Contract and in respect of any representation, statement or tortious act or omission arising under or in connection with the Contract and for all and any losses, costs (including legal costs), claims, damages, expenses, taxes, charges and any other liability whatsoever relating to the Contract), is, subject to clause 8.7, limited to the total amount of Commission payable by Us to You.
8.2 We are only liable for any direct loss or damage which We cause to You, Your personnel or Your property.
8.3 We are not liable for any loss or damage to You, Your personnel or Your property which, under English law, is considered “special”, “indirect” or “consequential”.
8.4 We are not liable:
(e) costs, charges, expenses or other economic loss whatsoever (other than actual loss of Commission);
(f) loss of data, loss of profits, loss of revenue (other than actual loss of Commission), loss of turnover, loss of sales, loss of production, loss of anticipated savings, loss of goodwill, loss of business opportunity or loss of contracts, which You suffer or incur as a result of, or connected with, any performance or non-performance, or any act or omission, by Us or any of Our personnel relating to the Contract.
(g) to any third party;
(h) We have no liability under the Contract relating to the performance or non-performance of any transaction or service other than Transactions or Services.
8.5 In this clause 8:
(i) the word "personnel" means officers and/or employees; and
(j) the phrase “third party” means anyone other than You or Us, including (without limitation) any Introduced Client and any supplier of services other than You or Us.
8.6 You hereby fully indemnify Us and shall keep Us fully indemnified in respect of all and any direct losses, costs (including legal costs), claims, damages, expenses, taxes, charges and any other liability whatsoever which We may incur as a result of Your breach of any of the provisions of clauses 2, 3, 4 or 5 or the occurrence of any of the events described in clause 2.20.
8.7 No provision of this clause 8, nor any other provision of Our Terms, shall have as its object or effect the exclusion or limitation of any liability either party may have for personal injury or death resulting from Your or Our negligence or for fraud or any other liability which it is not possible for You or Us to exclude or limit by law or regulation.
9. GENERAL
9.1 Save for any further term or provision set out in the Appointment Form which We agree with You, Our Terms constitute the entire agreement between You and Us and supersede any prior written or oral agreement or understanding in relation to its subject matter. No other discussions, telephone conversations, email communications, documents or materials form part of the Contract. No purchase order, order confirmation or terms or conditions issued at any time by You shall govern the Contract. All other terms and conditions implied by law or any custom, trade practice or course of dealing, including (without limitation) all warranties, shall to the fullest extent permitted by law be excluded from the Contract. Only those warranties expressly stated to be given by Us or by You in Our Terms shall apply to the Contract. You confirm that You have not entered into the Contract relying on any representation, assurance or warranty that is not expressly incorporated into Our Terms. This clause 9.1 does not exclude any liability We may have to You for fraud or prevent You from bringing any claim against Us for fraud or fraudulent misrepresentation.
9.2 You may not at any time assign or transfer any of Your rights and privileges in connection with the Contract in whole or part without Our prior approval in writing signed by one of Our Directors. We may jointly and/or severally assign or sub-contract any of Our rights and privileges and obligations under the Contract at any time.
9.3 Nothing in the Appointment Form, Our Terms or the Contract shall be construed as creating any joint venture or partnership or any relationship of employer and employee between You and Us. Neither party shall have any authority at any time to act as agent for or to bind the other party or to incur any expenditure on behalf of or for the account of the other party and shall not hold itself out to any person as having any such authority.
9.4 If any court of competent jurisdiction finds that any part of Our Terms is invalid, unlawful or unenforceable for any reason those parts (to the extent possible) shall be deleted from Our Terms and the remaining parts (to the extent possible) shall remain in force and continue to be binding on You and Us.
9.5 No failure to enforce or delay in enforcing any right or remedy available to You or Us under the Contract (including as provided for in Our Terms or otherwise available under English law) will mean that You or We cannot exercise any such right or remedy at a later date.
9.6 Where any notice is required to be given in writing under Our Terms it must be written in the English language and shall be:
(k) either delivered personally or sent by first class mail (or, if You are in a jurisdiction other than the United Kingdom, by air mail equivalent) post prepaid to the address of the receiving party set out in the Appointment Form or by email to the email address set out in the Appointment Form or to such other postal address or email address as the receiving party may have notified to the sending party in advance in writing in accordance with the provisions of this clause 9.6; and
(l) such notice shall be deemed to take effect:
(m) if personally delivered or sent by email during a Business Day, on that Business Day, or, if personally delivered or sent by email during any day which is not a Business Day, on the next following Business Day; or
(n) if sent by first class post, 2 (two) Business Days after posting (or, if sent by air mail equivalent, 5 (five) Business Days after posting.
9.7 We may from time to time make amendments to Our Terms (for example, for legal, statutory or regulatory compliance reasons) and, in such event, We shall inform you in writing by email with a copy of Our Terms as amended.
9.8 Only you and we have any rights, obligations or privileges under this Contract and no-one other than You or We can enforce any of its terms or take any action under Our Terms.
9.9 Neither party shall be liable to the other party if it is unable to perform any of its obligations to the other party or its performance of any of its obligations is delayed due to any circumstances outside of its reasonable control, including but not limited to any industrial action, labour dispute, act of God, fire, flood or storm, war, riot, civil commotion, siege, security alert, act of terrorism or any resulting precautionary measures taken, act of vandalism, sabotage, virus, malicious damage, compliance with any statute, statutory provision, law, governmental or court order, the actions or instructions of the police or of any governmental or regulatory body which authorises the affected party (or any of the affected party's Affiliates) to perform any of its obligations, cut or failure of power, failure of equipment, systems or software or internet interconnectivity or the occurrence of any extraordinary fluctuation in any financial market that may materially adversely affect the affected party's ability to perform any of its obligations. If any of these circumstances occur then the Contract shall be suspended for the period during which they continue or, at the unaffected party's sole discretion, the unaffected party may terminate the Contract.
9.10 Save as provided for in this clause 9.10, the Contract, Appointment Form and Our Terms shall be governed by and construed in accordance with English law and You, and We, shall submit to the exclusive jurisdiction of the English Courts. We shall retain the right (exercisable in Our sole discretion) to bring proceedings against You in the courts of Your country of residence, registered office or principal place of business, rather than in the English courts, if We so wish.
1. DEFINITIONS
1.1 In Our Terms the following words have the following meanings:
“Affiliate” shall mean an entity that is a successor of, controls, is controlled by or is under common control with a party;
“Appointment Form” the form which We require You to complete, sign and return to Us before We can appoint You as an Introducer;
“Business" any natural person, partnership, company, body corporate or incorporate, trust, charity or other entity but excluding any natural person acting in a personal capacity or otherwise outside of his or her trade or profession and "Businesses" shall be construed accordingly;
“Business Day” to 5.30pm Monday to Friday CET excluding Public Holidays in the Netherlands and England (please note that this is different to our office hours, details of which are published on Our Website);
“Commission" means the amount calculated as set out in the Appointment Form which may be payable to You by Us in accordance with Our Terms following an Introduction if a Transaction occurs;
“Commission Statement” the monthly written statement We produce and supply to You setting out any Commission that may be due to You relating to Transactions in the immediately preceding month;
“Competitor” any Individual or Business providing services the same as or similar to Our Services;
“Confidential Information" knowhow, trade secrets and confidential or business-sensitive information of a disclosing party however communicated and held in whatever form and on whatever media, and whether designated as confidential or otherwise which a receiving party ought reasonably to have known was of a secret or confidential nature, and which shall (without limitation) include all and any information relating to (i) any Transaction, (ii) any Commission (including what it is and how it is to be calculated), (iii) the Appointment Form (and any details in it including any specific terms which We agree with You), (iv) the Contract (including its existence), and (v) Our Terms (including any of its provisions), and where “disclosing party” and “receiving party” shall have the meanings given to them in clause 4.1;
“Contract" the contract that is formed between You and Us when, after You have properly completed, signed and returned the Appointment Form to Us and We have confirmed to You in writing Our acceptance of Your appointment;
“Contract Period” the period during which the Contract shall remain in force;
“Currency Services” the sale or purchase of currencies as part of Our personal foreign exchange services business;
“Currency Transaction” a transaction forming part of Our Currency Services executed by Us on behalf of an Introduced Client;
“Data Protection Laws” means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (“GDPR”), any applicable local implementation of GDPR and all other applicable laws relating to data protection;
“Effective Date" the date on which Your appointment becomes effective as provided for in the Appointment Form;
“Gross Revenue” means the revenue generated by us:
(a) in respect of Introduced Clients contracting with Xe UK for Our Services;
(b) in respect of Introduced Clients contracting with Xe EU for Our Services;
“Introduction" a referral to Us by You in accordance with Our Terms of any person with a view to them becoming an Introduced Client, and "Introduce" and "Introduced" shall be construed accordingly;
“Introduced Client” an Individual or Business Introduced to Us by You with whom We contract to provide Our Services;
“Individual” any living individual acting in a personal capacity outside of his or her trade or profession;
“Our Terms” these introducer appointment terms and conditions;
“Our Services” means our foreign exchange and payment services provided by Us to
Introduced Clients. For the avoidance of doubt, for the purposes of this Contract, Our Services comprise: (i) the Introduced Client selling Us currency in return for the Introduced Client buying currency through a spot trade, forward trade, market order or repeat payment abroad trade(s) with Us; and (ii) the payment by Us of the Introduced Client’s bought currency to the Introduced Client’s designated account or designated beneficiary’s account.;
“Our Website” means the website located at Xe.com;
“Prospect" as defined in clause 2.1.1;
“Payment Services” whereby we will send the Introduced Client’s money (in most cases being the money the Introduced Client purchased from us pursuant to our Foreign Exchange Services) to the account of a third party;
“Transaction” a transaction forming part of Our Services executed by Us on behalf of an Introduced Client;
“Regulations” means the Payment Services Regulations 2017 (SI 2017/752), the EU's revised Payment Services Directive (Directive (EU) 2015/2366) as implemented in Dutch law, including in the Netherlands Civil Code (Burgerlijk Wetboek), Netherlands Financial Supervision Act (Wet op het financieel toezicht), Prudential Supervision Decree (Besluit prudentiële regels Wft) and the Market Conduct Supervision (Financial Institutions) Decree (Besluit Gedragstoezicht financiële ondernemingen) (each as amended from time to time);
“VAT” value added tax as imposed by the provisions of the Value Added Tax Act 1994 and any legislation promulgated thereunder, or equivalent legislation (as applicable);
“Xe Group” refers to HiFX Europe Limited, Xe Europe B.V., HiFX Australia Pty Ltd, HiFX Limited, Xe Corporation Inc., HiFX Canada Inc. and Continental Exchange Solutions Inc. dba “Xe” or “Xe.com”, each being a wholly owned subsidiary of Euronet Worldwide, Inc.(“EWI”);
“We”, “Our” or “Us” refers to the particular Xe Group entity that contracts with the relevant Introduced Client for Our Services, specifically:
(c) in the European Union, Xe Europe B.V (trading as “Xe” or “Xe.com”), which is a company incorporated under the laws of the Netherlands; registered number: 72587873; registered office: Rozengracht 12-1, 1016 NB Amsterdam, the Netherlands and provides Our Services to EU based customers; and
(d) in the United Kingdom, HiFX Europe Limited (trading as “Xe” or “Xe.com”), which is a company incorporated in England with company number 3517451 and registered office at Maxis 1, Western Road, Bracknell, Berkshire, RG12 1RT and provides Our Services to our UK based customers.
“You” “Your” “Introducer” means the Individual or Business set out in the Appointment Form;
1.2 All references in Our Terms (unless otherwise stated):
(a) to a person or persons shall include any natural person, company, firm, partnership, trust, public body or other organisation;
(b) to “clauses” are to clauses of Our Terms;
(c) to any legislation (including statutes, statutory instruments, statutory provisions or regulations) shall include them as amended or re-enacted from time to time; and
(d) made in the singular shall include the plural and vice versa.
1.3 All headings used in Our Terms are for ease of reference only and shall not affect the interpretation of Our Terms.
2. INTRODUCTIONS
Your Responsibilities
2.1 During the Contract Period You shall:
(a) make Introductions to Us of all Individuals and/or Businesses whom You believe require or have expressed an interest in Our Services (a “Prospect”);
(b) use Your best endeavours to facilitate Our engaging with all Prospects;
(c) assess and determine the suitability of all Prospects, including (without limitation) by establishing all those matters detailed in clause 2.2;
(d) assist each Prospect with any application process which We require it to complete before the Prospect can become an Introduced Client; and
(e) in the exercise of all Your obligations to Us under the Contract at all times use due skill, care and ability (which shall not be to less than any standard required by English law) and provide such assistance to Us as We shall reasonably require.
2.2 You warrant to Us that You will only refer a Prospect to Us where, to the best of Your knowledge, information and belief, You have established that each of the following is correct
(a) the Prospect is over 18 years of age;
(b) the Prospect is in need of Our Services;
(c) the Prospect has its own bank account;
(d) the Transaction is for a non-speculative purpose;
(e) the Prospect is acting as principal;
(f) the Prospect is not a resident of any sanctioned country relevant or applicable from time to time;
(g) consent has been given to You by the Prospect in accordance with clause 5; and
(h) You have not held yourself out to be our Agent (as defined in the Regulations).
2.3 You must promptly by return sign and send to Us a copy (retaining one copy for Your records) of the Commission Statement as Your confirmation that You accept as accurate the Commission stated to be due to You in it.
2.4 When You return the signed Commission Statement to Us, You are also confirming to Us in writing that each of the steps set out in clause 2.2 were undertaken by You in relation to each Introduced Client referred to in that Commission Statement.
2.5 If You have not met all the requirements of clause 2.2 in respect of an Introduced Client, We shall treat that Introduction as invalid and no Commission will be payable by Us for that Introduced Client.
2.6 We are entitled to withhold payment of Commission on any Commission Statement until You have met the requirements of clauses 2.3 and 2.4 to Our satisfaction.
2.7 We shall pay You all Commission in cleared funds by not later than the end of the month following receipt of your signed Commission Statement.
2.8 All Commission shall be paid by Us to the bank account specified in the Appointment Form or such other account You may advise to Us in writing from time to time.
2.9 If Your appointment by Us is on an exclusive basis (as set out in the Appointment Form), You will not during the Contract Period refer any Prospect to any other person, including (without limitation), any of Our Competitors.
2.10 If Your appointment by Us is on a non-exclusive basis (as set out in the Appointment Form) You may during the Contract Period refer any Prospect to any other person for the purposes of the sale or purchase of currencies.
2.11 Whether Your appointment by Us is on an exclusive or non-exclusive basis (as set out in the Appointment Form), You will not during the Contract Period refer any Introduced Client to any other person, including (without limitation) to any of Our Competitors, in order that such person may offer or perform any sale or purchase of currency for that Introduced Client.
2.12 You warrant to Us that in referring Prospects to Us, You will:
(a) not engage in any activity, practice or conduct in the United Kingdom or elsewhere which, if carried out in the United Kingdom, would constitute an offence under sections 1, 2 or 6 of the Bribery Act 2010;
(b) maintain in place adequate procedures designed to prevent its employees and any other person providing services for it or on its behalf engaging in any activity, practice or conduct in the United Kingdom or elsewhere which if carried out in the United Kingdom would constitute an offence under sections 1, 2 or 6 of the Bribery Act 2010; and
(c) co-operate fully with any investigation or enquiry by or on Our behalf, any governmental, regulatory or other body in relation to any allegation or suspicion of any offence under the Bribery Act 2010.
Our Responsibilities
2.13 Subject to the provisions of this clause 2, and in consideration of You making Introductions to Us, an entitlement to Commission will arise to You each time a Transaction occurs during the Contract Period. No entitlement to Commission shall arise to You for any other reason, including Our making available any other services to an Introduced Client.
2.14 We will only pay Commission to You:
(a) in respect of Transactions that occur during the Contract Period;
(b) where You have met all requirements on You set out in this clause 2; and
(c) in accordance with this clause 2.
2.15 We will only pay Commission that is due to You by the method of payment designated in the Appointment Form and to a bank account held in Your name. We cannot accept payment instructions from, nor will We make any payment to, any third party, even if You ask Us to do so.
2.16 You shall be solely responsible for the payment of all taxes, duties or levies which may be payable in any country in respect of the Commission, including (without limitation), any applicable VAT. You warrant that the activities which You are required to, or which You warrant to Us that You will, undertake are exempt from VAT. For the avoidance of any doubt, We will make no deductions from Commission on account of tax or any other imposition except as required by law, unless you advise otherwise. By signing the relevant Commission Statement, you confirm the forgoing and You agree to indemnify Us against all tax payments, penalty payments or interest on these tax payments or penalty payments, required to be made by Us in relation to this Contract.
2.17 We will send You the relevant Commission Statement within 21 (twenty one) days of the end of the calendar month to which it applies.
2.18 Where the value of Commission showing due to You as set out in the Commission Statement is £50.00 (fifty pounds sterling) or less, We will not pay You this Commission in the usual payment period. The amount concerned will be carried forward and become payable to You in the next payment period or when the outstanding Commission showing due to You collectively total more than £50.00 (fifty pounds sterling).
2.19 Your entitlement to Commission set out in any Commission Statement will expire if We are not in receipt of Your signed copy of that Commission Statement within 90 days of the date of that Commission Statement being provided.
2.20 In the event that We, at any time for any reason pay any sum to You as Commission in advance of the occurrence of the Transaction on which such Commission was to be calculated and such Transaction does not proceed, You shall not be entitled to retain such sum, which shall become due and payable by You to Us as a debt.
2.21 We shall be entitled, at Our sole discretion, to set off any such sum against any amount which is, or may at any time, become due to You from Us (including by way of Commission) or require You to pay to Us any such sum on demand in full without set off or deduction.
2.22 The manner in which We provide any Introduced Client with, and the amount We charge any Introduced Client for, Our Services is entirely at Our discretion. We may, at Our entire discretion, refuse to accept an Introduction (and, as a result, the Prospect will not become an Introduced Client), if We deem a Prospect unsuitable or if a Prospect is already a prospect (being someone who We already believe requires, or who has already expressed an interest to Us in, Our Services) or existing client of Us or any of Our Affiliates or has already been introduced to Us by another person.
2.23 Without limiting any other right or remedy We may have under the Contract or in law, We shall be entitled automatically, and without any notice to You, to suspend payment to You of any Commission in the event that:
(a) We discover any breach by You at any time of any of Our Terms;
(b) it becomes unlawful for Us to make further payments to You or We are advised by any court of competent jurisdiction or any governmental or regulatory body which authorises Us to perform Our Services to cease to make further payments to You, and any such suspension will only be lifted by Us at Our discretion and subject to Us lawfully being able to do so.
2.24 We shall keep and maintain throughout the Contract Period and for a period of 12 (twelve) months after the termination or expiry for whatever reason of the Contract, full and accurate records relating to all Introductions, Transactions and Commission (including the manner in which it has been calculated) (“the Records”).
3. INTELLECTUAL PROPERTY
3.1 You shall not at any time make any use of any of Our Brands for any purpose whatsoever save as We may in advance in writing expressly permit You to do so and on such terms as We shall in Our sole discretion deem fit.
3.2 You acknowledge that all intellectual property rights whatsoever associated with Our Brands belong to and shall vest absolutely in Us.
3.3 You shall not attempt to register or register any name the same as or similar to any of Our Brands as a registered trademark or domain name anywhere in the world at any time. You shall not make use of any name the same as or similar to any of Our Brands at any time.
3.4 You shall not purchase or make use of any keyword, AdWord or other similar device available from any person (including Google, Yahoo and any other search engine operator) the same as or similar to any of Our Brands.
3.5 We agree that we shall not at any time make any use of any of Your Brands for any purpose whatsoever save as You may in advance in writing expressly permit Us to do so and on such terms as You in Your sole discretion deem fit.
3.6 We acknowledge that all intellectual property rights whatsoever associated with Your Brands belong to and shall vest absolutely in You.
3.7 We shall not attempt to register or register any name the same as or similar to any of Your Brands as a registered trademark or domain name anywhere in the world at any time. We shall not make use of any name the same as or similar to any of Your Brands at any time.
3.8 We shall not purchase or make use of any keyword, AdWord or other similar device available from any person (including Google, Yahoo and any other search engine operator) the same as or similar to any of Your Brands.
3.9 In this clause 3 and in Our Terms:
(c) the phrase “Our Brands” means the trademark “Xe” or “Xe.com”, the trade mark “HIFX”, any stylised wording or logo for “Xe”, “Xe.com” or “HIFX” and any other trading, product or service name used by Us from time to time in connection with any of Our products, services or business.
(d) the phrase “Your Brands” means any trademark used by You from time to time in connection with any of Your products, services or business.
4. CONFIDENTIALITY
4.1 Subject to clause 4.2, each party (the "receiving party") shall at all times treat all Confidential Information which it receives from the other party (the "disclosing party") as strictly secret and confidential and each receiving party shall at all times use all Confidential Information which it receives from the disclosing party solely for the purposes of the Contract and shall not disclose, whether directly or indirectly, to any third party any such Confidential Information save only to its employees, subcontractors or professional advisers where it is necessary for it to do so in order to carry out the purpose of the Contract and at all times subject to suitable conditions of confidence which it must have communicated to them.
4.2 The obligations set out in clause 4.1 shall not apply to any Confidential Information that is:
(a) already in the public domain at the date of disclosure through no fault of the disclosing party;
(b) already properly and lawfully in the receiving party’s possession prior to disclosure to it by the disclosing party; or
(c) properly and lawfully received from a third party without restriction as to its disclosure.
4.3 The receiving party shall immediately notify the disclosing party if it becomes aware of any breach by it of any of the obligations set out in clause 4.1 or of any breach of confidence in respect of any Confidential Information (whether by itself or any person to whom it may have at any time divulged any Confidential Information)and shall give to the disclosing party all reasonable information and assistance in connection with any action or proceedings which the disclosing party may wish to take against any such person.
4.4 Each receiving party recognises the importance to the disclosing party of preserving the secrecy and confidentiality of all Confidential Information and that, in addition to any right or remedy that may be available to the disclosing party in the event of any breach by it of any of the obligations set out in clause 4.1 or of any breach of confidence in respect of any Confidential Information (whether by itself or any person to whom it may have at any time divulged any Confidential Information), the disclosing party may bring action in any court, including by the seeking of temporary or permanent injunctive relief (or its equivalent in any jurisdiction).
4.5 The obligations set out in clause 4.1 shall remain in full force and effect during the continuance of the Contract and for a period of 5 (five) years thereafter.
4.6 In addition to the obligations set out in clause 4.1 with respect to Confidential Information where You are a receiving party, You agree that you shall never disclose to anyone at any time for any reason, save only with our express consent given in advance in writing signed by one of Our Directors, any information relating to (i) any Transaction, (ii) any commission (including what it is and how it is to be calculated), (iii) the Appointment Form (and any details in it including any specific terms which we agree with You), (iv) the Contract (including its existence), and (v) Our Terms (including any of its provisions).
4.7 Nothing in this clause 4 shall operate to prevent any disclosure of any information (including any Confidential Information) referred to in it to the extent which a party may be required to make by law or by order of any court of competent jurisdiction.
5. DATA PROTECTION
5.1 In this clause 5, “personal data”, “data controller”, “data subject”, “processing” and “data protection principles” has the meaning set out in Data Protection Legislation. The term ‘Us’ shall also be deemed to include our Affiliates for the purpose of this clause 5.
5.2 You warrant to Us that any 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 Data Protection Laws.
5.3 You warrant to Us that You shall obtain the consent of each Prospect to:
(a) the disclosure by You to Us and/or any of our Affiliates of any personal data relating to that Prospect;
(b) use of any personal data relating to that Prospect for the purposes of making contact with that Prospect in order to offer to them Our Services; and
(c) the disclosure by Us to You of any personal data relating to that Prospect and any other data relating to any Transaction which We may execute for that Prospect for the purposes of calculating and reporting earned Commission to You.
5.4 You warrant to Us that You shall at all times, where You are, for the purposes of the Data Protection Laws, a data controller in respect of that personal data (or its equivalent in the jurisdiction in which You operate):
(a) at all times process that personal data in accordance with all applicable Data Protection Laws;
(b) where You receive any complaint, notice or communication concerning the processing of that personal data or Your or Our compliance with the Data Protection Laws, immediately notify Us and provide Us with Your full co-operation and assistance;
(c) at Our request, co-operate reasonably with Us in the event We receive a request from a data subject in relation to any such data pursuant to any rights available to such data subject under the Data Protection Laws and take such other steps as We may from time to time reasonably require in order for Us to properly ensure Our compliance with the Data Protection Laws in respect of such data.
5.5 Where You are, for the purposes of the Act, a data processor in respect of that personal data (or its
equivalent in the jurisdiction in which it operates):
(a) process that personal data in accordance with the Data Protection Laws;
(b) at all times process that personal data only for the purposes of verifying Your earned Commission or such other legitimate purpose which We may in advance in writing permit;
(c) where You receive any complaint, notice or communication concerning the processing of that personal data by Us or Your or Our compliance with the Data Protection Laws, immediately notify Us and provide Us with full co-operation and assistance;
(d) promptly comply with any request from Us to amend, transfer, delete or cease to use it;
(e) not disclose it to, discuss or share it with or transfer it to any person other than as We expressly direct and then only strictly in accordance with Our instructions;
(f) take such technical and organisational measures as shall be appropriate and/or as We may require You to take against that personal data’s unauthorised or unlawful processing and against that personal data’s accidental loss or destruction or damage, in each case having regard to the state of technological development and the cost of implementing the measures and the nature of the personal data concerned and including (without limitation) to ensure the reliability of Your employees who may have access to that personal data; and
(g) take such other steps as We may from time to time reasonably require in order for Us to properly ensure Our compliance with the Data Protection Laws in respect of such data.
5.6 Each party hereby acknowledges to the other party that it is able only to disclose personal data as, and to the extent, permitted by the Data Protection Laws. This may mean that where a party requests data which may amount to or include personal data from the other party, the other party may have to refuse that request or only be able to meet that request in part.
6. TERM AND TERMINATION
6.1 The Contract shall come into force on the Effective Date and shall continue in force unless or until terminated in accordance with the provisions of this clause 6.
6.2 Either party may terminate the Contract at any time on 90 (ninety) days' notice in writing to the other party, unless otherwise agreed between the parties.
6.3 We may terminate the Contract at any time:
(a) immediately on notice in writing to You where it becomes or may become unlawful for Us to continue with the Contract or We are required to terminate the Contract by law or by any court of competent jurisdiction or We are required or requested to do so by any governmental or regulatory body which authorises Us to perform Our Services;
(b) immediately on notice in writing to You, in the event of Your non-compliance with any applicable statute or regulation or in the event that We discover or have reasonable cause to suspect any crime, fraud or fraudulent activity by You;
(c) on 30 (thirty) days’ notice in writing to You, where We otherwise deem it necessary for business reasons or where, in Our reasonable opinion, We consider any of Your activities or Our continued relationship with You may cause material damage to Our business or reputation;
(d) as provided by clause 9.9.
6.4 Either party may terminate the Contract immediately by notice in writing to the other party, if that other party:
(a) commits a material breach of any term or any provision of Our Terms or of the Appointment Form and, in the case of a breach capable of remedy, fails to remedy the breach within 30 (thirty) days after receipt of such notice setting out full particulars of the breach and requiring it to be remedied;
(b) ceases or threatens to cease carrying on business or enters into bankruptcy, receivership, voluntary liquidation or administration or compulsory winding up proceedings, makes any voluntary arrangement with its creditors, or enters into any similar or analogous proceedings or arrangement in any jurisdiction.
6.5 For the purposes of clause 6.4 a breach will be considered capable of remedy if the party in breach can comply with the provision in question in all respects other than as to the time of performance (provided the time of performance is not of the essence).
7. CONSEQUENCES OF TERMINATION
7.1 Termination of the Contract shall be without prejudice to any other right or remedy available to either party in law or under the Contract and shall not affect any accrued rights or liabilities of either party.
7.2 On the termination or expiry of the Contract for whatever reason:
(a) as soon as practicable thereafter (and, in any event, not less than 14 (fourteen) days thereafter) issue to You a final Commission Statement in respect of all Introductions made, all Transactions occurring and all Commission not considered in Commission Statements issued by Us prior to that date;
(b) each receiving party shall within 10 (ten) Business Days return to each disclosing party or permanently delete or destroy (as the disclosing party shall direct) all Confidential Information of the disclosing party held in any media and, save as shall be necessary for such purpose, immediately cease to use the same;
(c) We shall be entitled to continue to deal with all Introduced Clients without further obligation to You whatsoever other than payment of any properly due and outstanding Commission arising in respect of any Transaction occurring before the Contract Period ended.
(d) You may continue to deal with Introduced Clients for Your usual core business activities but shall not, for a period of 90 (ninety) days following the end of the Contract Period, solicit or deal with any Introduced Client for the purposes of referring that Introduced Client to any other person in order that such person may offer or perform any sale or purchase of currency for or offer any insurance product to that Introduced Client including (without limitation) to any of Our Competitors.
7.3 The provisions of this clause 7 and clauses 2.16, 2.24, 4, 5, 8 and 9.8 to 9.10 together with such other clauses or provisions which expressly or impliedly are to continue in force notwithstanding termination or expiry and such clauses or provisions (including without limitation any definitions) as shall be necessary to do so for their proper effect or interpretation, shall survive the termination or expiry of the Contract for any reason to the other party, if that other party:
8. OUR LIABILITY
8.1 Our total liability to You (whether in contract, tort (including negligence and breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance, or contemplated performance, of the Contract and in respect of any representation, statement or tortious act or omission arising under or in connection with the Contract and for all and any losses, costs (including legal costs), claims, damages, expenses, taxes, charges and any other liability whatsoever relating to the Contract), is, subject to clause 8.7, limited to the total amount of Commission payable by Us to You.
8.2 We are only liable for any direct loss or damage which We cause to You, Your personnel or Your property.
8.3 We are not liable for any loss or damage to You, Your personnel or Your property which, under English law, is considered “special”, “indirect” or “consequential”.
8.4 We are not liable:
(e) costs, charges, expenses or other economic loss whatsoever (other than actual loss of Commission);
(f) loss of data, loss of profits, loss of revenue (other than actual loss of Commission), loss of turnover, loss of sales, loss of production, loss of anticipated savings, loss of goodwill, loss of business opportunity or loss of contracts, which You suffer or incur as a result of, or connected with, any performance or non-performance, or any act or omission, by Us or any of Our personnel relating to the Contract.
(g) to any third party;
(h) We have no liability under the Contract relating to the performance or non-performance of any transaction or service other than Transactions or Services.
8.5 In this clause 8:
(i) the word "personnel" means officers and/or employees; and
(j) the phrase “third party” means anyone other than You or Us, including (without limitation) any Introduced Client and any supplier of services other than You or Us.
8.6 You hereby fully indemnify Us and shall keep Us fully indemnified in respect of all and any direct losses, costs (including legal costs), claims, damages, expenses, taxes, charges and any other liability whatsoever which We may incur as a result of Your breach of any of the provisions of clauses 2, 3, 4 or 5 or the occurrence of any of the events described in clause 2.20.
8.7 No provision of this clause 8, nor any other provision of Our Terms, shall have as its object or effect the exclusion or limitation of any liability either party may have for personal injury or death resulting from Your or Our negligence or for fraud or any other liability which it is not possible for You or Us to exclude or limit by law or regulation.
9. GENERAL
9.1 Save for any further term or provision set out in the Appointment Form which We agree with You, Our Terms constitute the entire agreement between You and Us and supersede any prior written or oral agreement or understanding in relation to its subject matter. No other discussions, telephone conversations, email communications, documents or materials form part of the Contract. No purchase order, order confirmation or terms or conditions issued at any time by You shall govern the Contract. All other terms and conditions implied by law or any custom, trade practice or course of dealing, including (without limitation) all warranties, shall to the fullest extent permitted by law be excluded from the Contract. Only those warranties expressly stated to be given by Us or by You in Our Terms shall apply to the Contract. You confirm that You have not entered into the Contract relying on any representation, assurance or warranty that is not expressly incorporated into Our Terms. This clause 9.1 does not exclude any liability We may have to You for fraud or prevent You from bringing any claim against Us for fraud or fraudulent misrepresentation.
9.2 You may not at any time assign or transfer any of Your rights and privileges in connection with the Contract in whole or part without Our prior approval in writing signed by one of Our Directors. We may jointly and/or severally assign or sub-contract any of Our rights and privileges and obligations under the Contract at any time.
9.3 Nothing in the Appointment Form, Our Terms or the Contract shall be construed as creating any joint venture or partnership or any relationship of employer and employee between You and Us. Neither party shall have any authority at any time to act as agent for or to bind the other party or to incur any expenditure on behalf of or for the account of the other party and shall not hold itself out to any person as having any such authority.
9.4 If any court of competent jurisdiction finds that any part of Our Terms is invalid, unlawful or unenforceable for any reason those parts (to the extent possible) shall be deleted from Our Terms and the remaining parts (to the extent possible) shall remain in force and continue to be binding on You and Us.
9.5 No failure to enforce or delay in enforcing any right or remedy available to You or Us under the Contract (including as provided for in Our Terms or otherwise available under English law) will mean that You or We cannot exercise any such right or remedy at a later date.
9.6 Where any notice is required to be given in writing under Our Terms it must be written in the English language and shall be:
(k) either delivered personally or sent by first class mail (or, if You are in a jurisdiction other than the United Kingdom, by air mail equivalent) post prepaid to the address of the receiving party set out in the Appointment Form or by email to the email address set out in the Appointment Form or to such other postal address or email address as the receiving party may have notified to the sending party in advance in writing in accordance with the provisions of this clause 9.6; and
(l) such notice shall be deemed to take effect:
(m) if personally delivered or sent by email during a Business Day, on that Business Day, or, if personally delivered or sent by email during any day which is not a Business Day, on the next following Business Day; or
(n) if sent by first class post, 2 (two) Business Days after posting (or, if sent by air mail equivalent, 5 (five) Business Days after posting.
9.7 We may from time to time make amendments to Our Terms (for example, for legal, statutory or regulatory compliance reasons) and, in such event, We shall inform you in writing by email with a copy of Our Terms as amended.
9.8 Only you and we have any rights, obligations or privileges under this Contract and no-one other than You or We can enforce any of its terms or take any action under Our Terms.
9.9 Neither party shall be liable to the other party if it is unable to perform any of its obligations to the other party or its performance of any of its obligations is delayed due to any circumstances outside of its reasonable control, including but not limited to any industrial action, labour dispute, act of God, fire, flood or storm, war, riot, civil commotion, siege, security alert, act of terrorism or any resulting precautionary measures taken, act of vandalism, sabotage, virus, malicious damage, compliance with any statute, statutory provision, law, governmental or court order, the actions or instructions of the police or of any governmental or regulatory body which authorises the affected party (or any of the affected party's Affiliates) to perform any of its obligations, cut or failure of power, failure of equipment, systems or software or internet interconnectivity or the occurrence of any extraordinary fluctuation in any financial market that may materially adversely affect the affected party's ability to perform any of its obligations. If any of these circumstances occur then the Contract shall be suspended for the period during which they continue or, at the unaffected party's sole discretion, the unaffected party may terminate the Contract.
9.10 Save as provided for in this clause 9.10, the Contract, Appointment Form and Our Terms shall be governed by and construed in accordance with English law and You, and We, shall submit to the exclusive jurisdiction of the English Courts. We shall retain the right (exercisable in Our sole discretion) to bring proceedings against You in the courts of Your country of residence, registered office or principal place of business, rather than in the English courts, if We so wish.
HiFX Europe Limited, trading as XE. HiFX Europe Limited is authorised by the Financial Conduct Authority under the Payment Services Regulations 2017, registration 462444, for the provision of payment services. HiFX Europe is a limited company registered in England and Wales. Registered number: 3517451. Registered office: Maxis 1, Western Road, Bracknell, Berkshire RG12 1RT.
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