Terms & Conditions
Introduction and scope of application
These general business terms (the “General Business Terms”) set out the terms and conditions applicable to your business relationship with Cardaq Hong Kong (as defined in Clause 2.1). The General Business Terms shall apply to products and services provided to you by Cardaq Hong Kong pursuant to any agreement entered into between you and Cardaq Hong Kong, including any Pricing Agreement or otherwise, together with the Code of Conduct and the Personal Data Protection Addendum (any terms so applicable to the business relationship between you and Cardaq Hong Kong together the “Agreement”). Any term agreed individually between you and Cardaq Hong Kong shall prevail over the General Business Terms, the Code of Conduct and the Personal Data Protection Addendum, unless expressly stated otherwise or contrary to any duty under Applicable Law.
In these General Business Terms, references to “you”, “your” or “Client” means the client having entered into any agreement governed by these General Business Terms. Any references to “we”, us” or “our” means Cardaq Hong Kong.
The headings in these General Business Terms are for reference only and do not limit the scope of each Clause. Capitalized terms have specific definitions, and are provided in Clause 39 (Definitions and Interpretations) or otherwise in the text of these General Business Terms.
If you have concluded a client agreement with Cardaq Hong Kong prior to the entry into force of these General Business Terms, these General Business Terms shall apply in conjunction with the terms in such agreement and, in case of discrepancy, the terms and conditions in the relevant agreement shall prevail.
Who are we?
We are Cardaq Hong Kong (“Cardaq Hong Kong”), an Electonic Money Institution licensed and authorized by the Financial Conduct Authority to issue e-money (Reference Number is 900088).
Our head office’s principal business address and company registration number are:
One, Bartholomew Close, London, United Kingdom, EC1A 7BL
Company reg. no.: 07805564
About our services
At our discretion, Cardaq Hong Kong may provide you with one or more of the following services (the “Services”):
- Providing you with payment accounts;
- Online Cardaq Hong Kong services;
- Execution of a payment transactions;
- Money remittance services;
- FX Spot trading; and
- Card issuing and card acquiring services.
We do not provide any investment, or investment advisory, services and will not, nor be under any duty to, undertake any ongoing monitoring of your financial circumstances as a whole or any part. We shall not be obliged to provide any of the Services governed by these Business Terms.
We may also make other services available to you. Where appropriate, these will be provided on separate terms and conditions or via a supplementary agreement or document.
We may, in our reasonable discretion, withdraw or suspend the provision of any of the Services to you, for example where we consider that it would otherwise breach any Applicable Law or Compliance Obligations. Cardaq Hong Kong will not be liable for any Loss that you may incur from us suspending the Services, other than if we acted fraudulently, negligently or recklessly in suspending the Service, in which case our liability to you will be as set out in Clause 28 (Your Liability).
Authorised users
You may designate one or more of your Directors, officers or employees as your authorised representatives (an “Authorised User”) to give Instructions, access and operate the Transactions Platforms or otherwise act on your behalf as specified by you. Authorised Users may designate new Authorised Users.
Only Authorised Users may access and use the Transaction Platforms. You may designate Authorised Users in writing in the form of the User Registration Form or in a manner as otherwise approved by us in our discretion. A person shall only become an Authorised Users upon our approval. Our approval of an Authorised User may be subject to you providing us with evidence of his or her identity or other documentation. We reserve the right to decline at our discretion any request for designation of any new Authorised User, and may without notice disable Authorised Users’ access to the Transaction Platforms, in whole or in part.
It is your responsibility to notifiy us without undue delay if the information provided to us in any User Registration Form is no longer up to date. If you wish to remove or add any Authorised User or make any other amendments to roles and privileges assigned to any existing Authorised User, you must inform us by giving written notice to your relationship manager with Cardaq Hong Kong by sending a new User Registration Form.
Subject to any limitations clearly and specifically set out in the applicable User Registration Form, we shall be entitled to rely on and act in accordance with, and you shall be bound by, the Instructions of any person designated by you or on your behalf as an Authorised User in a User Registration Form insofar as such Instruction appears on the face of it to have been made an Authorised User on your behalf.
Code of conduct
Cardaq Hong Kong’s Code of Conduct applies to the use of our Services and the Transaction Platforms. We shall provide you with the Code of Conduct when entering the business relationship with you or when amended from time to time.
You agree to comply with, and to ensure that all of your Authorised Users comply with, the Code of Conduct at all times.
Kyc requirements
We are required by law to conduct ongoing monitoring of all of our clients, and transactions carried out for or with our clients, including you (and your employees), in order to comply with our Know Your Client (KYC) obligations. This includes monitoring Instructions and Transactions for the prevention and detection of financial crime.
You will provide us with all information (e.g. as we consider necessary for opening an Account and conducting the business relationship prescribed by any Applicable Law) and will execute all documents we reasonably request from you from time to time, including any relevant document in order to confirm the tax residence you have declared to us.
You will provide us with correct, accurate and truthful information.
You must notify us immediately in writing of any changes in circumstances which might cause the information provided to us to become incomplete or inaccurate. Changes in circumstances can be but are not limited to changes to: type of business, type of products or services, any dissolution, liquidation, or Insolvency Event, payment flow, licensing, geographic location, company name(s), residence address/registered office, company registration number, address(es) of residence for tax purposes, tax identification number (TIN), Value Added Tax (“VAT”) registration number, nationality/nationalities, Legal Entity Identifier (LEI), legal entity type and any contact details, such as telephone or fax number(s)and e-mail address(es) and/or in respect of any other person(s) involved in the business relationship, such as the beneficial owner(s), any controlling person(s), authorised signatory(ies) and/or person(s) holding a power of attorney.
Your duty to cooperate
You hereby declare that the assets deposited now and in the future in any Account are not of criminal origin, nor are they in any way likely to be used in the financing of terrorism or violation of sanctions laws and other Applicable Law.
You agree to cooperate with Cardaq Hong Kong on all compliance and operations related matters and to comply with anti-money laundering, counter terrorist financing, and similar legal and regulatory obligations applicable to Cardaq Hong Kong.
You agree to respond to Cardaq Hong Kong’ urgent (as defined by Cardaq Hong Kong) requests for:
- information e.g. on specific Transactions and beneficiaries, payers or payees and provide all relevant KYC or Know your Client’s Client (KYCC) documentation; and
- any action that you are required to take in order to comply with payment system rules,as soon as possible and no later than four (4) Business Days from the receipt of the request from Cardaq Hong Kong.
For less urgent enquiries for information e.g. prior to ordinary annual compliance review, you agree to respond as soon as possible and no later than ten (10) Business Days from the receipt of the request from Cardaq Hong Kong.
Vat and tax matters
When rendering cross-border services to you and provided you are registered for VAT purposes, VAT may be payable in the country where you are situated instead of in the country where the service is provided. Following Applicable Law, we are in that case required to comply with certain reporting obligations in respect of VAT in order to ensure the correct application of VAT. We must inform the United Kingdom Authorities responsible for VAT of certain information, including your country code and VAT registration number, and of the total value of the supplied services. This information will ultimately be submitted to the Authorities responsible for VAT in the country where you are registered for VAT purposes.
You, having provided a VAT registration number, hereby expressly confirm being aware of our reporting obligations, and authorise and instruct us to forward the information, which we are obligated to provide, to the Authorities responsible for VAT matters as foreseen under Applicable Law.
You shall be solely responsible for all taxes and payments related to the operations carried out on the Transaction Platforms and for any fees, charges and taxes related to obtaining and maintaining any required permission and license.
Security of the accounts and of the transaction platforms
You shall take all measures necessary to protect the personalised security features of the Accounts and only use our services and any Accounts in accordance with the Agreement. You may not (and may not attempt to) tamper, hack, modify or otherwise corrupt the security or functionality of any Transaction Platforms.
Authorised Users shall be provided with personalised security credentials to access the Transaction Platforms and, to the extent applicable, one-time passwords for strong customer authentication through an authentication device or authentication software to authorise transactions through the Transaction Platforms. Such personalised security credentials and onetime passwords must be kept safe by individual Authorised Users and must not be shared with or used by any other person.
Authorised Users are obliged to notify Cardaq Hong Kong without undue delay if you have become aware of irregularities, hacking, misuse or unauthorised use of the Transaction Platforms, any authentication device or software or any of our services, including your Accounts. In such event Cardaq Hong Kong will block any such systems and Accounts. For more information, please consult our website Cardaq Hong Kong.
Authorised Users are required to take all necessary measures to ensure that the technical characteristics of any device used to access the Transaction Platforms, any authentication device or software, Internet access and telecommunications means are up to date for obtaining information and for access to the transactions and services offered by the Transaction Platforms. Authorised Users are responsible for keeping such devices and/or software up to date and installing all manufacturer provided updates and security fixes when available. You are furthermore required to manage properly the security of such devices through installing and updating security components (antivirus, firewalls, security patches).
Cardaq Hong Kong may offer training and make material available to you. Such training and material is provided “as is” and all use thereof is at your risk. Cardaq Hong Kong does not provide any warranty of such training and material whatsoever, whether express, implied, or statutory, including, but not limited to, any warranty of merchant-ability or fitness for a particular purpose or any warranty that the contents of the training or the material will be error-free.
It is your responsibility to train Authorised Users appointed so that they take all measures necessary to protect the personalised security features of the Accounts and only use our services and any Accounts in accordance with the Agreement.
Communication
Cardaq Hong Kong shall conclude agreements and communicate in English unless otherwise agreed between you and us (including any correspondence in respect of claims or complaints).
Subject to mandatory Applicable Law, any communication with you may be made by electronic mail or other electronic means and any requirement for communication to be ‘written/in writing’ made by ‘letter’, or through ‘account statement printout’, etc., shall include communication and documentation provided by electronic means.
We will contact you via the Transaction Platforms, using the email address associated with your Accounts or the contact details you provided to us, in any particular way that may be required by Applicable Law or by any other means as may be agreed between us.
We will assume the conformity with authentic originals of all documents submitted to us as copies (including electronic copies).
Any notice or communication that is provided to you by email shall be deemed to have been received at the time of sending, as long as this is within Business Hours, otherwise, the relevant notice or communication shall be deemed to have been received when Business Hours resume the following Business Day.
If you wish to contact us, please send communication and notices to Cardaq Hong Kong via the Transaction Platforms or by other electronic means agreed between you and us.
Cardaq Hong Kong reserves the right to record telephone conversations in order to be able to establish the content of the conversation.
You acknowledge and accept that we may validly provide certain information, such as information on our bank, information pertaining to the safeguarding of clients’ funds, information on costs and associated charges, as well as relevant changes, exclusively via our website. You will be notified electronically of the website address and of the place on such website where you can access this information. You undertake to consult our website regularly.
You confirm that you accept the risks, duly authorise the use of electronic communications and agree to use available, appropriate means of detecting the most widely known viruses prior to sending information by electronic means.
You are responsible for having in place and maintaining adequate security measures to ensure the protection of IT systems you use or rely on, and we shall not be liable for any Loss or damage in connection with electronic communications.
Transactions/instructions
Instructions shall be sent to Cardaq Hong Kong via the Transaction Platforms or by other electronic means agreed between you and us from time to time or accepted by Cardaq Hong Kong in its discretion.
Instructions are effective when we receive them. We will not generally acknowledge receipt of Instructions other than by acting on them.
If you instruct Cardaq Hong Kong to make a payment, or more than one payment, on a future date, we will not begin processing the payment(s) until the future date, and the Instructions will be effective on the relevant future date.
Cardaq Hong Kong will only carry out Transactions to or on your behalf upon the receipt of an Instruction signed or accepted by an Authorised User, or if Cardaq Hong Kong otherwise has been authorised to do so by you.
Cardaq Hong Kong will ensure that Instructions are executed as soon as reasonably possible, but in no particular order. If the Instruction is received after the applicable cut-off times available on Cardaq Hong Kong or notified you in any other way by Cardaq Hong Kong, such Instruction shall be deemed received on the following Business Day.
We will treat an Instruction as genuine if we believe in good faith that the Instruction is from any Authorised User (for example, because it appears on the face of it to have been given by an Authorised User) and there are no circumstances that we are or should reasonably be aware of that cause us to suspect the authenticity of the Instruction. We may assume, except in case of manifest error, that the information you give us in connection with a Transaction, including any account number quoted in an Instruction, is correct. Whenever we receive Instructions on which the name does not match the account number indicated thereon, we may rely conclusively on the account number.
If we are unable to contact you or another Authorised User to verify an Instruction, where we consider that to be necessary, or if following our request you or another Authorised User do not provide appropriate Instructions, your Transaction may be delayed or may not be executed.
We may contact you on any matter relating to your Instructions and Transactions, subject to any restriction which you may impose on us.
A Transaction is deemed concluded when you place an Instruction through the Transaction Platforms and Cardaq Hong Kong executes such Instruction.
You are obliged to ensure that all Instructions are complete and accurate. In case you request to cancel or modify an Instruction, Cardaq Hong Kong is required to use reasonable efforts to comply with such request. Cardaq Hong Kong will not be liable for any failure to cancel or modify such an Instruction.
Cardaq Hong Kong may reject or delay in its discretion and without liability any Instruction from you if:
- the Instruction is inaccurate, incomplete or unclear;
- the Instruction has not been properly authorised by you or that any other breach of security has occurred in relation to your use of our services;
- the Instruction would result in a negative balance on any of your Accounts and/or cause any limit imposed by Cardaq Hong Kong in relation to your Accounts to be exceeded;
- it is an Instruction that, in the opinion of Cardaq Hong Kong, implies a risk of participating in a scheme that potentially could be money laundering, terrorist financing or other criminal activities, including tax fraud;
- legal or regulatory requirements prevent us from executing the Instruction or mean that we need to carry out further checks;
- the Transaction seems unusual in light of the ways you ordinarily use your Account(s);
- the Instruction involves a Transaction that is not within the internal acceptable risk scope of Cardaq Hong Kong or Cardaq Hong Kong correspondent institutions including but not limited to the Code of Conduct;
- an injunction or order from any competent Authority or court to freeze funds or any other specific measure associated with preventing or investigating crime has been imposed;
- any third-party claims exist on the funds held with us and upon extra-judicial opposition notified to us by third parties regarding your assets; or
- you are in breach of your obligations under the Agreement or any other fact or matter persists as a result of which we are entitled to terminate the business relationship with you or block access to your Accounts.
Unless regulatory requirements prevent us from doing so, we will inform you as soon as reasonably practicable:
- if we reject or suspend the execution of an Instruction;
- of the reasons for such rejection or suspension; and
- what you can do to correct any errors in the instruction, if applicable.
Cardaq Hong Kong will not be liable for any Losses you suffer as a result of a rejection or suspension of the execution of an Instruction.
Cardaq Hong Kong makes data from SWIFT BIC (or similar) directory (SWIFTRef files or similar) available to its clients through a lookup tool in connection with ordering of payments. You use the data at your own risk and Cardaq Hong Kong is not liable for any use of the lookup tool and the data which are provided “as is”. Cardaq Hong Kong does not represent the functionality or suitability of the lookup tool and the data for you, or that it will be uninterrupted or error free. You acknowledge and accept that any data in the lookup tool may be inaccurate, incomplete, and/or not up to date. Except as specifically mentioned in the Agreement, any other use of the lookup tool and data is strictly prohibited. The proprietary rights in the data belongs to S.W.I.F.T. SCRL. or its corresponding suppliers.
Cardaq Hong Kong’s payment API offers an automated channel for communication between your business systems and Cardaq Hong Kong. The API has the purpose of offering STP (Straight Through processing) capabilities by offering a secure channel for transfer of financial information between you and Cardaq Hong Kong.
Due to Cardaq Hong Kong’s security policy, you can submit requests during a limited time. If the number of requests exceeds the time limit, your request will be timed out for a limited period. Information on request and time limits will be provided to you separately.
End-of-day (EOD) report and/or intro-day reports can be subscribed for, such as reconciliation reports, rejection reports and account balance reports. These reports are generated only during Business Days. By default, you will be set up for EOD reconciliation report and EOD rejection report.
The SWIFT Gateway is available for clients being registered members of the Society for Worldwide Inter-bank Financial Telecommunication network (“SWIFT”) or Clients who are relying on another SWIFT member (“Authorised Member”).
In case the client is relying on an Authorised Member the client must authorise that Authorised Member to send Instruction from the Client’s Cardaq Hong Kong accounts on the Client’s behalf in the form as required by Cardaq Hong Kong. Cardaq Hong Kong is entitled to request additional information to identify such Authorised Member for the purpose of regulatory compliance.
Access to / use of the SWIFT Gateway is subject to prior exchange of SWIFT relationship management authorisation (“RMA”) between the Parties.
The exchange is limited to the message types MT101 and MT103 (together referred to as “SWIFT messages”).
SWIFT messages sent to Cardaq Hong Kong must be compliant with the format requirements as indicated in Cardaq Hong Kong SWIFT Payment Gateway instruction.
The MT101 can be used to initiate (i) Euro payments, payments in Euro within the E.E.A. and (ii) foreign payments, payments in a foreign currency and/or outside the E.E.A. A MT101 can contain one or more payment transactions with a maximum of 60 transactions per MT101 file. Cardaq Hong Kong accepts both single and multiple MT101messages, as long as only one debit account is present in sequence A of the MT101. The MT103 can be used for (i) Euro payments, payments in Euro within the E.E.A. and (ii)/ foreign payments, payments in a foreign currency and/or outside the E.E.A. A MT103 can contain one or more payment transactions with a maximum of one (1) transactions per MT103 file.
Cardaq Hong Kong accepts orders through the SWIFT Gateway as maintained by SWIFT, according to the rules of the actual SWIFT standard release, and reserves the right to reject orders which arrive in another form than agreed to, or which contravene Applicable Law. In all disputes arising from the interpretation of any expression in connection with services provided by SWIFT, the definitions and understanding generally used by SWIFT shall apply.
Payment orders that cannot be linked to the client will be rejected and funds will be returned to the sending institution, and return fee will be deducted, irrespective of the charging option of the original payment order, unless otherwise agreed.
Validation check of payment orders happens before fund movement. In case Cardaq Hong Kong receives a payment order, which fails validation, the payment order will be rejected. The reject code will be sent to the Client as MT199.
As a general rule, a payment order may be can-celled or amended only until it has been settled or communicated to a third party. Any cancellation or amendment request received thereafter will be handled on a best effort basis only, depending on the co-operation and approval of the beneficiary, even if the request for cancellation is received prior to the value date. Cardaq Hong Kong reserves the right to charge the client a cancellation fee.
Our obligation to perform an Instruction is subject to compliance by the relevant Authorised User with our procedures for customer authentication applicable at any time, including any requirement of two-factor authentication. Such authentication may require the use of an application, protocol or individualised security credentials made available to your Authorised Users individually. You shall take all reasonable steps to ensure that any such applications, protocols or security credentials are kept safe and are used only by Authorised Users to whom they have been configured or designated.
Cardaq Hong Kong is not liable for delays, errors misinterpretations, etc. that may arise from incomplete or unclear instructions.
Cardaq Hong Kong reserves the right to reject any order due to compliance reasons / not in accordance with Applicable Law.
Operation of payment accounts
You hereby authorise Cardaq Hong Kong to act in accordance with any Instructions on your behalf and credit and debit your Payment Account(s) accordingly.
Only sums credited to your Payment Accounts shall be treated as available for payments initiated by you and Cardaq Hong Kong will not act on an Instruction from you if there are not sufficient funds on the relevant Payment Account to carry out the requested Transactions. Any incoming payment shall be credited to your relevant Payment Account(s):
- on the same Business Day provided that the payment is received by Cardaq Hong Kong before the applicable cut-off time; or
- on the following Business Day if the payment is received after the applicable cut-off time.
Cardaq Hong Kong shall be entitled to delay crediting your Payment Accounts (for such period as Cardaq Hong Kong in its reasonable discretion considers appropriate) any sum that would otherwise be due in order to protect its position with respect to any liability owed by you to Cardaq Hong Kong, whether actual or anticipated.
Subject to Applicable Law and in providing the Services, Cardaq Hong Kong shall at any time and in accordance with our policies be entitled to transfer balances on your Accounts with our branches to your Accounts with our head office in United Kingdom (or other branches).
Cardaq Hong Kong may reverse amounts transferred into your Payment Accounts by obvious mistake on the part of Cardaq Hong Kong, for example if the same amount is transferred twice-in accordance with the principle of recovery of undue payments. The same applies where Cardaq Hong Kong - according to agreements with its correspondent institutions - is under the obligation to reverse amounts. If Cardaq Hong Kong reverses an amount, you will be notified hereof.
If a reversal of entries results in a negative balance on the relevant Payment Account, overdraft interest may be automatically charged same date without notice. This provision may not be interpreted as authorising you to have any debit balances on your Payment Accounts. Interest charged on the negative balances is capitalised monthly.
Cardaq Hong Kong will process and be responsible for processing payments out of your Payment Accounts solely on the basis of the BIC, sort code or national bank code of the recipient's bank, and the recipient's bank account number (or IBAN), which we shall receive from you as part of your Instructions. Additional information may be requested in accordance with Applicable Law, including the WTR.
If incorrect payment details have been provided, the payment may be delayed or credited to a wrong account and Cardaq Hong Kong will not be liable for any Loss incurred by you, the payer or the payee and/or for any delay to the payment being made.
Any cross-border payment may be returned if the foreign bank(s) involved has been unable to process the payment on the basis of the information provided or if you have can-celled the payment. Cardaq Hong Kong will process a returned payment as a cross-border payment and charge fees accordingly.
When transferring funds to other countries Cardaq Hong Kong’s correspondent institutions in the receiving country may not be the same as your bank. In certain circumstances Cardaq Hong Kong may use selected correspondent institutions and international clearing systems to facilitate the transfer.
Specific provisions relating to the use of virtual ibans
The Virtual IBAN is a product enabling your reconciliation of incoming and outgoing payments on your Payment Accounts.
All inbound payments are credited to and all outbound payments are debited from your Payment Accounts showing the Virtual IBANs for reconciliation purpose.
Payments can be received via the Virtual IBANs in your name on your Current Account or, quoting your payment service user’s name as beneficiary, on your Settlement Account or Nostro/Vostro Account.
Outbound payments can be made via the Virtual IBAN in your name from your Current Account or, in the name of your payment service user, from your Settlement Account or Nostro/Vostro Accounts.
When using Virtual IBAN to make and receive payments on behalf of your payment service users, you acknowledge and confirm that you are acting as payment service provider of either the payer or the payee and we confirm that we are acting as intermediary provider within the meaning of the WTR.
None of your payment service users will be able to make Instruction on your Settlement Account or Nostro/Vostro Accounts associated with the Virtual IBANs despite the fact that the Virtual IBAN may be quoted with their name in the payment message.
The use of the Virtual IBANs with a Settlement Account or a Nostro/Vostro Account, is subject to the following conditions:
- a Virtual IBAN must be associated at all times to a single payment account held by you in the name of one of your payment service users so that the Virtual IBAN can permit any payment to be traced back to your payment service users acting as payer or payee.
- You must provide sufficient information to your payment service users in your terms and conditions in respect of the use of the Virtual IBANs so as to ensure that your payment service users are not led to believe that Virtual IBANs are actually accounts opened in their name.
- When sending a payment using the Virtual IBAN, you must provide all the information necessary for Cardaq Hong Kong to comply with its obligations under the WTR.
- You must notify Cardaq Hong Kong immediately in case of closing of a payment account held in the name of your payment service user by you and associated to a Virtual IBAN and ensure that that Virtual IBAN is can-celled.
Account statements, transaction history and other information
Any Authorised User can view your online Transaction history when logging on to the Transaction Platforms using his or her USERID and password.
You should regularly and carefully review the transaction history and other information and check whether there have been any incorrect information, errors or unauthorised transactions in the Accounts.
You will advise us immediately of errors, discrepancies and irregularities that appear in any documents, transaction history, confirmations, account or statements or other communication addressed to you (hereinafter referred to as the “Communications”). If we receive no written objection within thirty (30) days of the dispatch of the Communications, all Transactions mentioned therein are considered as having been approved and ratified by you. All Transactions and figures given in the above-mentioned Communications will be considered to be final and accurate. You will have no direct or indirect right of objection against such transactions. This rule applies to all Transactions executed by us. You may request copies of any Communications at any time during the period in which we are legally required to keep records of the relevant Transaction, against a fee as set out in our summary for operational fees you can consult on Cardaq Hong Kong. For the avoidance of doubt, this Clause 17.3 applies to any request for rectification of unauthorised or incorrectly executed payment transactions, cf. article 71 of PSD2, of which you must notify us promptly on becoming aware of any such transaction giving rise to a claim, and in no event later than thirty (30) days after the debit date.
Service review and update
Cardaq Hong Kong will undertake periodic service review to ensure a consistent level of quality service is provided.
Cardaq Hong Kong is continually looking to improve and expand its services. As a result, it may be necessary or desirable from time to time to enhance or amend existing service levels, or introduce additional services in support of new or developing businesses. These changes may also be required to align operational standards with market practice or industry standards. Any such changes may be implemented by Cardaq Hong Kong by amending the Agreement in accordance with Clause 23 (Amendments).
Charges, fees and margins
Cardaq Hong Kong shall be entitled to charge for any services rendered and the use of the Transaction Platforms, e.g. payment transfers and currency conversion, withdrawal or amendments of payments orders performing special tasks on your behalf and sending reminders.
You agree to pay the charges, fees, margins stated in the Pricing Agreement or in the Transaction Platforms or as notified to you from time to time.
Any charges, fees, margins mentioned in the Pricing Agreement become due and payable at the end of each month (the “Invoicing Period”).
We will notify you of any due and payable amount in the first week of the month following the end of the Invoicing Period .
Unless expressly stated otherwise, our charges and costs are exclusive of VAT and other taxes, which will also be payable by you.
Any amount owed to us shall be payable when due without set-off or counterclaim.
If you do not perform, or delay performing, your obligations under this Agreement and we incur additional costs or expenses as a result, we reserve the right to notify you and invoice you for our reasonable additional costs incurred. We will provide you with information to substantiate those reasonable additional costs).
Charges, fees, expenses, margins and will be deducted from your Fee Account in our discretion.
You must ensure that your Fee Account holds sufficient funds at all time to cover for all charges, fees, expenses, margins and in any case an amount equivalent to the monthly minimum fee as agreed in the Pricing Agreement. If there are insufficient funds in your Fee Account to enable us to deduct any charges, fees, expenses, margins that are due and payable, we will notify you as soon as possible.
Charges for payments are usually distributed to the effect that you pay Cardaq Hong Kong’s charges and the beneficiary pays the receiving bank’s charges (SHARE). Additional fees may be charged if the payment is to be handled by several banks in the payment chain. Payments in EEA currencies to countries in the EEA are subject to the Directive (EU) 2015/2366 of the European Parliament and of the Council and The Electronic Money Regulations 2011 (UK) on payment services as amended from time to time. You may in certain situations also choose to pay the beneficiary’s charges (OUR) as agreed and when permissible under the United Kingdom law. The fees relating to OUR payments are stated in the Pricing Agreement.
Cross-border payments are for your account and risk, including foreign charges, delays as well as errors and omissions made by the beneficiary’s bank or any intermediary bank.
Cardaq Hong Kong may at any time introduce new charges, fees, margins for services for which Cardaq Hong Kong has not previously charged subject to one (1) months’ notice given to you.
Where the provision of any of its services requires Cardaq Hong Kong to make a conversion from one currency to another, this shall be done at Cardaq Hong Kong’s Reference Exchange Rate plus the charges, fees, margins and stated in the Pricing Agreement.
Cardaq Hong Kong reserves the right to charge interest as follows:
- on any overdrawn balance on your Account including where, in our discretion, we advance funds to enable a Transaction to be completed; and
- on any overdue amount if you default in paying any sum when it is due to us under or in connection with this Agreement.
Where we charge interest it will be payable at a rate determined by us, subject to Applicable Law. Interest will be calculated on a 360 day year.
Any interest on an outstanding amount shall accrue and become payable until the outstanding payment is made to Cardaq Hong Kong in its entirety including interest.
You may also need to pay other additional costs, fees and expenses, including any additional fees on termination and any taxes, transfer fees, registration fees and other liabilities, costs and expenses payable in respect of each Transaction that arise in the context of us or another provider under this Agreement, but which are not imposed by us. We will provide you with information about costs as required by Applicable Law.
Amendments to charges, fees and margins
Cardaq Hong Kong may amend charges, fees, margins, interest set out in the Pricing Agreement subject to one (1) months’ notice where such amendments are not in your favour and without notice where the amendments are in your favour. Cardaq Hong Kong may also without notice introduce and increase fees for one-off services.
Further, Cardaq Hong Kong may vary such charges, fees, margins without notice when the grounds for the change is due to external circumstances beyond Cardaq Hong Kong control including but not limited to:
- changes in the relationship with Cardaq Hong Kong’s counter-parties which affect Cardaq Hong Kong’s cost structure;
- changes in commission and charges from clearing houses, information providers or third-party providers that are passed on to you by Cardaq Hong Kong; and/or
- changes required by an Authority or Applicable Law.
The amended charges, fees, margins will appear from the online Transaction history. Further, you will receive an amended Pricing Agreement if the changes affect your individual fee terms.
Conflicts of interest
You acknowledge and accept that we and any agents or providers may have interests which conflict with your interests and may owe duties to other clients which would otherwise conflict with the duties owed by us to you.
Cardaq Hong Kong has a policy for identifying and managing conflicts of interest that could arise in the course of providing our Services to you. The policy is revised from time to time.
Where you have been introduced to us by a third party, we may pay an introduction fee on a one-off or continuing basis. In addition, where we pass your Transactions or introduce you to a third party, we may receive a fee from the third party on a one-off or continuing basis. The circumstances in which we and other providers receive and make or provide any such payments or other benefits are controlled by Applicable Law, including, to the extent applicable, the FCA and PRA rules.
Amendments
Cardaq Hong Kong may amend the terms of this Agreement at any time. This might be to make changes, for example:
- required by Applicable Law;
- reflect a change in Services; or
- correct any errors.
Unless otherwise agreed, Cardaq Hong Kong may amend these General Business Terms or any other part of the Agreement subject to one (1) months’ notice where such amendments are not in your favour and otherwise without notice.
Subject to Applicable Law, amendments to our Agreement may be communicated to you either in writing or through e-mail or similar electronic communication through the Transaction Platforms with terms incorporating the relevant amendments being available through a link to our website or by electronic or physical copy of relevant documentation.
If you do not provide us with notice of rejection of any amendment of which we have notified you within the period stipulated in Clause 23.1 (or such other notice period in respect of amendments which may apply under the Agreement), we will deem the Agreement to have been amended as per the expiry of the notice period. If you do provide us with notice of rejection of any amendment of which we have notified you, we shall have the right to terminate the business relationship with you with effect as from the date on which the relevant amendment was to apply.
Cardaq Hong Kong’s right to refunds and set-off
Cardaq Hong Kong shall be entitled to obtain a refund of (i) any amounts paid by Cardaq Hong Kong on your behalf and (ii) any expenses incurred by Cardaq Hong Kong, if you fail to perform your contractual obligations. Such expenses may include payments of insurance premiums relating to legal fees, legal assistance, etc.
We shall be entitled to, immediately and without prior notice, offset any amount due and payable from and / or block funds on any of your other Account to satisfy any amount owed by you to us that remain unpaid for more than 30 days after you have been notified that such amount has become due and payable.
For offsetting purposes, we are entitled to terminate a term deposit before its maturity, if required.
Term and termination
The General Business Terms shall apply from the Effective Date and continue until terminated in accordance with this Clause 25 (Term and Termination).
Either Party is entitled to terminate our business relationship for convenience at any time with three (3) months’ written notice.
Cardaq Hong Kong is entitled to terminate the business relationship with you immediately by giving you written notice if:
- you are in material breach of your obligations under the Agreement;
- changes to previous information or circumstances you have provided to us mean that you are no longer an acceptable client to us;
- there has been or we reasonably suspect there has been fraud or suspicious activity involving any of your Accounts with us or any Transactions on any of your Accounts;
- you are subject to an Insolvency Event;
- we have reasonable grounds for believing you have committed or are about to commit a crime in connection with any of your Accounts;
- we reasonably consider that by continuing the Agreement (a) we may break any Applicable Law or other duty or (b) we may be exposed to action or censure from any Authority.
Without prejudice to any other obligations a breach of which could be deemed material under this Clause 25 (Term and Termination), breach of your obligations in Clauses 5 (KYC Requirements), 7 (Your duty to cooperate) or 15.6 (‘sniping’) and of the General Business Terms or the Code of Conduct which will always be considered material.
Cardaq Hong Kong may at its discretion grant you up to a thirty (30) day period to remedy a material breach. Cardaq Hong Kong may also decide to block your accounts until the breach is sufficiently remedied.
Termination of the business relationship shall be without prejudice to any rights which accrued before termination.
A termination of the business relationship shall not affect:
- outstanding Transactions being settled and any costs, charges or any other expenses or amounts whatsoever accruing to us (including any additional expenses in connection with such termination being paid); and
- any rights, obligations, liability claims, etc between you and Cardaq Hong Kong, and any warranties or indemnities given by you under this Agreement, which shall survive, which by their nature are deemed to survive the termination.
At any time after the termination of this Agreement, or after we have reasonably determined that you have not performed any of your obligations to us, we may, upon three (3) Business Days’ notice (oral or written) to you of our intention to do so close out, replace or reverse any such Transaction or take, or refrain from taking, such other action at such times and in such manner as we consider necessary or appropriate to avoid, cover, reduce or eliminate any Loss or liability under or in respect of any contracts, positions or commitments.
Upon termination of this Agreement, all amounts payable by you to us (where only one or more Services is terminated, but not the Agreement as a whole, to the extent they relate to the relevant Service or Services) will become immediately due and payable including (but without limitation):
- all outstanding charges, costs, interest and fees;
- any costs expenses incurred by terminating this Agreement; and
- any losses and expenses realised in closing out any Transactions or settling or concluding outstanding obligations incurred by us on your behalf.
Following termination of this Agreement, you agree that we will be entitled to retain access to your Fee Account or access your term deposit before its maturity, if required until all your outstanding payments have been settled. You permit us to deduct from your Fee Account or term deposit, as applicable, any amounts needed to settle any such payments. We will return to you any remaining funds held in your Fee Account after all amounts owed have been settled. Your Fee Account or term deposit, as applicable, shall then be closed.
We will not be liable to you for any Loss that you incur as a result of us acting on Instructions that you authorised prior to termination of any Service.
On termination, you will co-operate with us in arranging the transfer of your money/funds to another financial services provider. If you fail to co-operate with us by providing instructions within a reasonable period of time from our request for you to do so we will have the right to close your Account(s). Pending the transfer of your money/funds to another provider (where applicable), we shall continue to hold the relevant money/funds in accordance with the other provisions of this Agreement, and subject to your paying all applicable charges and costs. However, we shall not have any other responsibility in respect of the relevant money/funds and the only permitted Transactions on your Account will be the transfer out of your money/funds.
Other client obligations
You shall ensure at all times that:
- the execution, delivery and performance of your obligations under the Agreement and any deviations thereof agreed between you and Cardaq Hong Kong, the Transactions and the use of the services contemplated here-under do not contravene or conflict with (i) any Applicable Law or any order of any Authority, body or agency or any judgment, order or decree of any court having jurisdiction over you, or (ii) the provisions of your constitutional documents;
- you are responsible for conducting KYC, anti-money laundering, sanctions and other financial crime and due diligence checks required by Applicable Law on your customers that will use or benefit from the Services. You will provide us with details, as reasonable, of the processes and procedures that you follow to carry out such checks together with any updates or amendments to those checks which you make while this Agreement is in place between you and Cardaq Hong Kong;
- you have and will maintain for the term of the business relationship all consents, authority, licenses, recognitions, registrations, permissions, authorisations, exemptions and memberships, including in particular under PSD2 if applicable, necessary for the conduct of your business (and that it is properly empowered and has obtained necessary corporate or other Authority pursuant to its constitutional and organisational documents);
- all Transactions and other activities relating to our services and Cardaq Hong Kong are concluded in connection with your commercial activities;
- you are in compliance with all Applicable Laws to which you are subject, including, without limitation, all consumer regulation, personal data protection regulation, tax law and regulation and registration requirements;
- you have not suspended the payment of your financial obligations as they fall due, entered into arrangement with your creditors generally or certain credit groups, become subject to liquidation, bankruptcy, restructuring or other bankruptcy proceedings, been party to any enforcement proceedings levied against your assets, nor have you been threatened with any insolvency or enforcement proceedings;
- the information provided by you to Cardaq Hong Kong is complete, accurate and not misleading in any material respect.
In addition to the above, if you hold a Settlement Account or a Nostro/Vostro Account with Cardaq Hong Kong, you shall ensure at all times that all payments processed through any of your Settlement Accounts and Nostro/Vostro Accounts, and opened in your name, are made for the benefit of your payment service users and you hereby confirm that you have full power and capacity and are contractually authorised to collect funds for your payment service users with discharging effect on the payer or execute transactions in the name of and with discharging effect on your payment service users.
You shall inform us immediately if you breach any of the obligations set out in this Clause 26 (Other Client Obligations).
Cardaq Hong Kong’s liability and limitations
Cardaq Hong Kong represents, warrants and undertakes that throughout the term of this Agreement:
- it is duly constituted, organised and validly exists under the laws of the country of its incorporation;
- it has the ability, capacity and any authorisation (including regulatory authorisation) required by Applicable Law to enter into and perform its obligations under this Agreement;
- it has the legal right, power and authority to enter into, exercise its rights and perform its obligations under this Agreement; and
- entering into this Agreement will not cause it to breach any Applicable Law, any provision of its constitutional documents or any agreement, licence or other instrument, order, judgment or decree of any court, governmental agency, or Authority to which it is bound.
Cardaq Hong Kong will provide the Services and perform its other obligations with reasonable care and skill and in accordance with its policies.
Cardaq Hong Kong will not be liable in damages or responsible to you for any Loss arising in connection with this Agreement except to the extent that:
- the Loss was caused by our negligence, wilful default or fraud; and
- the Loss was reasonably foreseeable by you and us at the time this Agreement was entered into as a consequence of the breach of duty.
However, Cardaq Hong Kong shall not be liable for any fines, penalties, loss of information, profit, goodwill, business or anticipated savings, nor any indirect Losses sustained.
Cardaq Hong Kong shall not be liable for Losses resulting from:
- breakdown/lack of access to IT systems or damage to data stored in such systems which can be attributed to the events mentioned below, regardless of whether Cardaq Hong Kong or an external contractor is responsible for operating such systems;
- failure in Cardaq Hong Kong’s power supply or telecommunications, non-availability of Cardaq Hong Kong's website e.g. due to maintenance downtime, legal measures or administrative decrees, natural disasters, war, riot, civil unrest, sabotage, terrorism or vandalism (including computer virus, cyber terrorism, including but not limited to hacking and other cuber-crime);
- the insolvency of a clearing system, save to the extent the Loss would not have arisen but for our wilful default or fraud. In the event of the insolvency of any third party, we may only have an unsecured claim against that third party. There is therefore a risk that any amounts recovered from that third party are insufficient to satisfy your claim and the claims of other clients;
- strike, lockout, boycott or blockade, regardless of whether the conflict is directed against or initiated by Cardaq Hong Kong itself or its organisation and regardless of the reason for the conflict. This also applies if the conflict only affects some of Cardaq Hong Kong operations;
- other circumstances which are beyond Cardaq Hong Kong’s control or due to complying with Cardaq Hong Kong’s other obligations under Applicable Law, including but not limited to the action of any government or government agency and/or disruption to the international Cardaq Hong Kong systems to and/or through which payments are sent or any investment exchange and/or clearing house or the operator of SWIFT or any other settlement or clearing system.
Cardaq Hong Kong’s exemption from liability under this Clause 27 (Cardaq Hong Kong’s Liability and Limitations) shall not apply where Cardaq Hong Kong should have foreseen the event causing the Loss at the time of the entering into the business relationship or and should reasonably have avoided or overcome the reason for the Loss.
Cardaq Hong Kong accepts no liability for errors, delays or other inconveniences caused by any correspondent institution chosen by you. Cardaq Hong Kong can also not be held responsible for the solvency of such correspondent institution.
Notwithstanding anything to the contrary in the General Business Terms, Cardaq Hong Kong’s total liability in respect of all claims arising in connection with the business relationship and any Transaction on the Transaction Platforms shall be limited to EUR 40,000 in any twelve-month period.
Cardaq Hong Kong, its correspondent institutions and other banks in the payment chain check incoming and outgoing payments against relevant terrorists -and anti-money laundering watch lists, including the EU database, which may imply that a payment is stopped and frozen. In such case, Cardaq Hong Kong is not liable for any subsequent Losses.
The use of the Transaction Platforms is at your own risk and Cardaq Hong Kong is not liable for any use of the Transaction Platforms. The Transaction Platforms are provided “as is” and Cardaq Hong Kong does not represent the functionality or suitability of the Transaction Platform for you, or that it will be uninterrupted or error free. All conditions, warranties, covenants, representations and undertakings which might be implied, whether statutory or otherwise, in respect of Cardaq Hong Kong’s obligations are excluded to the maximum extent permitted under Applicable Law. You acknowledge and accept that any information on the Transaction Platform may be inaccurate, incomplete and/or not up to date.
According to its reasonable assessment, Cardaq Hong Kong may decide that there is an emergency or an extraordinary market situation. Such situations shall comprise, but are not limited to, (i) suspension or shutting down of any market, (ii) any ceasing of or unsuccessful execution of any event on which Cardaq Hong Kong bases its price quotations, (iii) the occurrence of an unusually large fluctuation in the price or liquidity level for one or more Transactions and/or an underlying market, and/or (iv) Cardaq Hong Kong’s reasonably justified expectation of the occurrence of one or more of the events mentioned in (i) to (iii). In such situations, Cardaq Hong Kong shall be entitled to immediately cancel one or more Transactions.
Notwithstanding anything to the contrary elsewhere, Cardaq Hong Kong may cancel a Transaction or a Spot Contract, reject to carry out a Transaction or a Spot Contract and/or reverse amounts transferred into your Accounts without prior notice to you if Cardaq Hong Kong deems, in its discretion, that the Transaction, Spot Contract, Instruction and/or payment is a result of an abnormal behaviour or misuse of the Transaction Platforms, including but not limited to speculative activities such as high frequency trading or the use of the platforms for other activities than stated in the General Business Terms or in violation of the Code of Conduct. Such behaviour will be regarded as a material breach of your obligations and you cannot in such event put forward any claims against Cardaq Hong Kong.
Cardaq Hong Kong shall not be liable for any Losses resulting from unauthorised use of its services, including, but not limited to, the Accounts, the Transaction Platforms.
Nothing in this Agreement excludes or restricts any obligation we have to you under the PRA or FCA rules, the Financial Services and Markets Act 2000 or otherwise under the UK regulatory system, in each case if applicable, or requires you to waive or make good any Loss to us against any breach by us of such an obligation.
Your liability
You are obliged to compensate Cardaq Hong Kong for all Losses, taxes, expenses, costs and liabilities whatsoever (present, future, contingent or otherwise and including reasonable legal fees) which may be suffered or incurred by Cardaq Hong Kong as a result of or in connection with the breach of your obligations (including representations and warranties) pursuant to the Business.
For the avoidance of doubt, you are liable without any limit for all Losses relating to payments where you or one of your Authorised Users have acted fraudulently, negligently or failed to comply with the Agreement or Applicable Law.
You shall indemnify and keep Cardaq Hong Kong indemnified against all actions, proceedings, costs, Losses or damages of any kind that Cardaq Hong Kong, its parent company, subsidiaries or associated companies may suffer as a result of handling your Instructions or as a result of your failure to comply with your obligations under the Agreement or you having acted fraudulently or negligently.
You will give Cardaq Hong Kong prior notice (or, if for confidentiality reasons you are unable to give Cardaq Hong Kong advance notice, as soon as possible thereafter) if you undergo a change of Control. The notification shall include details of the new Controller.
You agree to comply with, and ensure your employees comply with, Cardaq Hong Kong’s policies (including our security, financial crime and privacy policies) that apply to your use of the Services.
Confidentiality, disclosure of information, and outsourcing
Cardaq Hong Kong’s privacy policy as documented into the Personal Data Protection Addendum applies to your use of our Services and the Transaction Platforms. The Personal Data Protection Addendum is available on Cardaq Hong Kong’s website and/or is provided to you when entering the business relationship.
We are bound by strict professional secrecy obligations, and may not disclose data or information relating to our business relationship with you to any third party, except when disclosure of the information is made in compliance with, or required under, Applicable Law, or upon your instruction or otherwise with your consent.
In order to adequately and efficiently provide you with our Services, to comply with applicable legal and regulatory requirements whether in United Kingdom or abroad, we must in certain circumstances disclose your information.
You are hereby informed, acknowledge and accept that certain of our processes and data may be transferred to and processed by third party in the context of various outsourcing arrangements. More information on the various outsourcing arrangements Cardaq Hong Kong has entered into can be found in the Outsourcing Addendum.
We are further both entitled and required to disclose certain data, in connection with payment or other transactions that we carry out for you, to any other third parties in United Kingdom or abroad that are involved in these transactions (e.g., in their role as banks, especially correspondent institutions, operators of payment systems or brokers). The data that may need to be disclosed by us in this context may in particular include the data explicitly specified above, the account number, the International Bank Account Number (IBAN), as well as name of the beneficiary of the payment. In particular, data contained in credit transfer orders or any similar payment transactions carried out for your Account(s) and on your behalf will be processed by our subcontractors or other specialised companies, such as SWIFT. Such processing may take place in special cent-res or with third parties located in other countries in or outside of the EEA/EU, including in countries which may not offer a similar level of protection as applicable within the EEA/EU, in accordance with their legislation. Accordingly, you acknowledge that such third parties or Authorities in said countries may request access to data which is stored in processing cent-res of this sort, for the purposes of com-batting terrorism or for any other legal purpose. By instructing us to carry out any transaction, you acknowledge and agree that all data required in order to execute the transaction correctly may be shared, processed and held outside of United Kingdom or may be disclosed to local Authorities or any third parties as described.
Please note that, when transferring funds internationally, information may be passed on to relevant US Authorities. SWIFT - who facilitates such international transfers - is required to report information about the transaction to relevant US Authorities if it suspects the transaction to be connected to financing of criminal activities or terrorism in accordance with US laws and regulations.
You acknowledge that we are under certain circumstances required by the United Kingdom Law of 18 December 2015 regarding the automatic exchange of information (AEI) on financial accounts in tax matters, as amended, and the United Kingdom Law of 24 July 2015 approving the Agreement between the Grand Duchy of United Kingdom and the Government of the United States of America in view to improve international tax compliance and relating to the dispositions of the United States of America concerning the exchange of information commonly called the “Foreign Account Tax Compliance Act” (FATCA), to report certain Personal Data relating to your director(s) or ultimate beneficial owner(s), who are subject to disclosure in connection with the AEI or FATCA, to the United Kingdom Direct Tax Administration (referred to hereinafter as the “LTA”) and/or the US Internal Revenue Service (IRS) or any other competent US Authority on an annual basis, which in turn passes on such data to the competent tax Authorities in any re-portable jurisdiction(s) in which the re-portable person is resident for tax purposes. For the purposes of the AEI and FATCA we are a data controller within the meaning of statutory regulations on data protection and we may disclose data to service providers in order for them to effect the reporting on our behalf. The data we are required to disclose to the LTA includes the name(s), address(es), TIN(s), date(s) and place(s) of birth, account number(s), the name of the bank, account balance(s) or value(s) as of the end of the relevant calendar year or other appropriate reporting period if the account(s) was/were closed during the year, and in the case of (a) custodial account(s); the total gross amount of interest, dividends and other income generated with respect to the assets held in the account(s) and the total gross proceeds from the sale or redemption, and (b) depository account(s); the total gross amount of interest paid by or credited for you. For each information request we send to you, addressing such information request is obligatory, and failure to respond or provide the required information may trigger incorrect reporting or reporting in multiple jurisdictions for which we have identified indicia in our files. You have the right, free of charge, to access the data transferred to the LTA and may ask for a rectification thereof if such data is inaccurate or incomplete.
We are required under regulatory requirements to report certain transactions to a trade repository or relevant regulators. You hereby acknowledge that disclosure made pursuant to such regulatory requirements may include your identity (by name, identifier or otherwise).
For the avoidance of doubt, neither Party shall copy, reproduce or disclose any information relating to the other Party’s business, investments, finances or other matters of a confidential nature as may come to the Party’s knowledge during the performance of said Party’s obligations or in any other ways, and both Parties shall use all reasonable endeavours to prevent any such disclosure. This shall not apply, however, where the Party is obliged to disclose such information due to applicable legislation or due to a public or supervisory Authority or to another person who is entitled by law to demand such disclosure (including the tax Authorities), or in order to enable the Party to an adequate extent to fulfil its obligations in accordance with the Agreement.
Audit/compliance review
Upon two (2) weeks written notice and upon reasonable grounds for belief of non-compliance or as part of an ordinary annual compliance review, Cardaq Hong Kong or a representative acting on behalf of Cardaq Hong Kong, shall have the right to conduct an on-site audit/compliance review during Business Hours. The on-site audit/compliance review shall be strictly limited to the extent reasonably necessary to validate such compliance and/or carry out other reasonable control measures in order to verify compliance with the Agreement.
You shall reasonably cooperate with Cardaq Hong Kong by: (a) making applicable records available; (b) providing copies of the relevant records requested; and (c) directing all employees, agents and representatives to reasonably cooperate. If the audit/compliance review shows that you are not in compliance with the Agreement, you shall pay Cardaq Hong Kong’s reasonable expenses for conducting the audit along with any other claim for breach of the Agreement.
Evidence
You expressly agree that, notwithstanding the provisions of Law requirements, we will, whenever useful or necessary, be entitled to prove our allegations by any means legally admissible in commercial matters, such as witnesses or affidavits.
Computerised registrations effected by us on the basis of original documents, will constitute prima facie evidence and will have the same value in evidence as an original written document. You may only disprove micro-graphic reproductions or electronic records or any other form of record made by us on the basis of original documents or documents having the value of an original by submitting a document of the same nature or in writing.
Our books and records will be regarded as probative and will conclusively prove inter alia the messages and instructions given by you and that Transactions mentioned in such documents have been carried out in accordance with your instructions.
Tape recording of telephone conversations may be used in court or other legal proceedings with the same value in evidence as a written document.
Protection of depositors
The safeguarding policy describes how company would hold client’s funds and how would be done transaction flow. Safeguarding funds from payment services are done under the Payment Services Regulations. Purpose of safeguarding is to protect customers funds that are held by an institution and are aimed at ensuring that funds are available to meet customer demand for the “cashing out” of electronic value.
Cardaq Hong Kong ensures this by placing funds in a separate account in each credit institution where the company have opened accounts from the institution’s working capital and other funds. European payments companies must take careful measures to meet their legal obligations given the differences in transposition and interpretation of the underlying European Directives and the variety of relevant Member State laws.
Transfer and assignment
Cardaq Hong Kong may assign the business relationship to other entities belonging to the same group of companies or in connection with any corporate restructure, reorganisation or the sale of Cardaq Hong Kong business.
You may not assign or transfer any of your rights or obligations under the Agreement, without a prior written consent from Cardaq Hong Kong.
Limitation of claims
Legal actions initiated by you against us must be filed with the competent courts within twelve (12) months from the date of our action, or omission, giving rise to your claim. Any action brought after the expiry of such twelve (12) month period will be time barred.
Miscellaneous
In some cases, Cardaq Hong Kong receives a commission or another fee when Cardaq Hong Kong sells a partner’s products or when Cardaq Hong Kong refers you to another company.
Any right, title and interest in and to Cardaq Hong Kong’s website and any content thereon is the exclusive property of Cardaq Hong Kong. The name ”Cardaq Hong Kong” and our logos are trademarks belonging to Cardaq Hong Kong S.A. and you are unauthorised to copy, imitate, modify, alter, amend or use the names without our prior written consent.
You may not alter, modify or change the Transaction Platforms or intellectual properties in any way, or use them in a manner that is disparaging or display them in any manner that implies Cardaq Hong Kong sponsorship, endorsement, affiliation or otherwise.
You may not reverse engineer, decompile, or disassemble any of the software used for the Transaction Platforms or services. Also, you may not copy, modify, sell, distribute or transfer any parts of the software used for the Transaction Platforms or services.
These General Business Terms are applicable from the date hereof and shall remain effective until a new version is released. The newest and current version of the General Business Terms is always available on Cardaq Hong Kong’s website.
Rights and remedies
For the avoidance of doubt, in the event that the UK Contracts (Rights of Third Parties) Act 1999 is found to be applicable to this Agreement, a person who is not a party to this Agreement has no right under the Act to enforce any term of this Agreement, but this does not affect any right or remedy of a third party which exists or is available apart from that Act.
Except where otherwise expressly provided, the rights and remedies contained in this Agreement are cumulative and not exclusive of rights and remedies provided by law.
No delay in exercising, or failure to exercise, any right, power or remedy in connection with this Agreement will be considered a waiver of any of these. No single or partial exercise of a right will preclude any other exercise of that right.
Queries and complaints
If you have a query regarding a payment, the query shall be raised in the first instance to the client services team at Cardaq Hong Kong.
Cardaq Hong Kong will have no interaction with neither payers or payees of your payment service users or customers and your payment service users or customers themselves acting in any of these capacities. If any of the payers, payees or your payment service users or customers contacts Cardaq Hong Kong, Cardaq Hong Kong shall refer them to you and you shall resolve any issues with them directly.
If you are not satisfied with the Service you have received and wish to make a complaint or raise a dispute, you should email us at Cardaq Hong Kong, setting out full details of the matter.
Any complaint will be handled in accordance with Cardaq Hong Kong complaint handling policy (available on Cardaq Hong Kong). The complaint handling policy is available in English only. Unless otherwise agreed, any correspondence between us in relation to a complaint shall be made by e-mail.
Entire agreement
The Agreement constitutes the entire agreement between the Parties. Any prior statement or representation by either Party, whether express or implied is herby excluded from the Agreement insofar as is permissible under Applicable Law.
Illegality, invalidity and unenforceability
If any provision or term of this Agreement or any part thereof shall become or be declared illegal, invalid or unenforceable for any reason whatsoever, such term, provision or part shall be divisible from this Agreement and shall be deemed to be deleted from this Agreement.
We are entitled to take any action, or to refuse to take any action, which we regard as necessary for us to comply with Applicable Law. You agree, when instructing us, to comply with all Applicable Law to which you are subject.
Governing law and choice of jurisdiction
The Agreement and any matter arising from or in connection with the business relationship, including the termination hereof, shall be governed by and construed in accordance with United Kingdom law, excluding private international choice of law rules, and all claims and disputes (including non-contractual claims and disputes) arising out of or in connection with this Agreement and/or its subject matter, negotiation or formation will be determined in accordance with United Kingdom law.
Each Party submits to the courts of United Kingdom in relation to all claims, disputes, differences or other matters (including non-contractual claims, disputes, differences or other matters) arising out of or in connection with this Agreement.
Force majeure
If either Party is unable to perform its obligations under this Agreement in whole or in part because of a Force Majeure Event, then the Party affected shall immediately notify the other Party of the extent to which it will be unable to perform its obligations.
If Cardaq Hong Kong is the Party affected, Cardaq Hong Kong will implement its business continuity plan.
The Party affected will use reasonable efforts to minimise the effect of the Force Majeure Event.
If the Party affected complies with its obligations above, that Party will not be liable to the other Party for Losses the other Party suffers as a result of the Force Majeure Event.
Psd2 and psrs – agreed terms
These General Business Terms, together with any other part of the Agreement setting out the generally applicable terms of our services constitute a “Framework Contract” as defined in the PSRs.
You acknowledge and accept the provisions of Title III (Transparency of conditions and information requirements for payment services) of PSD2 shall not apply unless specifically provided in the Business Terms. Further, without limitation to any other provision hereof, you acknowledge and accept the provisions of Part 6 (Information Requirements for Payment Services) of the PSRs shall not apply unless specifically provided in the Business Terms.
You agree that the provisions of articles 72 (evidence on authentication and execution of payment transactions), 76 (refunds for payment transactions initiated by or through a payee), 80 (irrevocability of a payment order), 89 (liability for non-execution, defective or late execution of payment transactions) of PSD2 shall not provide you with more favourable terms than set out in the Agreement, including in respect of burden of proof.
Without limitation to any other provision hereof, to the extent you or Services provided to you are subject to the PSRs, in accordance with regulation 63(5) of the PSRs, you agree that Cardaq Hong Kong is not required to provide you with the information under, or comply with, regulations 66(1) (Charges), 67(3) and 67(4) (Consent and withdrawal of consent), 75 (Evidence on authentication and execution of payment transactions), 77 (Payer or payee’s liability for unauthorised payment transactions), 79 (Refunds for payment transactions initiated by or through a payee), 80 (Requests for refunds for payment transactions initiated by or through a payee), 91 (Non-execution or defective or late execution of payment transactions initiated by the payer), 92 (Non-execution or defective or late execution of payment transactions initiated by the payee), 93 (Nonexecution or defective or late execution of payment transactions initiated through a payment initiation service) and 94 (Liabililty of payment service provider for charges and interest) of the PSRs.
To the extent permitted by regulation 85, you agree that Cardaq Hong Kong is not required to provide you with the information under, or comply with, regulations 86 to 88 of the PSRs.
If any Loss suffered by you as a consequence of any unauthorised payment transactions result from the use of a lost, stolen, or misappropriated payment instrument as set out in article 73 (Payment service provider’s liability for unauthorised payment transactions) of PSD2, no limit shall apply to the amount of Loss which shall be borne by you.
Definitions and interpretation
In these General Business Terms the following terms shall, unless the context otherwise pledges, have the following meanings and may be used in singular or plural as appropriate:
- “Account” means any account(s) with Cardaq Hong Kong opened in your name, including any account opened with any branch of Cardaq Hong Kong;
- “Account Statement” means a periodic statement of the transactions credited to or debited from an Account;
- “Agreement” has the meaning defined in Clause 1.1;
- “Applicable law” means any law, statute, regulation or legally binding requirement or order as interpreted taking appropriate account of regulatory policy, guidance or industry code, relating to either of the parties or subject matter in question, including any instructions or requirement imposed by a competent Authority, and any rules and restrictions in relation to trade embargos or other sanctions regulation imposed by the United States, the United Nations, the European Union and any of its member states or the United Kingdom or any institution or agency acting on behalf of any of them, in each case to which (1) Cardaq Hong Kong and any of its branches and/or the Services and, if the context so requires, you (2) are subject;
- “Authorised User” has the meaning defined in Clause 4.1;
- “Authorities” includes any judicial, administrative, public or regulatory body, any government, any tax authority, securities or futures exchange, court, central bank or law enforcement body, or any of their agents;
- “Cardaq Hong Kong web” means the payment solution provided by Cardaq Hong Kong to its clients enabling the clients to hold payment accounts in their name, handle payments and currency conversions;
- “Business Day” means any day on which banks are opened for business in the United Kingdom;
- “Business Hours” means the time between 09:00 and 17:00 (London time);
- “Code of Conduct” means Cardaq Hong Kong’s Code of Conduct (or any document howsoever named replacing the Code of Conduct) of use of the Transaction Platforms as applicable from time to time;
- “Compliance Obligation” means under Applicable Law and/or any other obligation of Cardaq Hong Kong to comply with: (a) laws or international guidance and internal policies or procedures, (b) any demand from authorities or reporting, disclosure or other obligations under laws, and (c) laws requiring us to verify the identity of our clients.
- “Contract” means any contract, for the purchase or sale of any currency, entered into by Cardaq Hong Kong with you;
- “Control” means (1) ownership of (50) fifty per cent or more of the issued share capital, or (2) the power to direct or cause the direction of the general management, of the relevant entity, or its parent. The terms “Controlled”, “Controlling”, “Controller” and “Controls” shall have the same meaning.
- “Current Accounts” means the account(s) opened in the name of a legal entity for the purpose of receiving and sending payments in its own name from and to third parties and qualifying as payment account under PSD2;
- “Effective Date” means the date the last Party signs this Agreement;
- “Fee Account” means a single account used for settling fees from activities on the Cardaq Hong Kong web;
- “Force Majeure Event” means any circumstances beyond the reasonable control of the affected Party, including civil unrest, war, act of terrorism, threat or perceived threat of act of terrorism, riots, disaster, earthquake, extraordinary storm, lock-out or other industrial dispute, public internet failure, or changes in Applicable Law, to the extent that such circumstances materially affect the ability of the party relying on those circumstances to perform its obligations under this Agreement;
- “General Business Terms” has the meaning defined in Clause 1.1;
- “Insolvency Event” means that a Party:
- is unable, or admits inability, to pay its debts or suspends or threatens to suspend making a payment on any of its debts;
- has an order or petition made against it or a resolution passed for its administration, winding-up or dissolution or any other corporate step or legal proceeding is taken with a view to the same (otherwise than for the purposes of a solvent amalgamation or reconstruction);
- has an administrative receiver, receiver, manager, liquidator, administrator, trustee or similar officer appointed over all or a significant part of its assets;
- enters into or proposes any compromise arrangement with its creditors; or
- suffers or carries out anything similar to the above in any applicable jurisdiction;
- “Instructions” means any payment or transaction instruction, where you instruct Cardaq Hong Kong to perform a Transaction or a Spot Contract;
- “Loss” includes any loss (including loss of profits), costs, damages, taxes, expenses or other liability.
- “Margin Trade” means a contract opened and maintained based on a margin deposit as opposed to a contract based on a purchase price;
- “Nostro/Vostro Account(s)” means the account(s) opened in the name of an entity licensed as credit institution and used for the purpose of providing payment services to its payment service users;
- “Outsourcing Addendum” means the addendum provided to you as part of the Agreement and providing information on the type of information transmitted in the context of the processes outsourced by Cardaq Hong Kong, the suppliers of the services and their country of establishment.
- “Party” means each of you and Cardaq Hong Kong individually, and “Parties” means you and Cardaq Hong Kong collectively;
- “Payment Accounts” means any Settlement Account, Current Account or Vostro/Nostro Account;
- “Personal Data Protection Addendum” means the terms and conditions that govern Cardaq Hong Kong treatment of personal data when clients use Cardaq Hong Kong’s services (including, but not limited to any information you provide in relation to the use of Cardaq Hong Kong’s Services) as applicable from time to time;
- “Pricing Agreement” means the agreement executed by you and Cardaq Hong Kong documenting the agreed pricing for the provision of the Services;
- “PSD2” means the directive (EU) 2015/2366 on payment services in the internal market and any enactment transposing directive (EU) 2015/2366 into national law (including with respect to United Kingdom law of 10 November 2009) and any applicable rules and regulations issued by the European Union, any member state or any of their competent Authorities pursuant thereto and having the force of law;
- “PSRs” mean the UK Payment Services Regulations 2017;
- “Real-Time FX Platform” means the online trading platform ‘Real-Time FX’ made available by Cardaq Hong Kong and enabling you to trade currency;
- “Reference Exchange Rate” means the relevant Spot exchange rate prevailing on the foreign exchange market, as conclusively determined by Cardaq Hong Kong.
- “Settlement/Trade Confirmation” means a notification from Cardaq Hong Kong confirming the entry into a spot Contract;
- “Settlement Account” means the account opened in the name of an entity licensed as payment service provider under PSD2 or any similar regulation outside the European Union and used for the purpose of providing payment services to its payment service users and qualifying as a payment account under PSD2;
- “Spot Contract” / “Spot” has the meaning given in Article 10 of Commission Delegated Regulation (EU) 2017/565 of 25 April 2016 supplementing Directive 2014/65/EU of the European Parliament and of the Council as regards organisational requirements and operating conditions for investment firms and defined terms for the purposes of that Directive;
- “SWIFT Gateway” means the messaging capacity that allows for payment messages to be initiated and distributed;
- “Transaction” means transfer or receipt of funds or any other action or disposal of funds carried out by Cardaq Hong Kong on your behalf;
- “Transaction Platforms” means Cardaq Hong Kong web, the Real-Time FX Platform and any other system or application programming interface(s) (API) made available by Cardaq Hong Kong; and
- “User Registration Form” means the form setting out the roles and privileges of certain individuals using of the Transaction Platforms on your behalf;
- “Virtual IBAN” means the unique identifiers consisting of a combination of letters and numbers in the form of an international bank account number.
- “WTR” means the regulation 2015/847 on information accompanying transfer of funds as amended from time to time.
References to any law, statute, regulation or enactment in these General Business Terms shall include references to any amendment, modification or re-enactment thereof or to any regulation or order made under such law, statute or enactment.
Any references to the terms “include”, “includes”, “including”, or any similar terms are not intended to limit the, or provide an exhaustive, meaning or generality of the related wording.