1.1 Midpoint & Transfer will provide the following services to the User:-
1.1.1 Midpoint & Transfer will match foreign exchange orders ("Orders") with others with reciprocal currency needs (a "Match Order") and forward payment instructions to Earthport Plc ("Payment Processor") on the User's behalf ("the Service").
1.1.2 The User may obtain, via the Midpoint & Transfer Ltd website www.midpoint.com ("the Site"), quotes of the Real time Midpoint of the Interbank foreign exchange "bid" and "offer" rates for transactions in British Pound, Euro, US Dollar and such other currencies as Midpoint & Transfer may add from time to time.
1.1.3 From time to time, Midpoint & Transfer will identify on its website the currencies for which the Service is available. Available currencies are subject to change at Midpoint & Transfer's sole discretion.
1.1.4 Midpoint & Transfer will use all commercially reasonable efforts to communicate accurately the User's payment instructions and currency needs to Payment Processors.
2.2 The User will designate an individual who will be responsible for modifying the User Profile and authorizing and terminating User IDs and passwords ("Administrator").
2.3 The User will restrict access to and use of the Service and password-protected areas of the Site to individuals identified on the User Profile.
2.3 The User will restrict access to and use of the Service and password-protected areas of the Site to individuals identified on the User Profile.
3.1 It is a conditional precedent of this Agreement that the User registers in accordance with clause 2 of this Agreement and Midpoint & Transfer notifies the User that this Agreement and Payment Agreement have both been accepted, where after the User may submit Orders via the Site. Each Order must include all correct and accurate information as requested by Midpoint & Transfer.
3.1.1 The User may obtain a quote by visiting the Midpoint Calculator on Midpoint's website. This quote is given on an indicative basis only and the company is not legally bound to perform a proposed Contract in accordance with this quote.
3.1.2 The registered user or an Authorised Person can give Midpoint electronic or verbal instructions relating to a transaction for the purchase or sale and delivery of currency. Midpoint will at it's sole discretion offer the commercial terms of a proposed Contract. These terms will include amongst other things the exchange rate it is offering which may be different from a quote the user has previously been given by Midpoint.
3.1.3 Once the user or an Authorised Person places an order and it is matched, the commercial terms of the Contract (by electronic or verbal or by any other means), the user will become legally bound to perform the Contract in accordance with the terms of the Matched Order.
3.1.4 Following receipt of an Order, MIdpoint shall subsequently transmit electronically to the client a matched order confirmation, which will confirm the details of the Order.
3.1.5 The registered client or an Authorised Person may not amend or cancel the matched order unless Midpoint expressly agree (and any such amendment or cancellation shall be on the conditions specified by us)
3.2 The User hereby authorises Midpoint & Transfer to forward to the Payment Processor, on the User's behalf, all information necessary to complete each Order.
3.3 Midpoint & Transfer will notify the User that an Order has been completed together with details of payment instructions. Midpoint & Transfer may also notify the Beneficiary.
3.4 The User hereby acknowledges that the provision of services by Payment Processor is subject to the terms and conditions of the Payment Agreement attached hereto as Schedule 1.
4. Contract Settlement & Penalties
4.1 Contract Settlement
4.1.1 The user must pay all funds specified by MIdpoint in connection with a Matched Order (including any applicable fees or charges by electronic transmission) in full and in cleared funds into a client account specified by us.
4.1.2 Payment must be received by us on or before the Settlement Date or such earlier date as we may specify and for the full value of the currency to be sold by you under the Matched Order Detail.
4.1.3 It is your responsibility to include your unique 13 digit Payment Reference Number in the Payee Reference Field when you send funds to us.
4.1.4 Customers may not instruct any 3rd party individual or company to make funding payments on their behalf.
4.1.5 Two defaulted Orders may result in termination as a User by Midpoint & Transfer.
4.1.6 The User will pay all applicable taxes incurred as a result of its use of the Service and will indemnify Midpoint & Transfer for all such taxes (other than taxes on Midpoint & Transfer's net income). Midpoint & Transfer will not be responsible for collecting or remitting any such taxes.
4.1.7 Midpoint & Transfer may, without prior notice to the User, set off, or instruct and authorise Payment Processor to set off, amounts that Midpoint & Transfer or Payment Processor, as applicable, owes to the User against any overdue amounts owing by the User to Midpoint & Transfer or Payment Processor, as the case may be. In addition, at any time any amount owed by the User hereunder is overdue its due date for payment, Midpoint & Transfer may, without notice, cancel any of the User's uncompleted Orders.
If funds do not arrive on or before the Settlement Date, we may at our sole discretion levy the following penalties in respect of non-funding of your contract with Midpoint. We will give notice to you before taking this action.
The penalty will be the greater of ; -
GBP £100 or equivalent Currency
1% of the full transaction value including our fee; or
The realised loss suffered by Midpoint & Transfer Ltd who will contract with a third party to fulfil the client funding shortfall.
5. User Conduct
5.1 The User acknowledges that it is solely responsible for:-
5.1.1 access and use of the Service and Site, including all activities of Administrators;
5.1.2 its actions or failures to act including maintaining confidentiality of user IDs and passwords;
5.1.3 the security and use of all user IDs and passwords assigned to the User, whether or not authorised by the User;
5.1.4 complying with all laws and regulations relating to its use of the Service and Site. The User will notify Midpoint & Transfer immediately on becoming aware of any unauthorised use of the Service or Site or any other breach of security, including the loss of any user ID or password. The User will deactivate any user ID or password that is lost or that may compromise the security of the Service or Site as promptly as practicable after the User learns of same. The User will remain liable for all Orders placed before any such user ID and password is deactivated.
5.2 The User will promptly update and correct information in the User Profile from time to time and ensure that such information is complete and accurate.
5.3 The User will not:-
5.3.1 disrupt or interfere with Site security, services, system resources, accounts, servers or networks connected to or accessible through the Site;
5.3.2 intentionally upload, post or otherwise transmit through or on the Site any viruses or other harmful, disruptive or destructive files or disabling devices;
5.3.3 take any action that imposes an unreasonable or disproportionately large load on the Site;
5.3.4 create or use a false identity on the Site;
5.3.5 attempt to use or disclose the account, user IDs or pass-words of other Midpoint & Transfer Users;
5.3.6 attempt to obtain unauthorised access to the restricted portions of the Site;
5.3.7 attempt to use or use the Service for money laundering or other illegal activities.
6. Suspension or Limitation of Site or Service
Midpoint & Transfer will use commercially reasonable efforts to make the Services available 24 hours a day, seven days a week; provided that Midpoint & Transfer reserves the right to temporarily suspend or limit all or part of the Site or Service, or The User's access thereto, without notice, whether for main-tenancy or otherwise. The User acknowledges that Midpoint & Transfer will have no liability to the User or any third party for Midpoint & Transfer's acts or failures to act in connection with such suspension or limitation of the Service.
7. Proprietary Rights
The User acknowledges that, as between the parties, Midpoint & Transfer retains all intellectual property rights related to or embodied in the Service, including copyright, trademark, trade secret, patent and other intellectual property rights. The User may print content from the Site in connection with the User's use of the Service only (and not for resale or sublicensing), provided that proprietary notices are not altered or removed.
9. The User's Representations, Warranties, and Covenants
As of the date hereof and the date of any Order submitted by the User, the User represents, warrants, and covenants that:-
9.1 it has full power and authority to enter into this Agreement and its execution of this Agreement and submission of Orders have been and will remain duly authorised;
9.2 execution and delivery by the User of this Agreement and the completion of any Orders does not and will not conflict with or violate:-
9.2.1 its articles or by-laws;
9.2.2 any contract or agreement to which the User is bound or to which any of the User's assets are subject; or
9.2.3 any statute, rule, regulation, ordinance, charter or policy to which the User may be subject;
9.3 each User has the capacity and authority to place Orders;
9.4 it has not granted and will not grant a lien on or security interest in any account designated by the User for payment of fees or the settlement of Orders. The User will promptly notify Midpoint & Transfer, and refund to Midpoint & Transfer, any excess or mistaken currency the User may receive.
10.1 The Service is provided on an "as is" and "as available" basis.
10.2 Midpoint & Transfer disclaims all implied warranties of any kind, including without limitation, warranties of merchantability, informational content, system integration, non-infringement and fitness for a particular purpose.
10.3 Midpoint & Transfer has not given and will not be liable in connection with any warranties, express or implied that the service will:-
10.3.1 meet User's requirements;
10.3.2 be uninterrupted, timely, secure, or error free; or
10.3.3 be corrected if defective.
10.4 Midpoint & Transfer (including its officers, directors, employees, and agents, and payment processors) will not be liable for any damages suffered by the user (including, without limitation, loss of data) from delay, non-delivery or miss-delivery of content, errors, system down-time, network or system outages, file corruption or any other service interruptions regardless of cause or customer's errors or omissions.
10.5 The User acknowledges that the information provided by or through the Service (including, without limitation, third-party sources) may contain inaccuracies and typographical and other errors. Midpoint & Transfer does not warrant the accuracy or completeness of such information or the reliability of any information, statement or other data accessed on or through the service. The user acknowledges that customer's use of and reliance on any such information, statement or other data is at its own risk.
10.6 The User acknowledges that foreign exchange transfers with Midpoint & Transfer are conducted as regulated money service business in accordance with the regulations of HM Revenue & Customs.
10.7 As Orders are processed based on matching reciprocal currency needs of other Midpoint & Transfer Users, Midpoint & Transfer can provide no assurance that User's Orders will be matched or completed within a certain time.
11. Limitation of Liability
Midpoint & Transfer (including its officers, directors, employees, and agents and Payment Processors) will not be liable for any claim for indirect, incidental, special, consequential or punitive damages arising out of or in connection with the Service, or the use of or the inability to use the Service, or resulting from a third party's unauthorised access to or alteration of the User's transmissions or data, or other information that is sent or received or not sent or received including, without limitation, damages for loss of profits, revenues, use (including, without limitation, cover damages), data or other intangibles, even if Midpoint & Transfer has been advised of the possibility of such damages. Midpoint & Transfer's total liability under this Agreement, as to any Order, will not exceed the fees the User pays to Midpoint & Transfer for such Order.
The User will defend, indemnify and hold harmless Midpoint & Transfer (including its officers, directors, employees, and agents and Payment Processors) from and against any losses, damages, claims, actions or demands (including, without limitation, reasonable legal and accounting fees and expenses) arising out of or in connection with:-
12.1 the User's use of the Service;
12.2 the User's breach of this Agreement; or
12.3 any infringement by the User of any right of any third party.
13.1 This Agreement will continue until terminated by the User or Midpoint & Transfer. Termination of this Agreement will not affect either party's obligations relating to any Order submitted prior to termination.
13.2 The User may terminate this Agreement on notice to Midpoint & Transfer provided the User has:-
13.2.1 paid all fees owed to Midpoint & Transfer; and
13.2.2 completed (or effectively cancelled pursuant to Section 3.4.1) all Orders. Such termination will be effective immediately upon Midpoint & Transfer's receipt of such notice.
13.3 Midpoint & Transfer may, in its sole discretion, terminate this Agreement at any time. Such termination will be effective immediately upon the date that the notice is sent.
13.4 Upon termination of this Agreement, Midpoint & Transfer will cancel all user IDs and passwords and the User will have no further right to place Orders. In addition, if Midpoint & Transfer terminates this Agreement, Midpoint & Transfer will cancel all unfilled Orders or parts thereof and the User will pay any amounts due and owing to Midpoint & Transfer.
14.1 The laws and courts of England will govern the interpretation and performance of this Agreement.
14.2 Except as otherwise set forth in this Agreement, all notices hereunder will be in writing and will be made to the User by certified mail or overnight delivery at the address provided by the User in the User Profile, and to Midpoint & Transfer at the address specified below its signature or such other address as Midpoint & Transfer may specify in accordance with the terms hereof.
14.4 Midpoint & Transfer may amend this Agreement by posting a notice of amendment on the Site's home page and notice to the User. The User's use of the Service after such posting constitutes its agreement to the amendment. If the User objects to the amendment, it may cease use of the Service or terminate this Agreement pursuant to clause 13. This Agreement may otherwise be amended only in writing and such amendment signed by the parties.
14.5 If part of this Agreement is held invalid, unenforceable, or void for any reason, the remainder of this Agreement will remain in effect.
14.6 Midpoint & Transfer's failure or delay in exercising or enforcing any right, power or remedy under this Agreement will not operate as a waiver or relinquishment of any right, power or remedy.
14.7 The User acknowledges that the parties are not engaged in a partnership, joint venture or agency relationship of any kind.
14.8 Any person who is not a party to this Agreement shall have no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement. This clause does not affect any right or remedy of any person which exists or is available otherwise than pursuant to that Act.
14.9 Midpoint & Transfer may, in its sole and absolute discretion, delegate, and contract for or otherwise transfer or assign to a third party any or all of its obligations hereunder. The User may not delegate or otherwise assign any of its obligations or rights under this Agreement without the prior written consent of Midpoint & Transfer.
1. The End User (User) and/or the Customer (Midpoint & Transfer Ltd) is responsible for all instructions given in relation to the Funds via the UPN (Universal Payment Network).
2. The Company (Earthport Plc) shall be entitled to withhold Funds or pay money to a third party at any time if the Company has reasonable suspicion of fraudulent or criminal activity or if the Company reasonably considers it is required to do so by law or at the direction of any regulatory or other authority.
3. The Company has responsibility to the End users and shall in no way be responsible or liable to End Users for any loss or liability however arising including any loss or liability arising from: -
3.1 any loss, withholding or appropriation of the Funds; or
3.2 any delay in the transmission of the Funds.
4. In the event of overpayment of the Funds to an End User, the End User agrees on demand to promptly repay or instruct the repayment of such overpayment to the Company or as the Company may direct.
5. The End User shall not do or omit to do anything that might bring the Company into disrepute.
6. The End User shall provide to the Customer all the information required by any money laundering/know your client or equivalent obligations applicable in the Territory or any relevant part thereof. The End User acknowledges that the Customer may provide such information to the Company.
7. The End User acknowledges and agrees that the Company reserves the right: -
7.1 to access and disclose personal data relating to the End User to comply with all applicable laws and lawful requests from government and/or other regulatory authorities, to operate the UPN properly and/or to protect the Company, its customers and other End Users; and
7.2 to disclose personal data relating to third parties if the End User's use of the UPN is or is alleged to be, or the Company has reasonable cause to believe the End User's use of the UPN is, in violation of the end users terms or if the Company is otherwise obliged or needs to disclose such information to any relevant authority.
8. The End User consents to the Company processing his personal data outside the EEA (European Economic Area) including in countries which may provide less protection for the processing of personal data than countries within the EEA, and to the transfer of his personal data to a new entity (and processing of his personal data by that new entity) in the event of a sale of, or transfer of the business of, the Company.
9. The End User acknowledges and agrees that the agreement between the Customer and the End User is entered into for the benefit of the Company as well as the Customer and the Company can directly enforce the End User's obligations under such agreement and/or the Customer may enforce the terms against the End User for the benefit of the Company.