INDIVIDUAL CLIENT AGREEMENT
IMPORTANT: The terms and conditions in this agreement (this "Agreement") apply to the following individuals who are transacting privately:
You should not indicate your agreement to the terms and conditions of this Agreement until you have read them fully, are satisfied that you understand them and consent to their terms
1.1 Transacting as an Individual – The terms and conditions in this Agreement apply to private clients ("you") who are dealing with USForex Inc. ("us" or "we") as an individual/s through Travelex International Payments Website.
1.2 Appointment of Agent – If you would like us to receive Instructions from another individual acting on your behalf, you must sign an Agent Appointment Form, which will be provided upon request.
1.3 Structure of this Agreement – This Agreement is a master agreement that applies to all Transactions that you enter into with us. The specific details of each individual Transaction, including the currencies to be exchanged and the amount of each Transaction will be agreed upon separately when you book those Transactions; they will constitute separate agreements in their own right, but will incorporate the terms and conditions in this Agreement.
1.4 Other Documents You Must Read – You expressly acknowledge that you have been provided with copies of, and have read, the following documents, which are available on our Website:
1.5 Definitions – The definitions of certain terms are set forth in section 16 “Definitions,” below.
2 Our Service
2.1.1 Money Transmission Services – The Travelex International Payment service is provided by USForex. We exchange funds denominated in one currency for funds denominated in another currency. We offer Spot Contracts (to be settled within 48 hours) and Forward Contracts (to be settled between 48 hours and 12 months).
2.1.2 Purpose of Transaction - If you are an individual transacting for personal, family or household purposes, you warrant that you are not using our services to exchange funds in connection with any business or commercial transaction.
2.2 Availability--. The Travelex International Payment service currently is offered in the following states: New York, California, Wisconsin, Montana, New Mexico and South Carolina. By transacting with us you warrant that you reside in one of the aforementioned States where
2.3 No Margin or Speculative Trading – We do not offer any form of margin or speculative trading facilities. When you enter into a Transaction, you must deliver the full amount of the funds you are transferring on or before the Delivery Date.
2.4 No Exchange Rate Set-Off – We will not enter into any kind of set-off arrangement with you that would, upon settlement of the Transaction, require only payment of any loss, or require us to pay you any profit, as the result of exchange rate movements.
2.5 No Financial or Investment Advice – We will not take into account your specific financial circumstances or needs when we enter into a Transaction with you and will not dispense any advice as to the suitability of such Transaction for you. To the extent that we provide any information, it will relate only to the mechanics of the Transaction or to publicly available information and should not be construed as financial or investment advice. You must obtain independent financial and investment advice and develop your own assessment as to whether our service is appropriate for your particular circumstances. You are solely responsible for determining the type and timing of each Transaction.
2.6 Ownership of Funds – You may not enter into any Transaction on behalf of a third party. You must be the owner of any funds that are the subject of a Transaction.
2.7 Information Sharing- In some circumstances, USForex may disclose your personal information to third parties (such as intermediary banks) in order to process certain transactions on your behalf, for example, by disclosing your name and address. You acknowledge and consent to such disclosure of your personal information.
3 Your Instructions
3.1 Username and Password – We will issue a username and password to access our services and book Transactions. It is your responsibility to ensure the security of your username and password. We will accept any Instructions received pursuant to the use of the username and password without checking the identity of the user (but expressly reserve the right to verify such user’s identity), and you will at all times be bound by those Instructions, subject to your right to cancel a Transaction in connection with subsection 4.6, 4.7 or 6.2, as applicable.
3.2 Agent – If you appoint another individual to act on your behalf ("Agent") pursuant to subsection 1.2, we will act in accordance with all Instructions received from your Agent, and you will be bound by those Instructions, until you withdraw your authorization of that Agent. You must provide at least 48 hours written notice of your intention to withdraw your authorization of an Agent and the withdrawal of such authorization is only effective at the end of the 48-hour period, or at such later time specified in your written notice.
3.3 No Obligation to Accept Instructions or Process Transactions – While we will always endeavour to comply with your Instructions, there may be circumstances in which we are unable to do so. Therefore, we reserve the right to reject your Instructions at any time, without providing any explanation and without incurring any liability for any and all losses or damages that may be incurred by you or any third party.
4 General Provisions Applicable to All Transactions
4.1 Transaction Binding – If you wish to enter into a Transaction you may do so by submitting Instructions online, by telephone or by email. The Transaction will become legally binding upon receipt of your Instructions in accordance with this section 4, section 5 or section 6, subject to your right to cancel in accordance with subsections 4.6, 4.7 and 6.2, as applicable.
4.2 Online Booking Confirmation – If you book a Transaction online, the Transaction will become legally binding as soon as we receive your electronic Instructions, at which time we will send you a Deal Confirmation by email, confirming the Transaction details. If you do not contact us within 24 hours of receipt of the Deal Confirmation to correct any errors therein, the Transaction details in the Deal Confirmation will be deemed correct, provided, however, if you are an individual transacting for personal, family or household purposes, you retain the error resolution rights provided by the regulations of the U.S. Consumer Financial Protection Bureau ("CFPB"), as discussed in section 11.
4.3 Telephone Booking – If you book a Transaction by telephone, the Transaction will become legally binding at the conclusion of the telephone call. After the telephone call, we will send you a Deal Confirmation by email, confirming the Transaction details. If you do not contact us within 24 hours of receipt of the Deal Confirmation to correct any errors therein, the Transaction details in the Deal Confirmation will be deemed correct, provided, however, if you are an individual transacting for personal, family or household purposes, you retain the error resolution rights provided by the regulations of the CFPB, as discussed in section 11. In the event of any dispute, the recording or transcript of our telephone conversation may be used as evidence of the Transaction details.
4.4 Cancellation – Once a Transaction has become legally binding, you may not cancel the Transaction under any circumstances, except as provided in subsections 4.6, 4.7 or 6.2.
4.5 Right to Refund
4.5.1 California Residents– If you are located in California, you, the customer, are entitled to a refund of the money to be transmitted as the result of this Agreement if USForex Inc., a money transmitter licensed by the California Department of Financial Institutions, does not forward the money received from you within 10 days of the date of its receipt, or does not give instructions committing an equivalent amount of money to the person designated by you within 10 days of the date of the receipt of the funds from you unless otherwise instructed by you. If your instructions as to when the moneys shall be forwarded or transmitted are not complied with and the money has not yet been forwarded or transmitted, you have a right to a refund of your money. If you want a refund, you must mail or deliver your written request to USForex Inc. at 100 Montgomery Street, Suite 1400, San Francisco CA 94104. If you do not receive your refund, you may be entitled to your money back plus a penalty of up to $1,000 and attorney's fees pursuant to Section 2102 of the California Financial Code.
4.6 Cancellation - If you are a private client transacting for personal, family or household purposes, you may cancel a Transaction that has become legally binding within 30 minutes from the time the payment is authorized. To cancel a Transaction in these circumstances you must notify us within the 30-minute timeframe by telephone at 1-888 288 7354 or by email at firstname.lastname@example.org. You must provide any and all information necessary to identify the transfer that you wish to cancel, including your name and address, telephone number, the Recipient’s name, total amount of the transfer, and the intended destination location. We will issue a refund within three (3) business days of your request, provided that the funds have not been picked up by the designated Recipient or deposited into the Recipient Account prior to our receipt of your request for a refund. For the avoidance of doubt, you may not cancel a Transaction in any circumstances if the funds have been disbursed or deposited in the Recipient Account.
4.7 Out-of-Market Quotes – We are not legally bound to any quoted Rate that as the result of a technical or human error is clearly an error on our part ("Out-of-Market Quote"). You must notify us as soon as the misquoted Rate comes to your attention and we will re-quote the Rate as soon as possible.
4.8 Prompt Performance by You – You acknowledge that exchange rates can fluctuate rapidly; therefore the Rate we quote to you for a specific Transaction is contingent upon the prompt performance of your obligations in relation to that Transaction. We reserve the right to requote the Rate if you do not provide us with requested information or funds on time.
5 Forward Transactions
5.1 Forward Contract Details – A Forward Contract may only be booked by telephone pursuant to subsection 4.4 and will become legally binding at the conclusion of the telephone call, subject to your right to cancel in accordance with subsection 4.6 and 4.7. The Transaction is evidenced by the recording or transcript of the telephone conversation at the time the Transaction is booked and becomes legally binding upon the conclusion of the telephone call, irrespective of receipt of the Deal Confirmation.
5.2 Change to the Delivery Date – At our sole discretion, you may request an earlier Delivery Date ("pre-delivery") or to extend the Delivery Date ("roll over") in relation to the whole or only part of your Forward Contract. You acknowledge that we may agree to such a request entirely at our discretion. If we agree, you acknowledge that the Rate will be adjusted to account, at our sole discretion, for the timing of the new Delivery Date.
6 Target Rate Orders
6.1 Legally Binding – You may instruct us to enter into a transaction that becomes binding only when a target rate has been reached (“Target Rate Order”). You may enter a Target Rate Order online, by telephone or by email. Subject to your right to cancel the Target Rate Order in accordance with subsection 6.2, the Target Rate Order will become binding as and from the time that your Instructions are received by us. After we receive your Instructions, we will send you a Deal Confirmation. The Deal Confirmation constitutes a form of pre-payment receipt; if you do not contact us immediately upon receipt of the Deal Confirmation, the Transaction details will be deemed correct.
6.2 Cancellation Before Target Rate Is Reached – You may cancel a Target Rate Order at any time before the Target Rate is reached by giving us notice by telephone. You may not under any circumstances cancel a Transaction after the Target Rate has been reached, whether or not we have notified you that the Target Rate has been reached. Once the Target Rate is reached, you are legally bound by the Transaction.
6.3 Target Rate – The Target Rate is reached only when the exchange rate nominated in your Target Rate Order has been filled with our wholesale foreign exchange providers. This will occur when the rate you have nominated has been exceeded by an amount that includes our profit margin. In some cases, the exchange rate Spikes with the result that the exchange rate you have nominated in your Target Rate Order has been reached, but has changed before we are able to fill the Target Rate Order with our provider; for the avoidance of doubt, we will not fill your Target Rate Order under those circumstances.
7.1 Spot Contract Payments – You must initiate payment into our nominated account of the full amount required to settle a Spot Contract on the day the Transaction becomes legally binding in accordance with section 4 . If we have not received the funds within two Business Days from the time the deal was booked, we reserve the right to Close Out the Transaction in accordance with section 9.
7.2 Forward Contract Payments – You must ensure that you pay into our nominated account the full amount required to settle all Forward Contracts on or before the Delivery Date. If we have not received the funds by the Delivery Date (or any agreed change to the Delivery Date), we reserve the right to Close Out the Transaction in accordance with section 9.
7.2.1 Advance Payment –We reserve the right to request one or more Advance Payments from you in relation to all Forward Contracts. We may request an Advance Payment both at the time you book the Forward Contract and at any time prior to the Delivery Date. The amount of any Advance Payment requested generally will be a percentage of the value of the Transaction. You acknowledge that the amount of any Advance Payment requested will be determined by us at our sole discretion, and that we may request an Advance Payment even if we have entered into a credit limit arrangement with you.
7.2.2 Failure to Pay an Advance Payment – If we request an Advance Payment from you, you must pay the amount we have requested on the date we have nominated. If you fail to do so, we reserve the right to Close Out the Forward Contract in accordance with section 9.
7.2.3 Payment of Full Amount Upon Settlement – On or before the Delivery Date, you must transmit to our nominated account the full amount required to settle the Forward Contract, less any Advance Payment already paid, together with any service fees that we or any third party have requested; provided, however, if you are an individual transacting for personal, family or household purposes, such fees are payable only if we have given you notice of the amount of any Covered Third Party Fees and the potential for Non-Covered Third Party Fees prior to the subject Transaction becoming legally binding.
7.3 Target Rate Order Payments – We will endeavor to notify you by telephone or email as soon as possible on the same Business Day or on the next Business Day after the Target Rate is reached. As soon as you receive our notification, you must take action to ensure that we receive funds in our account by the Delivery Date. If we do not receive the funds on time, we reserve our right to Close Out the Transaction in accordance with section 9.
7.4 No Cash or Checks – You acknowledge that we do not accept cash or checks. You agree to make all Payments to our nominated account by wire transfer, and you acknowledge that we will transmit your funds by wire transfer only.
7.5 Recipient Account – You must provide us with full details of your Recipient Account, including the full name and address of the account holder and the full name and address of the recipient bank, as well as the bank's routing number, on or before the date that we nominate. If you fail to do so, we reserve the right to Close Out the Transaction in accordance with subsection 8.1.
7.6 Recipient Account Number and Bank Routing Number – You must provide the account number for your Recipient Account, as well as the Recipient bank's routing number. We will rely solely on the account number and routing number you provide to us and will not check to ensure that the name provided by you accords with the account number you provided. If you are an individual transacting for personal, family, or household purposes, we will use reasonably available means to verify that the recipient bank's name and address corresponds with the bank routing number you have provided. You acknowledge that if you do not provide us with the correct account number or bank routing number, you could lose the entire transfer amount.
7.7 Full Amount – All Payments must be received by us in cleared funds and for the full amount being transferred, including any transaction fees that may be payable and any service fees that have been requested by us or any third party, before we will transmit funds to the designated Recipient Account, provided, however, if you are an individual transacting for personal, family or household purposes, such fees are payable only if we have given you notice of the amount of any Covered Third Party Fees and the potential for Non-Covered Third Party Fees prior to the subject Transaction becoming legally binding. In the event that we agree to transmit funds to the designated Recipient Account without having received the full amount, you acknowledge that we are not waiving our right to request the full amount from you after the Transaction has been processed.
7.8 Funds Held by Us – You acknowledge and agree that we do not hold your funds on trust and will not place your funds into a separate bank account. Any claims that you may have against us will not have priority over and may be subordinated to any other claims against us that may exist from time to time. Our obligation to provide services to you under this Agreement will be unsecured special, limited obligations. You will not have a security interest in our assets, including the funds that you have provided to us. Any obligations that we may have to you will rank effectively junior to the rights of the holders of any of our existing or future secured indebtedness with respect to the assets securing such indebtedness. In the event of a bankruptcy or similar proceeding affecting us, your relative rights as compared to the holders of our other unsecured indebtedness are uncertain.
7.9 No Interest Paid – You acknowledge that we will not pay to you or the designated Recipient any interest on any funds held by us whether by way of Advance Payment or otherwise.
8 Misdirected Funds
8.1 Your Mistake – If your funds are sent to the wrong account as the result of a mistake made by you, and we have acted in accordance with your Instructions, we will be under no obligation either to recover the funds or to resend the funds to the correct Recipient Account. You will be required to book a new Transaction. However, if you are an individual transacting for personal, family, or household purposes, and your funds are sent to the wrong account as the result of you providing us with an incorrect account number or bank routing number, we will promptly use reasonable efforts to recover the funds, however, it may not be possible to recover your funds and you could lose the entire amount of the transfer. In this event, the error resolution rights provided by CFPB regulations, as discussed in section 11, generally will not apply.
8.2 Our Mistake – If your funds are sent to the wrong account as the result of a mistake made by us, we will take urgent action at our own expense to recover those funds, provided that you take immediate action to assist us in recovering any such funds.
9 Closing Out
9.1 Closing Out Transactions – We may refuse to perform a Transaction, or we may Close Out a particular Transaction or all current Transactions that you have pending with us, without notice to you:
(i) if you fail to make any Payment when it is due, as specified in section 7, including the payment of any Advance Payment requested by us;
(ii) if you fail to provide any material information requested by us or if any information you have provided to us or any warranty you have given to us is or becomes, in our opinion, materially inaccurate, incorrect or misleading;
(iii) if we receive notice of bankruptcy proceedings commenced against you;
(iv) if the performance of our obligations under this Agreement become illegal;
(v) if required by law or regulation;
(vi) if a serious dispute has arisen between us; or
(vii) if you breach a material term of this Agreement or of any Transaction.
9.2 Consequences of Closing Out – When we Close Out any or all of the Transactions that you have entered into, we sell back the currency that we purchased when you entered into the Transaction at prevailing market rates chosen by us in good faith. If the value of the purchased currency has strengthened, a loss will be incurred on the Transaction and you will be liable for the amount of that loss, together with any expenses, premiums, commissions or other fees incurred by us.
9.3 No Payment of Profit – We will not pay you any profit arising from Closing Out a Transaction in any circumstances.
9.4 Payment of Loss – You acknowledge that the amount of any loss realized on the Closing Out of a Transaction is a debt payable by you and agree that we may immediately deduct the total amount of any loss (together with any expenses, premiums, commissions or other fees) from any funds we hold in relation to any Transaction whether in the form of an Advance Payment or otherwise. If the amount we are seeking to recover exceeds the amount of any Advance Payment or other funds held by us, you agree to pay the balance within seven (7) days of being notified by us of the total amount due.
9.5 Interest – You agree that we may charge you interest on any sum that remains payable to us after we Close Out any or all of your Transactions at the lower of a rate of 10% or the maximum rate that is legally permissible for a consumer loan transaction in your state of residence, as in effect from time to time. Interest will accrue and will be calculated daily and compounded monthly from the date Payment was due until the date full Payment is made by you.
9.6 Default Notification – You must notify us immediately if you become aware of any event referred to in subsection 9.1 above.
9.7 Notice of Monies Due – If we Close Out a Transaction, we will send you a written statement explaining the amount of any sums that may be payable to us and the amount of any sums being withheld by us.
10 Anti-Money Laundering
10.1 AML Compliance – Pursuant to laws regulating money laundering or support for terrorist activities, which include the Bank Secrecy Act of 1970 and The USA PATRIOT Act (collectively, the "AML Laws"), we have developed a risk-based compliance program in an effort to achieve compliance and risk management objectives as identified by state, federal, and/or, as applicable, international regulatory bodies. For example, we are obligated to collect certain information prior to the processing of any transactions including identifying information regarding you, the purpose of the transaction, and the beneficiary. You agree that you will not knowingly do anything to put us in breach of any AML Laws. You agree to notify us if you become aware of anything that would put us in breach of AML Laws.
10.2 Provision of Information – Certain identifying information must be supplied prior to the processing of a transaction. We reserve the right to request further documentation or information in order to comply with the AML Laws. All identifying information received remains strictly confidential unless we are obligated to disclose such information under the AML Laws.
If requested, you agree to provide in a timely manner additional information and assistance and comply with all reasonable requests to facilitate our compliance with AML Laws in the United States or an equivalent overseas jurisdiction. Failure to provide such documentation or information may result in a denial of our services.
10.3 No Grounds for Suspicion – You agree that you are not aware and have no reason to suspect that:
(i) the money you are transferring is derived from or related to money laundering, terrorism financing or similar activities (collectively, "Illegal Activities"); and
(ii) the money you are transferring will be used to finance, or in connection with, Illegal Activities.
10.4 Collection and Disclosure of Information by Us – We are subject to AML Laws. Please be aware that in connection with AML Laws we may be required to disclose any of your personal information we may have collected to the appropriate authorities.
10.5 Freezing or Blocking Transfer of Funds – In certain circumstances, we may be obliged to freeze or block your access to our services if we believe you may be using our services in connection with Illegal Activities or suspected Illegal Activities. Freezing or blocking can arise as a result of the transaction monitoring that is required by AML Laws. If this occurs, we are not liable to you for any consequences or losses whatsoever and you agree to indemnify us if we are found liable to a third party in connection with such freezing or blocking.
10.6 Right to Refuse to Provide Our Service – If you fail to provide to us upon request any information that we are required to collect from you under AML Laws, we retain the right, at any time, to refuse, in our sole discretion, to provide our service to you.
11.1 Disputes Policy
11.1.1 Sole Proprietors, Trustees or Partners – If you are not transacting for personal, family or household purposes and you have a problem with our service, you should initially bring your complaint to our attention so that we can attempt to resolve it in accordance with our internal disputes policy and applicable laws and regulations. Our complaints officer will attempt to resolve the dispute to your satisfaction as quickly as possible.
11.1.2 Individuals Transacting for Personal, Family or Household Purposes – If you are an individual transacting for personal, family, or household purposes and you have a problem with our service, please follow the following instructions so that we can attempt to resolve your problem in accordance with applicable CFPB regulations.
(i) If you think there has been an error or problem with your remittance transfer:
(ii) You must contact us within 180 days of the date we promised you that funds would be made available to the recipient.
(iii) When you contact us, please tell us:
(iv) We will determine whether an error occurred within 90 days after you contact us and we will correct any error promptly. We will tell you the results within three business days after completing our investigation. If we decide that there was no error, we will send you a written explanation. You may ask for copies of any documents we used in our investigation.
11.2.1 If a dispute arises out of or related to this Agreement, or the breach thereof, and the dispute cannot be resolved by negotiation pursuant to subsection 11.1 above, then the matter shall be submitted to the Judicial Arbitration and Mediation Services, Inc. (“JAMS”) or its successor, for mediation as set forth below. If the matter is not resolved through mediation, then it shall be submitted to JAMS, or its successor, for final and binding arbitration pursuant to subsection 11.3 below.
11.2.2 Either party to this Agreement may commence mediation by providing to JAMS and the other party a written request for mediation, setting forth the subject of the dispute and the relief requested.
11.2.3 The parties will cooperate with JAMS and with one another in selecting a mediator from the JAMS panel of neutrals and in scheduling the mediation proceedings. The parties agree that they will participate in the mediation in good faith and that they will share equally in its costs.
11.2.4 Subject to the provisions of section 10 above, all offers, promises, conduct and statements, whether oral or written, made in the course of the mediation by any of the parties, their agents, employees, experts and attorneys, and by the mediator or any JAMS employees, are confidential, privileged and inadmissible for any purpose, including impeachment, in any arbitration or other proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the mediation.
11.3.1 If any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this Agreement to arbitrate, cannot be resolved by mediation pursuant to section 11.2 above, then it shall be determined by arbitration before a neutral arbitrator. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules. The parties will cooperate with JAMS and with one another in selecting an arbitrator from the JAMS panel of neutrals and in scheduling the arbitration proceedings. Judgment on the arbitration award may be entered in any court having jurisdiction. This subsection 11.3.1 shall not preclude the parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.
11.3.2 Notwithstanding the provisions of subsection 11.3.1, either party may initiate arbitration with respect to the matters submitted to mediation by filing a written demand for arbitration at any time following the initial mediation session or at any time following 45 days from the date of filing the written request for mediation, whichever occurs first ("Earliest Initiation Date"), and by providing the other party with written notice, by certified mail, describing the nature of the claim or dispute and setting forth the specific relief sought ("Demand").
11.3.3 At no time prior to the Earliest Initiation Date shall either party initiate an arbitration or litigation related to this Agreement except to pursue a provisional remedy that is authorized by law or by JAMS Rules or by agreement of the parties. However, this limitation is inapplicable to a party if the other party refuses to comply with the requirements of subsection 11.2.3 above.
11.3.4 Both parties agree that each may bring claims against the other only in its individual capacity and not as a plaintiff or class member in any purported class or representative proceeding. Further, unless both parties agree otherwise, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative class proceeding.
11.3.5 Unless both parties agree otherwise, any arbitration hearings shall take place in San Francisco County in the State of California. You may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
11.3.6 After we receive notice that you have commenced arbitration, we will promptly reimburse you for your payment of the filing fee (the filing fee is currently $250 but is subject to change by the arbitration provider). If you are unable to pay this fee, we will pay it directly upon receiving a written request from you.
11.3.7 Except as otherwise provided herein, we will pay all JAMS filing, administration and arbitrator fees for any arbitration initiated in accordance with the notice requirements above. If, however, the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all such fees will be governed by the JAMS Rules. In such case, you agree to reimburse us for all monies previously disbursed by us that are otherwise your obligation to pay under the JAMS Rules.
11.3.8 In any arbitration arising out of or related to this Agreement, the arbitrator is not empowered to award punitive or exemplary damages, except where permitted by statute, and the parties waive any right to recover any such damages.
11.3.9 In any arbitration arising out of or related to this Agreement, the arbitrator may not award any incidental, indirect or consequential damages, including damages for lost profits.
11.3.10 All applicable statutes of limitation and defenses based upon the passage of time shall be tolled until 15 days after the Earliest Initiation Date. The parties will take such action, if any, required to effectuate such tolling.
11.3.11 The parties adopt and agree to implement the JAMS Optional Arbitration Appeal Procedure (as it exists on the effective date of this Agreement) with respect to any final award in an arbitration arising out of or related to this Agreement.
11.4 Legal Action – Nothing in this section 11 shall be deemed to prevent either us or you from approaching a court for an urgent injunction or from bringing an individual action in small claims court, and nothing prevents us from taking immediate legal action to recover any amounts that you may owe to us as the result of Closing Out a Transaction under section 9.
12 Limitation of Liability
12.1 No Liability for Delays – You acknowledge that delays in the transmission and receipt of Payments may occur. In particular, you acknowledge that we operate an online dealing platform that could be subject to technical or other problems, the nature and duration of which may be beyond our control. Our service also involves the use of intermediaries who are outside our control. Accordingly, while we will take all commercially reasonable actions to ensure the timely transmission of funds, we cannot guarantee that transfers of funds will always be made on time and cannot accept any liability to you for any loss suffered by you as a result of any delays in the transmission of funds.
12.2 Limited Liability – We do not, under any circumstances, assume any liability to you in excess of the amount of money you have actually paid to us in relation to any particular Transaction. We will not be liable to you for any form of consequential damages or loss that you may suffer as a result of:
(i) delays in the transfer of your funds, or
(ii) our refusal at any time to transfer your funds.
Without in any way limiting the effect of this section 12, or any other section of this Agreement, "consequential damages" shall be taken to include damages arising from:
(i) loss of business;
(ii) loss of opportunity to realize a gain as a result of foreign exchange fluctuations;
(iii) loss of any other opportunity; or
(iv) loss of interest on funds.
For the avoidance of doubt, and without limiting any other provision of this Agreement:
(i) if your funds are sent to the wrong account or otherwise fail to reach your Recipient Account as the result of a mistake made by us, we will credit your Recipient Account in the full amount of the funds you expect to receive (subject always to your obligations under subsection 7.2), or refund the money to you, however, that shall be the full extent of our liability to you;
(ii) if we Close Out or refuse to process one or more of your Transactions for any reason, we shall refund to you any funds that we hold on your behalf by way of Advance Payment or otherwise, however, that shall be the full extent of our liability to you.
13 Warranties and Indemnities
13.1 Your Warranties – You agree that the following statements are true and accurate, and you acknowledge that we may refuse to process a Transaction, or we may Close Out a Transaction, if we find at any stage that they are not true and accurate:
(i) you are over the age of 18;
(ii) you are the owner of the money you are seeking to transfer;
(iii) you are not acting on behalf of another person;
(iv) you will inform us if you are transacting:
(a) for personal, family or household purposes;
(b) as a trustee of a trust;
(c) as a partner of a partnership; or
(d) as a sole proprietor of a business.
(v) if you are acting as a trustee of a trust, you are properly authorized to enter into this Agreement and any Transactions in accordance with the terms of the relevant trust deed;
(vi) if you are acting for personal, family or household purposes, you have a personal reason for entering into each Transaction and will not enter into any Transaction for speculative purposes;
(vii) if you are acting as a sole proprietor of a business, you have a valid commercial reason for entering into each Transaction and will not enter into any Transaction for speculative purposes; and
(viii) in making your decision to enter into a Transaction, you will not rely on any market-related information that may be provided from time to time by us on our Websites or by our employees or consultants.
13.2 Your Indemnity – You agree to indemnify us for any costs, expenses or fees we may incur as a result of your failure to perform your obligations under this Agreement, whether they arise under section 9 or in some other way. This includes any legal costs that we may incur in order to enforce our rights or recover any amounts you owe us. You also agree to indemnify us for any fees, costs, duties and taxes charged by third parties in relation to the Transactions you enter into, including fees charged by your recipient bank. You acknowledge that in some instances USForex may not be able to ascertain the exact amount of the fees, costs, duties and/or taxes charged by third parties in relation to a Transaction you enter into, in advance of the transfer of funds to the Recipient Account. In such instances USForex shall provide you with an estimate of the total amount to be received in the Recipient Account in the Deal Confirmation, provided, however, if you are an individual transacting for personal, family or household purposes, such fees are payable only if we have given you notice of the amount of any Covered Third Party Fees and the potential for Non-Covered Third Party Fees prior to the subject Transaction becoming legally binding.
13.3 Our Indemnity – In accordance with subsection 8.2, if your funds are sent to the wrong account as the result of a mistake made by us, we will indemnify you and keep you indemnified in relation to the recovery of those funds and will take urgent action at our own expense to recover the funds, provided that you take immediate action to assist us in recovering any such funds.
14.1 Collection of your Personal Information – You acknowledge that, in order to provide our service to you, we must collect your personal information. If you refuse or fail to provide any requested information, we may not be able to process any Transactions for you.
14.2 Contact Us – If you have any questions about the collection or use of your personal information, you may contact our compliance officer +1-888 288 7354 or at email@example.com.
14.3 Access to your Personal Information – Subject to our obligations under applicable laws, including but not limited to AML Laws, you may obtain access to most personal information we hold about you by contacting our compliance officer. Sometimes there may be a reason why access will not be possible. Subject to our obligations under any applicable laws, including but not limited to AML Laws, if that is the case, you might not be told why.
14.4 Purpose of Collection – We collect your personal information in order to provide our products and services, for legal, audit, regulatory and everyday business purposes, including but not limited to compliance with the AML Laws referred to in section 10, and to assess your creditworthiness.
14.5 Entities Who May Receive Your Information – We may share or disclose your personal information as follows: as set forth in our U.S. Consumer Privacy Notice; as permitted in this Agreement; to our intermediary bankers and to any Governmental Authorities that normally require it or that may request it; to any of our service providers, vendors, partners, agents, intermediaries or other transaction-related parties who are involved in the provision of our products and services; or if we determine in our sole discretion that disclosure is required to comply with applicable legal obligations or to detect or prevent criminal conduct.
14.6 Transfer Abroad; International Intermediaries – You acknowledge and agree that we use international intermediaries to process Transactions on your behalf and that your personal information may be sent to those overseas intermediaries in order to complete the Transaction. You also acknowledge and agree that your personal information may be transferred to, and stored and processed in, other countries.
14.7 Consent to Credit Reference Reports – You acknowledge and agree that we may access any electronic databases necessary to assist us in identifying you and to assess your creditworthiness. In particular, you agree that we may obtain, use and retain information about you that we have obtained from any business that provides information about the creditworthiness of individuals, such as a consumer credit report from a credit reporting agency. In doing so, we may give information about you to a credit reporting agency for the purpose of obtaining a consumer credit report about you and the credit reporting agency may create or maintain a credit information file containing information about you. The information that we provide will be limited to your identity particulars, for example, your name, sex, address (and the previous two addresses), date of birth, name of employer, and driver’s license number, and the fact that you have made an application for credit to us. We will adhere to any applicable consumer disclosure obligations under the laws of your state of residence and the federal Fair Credit Reporting Act that may apply to us in connection with USForex accessing your consumer credit report from a credit reporting agency.
14.8 Use of Your Information – You agree that we may use any information we collect about you for the purposes of complying with our legal obligations, including but not limited to under any AML Laws, and for any other purpose related to the provision of our services.
14.9 Information Correct and Up to Date – You must ensure that all information you provide to us is accurate and up to date at all times. You must notify us of any changes to the information you have provided to us as soon as possible, and we reserve the right to require or obtain information or documents to verify such changes
14.10 Protection of Information – We collect and store all information electronically, and take reasonable steps to protect information from unauthorized access, use, loss or theft; however, we accept no liability for unauthorized access, use, loss or theft of information.
14.11 Recording Conversations – To the extent permissible under applicable laws, you consent to the electronic or digital recording of all telephone or videoconference conversations that take place between us and you agree that we may use the recordings or transcripts thereof as evidence in any dispute or anticipated dispute between us, and may disclose such recordings or transcripts to any Governmental Authorities as required by law or legal process. All recordings are our sole property.
14.12 Retention of Information – Any information collected by us, including telephone or videoconference recordings or transcripts, may be kept or destroyed in accordance with our information retention policy and any applicable laws and regulations.
15.1 Notices – Where notice in writing is required under this Agreement, it may be sent by fax, mail or email. Proof of sending will be proof of receipt; in the case of facsimile or email, on the day of dispatch, and in the case of delivery by mail, 48 hours from the date of mailing. Documents shall be sent to the last known mailing address, email address or fax number you have provided to us. If your mailing address, email address or fax number changes, you must notify us as soon as possible.
15.2 Modification of This Agreement – We may alter the terms of this Agreement by posting the new terms on our Websites and will post a notice on our Website notifying you such modifications. This will not affect any rights or obligations you already have, however you will be bound by the new terms when you enter into subsequent Transactions.
15.3 Governing Law – This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to its conflict of laws rules, and you agree to submit to the exclusive jurisdiction of the courts of the State of California in the County of San Francisco.
Advance Payment means a payment of part of the sum that is due to us on the Delivery Date.
Agent Appointment Form means a form that we will provide to enable you to appoint a third party to transact with us on your behalf.
Booking means booking a Transaction by providing us with all of the relevant Transaction details.
Business Day means a day on which we are open for business, which shall not include Saturday, Sunday, New Year's Day or Christmas Day, but which shall include Good Friday and Easter Monday.
Close Out means reversing a Transaction under the circumstances set out in section 9 or otherwise pursuant to this Agreement.
Covered Third-Party Fees means any fees imposed on a Transaction by a third party, other than Non-Covered Third Party Fees.
Deal Confirmation means a written communication, however described, provided by us, confirming the Transaction details of any Transaction that you have booked with us by telephone, email or online, which shall be a form of pre-payment receipt.
Delivery Date means the date on which we have requested that you deliver your funds to our nominated account for transmission.
Delivery Date means, in relation to a Forward Contract, the date on which the currency exchange is to be made by us, and includes any agreed variation to the original date, being either an earlier or a later date. Any reference to a settlement date should be construed as a reference to the Delivery Date.
Forward Contract means a foreign exchange contract under which we agree to exchange and transmit money at an agreed exchange rate and at an agreed time that is between 48 hours and 12 months from the time the contract is entered into.
Governmental Authority means the government of the United States of America, any other nation or any political subdivision thereof, whether state, provincial or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government.
Instructions means a request made by you to enter into a Transaction, and shall be taken to include any information, communications or documents incidental to or relating to a Transaction, whether we process the Transaction or not.
Non-Covered Third Party Fees means any fees imposed by the Recipient Account's financial institution for receiving the transmitted funds into the Recipient Account.
Payment means payment by you to us of funds for transmission.
Rate means the foreign currency exchange rate that we quote you for a Transaction.
Recipient Account means the account to which you are sending your funds, which may be in your name or the name of a third party.
Spike means a rapid movement in the exchange rate.
Spot Contract means a foreign exchange contract under which we agree to exchange money at an agreed rate within 48 hours of the contract being entered into.
Target Rate means the rate at which a Target Rate Order is triggered, being the exchange rate nominated by you plus our profit margin, and shall be contingent on our ability to obtain the Target Rate from our own provider.
Target Rate Order means an instruction pursuant to which we will enter into a Spot or Forward Transaction for you only at an exchange rate nominated by you.
Transaction means a Spot Contract, a Forward Contract or a Target Rate Order, and shall be taken to refer to a series of Transactions pursuant to standing Instructions given by you.
Websites means any websites owned by us, including but not limited to: internationalpayments.travelex.com
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