XE.com Inc. has selected Custom House USA, LLC to be the trade processor for XE Trade. XE Trade services are provided by Custom House USA, LLC The User Agreement below is between you (the Customer) and Custom House USA, LLC There is a separate Agreement and Acknowledgement with XE.com Inc. following the User Agreement.
The Customer, as a Principal User or as a Customer-Authorized Third Party User of XE Trade Services, and Custom House are the Parties to this Agreement. In consideration of the covenants, agreements and warranties set forth below, the Customer and Custom House agree as follows:
"Agreement" means these Terms and Conditions Agreement, together with all Trades, schedules, attachments or other addenda attached or applicable hereto.
"Application Form" means the application form that the Customer completed and submitted to Custom House for the purpose of using XE Trade.
"Authorized Third Party User" means an employee or another person authorized by a Principal User to enter into Trades on behalf of a Principal User, access and use XE Trade and its services on behalf of a Principal User, and/or to provide Custom House with settlement and delivery instructions for completed Trades on behalf of a Principal User.
"Basic Trade" means the product and service offered within XE Trade that allows the Customer to specify an amount of currency that the Customer wishes to buy or sell and choose the methods to send and receive these funds.
"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.
"Custom House" means Custom House USA, LLC.
"Currency" means money denominated in the lawful currency of a country.
"Customer" means the entity that has entered into this legally-binding Agreement to access and use XE Trade Services and can mean either a Principal User or an Authorized Third-Party User, as defined, as the case may be or as restricted herein.
"Customer Support Number" means the customer assistance phone number located at the bottom of each page in the "Buy or Sell Foreign Currency" section or any other sections of the XE Trade website.
"Electronic Access Device" means any device that allows the Customer to use or to access XE Trade including, but not limited to, a personal computer.
"Information Provider" means any entity providing Custom House, whether directly or indirectly, with Market Information including, but not limited to, securities exchanges and financial news service providers.
"Market Information" means information relating to the financial markets, including, but not limited to, market data, research, analysis, forecasts and commentary.
"Password" means the secret combination of characters that the Customer selects from time to time which, together with the Customer user name, enables the Customer to gain access to XE Trade.
"Principal User" means the customer of Custom House that has entered into this Agreement with Custom House in order to use XE Trade Services for the purpose of entering into trades providing Custom House with settlement and delivery instructions for completed trades, and who may designate and authorize "Authorized Third Party User", as defined in this section, to undertake these same actions on their behalf.
"Software" means any software program provided to the Customer by Custom House that enables the Customer to access or use XE Trade Services.
"Value Date" means either the Business Day selected by the Customer for the settlement of a Trade or if the Customer does not select a Business Day for the settlement of a Trade, then two (2) Business Days following an executed Trade.
"XE Trade" means the electronic foreign exchange dealing platform provided by Custom House.
"XE Trade Services" means the web-based services provided by Custom House to the Customer using XE Trade including: services that enable the Customer to conduct Trades; information services; and other services as provided by Custom House from time to time.
2. Representations and Warranties
The Customer represents and warrants to Custom House that:
The Customer is properly organized as a business organization and that the Customer's organization is in good standing with any and all applicable agencies that govern the Customer's activities and that it is in conformity and compliance with the laws that govern the Customer and its business activities.
The Customer is fully and properly authorized to execute and deliver this Agreement and is further authorized and able to perform the obligations and transactions described herein.
If the Customer is an Authorized Third Party User a defined herein, it is authorized by the Principal User to enter into this Agreement and is in compliance with all applicable legislation governing its activities.
Execution of this Agreement and performance of the Customer's obligations under this Agreement does not violate any applicable statute, regulation or bylaw and the Customer does not foresee that execution of this Agreement will result in any violation of any applicable statute, regulation or bylaw.
All information provided by the Customer to Custom House is true, correct and complete to the best of the Customer's knowledge and the Customer shall notify Custom House promptly each and every time any relevant information changes.
3. Transmission of Data and Information
The Customer authorizes Custom House to transmit the Customer's personal account application and agreement to the Customer at the email address the Customer has provided in its application. The Customer understands that data and information transmitted over the Internet can be lost and/or subject to errors, which may result in data and information not arriving exactly in the form it was sent or intended to arrive in.
The Customer agrees that Custom House shall not be responsible or liable for any such loss, error, transmission and/or communication failure that is outside of the control of Custom House, including, but not restricted to, any loss, error, and/or transmission failure, which the Customer may experience as a result of the Customer's failure to keep its hardware, software, and Internet connections up-to-date, including without limitation failure to update its operating system or browser, failure to maintain appropriate encryption, and failure to properly safeguard against viruses, spyware, malware, and other malicious computer programs.
The Customer understands that, under applicable privacy legislation, Custom House is only responsible for the security and integrity of the information under its control.
4. Confidentiality and Privacy
Custom House will use commercially-reasonable precautions to maintain the confidentiality of both the information the Customer receives and material and/or data the Customer provides, creates, inputs or develops in connection with the Customer use of XE Trade Services. Nonetheless, because submission and receipt of said information, data and information is exchanged by the Parties through the Internet, the Customer understands, acknowledges and agrees that Custom House cannot and will not assure that any communication between the Parties will be, or will continue to be, confidential. Custom House will collect, use and disclose the Customer's personal and financial information in strict compliance with its privacy policies. Custom House will use commercially-reasonable security safeguards to protect the Customer's personal information against loss or theft, unauthorized access, disclosure, copying, use, or modification.
Custom House will make commercially-reasonable efforts to protect the Customer's information, regardless of the format in which it is held.
5. Anti-Money Laundering.
Due to the inherent risks in transferring Currency between entities located in different countries, Custom House takes extraordinary measures to ensure that it is not participating or assisting in money laundering or terrorist financing. The Customer understands that law enforcement and regulatory agencies may periodically inspect all Trades executed with Custom House either by the consent of Custom House or pursuant to applicable law. Therefore, the Customer understands that all information regarding Trades, accounts, and related transactions could potentially be disclosed by Custom House to, and reviewed by, law enforcement and other regulatory agencies in accordance with applicable law.
6. XE Trade Site Security and Password
To access XE Trade Services, the Customer must first choose a unique username and Password. In the event that Custom House assigns a Password to the Customer, the Customer must change the Password to a new one. Custom House will neither have knowledge of nor record any Password selected by the Customer.
7. Bank Verification, Customer Identification and Consent to Credit Check
The Customer agrees to provide Custom House with the name and contact information for a bank at which the Customer maintains an account in a country where the Customer resides Said bank must be a member of the Financial Action Task Force on Money Laundering.
The Customer authorizes Custom House to contact the Customer's bank to verify the Customer's identity, signature, account information and any and all other information relevant to this Agreement and the Customer obligations under this Agreement. By providing said bank information, the Customer represents and warrants that the Customer has signing authority on the account described.
The Customer further authorizes Custom House to take all commercially-reasonable measures to confirm the Customer's identity and to examine the Customer's background with respect to the Customer's ability to meet the Customer's obligations to Custom House. For the purpose of this Agreement, reasonable measures will include but are not limited to the following:
on an ongoing basis, to request and obtain the Customer's information, which may be available from credit bureaus and/or other credit-granting agencies, including the Customer's bank, to assess the Customer's credit history and credit rating;
with credit bureaus and/or other credit-granting agencies, to provide and receive, on a regular basis, credit information concerning the Customer to ensure that Custom House records are up to date and as accurate as possible.
8. Trades 8.1 Trade Password, Trade Completion
Before the Customer accesses XE Trade Services through the web and engages in a trade, the Customer shall self-identify by entering the required Password. If Custom House assigned a Password to the Customer, the Customer must change it to a new Password of the Customer's choice. Custom House will not know the new Password or any subsequent Passwords selected by the Customer.
Before Custom House shall consider each trade to be final, the Customer must clearly authorize, consent to, accept and finalize each Trade using XE Trade Services. Custom House shall deem a trade done when the Customer, in the following order, performs the following: 1. Enters the Customer's Password and accesses XE Trade Services through the web. 2. Enters the required transaction information into the fields provided by XE Trade Services. 3. Completes and accepts the Trade by clicking on the "Confirm Trade" button.
At the Customer's completion of these steps, Custom House accepts the trade as final and is legally binding on the Customer.
8.2 Principals and Authorized Third Party Users Principal Users
The Customer will, if it is acting as a Principal User, provide Custom House with a list of Authorized Third Party Users that it has authorized to: enter into Trades on the Principal User's behalf; otherwise access and use XE Trade Services on its behalf; and to provide Custom House with settlement and delivery instructions for completed Trades on its behalf.
The Customer as Principal User represents that its Authorized Third Party Users are authorized to enter into this Agreement and that any Trade by Authorized Third Party Users will be enforceable against the Customer as Principal User. Any prior restrictions on the authority of Authorized Third Party Users, as defined herein, are hereby revoked. An Authorized Third Party User's authority to trade and otherwise use XE Trade Services shall remain valid and enforceable against the Customer as Principal User unless the Principal User specifically advises Custom House that restrictions apply to an Authorized Third Party User's authority to enter into Trades and otherwise use XE Trade Services.
The Customer as Principal User understands that, notwithstanding the facts that the Principal User's Authorized Third Party Users must individually enter into a separate XE Trade User Agreement and be assigned their own Passwords, the Authorized Third Party User's access to, and use of XE Trade Services is made solely on behalf of the Principal User and the Principal User agrees that it is responsible for the acts, errors and omissions of the Authorized Third Party User as if Principal User had performed those acts or made those errors and/or omissions itself.
Authorized Third Party Users
An Authorized Third Party User, authorized by a Principal User, shall be able to enter into Trades on the Principal User's behalf; otherwise access and use XE Trade Services on their behalf; and to provide Custom House with settlement and delivery instructions for completed Trades on their behalf, and the Authorized Third Party User:
will provide Custom House with a list of, and contact information for, all Principal Users on whose behalf the Authorized Third Party User intends to purchase or sell Currencies or otherwise use XE Trade services.
represents that it has full discretionary authority to purchase and sell Currencies on behalf of each of the Principal Users and that each Trade entered into on their behalf will be enforceable by Custom House against them in accordance with its terms.
understands that all information concerning trades made, or use of any XE Trade Services used by it, as an Authorized Third Party User, will be made available by Custom House to the Principle User on whose behalf the Authorized Third Party User acts.
The Customer, as an Authorized Third Party User, will not have the authority to correct, change, verify or send data on the Principal User's behalf, send information and communications to and from Custom House, or access the Principal User's electronic communications and financial data.
The Customer, as an Authorized Third Party User, will not have the authority to further authorize other persons to trade and otherwise access and use XE Trade services on the behalf of a Principal User on whose behalf the Authorized Third Party User may trade or otherwise access and use XE Trade Services.
8.3 Representations Made For Each Trade
All representations made in this Agreement with regard to trades shall apply each and every time the Customer accepts, finalizes and enters into a Trade.
The Customer indemnifies and holds harmless Custom House from and against all claims made against it, costs, losses and expenses incurred by Custom House arising out of, or in respect of, any claim that an employee or other person who uses the Customer's password was not authorized to enter into a Trade on the Customer's behalf and/or provide Custom House with settlement and delivery instructions for completed Trades. This indemnity will survive the completion of any Trade or the termination of this Agreement.
As an Authorized Third Party User, the Customer will indemnify and hold harmless Custom House from and against all claims made against it, costs, losses and expenses incurred by Custom House arising out of, or in respect of, any claim by a Principal User that the Authorised Third Party User was not validly authorized or authorized at all to enter into or perform a Trade for a Principal User or that a Trade for them is otherwise not enforceable against them by Custom House. This indemnity will survive the completion of any Trade or the termination of this Agreement.
8.5 Responsibility for Authorized and Unauthorized Access
The Customer will manage and control access to XE Trade and the ability to conduct trades and receive other services, by strictly managing and controlling access to the Customer's password.
It is the Customer's responsibility to ensure that Authorized Third Party Users are properly authorized to trade and otherwise use XE Trade Services on the Principal User's behalf, and it is the Customer's responsibility as a Principal User to ensure that an Authorized Third Party User, authorized to act on its behalf, enters into a XE Trade User Agreement and receive their own Password as required above.
It is the Customer's responsibility to ensure that the Customer Password(s) do not become known to other parties, including Authorized Third Party Users, who are also required to enter their own User Agreement and obtain their own Passwords.
All Trades and other uses of XE Trade Services conducted through the Customer's password, whether they are by Authorized Third Party Users or Unauthorized Third Party Users, are the Customer's responsibility and will be legally binding on the Customer. The Customer shall indemnify and hold harmless Custom House from and against any claims for damages, losses, costs, fees and expenses incurred by Custom House arising out of or in respect of any unauthorized use of the Customer's password and this indemnity will survive the completion of any Trade or the termination of this Agreement.
The Customer will not be responsible for any unauthorized use or trade that occurs after Custom House has acknowledged to the Customer in writing receipt from the Customer of a direction to terminate use of the Password used.
The Customer, when acting as a Principal User, must immediately notify Custom House when any new person becomes an Authorized Third Party User or when any existing Authorized Third Party User is no longer entitled to be an Authorized Third Party User.
8.6 Trade Confirmation
The terms of each Trade will be set out in the Trade Confirmation presented to the Customer (as the person making the trade) on the Trade Confirmation Screen, which follows the Customer acceptance of the Trade. The Trade confirmation is evidence of the completed Trade and the terms of the completed Trade.
The Trade will not be invalidated if, for any reason, the Trade Confirmation is not presented to the Customer by Custom House as a result of a computer malfunction or any other reason. If, for any reason, the Trade confirmation is not presented to the Customer, the records of Custom House with respect to that Trade will constitute conclusive evidence of the terms of the Trade. If a Trade confirmation is not presented to the Customer for any reason, the Customer should notify Custom House immediately by calling the Customer Support Number, and Custom House shall endeavor to provide the Customer with a confirmation setting out the terms of the Trade.
8.7 Payment for Trade
Once a Trade has been finalized and entered into following the Customer's acceptance, the Customer must make each payment or delivery required to be made by it 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.
The Customer must ensure that any account, from which the Customer 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, the Customer will be liable for any resulting fees payable with respect to the account in accordance with the terms under which the Customer holds such account.
If the Customer fails to settle the Trade on the Value Date for the Trade, Custom House may, without limiting any other remedies that it may have, in its absolute discretion cancel the Trade, in which case the Customer will have to reimburse Custom House for any and all costs and expenses incurred by Custom House when it cancels the Trade and the Customer shall hold Custom House harmless for any losses suffered by the Customer or any third party as a result of cancellation of the Trade. Without limiting the generality of the foregoing, the Customer agrees that the Customer shall be liable to Custom House for all of the following arising out of the Customer breach of contract:
general damages for all our loss of profit and foreign exchange losses suffered by us;
an administration charge of $100.00 U.S. to compensate Custom House for the time spent to manage the Customer default with us;
any and all bank charges that we incur due to the Customer default with us;
Custom House's actual legal costs on a solicitor and Customer basis incurred as a result of the Customer default with us.
8.8 Trade Incorporated Into Agreement
Each trade is subject to this Agreement and 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 the Customer and Custom House and together constitute a single agreement between the Customer and Custom House. If there is any inconsistency between this Agreement and a Trade confirmation, the Trade confirmation will govern.
8.9 Cancellation of Trade
If, for any reason, the Customer wants to cancel a Trade that has been finalized and entered into the Customer may notify Custom House by calling the Customer Support Number. Custom House may or may not have the ability to cancel the Trade. The Customer understands that it is prudent to contact Custom House immediately to make such a request.
Custom House may, at its sole discretion, use reasonable efforts to cancel the Trade, but the Customer understands and acknowledges that once the Trade has been finalized and entered into it is the Customer's binding obligation and Custom House is not required to cancel the Trade.
If, after reasonable efforts are made by Custom House, it is determined the Trade is cancellable, then Custom House may cancel the Trade, but the cancellation of any such trade will be entirely within the sole and absolute discretion of Custom House.
If a trade is cancelled by Custom House at the Customer's request, the Customer must reimburse Custom House for any expenses incurred by Custom House when it cancels the trade.
8.10 Date of Trade
If the Customer selects the Value Date for the settlement of a Trade that is not a Business Day in the legal jurisdiction in which any of the accounts from which the Customer will be making or receiving payment for a Trade resides (i.e. if the account is maintained at a branch in that jurisdiction), the Value Date for the Trade will be the first day following the Value Date that the Customer selected that is a Business Day in each of the jurisdictions in which such accounts reside, notwithstanding anything to the contrary in the Trade confirmation.
Custom House will use commercially-reasonable efforts to process the Customer transactions on the same day they are submitted through XE Trade. Custom House cannot control and is not responsible for the time it takes financial institutions to settle accounts. If a transaction is processed on the next business day for whatever reason, Custom House will not, in the absence of gross negligence or wilful misconduct, be responsible for failure, delays or errors in the completion of the transaction and have no liability for consequential damages, losses, or special damages.
8.11 Rejection of Trade
Custom House reserves the right to reject any Trade that is incorrect, incomplete or unsatisfactory to Custom House for any reason and Custom House is not required to provide reasons for its decision.
8.12 Corrections To Trade
In the event that the Customer notices an error in the Confirmation, objects to the Confirmation, or believes that an unauthorized party has made a Trade on the Customer's behalf (collectively referred to in this section as an "Objection"), the Customer must call the Customer Support Number immediately.
Within twenty-four (24) hours, any such Objection must be confirmed in writing to Custom House, and it shall be deemed received only if actually delivered or mailed by registered mail, return receipt requested, to Custom House at its principal address. If the Customer fails to object within the time frames specified, it will be deemed that the Customer ratified the Trade.
If the Customer or any Authorized Third Party User or unauthorized user makes an error in the process of entering a Trade, the Customer agrees that Custom House will not be responsible for any losses the Customer incurs or delays the Customer experience as a result of such an error. Custom House's inability or failure to detect and notify the Customer of any error the Customer makes, regardless of the nature of such error, shall not result in Custom House being held responsible for any losses suffered by the Customer, including but not limited to in connection with delays the Customer experiences or costs the Customer incurs as a result of such error.
The Customer agrees to indemnify and hold Custom House harmless from and against any and all claims, losses, liabilities, damages and costs, including, but not limited to, reasonable attorney's fees and out-of-pocket expenses, arising out of or related to any error that the Customer fails to correct or arrange for Custom House to correct. This indemnification shall be binding upon the Customer and will survive termination of this Agreement.
8.14 Reversing Trade
The Customer may request that a Trade be reversed or amended. Custom House may, at its sole discretion, attempt to reverse or amend the Trade. Custom House has no obligation to cancel or amend a Trade. Custom House shall not be liable if any such request to cancel or amend a Trade is not effected, nor shall Custom House be liable for any service charges or currency rate differences involved in reversing or amending a Trade.
8.15 Quoting Error
Should a quoting error occur due to a typo or obvious mistake in a quote, Custom House will not be liable for any damages, claims, losses, liabilities or costs arising from the quoting error. Custom House reserves the right to make the necessary adjustments to correct the quoting error. Any dispute arising from such quoting errors will be resolved on the basis of the fair market value, as determined by Custom House, in its sole discretion, of the relevant Currency at the time the quoting error occurred.
Custom House may maintain a database of instructions the Customer, as either a Principal User or an Authorized Third Party User, or any unauthorized persons who engage in a Trade or use XE Trade with the use of the Customer Password, has provided to enter into or use XE Trade. These records will be conclusive and binding on the Customer or any other person in any dispute or legal proceeding as the best evidence of the Customer's XE Trade Trades in the absence of clear proof that Custom House's records are erroneous or incomplete.
Custom House is not responsible and shall not be held liable to the Customer for any payment that Custom House makes pursuant to incorrect settlement or delivery instructions given by the Customer to Custom House, including when said instructions are given by the Customer as Principal User, Authorized Third Party User, or any other person using the Customer's Password. These records will be subject to Custom House's privacy policies.
10. Set Off
In addition to other remedies available to Custom House, if the Customer fails to pay any amount when due under this Agreement, Custom House may set-off against such amount any amount payable by Custom House to the Customer.
Custom House is entitled to set-off against any amounts due to it by the Customer, any amounts received by Custom House from or on behalf of the Customer including but not limited to moneys received as deposits or margin deposits, in the event that Customer enters into a forward contract with Custom House. Custom House may determine the application of any amounts which are to be set-off at its own discretion.
The Customer must not set-off against any amounts due to it by Custom House, any amounts Custom House owes the Customer.
For the avoidance of doubt, Custom House has the right to net or set-off any amounts it owes to Customer against any and all amounts owed or that may be owed to it by Customer, including any fees, losses or indemnities.
11. NO SPECULATION PERMITTED
The Customer may only enter into a Trade for the purpose of hedging the risk of movement in the value of a Currency but not for the purpose of speculation or investment. If Custom House suspects that XE Trade Services have been used by the Customer, either as Principal User or an Authorized Third Party User, for speculation purposes, Custom House may immediately terminate this Agreement, and Custom House shall be relieved of any obligations set out in this Agreement, including any obligations arising out of any Trade already placed with and accepted by Custom House.
12. Information Services and Sources
Custom House believes that its market and other information is reliable insofar that it is independently obtained from information sources and other providers that Custom House believes to be reliable. However, the Customer understands and agrees that Custom House and its information sources do not guarantee, for any particular purpose, the timeliness, sequence, accuracy, completeness or fitness of this information.
Information provided by Custom House and made available through XE Trade may include views, opinions and recommendations of individuals or organizations. The Customer understands and agrees that the availability of this information through XE Trade does not constitute Custom House's endorsement of any such views or opinions. The Customer further understands and agrees that Custom House does not provide professional advice through XE Trade: information relating to investment, tax, accounting or law, which is included in XE Trade, is to be considered information only and does in any way not constitute professional advice and may not be relied upon by Customer.
13. Limitation of Liability
Custom House will not be liable to the Customer for any loss, costs or damages that the Customer incurs as a result of the Customer use of XE Trade or if XE Trade or any XE Trade Services are not available, including, if for any reason, XE Trade or any or all of XE Trade Services are not available during its normal hours of operation.
Without limiting the generality of the foregoing, Custom House will specifically not be liable: for communication malfunctions that affect the accuracy or timeliness of messages or instructions between the Customer and Custom House and/or which prevent messages from being transmitted in whole or in part; if the Customer makes errors, however careless, while entering information when using XE Trade; if any person fails to log off a personal computer and an unauthorized Trade is entered into using XE Trade; if, for any reason, XE Trade cannot be accessed by the Customer, if XE Trade does not function or is not available; or for any errors in/or malfunction of software.
Custom House will not be responsible for any loss, damages or injury suffered by the Customer by reason of any act or omission that occurred in the course of or in connection with the operation of any Electronic Access Device. Should inaccurate exchange rates (as determined by Custom House acting reasonably) be posted on Custom House’s website by us, such rates may not be honoured by Custom House, in our sole discretion.
Custom House’s liability to the Customer and anyone claiming through the Customer hereunder for a breach of this agreement by Custom House shall be limited to the foreign currency value of the Order relating to the claim, determined as at the Value Date. Custom House shall not be liable for any claim of the Customer for economic loss or consequential damages. . NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, THE CUMULATIVE AGGREGATE LIABILITY OF CUSTOM HOUSE UNDER THIS AGREEMENT SHALL BE LIMITED TO A MAXIMUM AGGREGATE IN DIRECT DAMAGES SUFFERED IN THE AMOUNT AS CALCULATED ABOVE. IN NO EVENT SHALL CUSTOM HOUSE, OR ITS AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS BE LIABLE UNDER ANY THEORY OF TORT, CONTRACT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR LOST PROFITS, PUNITIVE, EXEMPLARY, SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL OR SIMILAR DAMAGES, EACH OF WHICH IS HEREBY EXCLUDED BY AGREEMENT OF THE PARTIES REGARDLESS OF WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
For the avoidance of doubt, the parties acknowledge and agree that it is the Customer's responsibility to determine the chapter 3 and chapter 4 status of the Payee in accordance with Internal Revenue Code sections 1441 through 1446 and 1471 through 1474, and that the parties' expectation is that Custom House would not know or have reason to know of the withholding status of a payment to a Payee. Accordingly, Customer represents and warrants to Custom House that Customer has determined the chapter 3 and chapter 4 status of the Payee in accordance with Internal Revenue Code sections 1441 through 1446 and 1471 through 1474, and the regulations promulgated thereunder, and has withheld the appropriate amount, if any, required. Customer shall indemnify and hold harmless Custom House from and against any claims by the U.S. Internal Revenue Service (IRS) for tax, interest, and penalties, and expenses incurred by Custom House arising out of or in respect of the Customer's under-withholding or other noncompliance with respect to the IRS withholding rules, including but not limited to FATCA. This indemnity will survive the completion of any payment and the termination of this Agreement.
15. Service Modifications and Interruptions
Custom House may modify XE Trade and/or XE Trade Services at any time. From time to time XE Trade and/or some or all of XE Trade Services may periodically be unavailable to the Customer during its normal hours of operation in order to allow for maintenance and updates or for other reasons. The Customer specifically agrees that Custom House is not responsible for any losses to Customer or any other person resulting from the unavailability of XE Trade or any of XE Trade Services.
Custom House will not 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.
16. Changes to Agreement
Upon reasonable and prior notice to the Customer, which may include communication via XE Trade Services, Custom House may amend any provision of this Agreement at any time and the Customer's continued use of XE Trade after the date of any such amendment will constitute for all purposes the Customer's agreement and consent to any such amendment.
Custom House may terminate this Agreement at any time without notice. The Customer may terminate this Agreement at any time by notifying Custom House in writing. Termination will be effective as of the close of business on the day notice is received by Custom House.
Subject to (c), termination of this Agreement by either Custom House or the Customer will not affect any transactions that were entered into prior to such termination and this Agreement shall continue until all obligations under those transactions have been performed. Custom House reserves the right to elect to return funds held by it to a Customer in lieu of performing outstanding transactions.
In the event that Custom House is made aware of or has reason to believe any of the following:
that the Customer has provided false or misleading information to Custom House;
that the Customer has or is participating or has or is assisting in money laundering or terrorist financing;
that the Customer is being pursued by law enforcement and/or regulatory agencies;
iv. that completing a transaction would result in a breach of law or other regulatory requirement by Custom House;
v. that the Customer is subject to bankruptcy, liquidation or other insolvency proceeding:
then Custom House, at its sole discretion, may terminate this Agreement, and Custom House shall be relieved of any obligations set out in this Agreement, including any obligations arising out of any Trade already placed with and accepted by Custom House.
18. Post Termination.
Subject to s. 17(c), within two (2) Days of termination, each party shall pay all amounts due, and the Customer will dispose of all materials received from Custom House as per Custom House's written instructions. Duties of payment, delivery, and destruction of materials shall survive termination of this Agreement.
19. Notices and Communications of Instruction
In this agreement, written notice means notices shall be in writing and delivered by postal mail, courier, email, or fax to the address, fax number, or email address described below. Notice will be deemed effective upon receipt and, in the case of faxes, if the form is legible. Should a delivery or transmission be received on a non-Business Day, receipt shall be deemed to be the following Business Day. Custom House may, at its discretion, rely and act upon telephone, fax and any other electronically transmitted instructions from any person the Customer who Custom House believes, in good faith, to be genuine and authorized by the Customer to give said instructions. Custom House shall not, in the absence of gross negligence or wilful misconduct on its own part, be responsible for reliance on said instructions nor shall Customer House be responsible for failure, delays or errors in the receipt of such instructions and, accordingly, the Customer agrees that Custom House shall have no liability for consequential or special damages in connection thereto.
Address: Custom House, 12500 East Belford Avenue, Englewood, CO 80112.
The Customer confirms that it has requested this Agreement and all related documents to be drawn up in the English language only.
21. General 21.1 Inurement
This Agreement, including all transactions, shall inure to the benefit of Custom House, its successors and assigns and shall be binding upon the Customer and the Customer's personal representatives, executors, trustees, administrators, successors, assigns, principals, officers and agents.
Any rights that the Customer has pursuant to this Agreement shall not be assigned, transferred, sold, or otherwise conveyed, except with the written authorization of Custom House. Custom House may, however, assign this Agreement to another party without Notice to the Customer.
In this Agreement, singular includes plural and plural includes singular.
21.4 Agreement Survives Failure of Specific Provisions.
If any provision of this Agreement shall be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidation of the remaining provisions of this Agreement.
This Agreement comprises the terms and conditions governing the relationship of the Parties. If there are different or conflicting terms in any schedule, attachment or other addenda attached hereto, then the terms of the schedule, attachment or other addenda shall govern over the terms in this Agreement.
21.6 Entire Agreement
This Agreement, and all schedules, attachments or other addenda attached hereto, constitute the entire agreement between the parties with respect to the use and provision of the Custom House Services, and supersedes and replaces any and all prior or contemporaneous understandings, communications or agreements, written or oral, regarding related subject matter. The parties specifically understand that there are no representations, warranties, guarantees, promises, or agreements other than those set out in this Agreement and all schedules, attachments or other addenda attached hereto.
Headings in this Agreement are inserted for convenience of reference only and are not intended to limit the applicability or affect the meaning of its provisions.
21.8 Applicable Law
This Agreement shall be governed exclusively by the laws of the Province of British Columbia and Canada. All Trades made hereunder shall be deemed to have been entered into and to have taken place in Canada at the head office of Custom House, in Victoria, British Columbia. The courts located in British Columbia shall have exclusive jurisdiction for settling disputes arising from the Agreement and both parties irrevocably submit to that jurisdiction.
This Agreement exists in addition to and not in substitution of any other present or future agreement between the Customer and Custom House.
21.9 Names and Marks
At no time shall either party make commitments for, or in the name of, the other party. Except as specifically provided for in this Agreement, neither party will: (a) use the other party's name or proprietary marks without prior written approval; or (b) represent itself as being affiliated or partnered with, or authorized to act for, the other party.
21.10 Compliance with Law
Each party will conduct its activities under this Agreement in compliance with all applicable laws, which may include, but may not be limited to, anti-money laundering and licensing laws. The Customer may be required to provide Custom House with personal information or information concerning its business, which will be kept on record by Custom House in a commercially-reasonable manner. Where required by applicable laws, Custom House shall report transactions pursuant to this Agreement to the appropriate regulatory or law enforcement agent.
21.11 Force Majeure
Neither party will be liable for any failure or delay in performance (except for duties of payment of any monies due under this Agreement) due to governmental acts (including currency controls), acts of God, war or civil unrest, acts or omissions of third parties, equipment or power interruption, market or banking conditions, or other circumstance beyond the party's reasonable control.
The Customer understands that hyperlinks or other links featured on Custom House's website, which link to third party websites that are outside of control of Custom House, exist solely as a complimentary convenience of visitors to the Custom House website. Custom House does not review, monitor, endorse or control these third party websites and therefore is not responsible for their content. The Customer agrees, as an experienced user of the world wide web, that it uses the Internet at its own risk and that Custom House is not liable for any losses and damages resulting from, or in consequence of, the Customer following a link to a third party website which is posted on Custom House's website.
21.13 Computer-Related Losses
The Customer agrees that Custom House shall not be responsible or liable to Customer or any third party for any computer-related problems caused, directly or indirectly, by any breakdown or failure of Custom House's transmission or communication system, an electrical power outage, or any other cause beyond Custom House's control or anticipation, including but not limited to delays in transmission of data or information and/or computer viruses, which problems result in losses, damages, claims (third party or any claims), costs or expenses, including attorneys' and any other fees.
22. Action To Execute Agreement
13 June 2014
End of User Agreement
XE.COM INC. - AGREEMENT AND ACKNOWLEDGMENT IN FAVOUR OF XE.COM INC.
In consideration of Custom House entering into a User Agreement with you and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, you the Customer (as defined in the Custom House User Agreement), intending to be legally bound, hereby agree, confirm, consent and acknowledge that XE.com Inc. and its affiliates/subsidiaries are solely referring agent/introducing agent introducing you to Custom House and as such: (i) shall not be providing any trading activities, advice or foreign exchange services to you directly or indirectly, all of which shall be handled by Custom House, (ii) have no liability to you for any services provided to you by Custom House or its affiliates and subsidiaries, (iii) are entitled to all of the indemnity provisions and liability exclusions benefiting Custom House and its affiliates and subsidiaries as set out in the Custom House User Agreement, (iv) have not induced you to enter into this Agreement/relationship with Custom House nor made any promises, representations or warranties as to Custom House's expertise or abilities and (v) are being compensated by Custom House based on your trading activities. You hereby consent to and acknowledge that all of your personal information collected by Custom House shall be shared with XE.com Inc. and transferred to XE.com Inc. by Custom House on termination of this Agreement and shall then only be used and retained by Custom House for the purposes of Custom House complying with its legal record retention obligations.
This Agreement and Acknowledgement in Favour of XE.COM Inc. shall be governed and construed in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein and the parties hereto irrevocably submit to the jurisdiction of the courts of the Province of Ontario. THIS AGREEMENT SHALL NOT BE CONSTRUED AGAINST XE.COM INC. BY REASON OF THE DRAFTING OR PREPARATION HEREOF.
BY CLICKING THE SUBMIT BUTTON DIRECTLY BELOW THIS WINDOW YOU ACKNOWLEDGE THAT YOU: (I) HAVE READ AND UNDERSTAND ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT AND THE CUSTOM HOUSE USER AGREEMENT; (II) AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT; AND, (III) HAVE THE POWER AND AUTHORITY TO ENTER INTO THIS AGREEMENT.
End of Agreement and Acknowledgement in Favour of XE.com Inc.