TERMS OF BUSINESS AND PRIVACY AGREEMENT
These Terms of Business, together with any Schedule(s), and accompanying documents (including the cover letter and the account opening form), as amended from time to time, (this "Agreement") sets out the terms of the contract between you and us, and are accepted by signature.
The parties to this agreement are: Frontierpay Limited (hereinafter referred to as "FRONTIERPAY LTD"), company number 7061945, and the client(s) who has/have either completed the registration form or agreed to these terms and conditions electronically (hereinafter referred to as "the Client")
1.1 FRONTIERPAY LTD buys and sells currency for commercial purposes. It cannot trade with the Client if the Client is seeking to profit by pure speculation on currency movements without having a genuine reason for wanting to exchange currency. In addition, FRONTIERPAY LTD can only trade with a Client if the Client has the capacity and authority to trade and is acting on its own account and not on behalf of others.
1.2 Whilst FRONTIERPAY LTD may provide information about currency markets and related matters, it does not and will not provide advice. Any decision made to buy/sell currency is made wholly independently of FRONTIERPAY LTD.
1.3 All currency trades and payment transfers that FRONTIERPAY LTD undertakes will only be on the basis of these Terms and Conditions and the other documentation referred to therein.
1.4 If FRONTIERPAY LTD reasonably believes that instructions are from the Client, the Client agrees that FRONTIERPAY LTD may accept the instructions as being genuine whether or not they are actually from the Client and the Client authorises FRONTIERPAY LTD to act on those instructions. If there is more than one individual who can issue instructions on behalf of the Client, the Client agrees that FRONTIERPAY LTD may accept instructions from such individual as sufficient authority to bind the Client to any set of instructions given under these Terms and Conditions.
1.5 The Client may give FRONTIERPAY LTD written or oral instructions and this is done entirely at the Clientís own risk and the Client will indemnify FRONTIERPAY LTD and keep it fully indemnified against any losses that FRONTIERPAY LTD may incur as a result of accepting instructions from the Client or purporting to be from the Client and which are honestly believed by FRONTIERPAY LTD to come from the Client. Furthermore FRONTIERPAY LTD is under no duty or obligation to challenge or make any enquiries concerning any instructions that FRONTIERPAY LTD believes in good faith to be genuinely from the Client.
1.6 The Client will on the completion of the registration process be allocated a unique identifier known as the Clientís account number. This should be used in all communications by the Client with FRONTIERPAY LTD and kept confidential and secure by the Client.
2. Converting Currency
2.1 The Client may make a contract to trade currency once FRONTIERPAY LTD has confirmed that the Client's account is open and FRONTIERPAY LTD is satisfied as to the legitimacy of the Clients purpose for requiring the currency. The Client may give FRONTIERPAY LTD instructions to trade in writing by post or by fax, verbally or electronically including by e-mail.
2.2 Once an exchange rate has been quoted by FRONTIERPAY LTD that is acceptable to the Client and the Client has confirmed to FRONTIERPAY LTD that the Client wishes to enter into a contract at that rate, then provided FRONTIERPAY LTD's trader accepts the order and FRONTIERPAY LTD notifies the same to the Client, a legal and binding contract will exist between the Client and FRONTIERPAY LTD on and subject to these Terms and Conditions. The contract will detail the relevant currencies at the quoted exchange rate for the agreed amounts and with delivery on the date on which the contract matures (the "value date"). FRONTIERPAY LTD reserves the right not to accept any order, without incurring any liability to the Client. Once a contract has been made it cannot be withdrawn, rescinded or amended without FRONTIERPAY LTD's express consent in writing and at its absolute discretion.
2.3 If FRONTIERPAY LTD is asked by the Client to attempt to obtain a better rate of exchange than that which is immediately available in the market, FRONTIERPAY LTD will endeavour to do so but does not guarantee that it will be able to achieve that rate (this is known as 'working an order' or a 'limit order'). Once a request to obtain a better price has been accepted by FRONTIERPAY LTD it cannot be withdrawn, rescinded or amended without FRONTIERPAY LTD's express consent in writing.
2.4 FRONTIERPAY LTD will endeavour (but does not promise) to confirm any contract in writing by sending a Contract Note, usually by email, within 24 hours of the contract being made. The Contract Note will detail the amount of currency that the Client is buying, the exchange rate that was agreed, the value date by which Client is to complete payment for the currency bought, where payment is to be made and details of, if required, any deposit required in accordance with Clause 4. The Contract Note will have attached a document requesting details of where the currency purchased should be sent. These onward transfer details must be supplied by the Client to FRONTIERPAY LTD as soon as possible and in any event before the value date. Please note that, whether the Contract Note is received by the Client or not, the Client is still bound by the contract and FRONTIERPAY LTD must be contacted to notify payment details if the Contract Note has not been received within 24 hours of making the Contract.
2.5 At the time of agreeing the contract as detailed in Clause 2.2 or Clause 2.3 the Client may be able to confirm the details of where the currency purchased is to be sent with the FRONTIERPAY LTD trader. If that is the case these onward transfer details will be contained in the Contract Note and, as such, will be acted on in accordance with the procedures detailed in Clause 3.
3. Payment & Transfer
3.1 Cleared funds for payment of the Contract by the Client must be received by FRONTIERPAY LTD at least one business day, where a business day is 9 am to 4.30 pm Monday to Friday excluding Bank Holidays and Public Holidays in England ("business day"), before the value date agreed in the contract.
3.2 All currency purchased will be sent by electronic transfer to the destination specified by the Client, provided always that
(a) cleared funds have been received in full by FRONTIERPAY LTD at least one full business day before the day of transfer; and
(b) the details of where the currency is to be sent have been returned as set out in paragraph 2.4 above or as confirmed in accordance with Clause 2.5
(c) FRONTIERPAY LTD will aim to transfer the currency purchased on the business day following 3.1 (a) and (b) have been completed or as soon as practicable after FRONTIERPAY LTD has received the information.
3.3 FRONTIERPAY LTD will accept payment from the Client's bank account and will, at its sole discretion, accept payments from third parties only in the event that prior agreement has been made.
3.4 The Client must make all payments in full without any deduction, set-off, counterclaim or withholding of any kind. All transfers by the Client to FRONTIERPAY LTD should include the Client's account number and contract number as reference as this minimises possible delays in allocating the funds received correctly.
3.5 Once a transfer has been made by FRONTIERPAY LTD the Client cannot cancel it
3.6 If the onward transfer details have been supplied or confirmed by the Client in accordance with Clause 2 then for the Client to be able to cancel the onward transfer, subject to Clause 3.5, the Client must contact FRONTIERPAY LTD accounts team and obtain FRONTIERPAY LTD's confirmation in writing from FRONTIERPAY LTD accountís team that the transfer has been cancelled.
3.7 FRONTIERPAY LTD will not make a transfer if:
(a) the information the Client has supplied is unclear, incorrect or incomplete; or
(b) the Client is in breach of this agreement; or
(c) FRONTIERPAY LTD suspect fraud or other illegal activity; or
(d) FRONTIERPAY LTD has any legal or regulatory reason; or
(e) FRONTIERPAY LTD's business reputation may be significantly compromised
3.8 The Client should be aware that banks have fixed cut off times for the receipt and dispatch of electronic payments and FRONTIERPAY LTD has no liability for any delay in or failure from the late arrival of funds or from the late receipt of instructions.
3.9 FRONTIERPAY LTD has no control over the allocation of funds by the bank to which the funds have been sent and FRONTIERPAY LTD has no liability for any delay in or failure from the late arrival of funds. The Client should be aware that it can take more than five business days for the funds to clear.
4. Forward Payment for Forward Contracts
4.1 For forward contracts, where the value date is more than two business days from the date on entering into the Contract, FRONTIERPAY LTD will require a forward payment deposit (a 'margin') to be provided within two working days of the Contract being agreed. This margin will be of such a percentage of the value of the Client's contract(s) as FRONTIERPAY LTD may specify. The remaining percentage must be paid at least one full working day before the value date.
4.2 The margin will be held by FRONTIERPAY LTD in a designated account belonging to FRONTIERPAY LTD, until such time as FRONTIERPAY LTD incurs any costs, losses or liabilities in connection with or arising out of the Client's contract(s) (including, without limit, liabilities incurred with third party currency dealers, exchanges, brokers, banks or similar entities or any clearing house or regulatory body). At this point, FRONTIERPAY LTD will apply such proportion of the margin as is equal to its costs, losses, or liabilities, without the need for any notice or demand. FRONTIERPAY LTD may also, at its absolute discretion, offset any margins or other monies held by FRONTIERPAY LTD in respect of any one of the Client's contracts, against any costs, losses or liabilities that FRONTIERPAY LTD incurs in connection with or arising out of any other contract the Client may have with it. The Client may not insist or require that FRONTIERPAY LTD does so offset any such margins or other monies held by FRONTIERPAY LTD in respect of any of the Client's contracts.
4.3 If FRONTIERPAY LTD does incur a cost, loss or liability, on any of the Client's contracts, the Client must pay to FRONTIERPAY LTD within 24 hours of a demand that it do so an additional sum sufficient to restore the margin to the percentage of the value of its contract(s) previously specified by FRONTIERPAY LTD (known as a 'margin call').
4.4 The Client will not be entitled to any interest on the margin or any other monies held on its behalf on any contract. Furthermore, at no time will the Client grant or attempt to grant any charge or other encumbrance over any margin or other monies held by FRONTIERPAY LTD on its behalf on any contract.
5.1 While FRONTIERPAY LTD does not charge commission, FRONTIERPAY LTD trader may agree at the time of entering into the contract with the Client in accordance with Clause 2.2 an administration charge. At the same time as agreeing the contract FRONTIERPAY LTD will agree the number of transfers to be made by the client. If the Client exceeds the agreed number of transfers then FRONTIERPAY LTD may charge up to £15 for each additional transfer. In the absence of confirming the number of transfers at the time of the trade it is assumed the client is making one transfer. The Client may be subject to other costs, for example from banks receiving its payment. FRONTIERPAY LTD has no control over these costs and accepts no liability for them.
5.2 FRONTIERPAY LTD will also charge for costs relating to notification of a transfer which have been refused where refusal is reasonable, the revocation of a transfer permitted under certain circumstances and for costs in respect of the recovery for funds transferred by way of the Client supplying incorrect information.
6. Information about the Client
6.1 FRONTIERPAY LTD is, by law, required to ascertain certain information about its clients and the nature of their businesses and it is hereby agreed that the Client will provide FRONTIERPAY LTD with such documentation as FRONTIERPAY LTD may from time to time request as proof of the Client's constitution, shareholders, directors, principals, registration and purposes.
6.2 Furthermore, it is warranted by the Client that is acting on its own behalf, for a genuine reason, that the currency that the Client wishes to trade belongs to the Client both legally and beneficially, has not been obtained by illegal means nor in any way contrary to the rights of the legal owner and is in no way tainted by criminal activity. The Client also warrants that the information that is provided to FRONTIERPAY LTD is accurate, that no material information will be withheld from FRONTIERPAY LTD, that FRONTIERPAY LTD will be provided with any information that FRONTIERPAY LTD may reasonably require from the Client and that FRONTIERPAY LTD will be notified immediately if any of the information that it has been given changes.
7. Recording Telephone Conversations
7.1 Telephone conversations may be recorded with or without advance notice or warning being given and such recordings or transcripts thereof may be used as evidence of contracts entered into, in relation to disputes and for ongoing quality control programmes. If FRONTIERPAY LTD makes any recordings or transcripts FRONTIERPAY LTD may also destroy them as FRONTIERPAY LTD considers appropriate.
8. Termination of Contracts
8.1 FRONTIERPAY LTD maintains the right to terminate any contract if:
(a) any breach of the Terms and Conditions or any other contract between FRONTIERPAY LTD and the Client occurs; or
(b) FRONTIERPAY LTD reasonably believes that the Client will be unable to fulfil its obligations under any Contract; or
(c) the Client convenes a meeting of its creditors or suffers a petition to be presented or a meeting to be convened or other action to be taken with a view to its liquidation except (with the written approval of FRONTIERPAY LTD) for the purposes of and followed by amalgamation or reconstruction; or
(d) for FRONTIERPAY LTD to continue with any Contract would expose FRONTIERPAY LTD to any liability for which FRONTIERPAY LTD is not protected.
(a) the Client is in breach of any of these terms and conditions or of any other contract: and
(b) that breach is capable of being rectified; and
(c) FRONTIERPAY LTD has given notice to rectify the breach, allowing a reasonable time for so doing; and
(d) that notice has not been complied with FRONTIERPAY LTD may terminate any Contract forthwith and the Client will be liable for any losses that it incurs.
8.2 Yet further, FRONTIERPAY LTD may terminate any Contract if it is required to do so on the instruction of any law enforcement agency or regulatory body. In such a case FRONTIERPAY LTD may retain all or any of the Client's money if FRONTIERPAY LTD is required to do so by law and then deal with the Client's money as ordered by a Court or other body of competent jurisdiction.
9. FRONTIERPAY LTD's liability to the Client
9.1 If FRONTIERPAY LTD is in breach of its obligations under these Terms and Conditions it will be liable for only the Direct Loss that the Client may incur. Direct loss is defined as the lower of the value of the currency FRONTIERPAY LTD is asked to transfer by the Client, in accordance with Clause 3.2 or £50,000 (fifty thousand pounds), where it does not reach the destination you specify as a result of FRONTIERPAY LTD's gross negligence. FRONTIERPAY LTD will not be liable in contract, tort (including negligence) or for breach of statutory duty or in any other way in connection with these Terms and Conditions or any contract for any indirect or consequential losses or special damages or for loss of profit, contract, business, goodwill or anticipated savings or any other additional costs that may be incurred whether or not such costs, losses or damages were in the contemplation of the parties at the date of these Terms and Conditions (except for death or personal injury for which FRONTIERPAY LTD's liability shall remain unlimited).
9.2 Other than the aforesaid, FRONTIERPAY LTD will not be liable to the Client and in no circumstances shall it be liable for an act or omission of any third party involved in the payment process or otherwise.
9.3 Insofar as and to the extent that the same is permitted by law, all implied terms are excluded from these Terms and Conditions and any contract.
9.4 FRONTIERPAY LTD will not be liable if FRONTIERPAY LTD is unable to perform any of FRONTIERPAY LTD's obligations or FRONTIERPAY LTD's performance of its obligations is delayed due to circumstances outside FRONTIERPAY LTD's reasonable control, including (without limitation) any industrial action, labour dispute, act of God, fire, flood or storm, war, riot, civil commotion, security alert, act of terrorism or associated event, act of sabotage or vandalism, virus, compliance with any law or order, power cut or failure, computer system malfunction including software, hardware and internet connectivity or the occurrence of extraordinary fluctuations in any financial markets that may materially affect FRONTIERPAY LTD's or the Clients ability to complete the Contract. If any of these circumstances happen then the Contract can be suspended for the period during which they continue or at FRONTIERPAY LTD's discretion and in order to protect both the Client and FRONTIERPAY LTD, FRONTIERPAY LTD may terminate the contract.
10. The Client's Liability to FRONTIERPAY LTD
10.1 The Client will indemnify FRONTIERPAY LTD against all liabilities that it may incur as a result of accepting the Clients order(s) to trade currency and/or following its instructions or instructions that purport to be from the Client, whether sent/given by telephone, fax, post, e-mail or otherwise up to a maximum of £50,000 (fifty thousand pounds). Furthermore, and without limiting the general scope of this indemnity, if any payments are made late by the Client or the Client is otherwise in breach of these Terms and Conditions or any Contract, the Client will be liable for and will immediately indemnify FRONTIERPAY LTD against any costs, losses or liabilities that it may incur in connection with or arising out of its contract(s) including (again without limit) costs, losses or liabilities incurred with third party currency dealers, exchanges, brokers, banks or similar entitles or any clearing house or regulatory body. FRONTIERPAY LTD may also charge interest on any amount(s) owing to it at the rate of 4 per cent per annum above the Bank of England base rate from time to time in force, compounded daily from the due date until payment. Further, if the Client has any liability to FRONTIERPAY LTD under these Terms and Conditions or any contract, FRONTIERPAY LTD may deduct any money that it is holding for the Client in the pooled Client account, on whichever contract, to offset against its costs, losses or liabilities. The Client hereby agrees (without prejudice to their other obligations in these Terms and Conditions or any contract) to notify FRONTIERPAY LTD immediately if the Client becomes aware of any event referred to in clause 8 herein. The Client will be liable to FRONTIERPAY LTD for all losses which FRONTIERPAY LTD suffers or incurs relating to any fraud or fraudulent activity by the Client at any time.
11. Client Money
11.1. Passing money to third parties: On your instructions, we may pass money received from you to a third party (e.g. an exchange, intermediate broker, OTC counterparty or clearing house) to hold or control in order to effect a Transaction through or with that person or to satisfy your obligation to provide collateral (e.g. initial margin requirement) in respect of a Transaction.
11.2. Interest: We shall not pay you interest to you for profits earned, on client money, unless otherwise agreed in writing.
11.3. Overseas banks, intermediate broker, settlement agent or OTC counterparty: Unless you have notified us in writing to the contrary, we may hold client money on your behalf with an approved bank in a client bank account located outside the European Union or pass money held on your behalf to an intermediate broker, settlement agent or OTC counterparty located outside the European Union. The legal and regulatory regime applying to any such approved bank or person will be different from that of the European Union and in the event of the insolvency or any other equivalent failure of that approved bank or person, your money may be treated differently from the treatment which would apply if the money was held with an approved bank in the European Union. We will not be liable for the solvency, acts or omissions of any third party referred to in this sub- clause.
11.4. Right of application of client money: Where any obligations owing to us from you (whether present or future, actual or contingent) under this Agreement are due and payable to us, we shall cease to treat as client money so much of the money held on your behalf as equals the amount of those obligations. You agree that we may apply that money in or towards satisfaction of all or part of those obligations due and payable to us. For the purposes of these client money terms, any such obligations other than fees and commissions become immediately due and payable, without notice or demand by us, when incurred by you or on your behalf.
11.5. Additional security: As a continuing security for the payment and discharge of all obligations owing to us by you (whether present or future, actual or contingent) under this Agreement ("Secured Obligations") you grant to us, with full title guarantee, a first fixed security interest in all your money that we may cease to treat as client money in accordance with the Client Assets Rules. You agree that we shall be entitled to apply that money in or towards satisfaction of all or any part of the Secured Obligations, which are due and payable to us but unpaid.
11.6. The Client accepts that, in the absence of any instruction to pay received client monies to a specified payee, any funds received into the Client’s payment account will be returned to the Client’s sending account (or, where the relevant funds have been received from a third party, to that third party) after 60 working days have passed from the original date of receipt of the relevant funds.
12. Other Legal Notices
12.1 Should any contract made under these Terms and Conditions be terminated in accordance with Clause 8 herein, the Client's liability to indemnify FRONTIERPAY LTD pursuant to clause 10 shall not terminate.
12.2 Any person who is not a party to these Terms and Conditions has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of these Terms and Conditions but this does not affect any right or remedy of a third party which exists or is available apart from that Act.
12.3 FRONTIERPAY LTD may at any time amend these Terms and Conditions. FRONTIERPAY LTD will give Clients two months notification of any changes before they take effect by placing a notice on our website www.frontierpay.com. FRONTIERPAY LTD may also communicate these changes by email and/or by post. Such changes will be deemed to be accepted unless you advise FRONTIERPAY LTD to the contrary. The Client has the right to terminate these Terms and Conditions with FRONTIERPAY LTD immediately. FRONTIERPAY LTD must give two months notice to terminate these Terms and Conditions. The Clients liability to indemnify FRONTIERPAY LTD pursuant to clause 10 shall not terminate at the termination of these Terms and Conditions. The Client can request at any time a copy of these terms and conditions free of charge.
12.4 Should any of the Terms and Conditions be deemed to be unenforceable or illegal, the remainder of the Terms and Conditions shall remain in full force and effect as if the unenforceable or illegal part had been removed.
12.5 These Terms and Conditions may not be transferred or assigned.
12.6 Should FRONTIERPAY LTD decide to waive or delay enforcement of any right that it may have under these Terms and Conditions, this shall not prohibit it from enforcing that or any other right subsequently.
12.7 Should any of these Terms and Conditions be in conflict with any other documentation or information that has been provided in connection with any particular contract, then these Terms and Conditions shall have priority unless specifically agreed by FRONTIERPAY LTD in writing that such other documentation and information shall have priority in whole or in part.
12.8 These Terms and Conditions came into affect as at 25.05.18 and the documents referred to in it supersede all prior agreements, oral or written, between the parties. No reliance may be placed on any oral or written representations made in respect of the subject matter of these Terms and Conditions other than fraudulent misrepresentations. Furthermore, these Terms and Conditions and the documents referred to in it constitute the entire agreement between the Client and FRONTIERPAY LTD.
12.9 The Client acknowledges and agrees that FRONTIERPAY LTD is permitted to carry out electronic database searches and search credit reference agencies and similar in order to verify the identity and credit rating of the Client and/or its principals and/or its shareholders and/or its directors and/or persons authorised to issue instructions. If such searches are carried out, FRONTIERPAY LTD may keep records of the contents and results of such searches in accordance with all current and applicable laws.
12.10 All communication between the Client and FRONTIERPAY LTD will take place in English.
12.11 Frontierpay Ltd. is Authorised by the Financial Conduct Authority under the Payment Services Regulations 2017 for the provision of payment services, firm reference number 577057.
13. Unauthorised Money Transfer
13.1 Under the PSR 2017 there are certain rights and obligations that apply to transfers where the recipient is within the European Economic Area ("EEA") which comprises all member states of the European Union together with Norway, Iceland and Lichtenstein and made in euros or sterling or a currency of an EEA state that has not adopted the euro. Clauses 13.2 and 13.3 apply to unauthorised money transfers covered by PSR 2017.
13.2 FRONTIERPAY LTD may be liable to the Client where FRONTIERPAY LTD performs a transfer that the Client did not authorise us to perform in accordance with these Terms and Conditions.
(a) Where the Client believes this to be the case then the Client should advise FRONTIERPAY LTD as soon as possible and we will investigate the matter.
(b) Subject to Clause 13.2 (c) FRONTIERPAY LTD will refund to the Client the full amount of the transfer
(c) The Client will not be entitled to a refund if the Client did not inform FRONTIERPAY LTD in writing without undue delay and in event not less than 13 months from the date of the transfer on becoming aware of a possible unauthorised money transfer or that the transfer was authorised in accordance with these Terms and Conditions or due to unforeseen and/or abnormal circumstances beyond FRONTIERPAY LTD's control.
13.3 FRONTIERPAY LTD may be liable to the Client where FRONTIERPAY LTD either fails to perform a transfer or FRONTIERPAY LTD incorrectly performs a transfer that the Client asked us to perform in accordance with these Terms and Conditions.
(a) Where the Client believes this to be the case then the Client should advise FRONTIERPAY LTD as soon as possible and FRONTIERPAY LTD will investigate the matter.
(b) Subject to Clause 13.3 (c) FRONTIERPAY LTD will undertake the actions required to remedy the matter
(c) The Client will not be entitled to a refund if the Client did not inform FRONTIERPAY LTD in writing without undue delay and in event not less than 13 months from the date of the failure or incorrect transfer on becoming aware of the matter or the transfer was performed in accordance with these Terms and Conditions or due to unforeseen and/or abnormal circumstances beyond FRONTIERPAY LTDís control.
13.4 FRONTIERPAY LTD will have no liability to the Client for failure to perform or incorrect performance of a transfer where the reason for this was FRONTIERPAY LTD's refusal to proceed with the transfer or any part of it.
14. Data Protection
14.1 For the purpose of this clause the following terms shall have the following meanings:
(a) Data Controller: shall have the meaning of 'data controller' set out in section 1(1) of the DPA and, from the time of its implementation into law in England and Wales the meaning set out in Article 4(7) of the GDPR or the equivalent clause of such legislation which may implement the same in the UK .
(b) Data Processor: shall have the meaning of 'data processor' set out in section 1(1) of the DPA and, from the time of its implementation into law in England and Wales the meaning of 'processor' set out in Article 4(8) of the GDPR or the equivalent clause of such legislation which may implement the same in the UK.
(c) Data Protection Legislation: means, for such time as they are in force in England and Wales, the DPA, the GDPR and all related legislation which may supplement, amend or replace them and which relates to the protection of individualís rights in their personal data and the protection of their privacy.
(d) Data Subject: an individual who is the subject of Personal Data.
(e) DPA: means the Data Protection Act 1998.
(f) EEA: means the European Economic Area and also includes the United Kingdom whether or not it is a member of the European Economic Area.
(g) GDPR: means Regulation (EU) 2016/679 and/or such legislation as may give effect to its terms in England and Wales.
(h) Personal Data: has the meaning set out in section 1(1) of the DPA and, from the time of its implementation into law in England and Wales the meaning set out in Article 4(1) of the GDPR, and for the purposes of this Agreement means Personal Data provided by one party to this Agreement to the other.
(i) Processing and Process: have the meaning set out in section 1(1) of the DPA.
14.2 FRONTIERPAY LTD and the Client agree that for the purpose of Data Protection Legislation that the Client shall be the Data Controller and FRONTIERPAY LTD shall be the Data Processor in respect of any Personal Data which is transferred from the Client to FRONTIERPAY LTD under the terms of this Agreement.
14.3 As a Data Processor FRONTIERPAY LTD shall Process the Personal Data only to the extent necessary to perform its obligations pursuant to this Agreement and/or in accordance with the Clientís instructions from time to time, and shall not Process the Personal Data for any other purpose other than enabling it to fulfil its obligations pursuant to this Agreement or to perform any other activity which may be authorised by the Client from time to time.
14.4 Where a party is a Data Processor pursuant to this Agreement it shall take steps to ensure that its employees and agents are informed of its obligations in relation to Personal Data that it collects, transfers or holds, and its employees and agents shall Process such information in confidence and in accordance with all relevant Data Protection Legislation.
14.5 Each party warrants to the other that it will Process the other's Personal Data in compliance with all applicable Data Protection Legislation.
14.6 The Client recognises that FRONTIERPAY LTD relies on sub-processors, for example, for banking, IT and sales support and to the extent that it does and any such transfer of Personal Data is outside of the EEA FRONTIERPAY LTD will seek to ensure that appropriate safeguards are in place so that the Personal Data is held securely and that Data Subjects' rights are upheld;
14.7 Where a party to this Agreement becomes a Data Processor pursuant to it, it warrants that in relation to the Personal Data in respect of which it is a Data Processor that:
14.7.1 having regard to the reasonably available state of the art of technological development, the nature of the Processing in question, the cost of implementation, and the material risk to the rights of affected Data Subjects, the Data Processor will take appropriate technical and organisational measures to secure relevant Personal Data against the unauthorised or unlawful Processing and against the accidental loss or destruction;
14.7.2 it will assist the Data Controller, insofar as reasonably possible, in responding to any requests made by any relevant Data Subject which concern the exercise of that Data Subjectís rights under the GDPR, subject to Data Controller reimbursing it for the cost of the same;
14.7.3 it will notify the Data Controller, insofar as reasonably possible, of any relevant requests for the disclosure of Personal Data which may be made to it and which it considers that it is legally obliged to respond to, subject to Data Controller reimbursing it for the cost of the same;
14.7.4 it will report to the Data Controller any actual data breach concerning Personal Data that relates to this Agreement which comes to its attention and shall assist the Data Controller to inform the relevant regulator and affected Data Subjects, subject to Data Controller reimbursing it for the cost of the same;
14.7.5 it will, on request, take reasonable steps to demonstrate to the Data Controller, to the extent that is reasonable given the nature of the Processing in question, that it complies with Data Protection Legislation, subject to Data Controller reimbursing it for the cost of the same; and
14.7.6 it shall hold all Personal Data in confidence, subject to security measures no less rigorous than those which it uses to safeguard its own confidential information.
14.8 Each party agrees to indemnify and keep indemnified and defend at its own expense the other party against all costs, claims, damages or expenses incurred by the other party or for which the other party may become liable due to any failure by the first party or its employees or agents to comply with any of its obligations pursuant this clause 14. In order to avail itself of this indemnity the claiming party must: promptly notify the indemnifier of any relevant claim of which the indemnified party becomes aware; not make any admission of liability or offer to settle in respect of any relevant claim without the prior written permission of the indemnifier; grant the indemnifier full control of all relevant proceedings on request, and; provide the indemnifier with such assistance in dealing with such claims as it may reasonably request.
14.9 The parties acknowledge that to the extent that a party is a Data Processor pursuant to this Agreement it will be reliant on the other, the Data Controller, for direction as to the extent to which the Data Processor will be entitled to use and Process the relevant Personal Data. Consequently, the Data Processor will not be liable to the Data Controller for any loss or damage which arises from any claim brought by a Data Subject or any fine levied by any relevant regulatory authority which results from any action or omission by the Data Processor, to the extent that such action or omission resulted directly from the Data Controller's instructions.
15. How to make a Complaint
15.1 FRONTIERPAY LTD values all Clients and takes our regulations seriously. If the Client has a complaint about the service that was received the Client should contact FRONTIERPAY LTD in writing, email, fax or telephone.
In the first instance, contact the firm's Compliance Officer who can be contacted as follows:
Compliance Officer, Frontierpay, St John's Place, Easton Street, High Wycombe, Bucks, HP11 1NL, UK. Email: firstname.lastname@example.org.
A summary of FRONTIERPAY LTD's complaints procedure is available on request. FRONTIERPAY LTD will investigate any complaint promptly and aim to resolve it to the Client's satisfaction. If the complaint is not resolved within 8 weeks of its receipt and/or the complaint is not resolved to the Client's satisfaction, eligible complainants (as defined by the FCA rules) may be entitled to refer this matter to the Financial Ombudsman Services ('FOS') for further investigation. FOS can be contacted as follows:
Financial Ombudsman Service, South Quay Plaza, 183 Marsh Wall , London E14 9SR
Tel: 0845 080 1800 or 0300 123 9 123
16. Applicable Law
16.1 These Terms and Conditions and the documents referred to in it are governed by and are to be interpreted in accordance with English law. Any dispute regarding these Terms and Conditions or the documents referred to in it is to be determined by the exclusive jurisdiction of the English Courts.