Optimum FX is a company incorporated under the laws of England and Wales with a registered office at 12 Steward St, London E1 6FQ with registration number 06323311 and authorised and regulated by the Financial Conduct Authority (FRN: 900199) (“Optimum FX“). Optimum FX is a wholly owned subsidiary of Optimum FX Group Limited.
We operate a proprietary Payment Platform that automates the payment lifecycle from receipt of funds through currency conversion and payment. The Services we provide comprise Payment Services (described in Schedule 1), Foreign Exchange Services (described in Schedule 2) and Platform Services. Broadly, the Services allow you to transmit funds to recipients inside and outside the European Economic Area via electronic funds transfer, wire transfer and other electronic means and to buy and sell foreign currency. As stated above, Optimum FX is authorised by the Financial Conduct Authority (the “FCA”) under the Regulations for the issuing of electronic money and the provision of payment services with Firm Reference Number 900199
2. USE OF THE PAYMENT PLATFORM AND THE SERVICES
2.2 Security. It is your responsibility to ensure that the Payment Platform and the Account is only accessed by you or your Authorised Persons and that you procure that you, Authorised Persons, employees and agents keep your login details, password or other security features associated with your access safe and secure. If you have any knowledge or any suspicion that any of these security features have been stolen, misappropriated, improperly disclosed to a third party or used without authorisation or otherwise compromised you must contact Client Support immediately. We agree that we shall use industry standard practices to ensure that the Account is kept secure and will inform you promptly of any attempted hack or unauthorised access to the Account.
2.3 Suspension of Access. We may suspend your Account and/or your or Authorised Persons access to the Payment Platform and/or otherwise restrict functionality if you are in serious breach of these terms or if any of the events set out in Clause 10.4 occur. In all such cases we will, to the extent permitted under applicable laws provide you with reasonable notice in advance of taking these steps. However, we may suspend your Account and/or your or Authorised Persons access to the Payment Platform and/or otherwise restrict functionality without notice if you are using your Account or the Services in a manner that could cause us legal liability or disrupt other users’ ability to access and use the Services or any of the events set out in Clause 10.4 occur. Any suspension or restriction shall continue for such a period as we shall reasonably determine to be necessary.
2.4 Equipment. You must provide and/or obtain any equipment or telecommunications lines and links that may be necessary for you to use the Payment Platform and you acknowledge that certain software and equipment used by you may not be capable of supporting certain features of the Payment Platform. For the avoidance of doubt, we are not responsible for providing you with any equipment or telecommunications lines and links that may be necessary for you to use the Payment Platform.
2.5 Principal only. You confirm, represent and warrant to us at all times that you are acting on your own account and not on behalf of any other person.
3. DATA PROTECTION LEGISLATION
3.1 Personal Data. By asking us to provide you with the Services, you will be providing us with information which includes Personal Data. In relation to such Personal Data, we shall act as a Data Controller and we shall collect, store and process such data in accordance with the Data Protection Legislation. In particular, we will implement appropriate technical and organisational security measures to protect any Personal Data provided by you. We will use any Personal Data (including, but not limited to Personal Data relating to any End Customer) solely to the extent necessary to allow us to provide you with the Services to assess our risks in doing so; and to comply with applicable law and regulations including in respect of Know your Customer (KYC) / customer due diligence requirements.
3.2 Identity. We may conduct searches through an identity-referencing agency and through other sources of information and use scoring methods both to allow us to provide you with the Services and to assess our risks in doing so including credit standing and compliance with all KYC / customer due diligence requirements. A record of this process will be kept and may be used to allow our Group Companies to similarly provide you with services and to assess our risks in doing so. Information may also be passed to other organisations or persons to prevent fraud. Additionally, information may be passed to governmental, regulatory or judicial organisations to prevent fraud or financial crime where we consider it appropriate.
3.4 Responsibility for Data. You are solely responsible for (i) the content, quality, accuracy and completeness of your Personal Data and (any other data transmitted by you or on your behalf via or in connection with the use of the Payment Platform and the Services.
4. FEES AND AMOUNTS TO BE PAID
4.1 Fees. With the exception of Margin and deposit as described in Schedule 2, your Business Introducer (acting as your Authorised Person) shall be liable to us for all fees and charges for the Services. All fees for the Services shall be as set out in the commercial agreement entered into between us and your Business Introducer.
5. CLIENT HELP CENTRE AND SERVICE LEVELS
5.1 Client Help Centre. Currencies available for conversion, settlement schedule, payment cut-off times, and failed payment procedures are described in the Client Help Centre and the Services will be provided subject to and in accordance with the terms set out in the Client Help Centre and we agree to comply with the terms set out therein. We will also in accordance with the Regulations communicate to you the maximum execution time for a payment, the charges payable by you in respect of a payment, the cut-off time for the payment system we use to transmit your payment and (where applicable) a breakdown of the amounts of any charges. In all cases, the maximum execution time to process payment instructions (as opposed to currency conversions) shall be five (5) Business Days. However, in many cases and where required by the Regulations, Optimum FX may process a payment much faster. Please refer to the execution times set out in the Client Help Centre for more information.
5.2 Telephone Conversations. Any telephone conversations we have with you or Authorised Persons may be monitored and recorded by us and we may also maintain records of emails sent by or to you and your Authorised Person. You agree that we may use these telephone recordings and any transcripts or email records for training and quality control purposes or to resolve any disputes and also in the prevention and detection of crime. However we may not make or maintain such recordings or records or be able to make them available to you.
5.3 Service Levels. We shall use all reasonable endeavours to ensure that the Payment Platform is available 99.5% of the time during each calendar month (“Availability”). Availability excludes unavailability due to scheduled maintenance or a force majeure event (as a force majeure event is further described below in section 11.7). In any case, we will promptly inform you if the Services or the Payment Platform become unavailable.
5.4 Help Desk: You or Authorised Persons may report incidents requiring our help by contacting Client Support by telephone or by sending an email which will be acknowledged by email or telephone during UK office hours within one (1) hour of the incident report. Reported incidents will be assigned to a Client Support representative, who shall coordinate support efforts with you or Authorised Persons through resolution of the reported problem. We will use all reasonable endeavours to resolve any incidents or problems relating to the Services as soon as is reasonably possible.
5.5 Scheduled Maintenance: We suspend access to the Payment Platform each evening at 10 p.m. (UK time) for fifteen (15) minutes in order to carry out scheduled maintenance. In addition, every week outside of UK Business Hours we may suspend access to upgrade the Payment Platform for no more than fifteen minutes. We will, to the extent practicable, provide you or Authorised Persons with advance notice of any other scheduled maintenance, including details of the expected Payment Platform downtime. Payment Platform downtime during scheduled maintenance carried out by us in accordance with this section shall not be counted as downtime for the purposes of Availability in Clause 5.3.
6. CONFIDENTIAL INFORMATION
7. OUR AGREEMENT WITH YOU
Any information or documents that you provide to us may be provided to us directly by you, or via your Business Introducer.
8. RELIANCE ON INSTRUCTIONS
8.1 Reliance on Instructions by Authorised Persons. You agree that Optimum FX is authorised to rely on, and act on any instructions given by Authorised Persons. An instruction includes a payment instruction or an instruction relating to a transaction for the purchase or sale and delivery of currency. Optimum FX is entitled to treat any instruction as authorised by, you and is entitled (but not bound) to rely on that instruction if Optimum FX believes it to be appropriate.. If Optimum FX receives what it considers to be conflicting or ambiguous instructions from any Authorised Person on your behalf Optimum FX may, in its absolute discretion and without any liability on its part, decline to act whilst seeking clarification of that instruction. For the avoidance of doubt, a payment instruction shall be regarded as having been authorised by you for the purposes of the Payment Services Regulations 2009 if an Authorised Person has given his/its consent.
8.2 Authorised Persons. A Business Introducer shall be an Authorised Person and shall act as your agent for the purposes of you using the Services unless you have agreed otherwise with the Business Introducer. In the event that a Business Introducer does not act as an Authorised Person or ceases to act as an Authorised Person, you are required to inform us of this immediately.
9.1. Liability You shall be liable to us for all Losses from or in connection with:
(a) our acting on your prior instructions and Orders (including where applicable and without limitation, by e-mail, telephone and instructions via the Payment Platform); (b) anything relating to such instructions made on your behalf by an Authorised Person (including, in writing by e-mail and instructions via our website) to us or concluding Orders with us (whether orally or in writing); and save in each case to the extent that the Losses arise due to our negligence or fraud.
We shall not be liable to you for the non-execution of a payment or for the defective execution of the payment if the information you or an Authorised Person provides is incorrect or inaccurate. However, we will make reasonable efforts to recover the funds involved in the payment. Optimum FX may charge reasonable costs which are incurred by us for such a recovery. Such costs will be charged to the Business Introducer.
9.3 Unauthorised or incorrectly executed payments. Under the Regulations you may be entitled to redress for any unauthorised or incorrectly executed payments. In the case of an executed payment or withdrawal from your Account not authorised by you or an Authorised Person, we will refund the amount of the unauthorised payment to you and where applicable, restore the debited payment account to the state it would have been in had the unauthorised payment not taken place. If we fail to execute, or incorrectly execute, a payment unless we can establish that the beneficiary’s payment service provider received the amount of the payment transaction, we will refund to you the amount of the non-executed or defective payment transaction promptly after becoming aware of the error, and, where applicable, restore the debited payment account to the state in which it would have been had the defective payment transaction not taken place. We will also refund to you with any direct charges for which you are responsible and any interest which you must pay as a consequence of the non-execution or defective execution of the payment transaction. Beyond this, we have no further liability to you for any unauthorised or incorrectly executed payments.
9.4 Aggregate liability. Subject to Clause 9.2 (Non Exclusion), if the claim relates to a specific Contract, our maximum liability to you, whether arising in contract, tort or otherwise, shall in no circumstances exceed an amount equal to the currency sold by us under the relevant Contract.
Subject to Clause 9.2 (Non Exclusion), in no event shall either party be liable to the other for any loss of data, loss of profits or any special, incidental, indirect or consequential Loss, howsoever arising.
9.5 Payee/beneficiary Bank Failure. We will not be liable for errors, mistakes, or non-performance arising from the payee/beneficiary bank if the payee/beneficiary bank fails to process the payment correctly.
9.6 Our Negligence. If Losses are incurred due to our negligence or breach of contract, we will promptly attempt to correct the error. We will be liable for any direct losses such as bank fees and interest incurred as a result of our negligence or breach of contract. In no circumstances will we be liable for any unforeseeable losses incurred, such as loss of opportunity.
11.1 Changes to the Payment Platform. We reserve the right to modify and make changes to the Payment Platform at any time as we deem necessary to comply with applicable laws and regulations or business needs, provided that such modification shall not in our reasonable opinion degrade the functionality of the Payment Platform. Where possible, we shall notify you of such modification as soon as is reasonably practicable following our determining to make the modification.
11.10 Complaints. If you feel that we have not met your expectations in the delivery of our services or if you think we have made a mistake, please let us know. We have internal procedures for handling complaints fairly and promptly in accordance with the FCA requirements. A copy of our complaints procedure is available upon request and on the Website. If you are an eligible claimant you can take your complaint to the Financial Ombudsman Service should you not be satisfied with our final response. Eligibility criteria and the procedures involved, are available from the Financial Ombudsman Service, Exchange Tower London E14 9SR.
SCHEDULE 1 – PAYMENT SERVICES
The following provisions will apply to Payment Services
- Scope of the Regulations. The Regulations apply to all Payment Services including any balances held for you by Optimum FX and all payments made on your or an Authorised Persons’ instructions by Optimum FX.
- Account Status. Your Account is an electronic money account which enables you to send and receive electronic payments. The electronic money on your Account is issued in accordance with the Regulations and other applicable law. Where you close your Account as described below the electronic money held on your Account does not expire but it will not earn any interest.
You can fund your Account and make payments from your Account. For these purposes, making payments from your Account includes making payments to third party beneficiaries or instructing funds in your Account to be transferred to another account in your name with a third party.
You acknowledge that electronic money accounts are not bank accounts and accordingly the UK’s Financial Services Compensation Scheme (FSCS) does not apply to your Account. We strictly adhere to the legal requirements under the Regulations which are designed to ensure the safety and liquidity of funds deposited in electronic money accounts; however in the unlikely event that we become insolvent; you may lose the electronic money held in your Account. For further information on how we safeguard client funds, please refer to section 10 of this Schedule or contact Client Support.
We shall treat the electronic money on an Account registered in your name as belonging to you and no person other than the holder of the Account has any rights in relation to the funds held in an Account and you may not assign or transfer your Account to a third party or otherwise grant any third party a legal or equitable interest over it unless a court or competent regulatory body requires you to in which case we shall use all commercially reasonable endeavours to assist you in executing such assignment, transfer or grant.
Your Account may be subject to funding, payment or conversion limits due to security and legal requirements as determined by us from time to time at our reasonable discretion. You may be asked to answer security questions or to complete other processes that we may reasonably require in relation to any funding or payment transaction. If we are lawfully able to, we shall notify you in writing as soon as is reasonably practicable following any determination that funding or payment limits are to be imposed.
We reserve the right in our reasonable discretion to carry out all and any necessary money laundering, terrorism financing, fraud or other illegal activity checks before processing any payment transaction. Certain transactions may be subject to fees.
- Opening an Account. In order to use Payment Services you must first open an Account with us. By opening an Account with us, you are also confirming that you (i) have regular access to the internet and email and (ii) are able to store information sent to you by email and other electronic means including the Portal in a Durable Medium by printing out or otherwise retaining for future reference all electronic communications sent and information made available to you by us (via the Portal or by email or telephone). It is for you to ensure that your contact details are up to date and that you are able to access any such communications and information at all times.
- Maintaining an Account. You must ensure that the information recorded on your Account is always complete, accurate and up to date and we shall not be liable for any loss arising out of your failure to do so. We may ask you at any time to confirm and/or provide documents or other evidence as to the accuracy of this information.
We may contact you via the Portal or by email with information or notices regarding your Account and Payment Services. It is your responsibility to regularly check the proper functionality of your email account or other methods of communication that you have registered with your Account and to retrieve and read messages relating to your Account and Payment Services promptly. We shall not be liable for any loss arising out of your failure to do so.
Funding, payments or conversions are displayed in your Account and you should check your Account balance and transaction history regularly. You should report any irregularities or clarify any questions you have as soon as possible by contacting Client Support.
- Closing an Account. You may close your Account at any time by contacting Client Support and withdrawing any surplus balance held at that time.
- Funding your Account & Receiving Payment. Funds paid by you or a third party will credited to your Account on the Business Day they are received. If we receive funds after 4.30pm on a Business Day or on a day that is not a Business Day, funds will be deemed to have been received on the next Business Day. We shall not be responsible for the funds until they are received by us.
In the event that the funds are subject to a reversal, we will deduct such reversed transaction from the balance of your Account. If your Account balance is insufficient to cover the reversal, we reserve the right to require repayment from you.
You should regularly reconcile incoming payments with your own records. You should be aware that the crediting of funds to your Account does not mean that these transactions cannot be reversed. We reserve the right to reverse a payment where the payer or the payer’s bank or payment service provider has reversed (or is reasonably likely to reverse) a payment to your Account.
All payments to us must be ascribed a clear and complete reference so that we can credit the funds into your Account. Further details as to what references must be used are set out in the Client Help Centre.
It is your responsibility to ensure that accurate, complete and correct references are ascribed for each incoming payment so that we can credit the funds into your Account. If no reference or an incorrect reference is provided then we not be able to credit your Account. In such cases, we will not be liable for any loss you incur, although we will use reasonable efforts to investigate and credit or return incorrect and inaccurately referenced payments into or from your Account.
- Sending Payment. We will send payments in accordance with your or your Authorised Persons’ instructions to third party beneficiaries or another account held in your name that you specify to us in accordance with your instructions. When making payments to yourself and not to a third party beneficiary, we will only make a payment to a bank account where you are the named holder of such bank account.
All payment instructions must be made through the Payment Platform.
It is your responsibility to ensure that accurate, complete and correct payment instructions for the beneficiary of a payment (including payments to yourself) are provided to us through the Payment Platform. This includes but is not limited to providing us with correct details for the beneficiary to which you would like the payment sent. If you provide incorrect beneficiary details we will not be liable for any loss you incur, although we will use reasonable efforts to assist you in the recovery of your payment. We reserve the right to charge you a fee to cover our reasonable costs for doing this.
You are required to provide us with any additional information that we request with regard to a payment within two (2) Business Days of our request.
You consent to us including your full name, address and account number (and any other details as are required to enable us to comply with our anti money laundering procedures) on the payment details to be sent to the beneficiary’s bank or payment service provider to comply with anti-money laundering regulations If you instruct us to make payment to a new or an existing beneficiary, and your beneficiary account details are provided via an oral Instruction (such as by telephone, video conferencing or other similar means) or otherwise by a communication that is not in writing then we will send you an email containing the beneficiary account details you have provided.
You or an Authorised Person may revoke or cancel a payment instruction for a future outgoing payment transaction at any time prior to payment execution through the platform.
You or an Authorised Person are responsible for confirming via the Payment Platform that a payment instruction has been received and processed by us. We are not liable for any loss in circumstances where erroneous duplicate payment instructions are sent to us by you or and Authorised Person.
If we receive a payment instruction (through the Payment Platform) by 4.30pm on a Business Day, your payment instruction will be deemed to have been received by us on that Business Day. If your payment instruction is received after 4.30pm or on a day that is not a Business Day, your payment instruction will be deemed to have been received on the next Business Day. Your payment instruction will be acted on the earliest possible payment date unless you have requested a specific future date.
You must notify us by telephone or in writing as soon as is reasonably practicable after you become aware of any unauthorised or incorrectly executed payments, otherwise we may not be liable to you and in order to claim a refund for an unauthorised or incorrectly executed payment transaction on your Account you must notify us without undue delay after becoming aware of the unauthorised or incorrect transaction and in any event no later than thirteen (13) months after the debit date of the transaction.
International money transfers often require funds to be transmitted between multiple intermediaries beyond our own direct payment service providers. These intermediaries or the beneficiary bank may deduct a charge. You acknowledge that these charges cannot always be calculated in advance and that you agree to be responsible for such charges. We will not be liable for losses that result from such charges being applied to your payment.
- Prohibited Payments. We reserve the right, in our reasonable discretion to impose ‘acceptable use’ terms in relation to the operation of your Account and the provision of any payment service including the prohibition of certain categories of payment transactions for example payments in relation to the gaming, bitcoins and virtual currencies sectors by specifying these on the Website.
You must not use your Account for any illegal purposes including without limitation fraud and money laundering. We will report any suspicious activity to the relevant law enforcement agency.
If you conduct or attempt to conduct any transaction in violation of the prohibitions contained in this section we reserve the right to reverse the transaction, and/or close or suspend your Account and/or report the transaction to the relevant law enforcement agency and/or claim damages from you.
- Safeguarding. Funds received in accordance with a payment instruction will be subject to the segregation requirements as set out in the Regulations and are referred to as “Relevant Funds”.
For the purposes of this section “Relevant Funds” means any sums received from you or for your benefit from a payment service provider such as a bank for the execution of Payment Services on your behalf. Relevant Funds are held in segregated bank accounts which are independent of our business bank accounts. The purpose for so holding funds is to ensure that in the event of our insolvency, or if a financial claim is made against us, no creditor or claimant should be able to claim funds held in these accounts. This is because no other person or institution may have any rights or interest over the funds held in these accounts such as a lien over funds in these accounts. Relevant Funds are not covered under the Financial Services Compensation Scheme.
When you transfer funds to us to pay Margin or Margin call(s) full ownership and title to these funds transfers to us absolutely and such funds are considered as our funds. They will not be Relevant Funds and so they will placed into our business bank account and will not be afforded protection under the segregation rules of the Regulations.
Pursuant to the Regulations, we will not pay interest on funds paid to us including balances held in segregated or client bank accounts and we may retain, for our own benefit, any interest which accrues from funds held in any accounts.
SCHEDULE 2 – FOREIGN EXCHANGE SERVICES
The following provisions will apply to the Foreign Exchange Services.
- Individual contracts. Each Contract shall be an individual contract and we may at any time and at our sole discretion refuse to offer terms for any Contract.
- Execution Only. We shall not provide you with any advice in connection with the Services (such as, whether to proceed or not to proceed with a Contract and in respect of timing). We may provide market information but this shall not constitute investment advice. We cannot accept responsibly for your decision to enter into a Contract. Any decision to transact is your decision and we will not be liable for any loss or opportunity loss if exchange rates move before or after you transact.
- You agree that you will use Contracts in connection with your lawful future payment needs and not for any speculative or investment purpose. We may decline to deal with you if we have reason to believe that you are using any Contract or the Services for investment or speculative purposes and we may Close Out a Contract in accordance with section 7 of this Schedule.
- Forward Contracts. You hereby agree to only enter into Forward Contracts for the purpose of facilitating payment for identifiable goods, services or direct investment. You agree that we reserve the right to decline to accept an instruction in respect of a Forward Contract if we reasonably believe that you intend to enter into the Forward Contract for purposes other than those listed above.
- Instructions and Orders. Upon request, we may provide you or an Authorised Person with an exchange rate quote. This quote is given on an indicative basis only and we are not legally bound to perform a proposed Contract in accordance with this quote.
You or an Authorised Person can give us electronic or verbal instructions relating to a transaction for the purchase or sale and delivery of currency. We will at our sole discretion offer the commercial terms of a proposed Contract. These terms will include amongst other things the exchange rate we are offering which may be different from a quote you have previously been given by us.
Once you or an Authorised Person accepts the commercial terms of the Contract (by electronic or verbal or by any other means), you will become legally bound to perform the Contract in accordance with the terms of the Order. Following receipt of an Order, we shall subsequently transmit electronically to you a trade confirmation, which will confirm the details of the Order.
Once we have agreed an Order, you or an Authorised Person may not amend or cancel the Contract unless we expressly agree (and any such amendment or cancellation shall be on the conditions specified by us). If you or an Authorised Person elects to cancel or amend a Contract, your Business Introducer must pay a fee which will be set out in the commercial agreement between us and the Business Introducer. We may require further confirmation or information from you or an Authorised Person of any Order.
- Settling Contract. You must pay all funds specified by us in connection with a Contract (including any applicable transfer charges by electronic transmission) in full and in cleared funds into a client account specified by us. Payment must be received by us on or before the Settlement Date and Time or such earlier date as we may specify and for the full value of the currency to be sold by you under the Contract. Please see the daily cut-off times available at http://help.Optimum FX.com for settlement times.
If funds do not arrive on or before the Settlement Date and Time, we may at our sole discretion roll the trade to the next settlement day and apply a charge to the Business Introducer in accordance with the provisions of the commercial agreement between us and the Business Introducer or Close Out the Contract. We will give notice to you before taking this action. We will deliver bought currency funds into your Account on a specified Contract Delivery Date.
- Disputes. If a dispute arises between you and us relating to the existence or terms of any Contract (a “Disputed Contract”), we may at our sole discretion Close Out the Disputed Contract pending settlement of the dispute. We will notify you (orally or in writing) of such action as soon as practical.
- Default & Refusal to Perform. Notwithstanding Clauses 2, 5 and 6 of this Schedule, we may at our sole discretion refuse to perform or Close Out a Contract, after any of the following events:
- you fail to settle a Contract by the agreed Settlement Date and Time;
- if we have reason to believe that you are using any Contract or the Services for investment or speculative purpose;
- either you or we cancel a Contract;
- you fail to pay Margin or additional Margin by the due date as requested by us;
- you fail to pay the deposit or additional deposit by the due date requested by us;
- an Insolvency Event occurs or you take step to or suspend payment of your debts;
- you fail in any respect to fully and promptly comply with any obligations owed to us, or if any information supplied by you or any representations made by you are or become materially inaccurate;
- it becomes or may become unlawful for us to maintain or to provide any of the Services or if you or we are requested not to perform or to close out a Contract (or any part thereof) by the FCA and any governmental or regulatory authority whether or not that request is legally binding; or
- we consider it necessary to do so for our own protection including (without limitation) in the following circumstances: (i) protection from fraud; (ii) protection from your default; and (iii) protection from broad-based market failure.
We will provide you with notice prior to making the decision to refuse to perform or Close Out a Contract save in the circumstances described in Clause 7.8 or 7.9 of this Schedule where it may not be possible for us to give prior notice. If you become aware of the occurrence of any such event or any circumstances that mean that any such event is likely to occur you must notify us immediately.
If any event referred to above takes place, we shall, at our discretion, be entitled to cancel any outstanding Contracts and you will be liable for the costs, expenses and losses that we may incur . Any deposits or Margin held by us in respect of Contracts shall be returned to you after deducting all other sums due to us (including any fees or losses resulting from closing out the Contract).
- Close Out. We reserve the right in our sole discretion to Close Out a Contract at any time including without limitation where you decide to cancel a Contract and in the circumstances described in Clause 7 of this Schedule. We reserve the right to select which Contracts are subject to Close Out.
- Margin. We shall require Margin from you (which may be payable to us via your Business Introducer) on demand as collateral to protect Optimum FX from financial losses which it may incur as a result of Contracts being Closed Out (either on your request or at our discretion).
We reserve the right to increase the Margin required at any stage up to the Settlement Date and Time to allow for changes in the foreign exchange rate or volatility which we believe may increase our risk under the contract. We may make a Margin call to increase Margin held at any point. The Margin call will be for such sum as we consider necessary.
Full ownership and title to all funds sent to us as Margin shall transfer to us absolutely and you shall have no interest in such funds which we will be entitled to deal with in our own right. For the avoidance of doubt, this means that we have the right to deposit Margin with and/pledge or grant a security interest over it or transfer it to an exchange or clearing house, a broker, a bank or any other financial institution or payment service provider.
All and any part of Margin may be applied across all and any Contracts.
You shall not be entitled at any time to the return of any Margin without our prior written consent.
- Payment of Margin. Margin must be paid to us in cleared funds whether from funds available in your Account or otherwise funded by you. In all cases, Margin or additional Margin must be paid into an account specified by us to you in an amount specified by us.
All requests for Margin or additional Margin must be paid to us within one Business Day of our request.
If our Margin requirements have not been met in full, Services cannot commence or continue and the trade will not be executed. We reserve the right to Close Out any Contract if any payment of Margin or Margin call is not made by the due date. We will give you prior notice before we take such action.
- Deposit. In our sole discretion, we will require you to pay us an initial deposit in respect of a Forward Contract. As agreed between you and your Business Introducer, this may be paid to us via your Business Introducer. We reserve the right to increase the deposit required at any stage up to the Settlement Date and Time. This may be required to allow for changes in the foreign exchange rate. The deposit or additional deposit required will be for such sum as we consider necessary.
- Date change. In our sole discretion, you may alter the Settlement Date and Delivery Date of a contract. This will incur a fee as set out in the commercial agreement between us and the Business Introducer.
“Account” means the electronic money account you open and maintain with Optimum FX through the Website;
“Affiliates” means, in relation to an entity, any person or entity Controlling, Controlled by or under common Control with such entity. An entity is deemed included within the meaning of “Affiliate” even if it qualifies as such after these Terms have been agreed to by you;
“Authorised Person” means any person authorised by you to give us instructions in relation to the Account and/or Payment Services and/or to conclude Orders on your behalf. A Business Introducer shall be an Authorised Person unless you have agreed otherwise;
“Business Day” means any day other than a Saturday or a Sunday or a public or bank holiday in England;
“Business Introducer” means the person which we have entered into a Business Introducer Agreement with. This person markets and promotes the Services and may, where authorised by you, act as an Authorised Person;
“Client Help Centre” means the information which is available online at http://help.Optimum FX.com;
“Client Support” means our client support service which is available by calling our help desk at +44 20 3597 4800 during UK office hours to speak with a support representative or by sending an email to support@Optimum FX.com;
“Close Out” means any action we may take to close out, cover or reduce our exposure in relation to the relevant Contract including any action we reasonably consider appropriate in the circumstances;
“Contracts” means any one or more of the agreements between you and us for the sale, purchase, and delivery of currency;
Control of an entity means the power, direct or indirect, to direct or cause the direction of the management and policies of such entity, whether by contract or otherwise, and in any event and without limitation of the foregoing, any entity owning more than 20% of the voting securities of a second entity shall be deemed to control that second entity. Derivative forms of the term “Control” (e.g. Controlling and Controlled by) have corresponding meanings;
Data Controller means the natural or legal person who determines alone or jointly with others the purposes and means of the collection and use of Personal Data.
Data Protection Legislation means the UK Data Protection Act 1998 (as amended or replaced from time to time), or from its effective date (25 May 2018), the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 (General Data Protection Regulation) and any other relevant data protection legislation which is applicable to the Services
Data Subject has the meaning given to it by the Data Protection Legislation;
Durable Medium means a medium which allows you to store information in a way accessible for future reference for a period of time adequate for the purposes of the information and which allows the unchanged reproduction of the information stored;
FCA means the Financial Conduct Authority of the United Kingdom whose address is 25 The North Colonnade, Canary Wharf, London E14 5HS, United Kingdom; further information on the FCA can be obtained on the FCA’s website at www.fca.org.uk;
Foreign Exchange Services means the foreign exchange services provided by Optimum FX including quoting and execution of foreign exchange contracts to sell and buy currency for any date up to 12 months;
Forward Contract means any one or more Contracts under which currency is bought and sold for delivery at a fixed future time which is at least 7 days (or longer) after the contract is entered into;
Group Companies means in relation to a company those companies which are subsidiaries, holding companies or subsidiaries of any holding company of such company, where the terms “subsidiary” and “holding company” bear the meaning given to them in section 1159 of the Companies Act 2006;
Insolvency Event means in relation to either party: If such party becomes insolvent or a bankruptcy petition is presented against any such person or any steps are taken to appoint an administrator, judicial factor or similar officer to any such party or to commence the winding up or dissolution of any such party or to otherwise apply to the court for a moratorium or make a proposal to creditors for a voluntary arrangement or any such party grants a trust deed for creditors or takes any action with a view to the readjustment, rescheduling forgiveness or deferral of any part of any such party’s indebtedness or any such person enters into any arrangement, compromise or composition with or assignment for the benefit of its creditors or any class of them (except for the purposes of a solvent reconstruction or amalgamation), or a receiver, receiver and manager, or other controller, administrator or similar officer to be appointed with respect to, or takes control of, the assets or undertakings of any such party;
Losses means all losses, liabilities, fines, charges, damages, actions, costs and expenses, professional fees (including legal fees actually incurred) and disbursements and costs of investigation, litigation, settlement, judgment, interest and penalties;
Margin collateral paid by you to us, including additional margin and increased margin;
Payment Platform means the Optimum FX online payment Platform that provides the functionality and connectivity via the Portal;
Payment Services means the e-money and payment services provided by Optimum FX to you including the receipt and holding of funds in the Account and execution of payment services or transactions on your behalf;
Personal Data has the meaning given to it by the Data Protection Legislation;
Platform Services means the access to information and market data via the Payment Platform provided by us to amongst other things, facilitate the booking and management of payments, track trades and report on balances and transactions on your Account;
Portal is either the ‘user interface’ on the Website or the ‘API Links’ depending on how you have registered with us to use the Services and in either case as such process or operating procedure may be amended or changed by us from time to time;
Regulations means the Electronic Money Regulations 2011 and the Payment Services Regulations 2009 as (as amended and replaced from time to time);
Regulations means the Electronic Money Regulations 2011 and the Payment Services Regulations 2009 as (as amended and replaced from time to time);
Settlement Date and Time means the date and time specified within the Contract, by which funds must be received by or available to Optimum FX;
UK Business Hours means Monday through Friday 9:00 am to 5:00 pm;
We, “us”, “our” shall mean Optimum FX; and
You, “your” shall mean you the person who is contracting with us for the provision of the Services.