Customer Facility Agreement
This Customer Facility Agreement (hereinafter “Agreement”) is made by and between The EBC Group, jointly and severally on behalf of itself, any subsidiariesor third parties that may render any services to the Customer, which companies shall hereinafter be collectively referred to as “EBC”, and the organization or natural person(s) set forth at the end of this Agreement, hereinafter “Customer”, and on whose behalf this Agreement is executed by the Customer’s authorized representative.
EBC agrees to open a facility with third parties to receive funds and/or make payments for the Customer (hereinafter “facility”); and undertakes to provide these services for the Customer in accordance with the effective laws applicable to the relevant jurisdiction of the entity providing the service, and the terms and conditions set forth in this Agreement or hereinafter published by EBC; AND The Customer undertakes to operate this facility in accordance with laws applicable to EBC and all service providers, and the terms and conditions set forth in this Agreement or hereinafter published by EBC:
1. Terms and Conditions and Customer Identification
1.1. Upon delivery and receipt of fund receiving and/or payment services and ancillary operations between the Parties, the terms and conditions of this Agreement shall be binding on the Parties and their legal successors, and this Agreement shall govern all relations between the Customer and EBC, unless stipulated otherwise by additional or alternate agreements between the Parties.
1.2. By applying for or availing of any EBC services, the Customer acknowledges as having read, understood and accepted this Agreement.
1.3. Upon opening a facility, delivery of fund receiving and/or payment services or conducting any ancillary operations, EBC shall identify the Customer and its representative(s) in accordance with all applicable laws and the internal regulatory framework of EBC.
1.4. The Customer undertakes to submit all the necessary documents requested by EBC. The Customer shall be liable for the authenticity and truthfulness of all the information provided to EBC.
1.5. The Customer hereby undertakes to provide EBC with the up-to-date information and to immediately notify EBC of any changes in the information provided during the whole period of contractual relations between EBC and the Customer. In the event of delivery of false, out-dated or incomplete information to EBC, the Customer shall be liable for all the losses incurred or which may have arisen as a consequence thereof.
1.6. In the event of the change of authorized representatives and/or the replacement of the seal, if any, the Customer shall notify EBC immediately thereof and complete such new documents as EBC shall require. In the event of failure to perform the aforesaid by the Customer, EBC shall not be liable for failing to follow the Customer’s instructions when signed by representatives without proper signatory rights and/or without a current and proper seal.
1.7. Unless written notice of mental incapacity of the Customer or its authorized representative has been previously submitted to EBC, the Customer shall be liable for any losses/damages arising as a consequence of the incapacity of the Customer or its authorized representative.
1.8. EBC shall assign a facility number to the Customer for each facility opened for the Customer. Furthermore, if requested by EBC, the Customer shall provide additional passwords or challenge questions to aid EBC in establishing the positive identification of the Customer in any communication with EBC.
1.9. Upon verification of the Customer’s signature, while executing fund receiving and/or payment services and ancillary operations, EBC shall confine itself to visual verification of the specimen signature and seal imprint (if any) provided by the Customer.
1.10. EBC shall not be liable for the authenticity of the documents submitted by the Customer or debiting of funds from the Customer’s facility on the basis of false or illegal instructions provided that the signature and seal imprint (if any) visually coincides with the specimen in Application for a Customer Facility.
1.11. EBC reserves the right to audio-record telephone conversations with Customers. Such audio recordings shall be considered sufficient proof of the issue of the instructions and serve as legal evidence.
1.12. When the information is placed on any EBC website, it is deemed to be received by the Customer within seven days from the publishing date.
1.13. The Customer, upon submitting “client due diligence” information and data, gives its consent for their maintenance, processing and usage at EBC, which includes and possible release of information to third parties, whereby EBC is contractually obliged to provide due diligence, or under instruction from the Government of any jurisdiction in which the group operates or any department therefore.
1.14. The Customer understands and acknowledges that EBC is not a bank, and that as such, the services it performs for the Customer may be limited both by the Law under which it is created and the Law of the country or countries where EBC Customer’s funds are held.
2. Fund Receiving and/or Payment Services and Ancillary Operations
2.1. EBC shall deliver fund receiving and/or payment services and ancillary operations, including execution of payment orders, only after receiving relevant instructions given by the Customer, with the exception of cases stated in Clause 2.10 herein.
2.2. Operations with the Customer’s facilities and any transactions therewith shall be executed in accordance with the Customer’s instructions, but within the balance of funds available in the facility, which shall be sufficient to cover fees charged by EBC for its rendered services.
2.3. Incoming funds are credited to the Customer’s facility in the currency selected by the Customer from among those offered by EBC. EBC shall transfer funds to the Customer’s facility according to the specified facility number. In case the specified facility number and the beneficiary’s name fail to coincide, EBC shall have the right not to credit the facility in question, and return the funds to the sender less a service charge.
2.4. All instructions given by the Customer to EBC shall be in a format approved by EBC. Upon performance of external payments, EBC is not obliged to verify the validity of account numbers and names of the beneficiary’s accounts. EBC does not accept payment orders for execution, which fail to comply with applicable laws and requirements set by EBC.
2.5. Unless the Customer requests a limit under which a “Security Key” OR an authentication code, security code or password used online via the EBC (Customer website) is NOT required, any payment order given to EBC shall contain a Security Key. When sending a payment order by fax, the order or other documents apart from the “Security Key” shall contain an authorized signature and a seal imprint, if applicable, unless stipulated otherwise by EBC. The Customer confirms that the faxed order and/or other Customer’s documents, containing the “Security Key” calculated correctly in compliance with the instructions, shall, by its legal force, be regarded as fully equal to an original written authorization document. When sending a payment order electronically via encrypted email or via the EBC Customer website, and containing a correctly calculated Security Key, when required, shall, by its legal force, be regarded as fully equal to an original written authorization document. Prior to executing such orders, EBC shall not be obliged, but shall have the right to require, in its sole voluntary unrestricted discretion, an additional confirmation of the transaction from the Customer. When using any means of remote communication, other than personally appearing at an EBC office, the Customer shall undertake all risks pertaining thereto. Upon execution of the Customer’s orders, EBC shall not be liable for any costs, errors, misinterpretations, etc., as a result of the distortion of the electronically transmitted information in the order (by email, fax, telephone, internet, etc.) or due to other reasons beyond EBC’s control. The Customer hereby confirms that future information given to the Customer by EBC via remote communications systems shall be regarded as received by the Customer within no more than one business day. When providing services to the Customer at the offices of EBC, any order given by the Customer shall contain the Customer’s signature and a seal imprint, if applicable. EBC may require additional photo identification.
2.6. The Customer, when meeting these Terms and Conditions, shall have the right to give orders to EBC by E-Mail Requests, including but not limited, concerning payment orders and foreign exchange orders. EBC shall have the right to unilaterally state the maximum amount of a transaction and/or a payment to be executed by E-Mail Requests. Moreover, the Electronic copy of the Customer’s E-Mail orders shall be regarded as legal evidence for the existence of such Customer’s order and sufficient to result in rights, liabilities and obligations of EBC and the Customer.
2.7. When giving an order by E-mail, the Customer shall provide its proper facility name and its full facility number; shall provide a proper authentication code, security code or password as required by EBC; and the correct “Security key”. The Customer expressly confirms that, when using any Internet communications, the identification and security requirements set forth in this agreement shall be sufficient for the purpose of the Customer’s identification and for the execution of operations within its facility.
2.8. EBC is expressly exempted from any liabilities for the Customer’s losses resulting from the payment errors, negligence, delays or other activities or failure to act by the depository bank and/or a third party. Likewise, EBC is further relieved of any liabilities arising from the financial standing of the depository bank or a third party in case the Customer has ordered EBC to perform the payment or operate via this particular bank or a third party.
2.9. Facilities held with EBC are non-interest bearing facilities; therefore, no interest will be paid to the customer.
2.10. EBC shall have the right to place the following limits on individual and company fund facility:
– Documentation (such as invoices) will be required for outgoing wire transfer requests exceeding US$ 2 000.00 (individual clients) and US$ 4 999.99 (corporate clients).
– Clients will be limited to a transaction amount of US$ 9 999.99 (Individual clients) and US$ 49 999.99 (corporate clients).
– Individual clients are unable to hold funds in excess of US$ 99 999.99 in a single facility.
– The above limits may be revised by EBC provided the necessary compliance documentation is available.
2.11. EBC shall have the right to charge the following fees on monetary transactions requested by the client:
– Outgoing wire transfer: 2% charge on the value of the transaction. (Minimum charge of US$95.00, maximum charge of US$200.00).
– All incoming wire transfers will be charged a flat fee of US$9.00 per transfer.
– Transfer Between Same Users’ Facilities is free.
– Transfer to Other Users’ Facility is free
– Card Funding Fee: 0.5% charge on the value of the transaction.
– All foreign currency conversions attract a 3% exchange fee. (All foreign currency conversions required to complete a transaction are payable by the client or, in the case of an incoming wire transfer, by the remitting bank and their client.)
– If manual tracing is required in order to allocate incoming funds, an additional fee of 1% (US$50.00 minimum, US$300 Maximum) will be charged to the client’s facility.
2.12. The Customer hereby authorizes EBC to debit its facility without its authorization:
– For a monthly maintenance fee of US$22.00, charged to the Customer’s facility on the first day of every month;
– In cases stipulated by any applicable law;
– In the case of payment for services rendered.
2.13. Any complaints by the Customer shall be presented in writing to EBC within 30 calendar days starting from the day when the Customer has submitted the relevant instruction to EBC. If there are no written complaints from the Customer within the stated period, it is hereby stipulated that the Customer confirms and ratifies all operations, performed for its facility.
2.14. EBC shall have the right to cancel or unilaterally correct any transactions with a facility performed due to an employees’ mistake.
2.15. EBC shall guarantee confidentiality of the Customers’ personal data, their facility, balances and transactions as stipulated by UK laws, EBC may not disclose information on the Customers’ facilities and the performed transactions to correspondent banks except upon an official inquiry.
2.16. EBC shall have the right to unilaterally terminate the service of the Customer’s facility and return the balance of the funds, less any fees due, to the Customer without giving a reason thereof.
2.17. EBC shall close the Customer’s facility and return the balance of the funds, less any fees due, to the Customer within 7 days subject to receipt of a written application from the Customer provided that the Customer has discharged all its liabilities and obligations towards EBC. EBC shall have the right to close a facility that has been dormant for 12 consecutive months or at any time if there are no funds in the facility.
2.18. Upon terminating contractual relations with the Customer, EBC shall not return any documents submitted by the Customer.
2.19. Legal relations of the Parties in respect of opening a facility for fund receiving and/or payment services and ancillary operations are governed by this agreement, as well as by the usual regulations, terms and conditions set forth by EBC and the general financial terms and conditions and laws of UK.
2.20. Fees are due to EBC as published by EBC, unless stipulated otherwise in agreements concluded by and between the Parties.
2.21. EBC reserves the right to amend these terms and conditions herein, and to amend EBC’s rates and fees, provided the aforesaid amendments are previously provided to the Customer by EBC or available for review on EBC’s website. Should the Customer disagree with the changes, it has the right to continue under the previous terms, if allowed by law, for up to 30 days, after which the Customer shall terminate its contractual relations with EBC provided that the Customer has discharged all its liabilities and obligations towards EBC in full and has given a relevant notice in writing to EBC.
2.22. All disputes between EBC and the Customer shall be settled by means of negotiations. Should the Parties fail to reach an agreement by negotiations; the dispute shall be resolved by arbitration, by an arbitrator as set forth hereinafter.
3. Mandatory Arbitration Procedures
3.1. All disputes and controversies between the parties hereto of every kind and nature arising out of or in connection with this Agreement as to the existence, construction, validity, interpretation or meaning, performance, non-performance, enforcement, operation, breach, continuation, or termination of this Agreement shall be resolved as set forth herein.
3.2. Either party to this Agreement may submit any dispute or controversy hereunder in writing for resolution by a single arbitrator to be chosen jointly by the parties within fifteen (15) days after the aforementioned submission. If the disputing parties cannot within such time agree on an arbitrator, each of the parties shall appoint an arbitrator and such arbitrator shall select the arbitrator within 10 days of their appointment.
3.3. The arbitrator shall agree to comply with the time schedules set forth herein before accepting appointment. The arbitration hearing shall be held at such place as the parties and the arbitrator agree, within thirty (30) days after the dispute is submitted to an arbitrator.
3.4. This agreement shall be governed by and interpreted in accordance with the laws of UK. The Arbitrator will be bound by the substantive law but will not be bound by the laws of evidence and procedure customary in courts of law.
3.5. The arbitration hearing shall be concluded in not more than three (3) days unless otherwise ordered by the arbitrator. The award on the hearing shall be made within thirty (30) days after the close of the submission of evidence at or in connection with the hearing.
3.6. An award rendered by the arbitrator appointed pursuant to this Agreement shall be final and binding on the parties to such proceeding. The award shall be enforceable under the June 10, 1958, Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Judgment on such award may be entered by any of the disputing parties in any court having jurisdiction in any country.
3.7. The provisions of this section shall be a complete bar and defence to any suit, action or proceeding instituted in any court or before any administrative tribunal with respect to any dispute or controversy arising out of or in connection with this Agreement. The arbitration provisions of this Agreement shall, with respect to any such dispute or controversy, survive the termination or expiration of this Agreement.
3.8. Nothing contained herein shall give the arbitrator selected hereunder any authority, power or right to alter, change, amend, modify, add to, or subtract from the provisions of this Agreement. Rather, the arbitrator shall endeavour to interpret the provisions of this Agreement so as to carry out its terms with reference to any dispute submitted for arbitration.
3.9. If any party hereto fails or refuses to submit to and participate in arbitration in accordance with this Agreement, the Arbitrator shall notify in writing the non-participating party that they are in breach of this Agreement. If the non-participating party does not submit to, and participate in, arbitration within 15 days of the issuing of the said notice, the Arbitration shall proceed without their participation and they shall be deemed to waive their right to participate and also shall be deemed to consent to any action, decision or award whatsoever taken or made thereafter by the Arbitrator. If the non-participating party submits to and participates in arbitration within the 15 days, no penalty shall be incurred. If a previously non-participating party again fails to participate in arbitration, the Arbitrator shall notify in writing the non-participating party that they are again in breach of this Agreement. If the non-participating party does not submit to, and participate in, arbitration within 3 days of the issuing of the said notice, the Arbitration shall proceed without their participation and they shall be deemed to waive their right to participate and also shall be deemed to consent to any action, decision or award whatsoever taken or made thereafter by the Arbitrator.
3.10. An award rendered in connection with an arbitration pursuant to this section shall be final and binding upon the Parties, and the Parties agree and consent that the arbitral award shall be conclusive proof of the validity of the determinations of the arbitrator set forth in the award and any judgment upon such an award may be entered and enforced in any court of competent jurisdiction.
3.11. The Parties agree that the award of the arbitral tribunal will be the sole and exclusive remedy between them regarding any and all claims and counterclaims between them with respect to the subject matter of the arbitrated dispute. The Parties hereby waive all in personal jurisdictional defences in connection with any arbitration hereunder or the enforcement of an order or award rendered pursuant thereto (assuming that the terms and conditions of this arbitration clause have been complied with).
3.12. The Parties hereby agree that the relationship between the Parties is commercial in nature, and that any disputes between the Parties related to this Agreement shall be deemed commercial.
3.13. The arbitrator shall issue a written explanation of the reasons for the award and a full statement of the facts as found and the rules of law applied in reaching their decision to both Parties. The arbitrator shall apportion to each Party all costs (including attorneys’ and witness fees, if any) incurred in conducting the arbitration in accordance with what the arbitrator deem just and equitable under the circumstances. Any provisional remedy, which would be available to a court of law, shall be available from the arbitrator pending arbitration of the dispute. Either Party may make an application to the arbitrator seeking injunctive or other interim relief, and the arbitrator may take whatever interim measures they deem necessary in respect of the subject matter of the dispute, including measures to maintain the status quo until such time as the arbitration award is rendered or the controversy is otherwise resolved. The arbitrator shall have the authority to award any remedy or relief that a court could order or grant, including, without limitation, specific performance of any obligation created under this Agreement, the issuance of an injunction, or the imposition of sanctions for abuse or frustration of the arbitration process, including punitive damages.
3.14. The Parties may file an application in any proper court for a provisional remedy in connection with an arbitral controversy, but only upon the ground that the award to which the application may be entitled may be rendered ineffectual without provisional relief. The Parties may also commence legal action in lieu of any arbitration under this section in connection with any third-party litigation proceedings or for any matter involving disputes related to Intellectual Property Rights.
3.15. After the appointment of the arbitrator, the Parties to the arbitration shall, subject to the streamlined procedures and limits set forth herein, have the right to take depositions, ask interrogatories, obtain documentation and to obtain other discovery regarding the subject matter of the arbitration, and, to that end to use and exercise all the same rights, remedies and procedures, and be subject to all of the same duties, liabilities and obligations in the arbitration with respect to the subject matter thereof, as if the subject matter of the arbitration were pending in a civil action before a Court and such persons, documents or other requested material were located in the domicile of that Court.
3.16. The Parties shall reach agreement with the arbitrator on a streamlined and expedited discovery program in order to save costs and avoid unnecessary delay in completing any arbitration and may present to the arbitrator for a ruling any reasons for limiting such discovery in order to save costs and avoid delay. If such an agreement cannot be reached within fifteen (15) days, the following provisions shall apply: (a) all discovery shall be completed within 30 days following the appointment of the arbitrator, unless the parties or the arbitrator shall agree to an extension of time for good cause; (b) depositions shall be limited to a maximum of three per party and shall be held within 30 days of the making of a request; (c) each deposition shall be limited to a maximum of one day’s duration; (d) all objections are reserved for the arbitration hearing except for objections based on privilege and proprietary or confidential information; and (e) the award shall be made within 30 days of the completion of discovery and depositions and any hearings.
3.17. For purposes of any suit, action or legal proceeding permitted under this section, each Party (a) hereby irrevocably submits itself to and consents to the nonexclusive jurisdiction of the UK Court for the purposes of any suit, action or legal proceeding in connection with this Agreement including to enforce an arbitral resolution, settlement, order or award made pursuant to this Agreement, and (b) to the extent permitted by applicable law, hereby waives, and agrees not to assert, by way of motion, as a defence, or otherwise, in any such suit, action or legal proceeding pending in such event, any claim that it is not personally subject to the jurisdiction of such court, that the suit, action or legal proceeding is brought in an inconvenient forum or that the venue of the suit, action or legal proceeding is improper. Each Party hereby agrees to the entry of an order to enforce any resolution, settlement, order or award made pursuant to this section by the UK Court and in connection therewith hereby waives, and agrees not to assert by way of motion, as a defence, or otherwise, any claim that such resolution, settlement, order or award is inconsistent with or violative of the laws or public policy of the laws of any jurisdiction in which the group operates.
3.18. Each party hereto hereby knowingly, voluntarily and intentionally waives, to the fullest extent permitted by applicable law, any right it may have to a trial by jury in respect of any litigation directly or indirectly arising out of, under or in connection with this agreement, or any document contemplated to be executed or delivered in conjunction herewith. Each party hereto (1), certifies that no representative, agent or attorney of the other party has represented, expressly or otherwise, that the other party would not, in the event of litigation, seek to enforce the foregoing waiver and (2), acknowledges that it and the other party hereto have been induced to enter into this agreement by, among other things, the mutual waivers and certifications herein.
3.19. All claims arising under this Agreement brought by the Parties and/or their affiliates at substantially the same time shall be referred to a single arbitration to the extent arbitrable under this section.
3.20. Any discrepancy herein shall be resolved in favour of the interpretation that is least costly in terms of time and expenses incurred or to be incurred.
4. Guarantee of Legality
4.1. All of the undersigned do, under penalty of perjury, hereby jointly and severally:
– Each certify that the foregoing information is, to the best of their individual knowledge, true, correct, complete and without material omissions; and they jointly and severally accept full personal responsibility for any failure.
– Each authorizes EBC to perform a background credit and criminal records check, if they so choose.
– Each further certify that the facility requested will not be used for any illegal purposes and that any assets placed into said facility will be derived solely from legal activities.
– Each agree that the legal standard on which this sworn statement is made is the United Nations Office on Drugs and Crime Model Money-Laundering, Proceeds of Crime and Terrorist Financing Bill 2003 and/or any national legislation applicable to the signatories hereto.
– Warrant and guarantee they are legally authorized to act on behalf of the entity whose name is inscribed hereto.
– Agree that when EBC provides any services whatsoever pursuant to this agreement, that action shall constitute full and adequate acceptance hereof.
5. The Registration and/or Application for which this agreement is executed is made by the Customer or on behalf of the Customer Entity, by its duly authorized representative(s), whose signature(s) follow hereafter, and under the seal of the said entity.
6. This Agreement includes all information provided by the Customer in any Registration or Application online or offline, and constitutes the entire Agreement between the parties and supersedes and renders void all previous agreements, whether oral or written.
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