XE.com Inc. is Custom House's alliance partner for purposes of providing the XE Trade online system and referring customers to use the XE Trade Services. This Agreement is between you (the â??Customerâ??) and Custom House USA, LLC ("Custom House"). There is a separate Agreement and Acknowledgement with XE.com Inc. following the User Agreement. .
In consideration of the covenants, agreements, warranties, and good and valuable consideration set forth below (the receipt and adequacy of which is acknowledged), the Customer and Custom House agree as follows:
In this Agreement:
The Customer represents and warrants to Custom House that:
The Customer authorizes Custom House to transmit the Customerâ??s personal information, Application Form and agreement to the Customer at the email address the Customer has provided to Custom House. 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 Customerâ??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.
This Section 3.1 does not apply to U.S. Consumer Transactions.
3.2. Special Policy for U.S. Consumer Transactions
U.S. Consumer Transactions will be subject to Custom House's Electronic Communications Policy, which will be separately provided to the Customer. The Customer's failure to agree to or withdrawal of consent to Custom House's Electronic Communications Policy will prohibit Custom House from communicating with Customer electronically and therefore prohibit the Customer from using the XE Trade Services to conduct U.S. Consumer Transactions. Customer acknowledges that, in using the XE Trade system including the use of any printing functionality, it shall take such measures as reasonably required to ensure the safety and security of any information or documentation which includes personal information or banking information.
4.1. Use of Customer Personal Information
Customerâ??s personal information is processed under applicable law and controlled by Custom House in accordance with this clause. Custom House uses personal information the Customer provides to Custom House when using the XE Trade Services, as well as other information that is collected or generated during Custom House's relationship with the Customer. This includes information from other services like money transfers, bill and business payments, loyalty or membership program details, historical Transactions, and marketing choices. This information is used to provide Customer with the XE Trade Services Customer agreed to and activities like administration, customer service, anti-money laundering duties, validate Customer details, to complete analysis and research, to help prevent and detect fraud, debt and theft recovery, and to help Custom House improve its products, services and operations.
4.2. Use of Other Information & Payee Information
Custom House may also use, collect from and share with other businesses who work with Custom House information from other products and services and convenience and/or rewards programs, which Customer has registered for during Customerâ??s relationship with Custom House. Custom House will hold and retain the information that Customer gives Custom House about another person including the details of any Payee in order to execute the Transaction. It is the Customerâ??s obligation to ensure prior to providing this information that Customer has notified and secured authorization from the Payee on Custom Houseâ??s use and disclosure of this information as set out in this section.
4.3. Sharing of Information
Custom House may transfer information to affiliates in countries other than the country in which the information was originally collected or created, including to affiliates in the United States. Custom House may also provide the information to other organizations that help Custom House run its business, if there is a reasonable need, to carry out or aide the payment services, future services, or for any of the reasons or uses set out in this section. Custom House may add to information Customer provides with information from available other business or individuals, including information to validate the accuracy of Customer information provided by Customer. Custom House may disclose personal information, including without limitation, name, customer ID number, address, transaction patterns and bank account information, (i) if required to do so by domestic or foreign law or legal process or (ii) to law enforcement authorities or other government officials (including those in this country, the United States, or elsewhere) for purposes such as detecting, investigating, prosecuting and preventing crimes, including money laundering and related criminal activity, and the recipients may further disclose the information for these and other related purposes.
4.4. Information Restriction
The information Custom House holds may be accessed by Custom House and its affiliates including but not limited to any authorized Custom House service providers for any of the purposes set out in this section or for other purposes to which Customer has agreed. Customer has a right to ask Custom House to see and get a copy of Customerâ??s information, for which Custom House may charge a small fee. Customer can also correct, erase or limit Custom Houseâ??s use of the information which is incomplete, inaccurate or out-of-date. Customer may object at any time on legitimate reasons to the use of Customerâ??s information, where the processing is not required to complete the Service, or required by law or regulation. If Customer wishes to exercise these rights or no longer wishes to receive commercial communications from Custom House, please contact Custom House by emailing firstname.lastname@example.org or by calling 1-877-932-6640 option 2.
Before the Customer accesses XE Trade Services through XE Trade, the Customer must first choose or enter a unique username and Password. If Custom House assigns a Password to the Customer, the Customer must change the Password to a new Password of the Customer's choice. The new Password or any subsequent Passwords selected by the Customer will be encrypted and cannot be accessed by any employees of Custom House.
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 Customerâ??s bank to verify the Customerâ??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 Customerâ??s identity and to examine the Customerâ??s background with respect to the Customerâ??s ability to meet the Customerâ??s obligations to Custom House. For the purpose of this Agreement, reasonable measures will include but are not limited to the following:
The Customer will: (i) enter into XE Trade Transactions; (ii) access and use XE Trade Services; and (iii) provide Custom House with Instructions. The Customer represents that it is authorized to enter into this Agreement and that any Transaction initiated by Customer will be enforceable against the Customer.
7.2. Reliance on Instruction
Customer hereby authorizes Custom House to accept, act and rely upon any Instruction that Custom House reasonably believes to have been delivered by Customer.
7.3. Accuracy of Instruction
Before transmitting an Instruction to Custom House, Customer shall be responsible for ensuring that all information contained in the Instruction is complete, accurate and, if in writing, legible. Custom House relies on the information provided by Customer to process Transactions pursuant to Customerâ??s Instructions, including any Instructions to transfer funds to a Payeeâ??s bank account. Without limiting the foregoing, Customer shall ensure that the currency to be received by the Payee matches the currency of the Payeeâ??s account, and that the Payeeâ??s bank account number and Payeeâ??s bank identifiers, including BICs, SWIFT codes and IBANs are correct. If Customer supplies Custom House with incorrect or insufficient information, funds may not be properly transferred to or received in the Payeeâ??s account and funds sent to an incorrect bank account or bank may not be recoverable by Custom House. Customer acknowledges that it must review all Transaction instructions carefully prior to authorizing a Transaction and if Customer subsequently learns of any error in an Instruction, Customer must immediately notify Custom House.
7.4. Inaccuracy of Instruction
If Customer fails to provide a timely, complete and legible Instruction, and the Transaction cannot be processed or completed, or the funds are returned to Custom House, Custom House will wait to process/complete the Transaction(s) pending receipt of further or correct details from Customer, provided that Customer is not otherwise in default hereunder. If Custom House does not receive sufficient or correct instruction for the disposition of such funds, funds will be returned to Customer in the same currency in which they were delivered to Custom House and, subject to applicable law, Customer shall be solely liable for any resulting foreign exchange or other losses. Unless required by applicable law, Custom House shall not be liable for any loss or damage suffered by Customer as a result of any such delay. Customer acknowledges and agrees that Custom House shall not pay interest on funds while waiting for sufficient or correct instruction to complete the Transaction(s).
7.5. Transaction Processing
Subject to section 7.11, applicable law and Custom House's policies and procedures, Custom House agrees to process Transactions for Customer as soon as commercially practicable (during normal business hours) in accordance with Customer's Instruction. Customer acknowledges that a request for a Transaction to be processed or credited to a Payee on a specific day which is not a business day in any jurisdiction through which the payment is routed or draft is sent may result in the Transaction being delayed. Subject to applicable law, Custom House shall not be liable for failure delays or errors in processing a Transaction for any reason. Subject to applicable cancellation rights described herein, the Parties agree that a Transaction shall be deemed to be binding on Customer and final once a Transaction identification number has been generated by Custom House. Once a Transaction identification number has been generated and the Instruction has been processed, Custom House will send to Customer a Transaction Confirmation. Custom House will initiate the electronic funds transfer(s) or send the draft(s) to the Payee(s) upon receipt of Settlement from Customer. Payeeâ??s bank (beneficiary bank) may charge fees for the Transaction and foreign taxes in the Payeeâ??s jurisdiction may be applicable to the Transaction, both of which will result in the Payee receiving a lesser amount than the amount disclosed on the Transaction Confirmation, for each of which Custom House shall not be liable. In addition, if the currency a Customer selects to send to the Payeeâ??s bank account is not the currency in which the Payeeâ??s bank account is denominated, the Payeeâ??s bank may convert the funds at its own currency exchange rate (resulting in the Payee potentially receiving a lesser or different amount than the amount disclosed on the Transaction Confirmation) or reject the transfer.
For questions on XE Trade Services, here are the following customer service numbers:
7.6. Representations Made For Each Transaction
All representations made in this Agreement with regard to XE Trade Transactions shall apply each and every time the Customer accepts, finalizes and enters into a Transaction.
7.7. Responsibility for Authorized and Unauthorized Access & Indemnification
The Customer will manage and control access to XE Trade and the ability to conduct XE Trade Transactions, by strictly managing and controlling access to the Customer's Password. It is the Customer's responsibility to ensure that the Customer Password(s) do not become known to other parties.
All XE Trade Transactions conducted through the Customer's Password, including unauthorized third party users, are the Customer's responsibility and will be legally binding on the Customer. 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 any person who uses the Customerâ??s Password was not authorized to enter into a Transaction on the Customerâ??s behalf and/or provide Custom House with settlement and delivery instructions for completed Transactions. This indemnity will survive the completion of any Transaction or the termination of this Agreement.
The Customer will not be responsible for any unauthorized use of XE Trade or any XE Trade Transaction 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.
7.8. Transaction Confirmation
The terms of each XE Trade Transaction will be set out in the Transaction Confirmation presented to the Customer (as the person conducting the Transaction), which follows the Customerâ??s acceptance of the Transaction. The Transaction Confirmation is evidence of the completed Transaction and the terms of the completed Transaction. Each Transaction is subject to this Agreement and the terms of each Transaction set out in the related Transaction Confirmation are incorporated into this Agreement and form a part of this Agreement. This Agreement and the terms of each Transaction 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 Transaction Confirmation, the Transaction Confirmation will govern.
The Transaction will not be invalidated if, for any reason, the Transaction 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 Transaction Confirmation is not presented to the Customer, the records of Custom House with respect to that Transaction will constitute conclusive evidence of the terms of the Transaction. If a Transaction 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 may provide the Customer with a Transaction Confirmation by email or other means setting out the terms of the Transaction.
7.9. Cancellation of or Changes to Transaction by Customer
If for any reason, the Customer wants to amend the terms of a Transaction or cancel a Transaction that has been finalized and entered into, the Customer may notify Custom House by email or by calling the Customer Support Number. Custom House may or may not have the ability to amend or cancel the Transaction. 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 amend or cancel the Transaction, but the Customer understands and acknowledges that once the Transaction has been finalized and entered into it is the Customerâ??s binding obligation and Custom House is not required to amend or cancel the Transaction.
Subject to applicable law, if a Transaction is amended or cancelled by Custom House at the Customer's request, the Customer must pay any applicable cancellation fees and reimburse Custom House for any expenses, losses or charges incurred by Custom House when it amends or cancels the Transaction, including without limitation, any foreign exchange losses and any applicable third party fees or charges.
7.10. Special Cancellation Rights for Certain U.S. Consumer Transactions (Effective October 28, 2013)
Notwithstanding Section 7.9 of this Agreement, and subject to applicable law, U.S. Consumer Transactions for the making of electronic funds transfer(s) may be cancelled for a full refund of the principal and fees paid within 30 minutes of Customer's payment authorization, unless the funds have been made available to the Payee. The Customer may also receive a full refund in certain circumstances if the Customer successfully asserts an error or as otherwise provided under applicable law.
7.11. Cancellation, Delays, or Rejection of Instruction by Custom House
Custom House reserves the right to amend, delay, reject or cancel any Instruction that is incorrect, incomplete or unsatisfactory to Custom House for any reason, including without limitation where such Transaction would be in contravention of applicable law or Custom House policies or procedures. Custom House may also reject Transactions if we are unable to send a particular currency to the country designated by Customer. In the foregoing circumstances, Custom House is not required to provide reasons for its decision. Custom House reserves the right in its sole discretion to discontinue the XE Trade Services, in part or in whole, at any time and shall not be liable to Customer for any loss, liability or expense incurred by Customer in connection with such discontinuation.
7.12. Corrections To Transaction
In the event that the Customer notices an error in the Transaction Confirmation, objects to the Transaction Confirmation, or believes that an unauthorized party has conducted a Transaction on the Customerâ??s behalf (collectively referred to in this section as an "Objection"), the Customer must email or call the Customer Support Number immediately. Subject to applicable law, Custom House may require the Customer to deliver notice of the Objection in writing to Custom House within twenty-four (24) hours after calling the Customer Support Number. If the Customer fails to provide written Objection within the time frames specified, Custom House will deem that the Customer ratified the Transaction.
If the Customer or any unauthorized user makes an error in the process of submitting an Instruction, 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 unless otherwise required under applicable law. 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 unless otherwise required under applicable law.
Subject to applicable law, 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.
Notwithstanding the foregoing, and subject to applicable law, the Customer may be entitled to certain error resolution rights for U.S. Consumer Transactions involving the making of electronic funds transfer(s) if the Customer successfully asserts an error.
7.14. Quoting Error
Subject to applicable law, if a quoting error occurs 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.
Notwithstanding the foregoing, and subject to applicable law, the Customer may be entitled to certain error resolution rights relating to a quoting error for U.S. Consumer Transactions involving the making of electronic funds transfer(s) if the Customer successfully asserts an error.
7.15. Exchange Rates When Converting Currency
Currency is converted to the requested currency at an exchange rate set by Custom House unless the laws of the country in which the Payeeâ??s account is located do not permit Custom House to set an exchange rate upon the sending of the funds, in which case, Custom House shall provide an estimated exchange rate.
7.16 Use of ACH System; NACHA Rules
Customer agrees and acknowledges that in the event Customer instructs Custom House to transmit a payment to a U.S. beneficiary, such Transaction shall be subject to the Electronic Funds Transfer Act, the Uniform Commercial Code Article 4A, and the NACHA rules and that Customer is designated as Originator of such Transaction, as defined by the NACHA rules, and shall be bound by the NACHA rules to the extent applicable to the Transaction. Customer agrees that instructions to Custom House shall constitute authorization to Custom Houseâ??s Originating Depository Institution (ODFI) to originate an ACH entry on Customerâ??s behalf and Customer agrees to assume all obligations of an Originator under the NACHA rules and shall in no event authorize a Transaction in violation of the laws of the United States. The ODFI may suspend or terminate Customerâ??s right to submit ACH entries for breach of the NACHA rules in a manner to permit the ODFI to comply with the rules. Custom House and/or its ODFI may audit Customerâ??s compliance with this Agreement as it pertains to this Section 7.
8.1. Bid Instruction
If Customer issues a Bid Instruction to Custom House, Customer authorizes Custom House to accept and act in accordance with the Bid Instruction to purchase or sell Contract Funds at a specified Target Rate(s). Each Bid Instruction shall be effective only after Custom House has received it and has had a commercially reasonable opportunity to act upon it. The Customer agrees and acknowledges that Customer has not issued an Instruction for payment to be made to a Payee until the terms of the Bid Instruction are met.
8.2. Bid Purchase or Termination
If the terms of the Bid Instruction are met by the end of the Bid Effective Period, Custom House will send to Customer a Transaction Confirmation. If the terms of the Bid Instruction are not met by the end of the Bid Effective Period, the Bid Instruction will expire. Customer agrees to promptly review each Transaction Confirmation for accuracy and immediately advise Custom House of any error or discrepancy within.
8.3. Cancellation of Bid Instruction
In order to cancel a Bid Instruction, Customer must cancel the Bid Instruction through the XE Trade system or by email or calling the Customer Support Number. Custom House must have a commercially reasonable opportunity to act upon such Instruction, before the Contract Funds have been purchased by or sold to Custom House. In the absence thereof, Custom House shall act in accordance with the Bid Instruction and Customer shall be liable for Settlement.
8.4. Target Rate
If the Target Rate does not become Sustainable and Purchasable during the Bid Effective Period, the Bid Instruction shall automatically expire at the end of the Bid Effective Period. Unless otherwise stated in the Bid Instruction, Bid Instructions shall remain in effect until 11:59 p.m. Pacific Standard Time on the last day of the Bid Effective Period.
9.1. Payment Authorization
Unless otherwise provided in this Agreement, Customer authorizes Settlement for, and processing by Custom House of, a Transaction when Customer issues an Instruction.
Unless otherwise provided in this Agreement or agreed in writing between Custom House and Customer, Customer agrees to promptly deliver Settlement to Custom House in immediately available funds and in accordance with any settlement instructions provided by Custom House.
If Settlement is paid to Custom House electronically or by direct debit, Customer must ensure that any bank account from which the Customerâ??s Settlement is to be made, (i) is in the name of Customer; and (ii) contains sufficient cleared funds to satisfy the amount payable to Custom House. Customer agrees that Settlement shall not be recallable by Customer without Custom Houseâ??s prior written consent.
Custom House shall have the right to cancel the Transaction, suspend or ultimately terminate the XE Trade Services and/or initiate any proceedings necessary to recover any balance due under any of the following circumstances:
Custom House has sole discretion in determining which steps to take in the foregoing circumstances.
Further, Customer agrees (i) that Custom House shall have no liability to Customer and Customer waives any claim or action against Custom House, in the event of such cancellation, suspension or ultimate termination and (ii) to indemnify and hold Custom House harmless from any and all liability, claims, damages, and costs, including any foreign exchange losses and bank charges incurred by Custom House, any applicable cancellation fees and all reasonable fees incurred by Custom House resulting from Customerâ??s failure to pay and Custom Houseâ??s effort to collect any balance due. Customer agrees that Custom House may recover interest upon any unpaid amounts due at the rate of two percent (2%) plus prime, as periodically announced by Citibank, N.A., New York.
9.4. Changes in Customer's Bank
Customer shall provide written notice to Custom House or update the information on the XE Trade system, if Customer changes the account(s) at its financial institution(s) from which Custom House has been granted the authority to initiate electronic debits. Such notice shall take effect only once Custom House has received such notice and has had a reasonable time to act upon it.
9.5. Dishonored Settlement
In the event any U.S. Dollar check delivered or electronic debit authorized by Customer is dishonored by Customerâ??s financial institution, Custom House will charge and Customer agrees to pay all processing costs associated with each returned check or rejected electronic debit.
Custom House may maintain a database of Instructions the Customer has entered into, including those relating to Settlement or delivery instructions. 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 Customerâ??s XE Trade Transactions in the absence of clear proof that Custom House's records are erroneous or incomplete.
Subject to applicable law, Custom House is not responsible and shall not be held liable to the Customer for any payment that Custom House makes pursuant to incorrect or unauthorized Instructions given by the Customer to Custom House. These records will be subject to Custom House's privacy policies.
The Customer may only enter into a foreign exchange Transaction 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 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 Transaction already placed with and accepted by Custom House.
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 Houseâ??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 not in any way constitute professional advice and may not be relied upon by Customer.
Rate quotes provided by Custom House through XE Trade are provided for informational purposes and, subject to applicable law, are not binding until an Instruction is given by Customer and a Transaction Confirmation has been provided.
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 and subject to applicable law, 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 Instruction 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 honored by Custom House, in our sole discretion, with the exception of exchange rates disclosed on Transaction Confirmations.
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 Transaction relating to the claim, as determined at the date the Transaction was confirmed by Custom House or, for a Bid, the date upon which the Target Rate was reached.
NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, THE CUMULATIVE AGGREGATE LIABILITY OF CUSTOM HOUSE AND ANY OF ITS AFFILIATES INCLUDING WESTERN UNION 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 ECONOMIC LOSS, 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.
14. Nonresident Alien and Foreign Corporation Withholding; Foreign Account Tax Compliance Act ("FATCA")
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.
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 the XE Trade Services.
Subject to applicable law, Custom House will not be responsible for delays or failures in performance resulting from acts beyond its reasonable control, including but 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.
Upon reasonable and prior notice to the Customer, which may include communication via XE Trade, Custom House may amend any provision of this Agreement at any time and the Customerâ??s continued use of the XE Trade Services after the date of any such amendment will constitute for all purposes the Customerâ??s agreement and consent to any such amendment.
then Custom House, at its sole discretion, may terminate this Agreement immediately, and Custom House shall be relieved of any obligations set out in this Agreement, including any obligations arising out of any Transaction already placed with and accepted by Custom House.
Subject to Section 16(c) of this Agreement, 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 Houseâ??s written instructions. Duties of payment, delivery, and destruction of materials shall survive termination of this Agreement.
In this Agreement, written notice means notices shall be in writing and delivered by postal mail, courier, or email to the address or email address described below. Notice will be deemed effective upon receipt. 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 and any other electronically transmitted Instructions from any person who Custom House believes, in good faith, to be genuine and authorized by the Customer to give said Instructions. Subject to applicable law, Custom House shall not, in the absence of gross negligence or willful 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.
Physical Address: 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.
21.1. Compliance with Law Anti-Money Laundering
21.2. Transaction Processing
Customer understands, acknowledges and agrees that all transactions, wherever originated, shall be processed by Custom House in accordance with the laws and regulations of the United States of America, including but not limited to, those laws and regulations relating to anti-money laundering, anti-terrorism and foreign asset control.
21.3. Telephone Recording
Customer understands, acknowledges and agrees that telephone communications with Custom House may be monitored and/or recorded.
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.
22.4. 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.
22.6. 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 XE Trade 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.
22.8. Applicable Law
This Agreement shall be governed exclusively by the laws of the State of New York, without regard to the law of conflicts, and the Parties agree to be subject to the jurisdiction and venue of the state and federal courts of New York for the borough of Manhattan with respect to any disputes arising out of this Agreement.
This Agreement exists in addition to and not in substitution of any other present agreement between the Customer and Custom House.
22.9. 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.
22.10. Force Majeure
Subject to applicable law, 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 XE Trade or 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 XE Trade or Custom House's 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 XE Trade or Custom House's website.
22.12. Computer-Related Losses
Subject to applicable law, 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 XE Trade or Custom Houseâ??s transmission or communication system, an electrical power outage, or any other cause beyond Custom Houseâ??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 attorneysâ?? and any other fees.
Version April 13, 2015
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 Houseâ??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.
End of XE.com Inc. - Agreement and Acknowledgement in Favour of XE.com Inc.