These Terms and Conditions (“Terms”) together with the Corporate Application form completed by you (the “Application Form”) and any other documentation referred to in them (together this “Agreement”) govern the provision of remittance services (“Services”) provided to you by DELTHA FINANCE INC. References in these Terms to “we”, “us”, “our”, “ours” and “DELTHA” are to DELTHA FINANCE INC., a company incorporated in Canada with registered office at Suite 248, 250 University Avenue, Toronto, ON M5H 3E5, Canada, with company number 15939810 and FINTRAC money services business (MSB) registration number C100000129. References in these Terms to “you”, “your”, “yours” and “Client” are to you, the customer of DELTHA and, as the context requires, your designated authorised representative(s) from time to time.
1. DELTHA
1.1 DELTHA does not supply currency or foreign exchange for speculative purposes or provide investment advice.
1.2 Any firm, company or other entity wishing to enter into transactions with DELTHA for the Services agrees with DELTHA that all transactions for the Services entered into or proposed by it (each an “Order”) shall be carried out in accordance with these Terms.
1.3 In order to provide the Services to you, it is necessary for DELTHA to engage in buying and selling of foreign currency in accordance with your instructions and acceptance of the relevant foreign currency exchange rate. DELTHA only executes your Orders and does not provide advice as to the merits of proposed Orders. Whilst DELTHA may provide information about foreign currency exchange rates and related matters, you shall rely entirely on your own judgement when making and instructing DELTHA to execute an Order.
1.4 DELTHA may engage its affiliates and service providers to execute some of the Services where required by law.
1.5 Definitions and interpretation
1.5.1 “Business Day” means a day when the banks in Canada are normally open for business and “end of Business Day” means 5 p.m. on a Business Day.
1.5.2 “Charges” means commission and other charges (including but not limited to administration fees and any fees for late payment) by DELTHA and/or your bank(s).
1.5.3 “Client Trust Account” means the designated bank account in which the pooled monies of all clients of DELTHA are held on trust.
1.5.4 “Value Date” means the date by which DELTHA must be put in funds for fulfilment of an Order.
1.5.5 “Vest” means the transfer of legal title and ownership to DELTHA, and “vests” and “vested” shall be construed accordingly.
1.5.6 Any reference to the singular includes the plural and vice versa. Reference to a statutory provision is a reference to that provision as modified or re-enacted or both from time to time and to any subordinate legislation made under the statutory provision.
2. CLIENT’S INSTRUCTIONS
2.1 DELTHA may accept oral or written Orders (including Orders by fax or email) from such person or persons as the Client authorises (“Authorised Persons”). All Orders shall be subject to confirmation. If Client makes an oral Order, DELTHA shall only execute the Order upon receiving written confirmation of the same from the Client. If Client makes a written Order, DELTHA shall only execute the Order upon receiving oral confirmation of the same from the Client. Details of Authorised Persons together with specimen signatures shall be supplied to DELTHA by the Client on entering into this Agreement and thereafter as amended in writing from time to time. Such amendment shall not be effective until acknowledged in writing by DELTHA.
2.2 The Client agrees that Orders by fax or email are entirely at Client’s own risk. The Client agrees to indemnify DELTHA and keep DELTHA fully indemnified on demand against any losses that DELTHA may incur as a result of accepting Orders by fax or email whether from the Client or purporting to be from the Client and which DELTHA honestly believes to have originated from the Client. DELTHA shall be under no duty to question or make any enquiries concerning any Orders by fax or email which it believes in good faith to be genuine Client instructions.
2.3 An Order is made when it has been confirmed pursuant to clause 2.1 and DELTHA accepts the Client’s proposal for the Order, and such acceptance may be given either orally or in writing.
2.4 DELTHA may, at its absolute discretion, refuse to accept any proposed Order given by the Client without giving any reason and DELTHA shall not be liable for any loss, whether directly or indirectly, that may arise from any such refusal.
2.5 Once an Order has been accepted by DELTHA, it cannot be rescinded, withdrawn or amended without DELTHA’s express consent. In such event, DELTHA shall have the right to impose a fee and/or revise the relevant foreign currency exchange rate.
3. DOCUMENTATION
3.1 The Client shall comply with all of DELTHA’s procedures and provide any relevant document that may reasonably be requested by DELTHA for its due diligence purposes before executing any Order.
3.2 DELTHA will provide the Client with a document confirming the details of each Order which shall, whether sent by fax, post or email, be conclusive evidence of the contract formed between the parties.
3.3 Unless the Client notifies DELTHA of any error or omission within the earlier of two (2) Business Days of receipt of any documents issued by DELTHA to the Client or the Value Date, the Client shall be deemed to have agreed and accepted the contents of such documents and shall not thereafter be entitled to dispute the content of any such document which shall, in the absence of any obvious error, be conclusive evidence of the matters stated therein. The Client will contact DELTHA if it has not received a document confirming the details of an Order within forty-eight (48) hours of proposing the Order.
3.4 Where the Client specifies a Value Date which occurs less than two (2) Business Days from the date of the Order, unless the Client notifies DELTHA of any error or omission in any documents issued by DELTHA to the Client at the point at which such documents are received by the Client, the Client shall be deemed to have agreed and accepted the contents of such documents and shall not thereafter be entitled to dispute the content of any such document which shall, in the absence of any obvious error, be conclusive evidence of the matters stated therein.
3.5 Documents may be sent by fax, email or post, and proof of posting or dispatch of any document or other communication shall be deemed to be proof of receipt (a) in the case of fax or email, on the day of dispatch or, if that is not a Business Day, the next Business Day thereafter; and (b) in the case of delivery by first class post, forty-eight (48) hours from the date of posting. Documents shall be sent to the last known fax number, email address or address of the parties hereto as provided by the parties from time to time.
4. PAYMENT AND DELIVERY
4.1 DELTHA will only remit money to third parties that DELTHA has screened to comply with its legal obligations.
4.2 The Client will notify DELTHA at least two (2) Business Days before the Value Date of the destination to which remittance of the currency ordered is to be made (“Payment Destination”). Where the Client specifies a Value Date which occurs less than two (2) Business Days from the date of the Order, DELTHA does not guarantee remittance on the Value Date.
4.3 The Client will pay to DELTHA the amount of the Order plus any Charges or Margin or Margin Call (as defined in clause 6) as agreed between the parties (“Payment Provisions”). DELTHA will only accept payment made to it from a bank account bearing the Client’s name and not from any third party.
4.4 DELTHA will pay the amount of the Order to the Payment Destination on the Value Date if cleared funds are received by DELTHA on or before the specified cut-off time of the Value Date in accordance with the Payment Provisions.
4.5 All payments due from the Client to DELTHA under these Terms shall be made in full without any set-off, counterclaim, deduction or withholding whatsoever. DELTHA may deduct from any payments to the Client such amounts as DELTHA may be required by law to deduct or as may be charged to DELTHA in respect of transfer or other charges. DELTHA shall have the right to set off against any Client monies held by DELTHA any amounts owed by the Client to DELTHA under this Agreement.
4.6 All monies paid to DELTHA which have not vested in DELTHA shall be held in the Client Trust Account until otherwise applied according to the Client’s instructions or these Terms. Payments held in the Client Trust Account shall be kept separate from DELTHA’s own funds.
4.7 DELTHA accepts no responsibility for and shall have no liability in respect of any delay in providing the Services or in any onward payment to the receiving party (a) due to the late receipt by DELTHA of monies or instructions relative to the relevant cut-off times; or (b) as a result of any fault of the paying or designated bank. You agree that the time of receipt of the payment by the receiving party is not of the essence.
4.8 Without prejudice to clause 2.5, if the Client asks DELTHA to amend the Value Date to a date later than originally agreed and DELTHA agrees to do this, the Client will be liable for any costs and losses which DELTHA may incur because of this change.
5. CHARGES
5.1 The Client shall pay DELTHA Charges in accordance with the Payment Provisions.
6. MARGIN
6.1 DELTHA may require the Client to make an immediate advance payment to DELTHA in respect of certain Orders, including without limitation Services to be executed in future that DELTHA may agree to accept from the Client from time to time (“Margin”). This Margin shall act as a deposit and provide DELTHA with security in respect of the risk it is incurring on the Order prior to the Client making full payment.
6.2 If the Margin is not paid in advance, payment of the Margin shall be made in accordance with the Payment Provisions.
6.3 If the Margin is paid in advance, the Margin will be held by DELTHA in trust for the Client in the Client Trust Account and, until such time as the Margin vests in DELTHA, the Client warrants that the Margin shall be free from any charge or other encumbrance and the Client shall not create over the Margin any charge or other encumbrance.
6.4 The Client shall not be entitled to any interest on the Margin while it is held in the Client Trust Account or on any other monies DELTHA holds on the Client’s behalf on any Order.
6.5 The Margin shall vest automatically in DELTHA on the occurrence of any one of the following events:
6.5.1 the Value Date or, in the event that the Order is cancelled prior to the Value Date, on the instruction of the Client;
6.5.2 at such time as DELTHA incurs any costs, losses or liabilities or is exposed to any rise in foreign currency exchange rates (as DELTHA in its absolute discretion shall decide) on behalf of the Client in respect of any Order, in which event so much of the money held as the Margin as is equal to DELTHA’s costs, losses and/or liabilities shall vest automatically in DELTHA;
6.5.3 the Client becomes insolvent or unable to pay its debts, has a bankruptcy, winding up or administration petition presented against it in any court of competent jurisdiction, convenes (or has convened) a meeting for the purpose of having a liquidator appointed, has a receiver appointed over its property, or proposes a form of arrangement or composition with its creditors (other than for the purposes of an amalgamation or reconstruction approved in advance in writing by DELTHA), or, in the case of a partnership, has a bankruptcy petition presented against a partner (collectively an “Event of Insolvency”), or any other similar or analogous event occurs under the laws of any applicable jurisdiction, or the Client ceases or threatens to cease to carry on all or part of its business; and/or
6.5.4 the Client is unable to comply with, or is in breach of, any of the terms of this Agreement.
6.6 If the market moves unfavourably in DELTHA’s sole opinion, DELTHA may require the Client to provide a greater Margin to reflect the increased risk (“Margin Call”). In the event of a Margin Call being made, the Client shall pay all monies required pursuant to the Margin Call in accordance with the Payment Provisions to DELTHA within twenty-four (24) hours of DELTHA first communicating the Margin Call to the Client. The Client’s failure to do so shall be a fundamental breach of these Terms and shall entitle DELTHA, without prejudice to any other remedy available to it, to immediately and without notice to the Client cancel the Order without liability.
6.7 Without prejudice to clause 11, the Client shall fully indemnify DELTHA and keep DELTHA indemnified on demand in respect of any losses, costs, charges or expenses and any other liability which DELTHA may incur in closing out or unwinding any Services to be executed in future. DELTHA may use the Margin to fulfil such indemnity.
7. CAPACITY AND WARRANTIES
7.1 The law requires DELTHA to perform due diligence on the Client. This means that DELTHA must be satisfied that the Client is who it states it is and obtain necessary proof. DELTHA must also know that the Client is requesting the Services for a legitimate and non-speculative purpose. Accordingly, when signing this Agreement and making any Order the Client warrants that:
7.1.1 it is acting as a principal and not as an agent or intermediary for any third party and has full power, authority and legal capacity to enter into this Agreement and every Order executed thereunder;
7.1.2 all information supplied to DELTHA under this Agreement is true and accurate in all material respects and the Client will not omit or withhold any information which would render the information so supplied to be false or inaccurate in any material respect;
7.1.3 it is entering into this Agreement in connection with its trade, business or for other legitimate, non-speculative commercial purposes, or for a genuine reason for requiring the Services, such as a contract to purchase property, goods or services and not for investment purposes;
7.1.4 it will provide to DELTHA on request such information regarding its identity, ownership structure, source of funds, financial and business affairs as DELTHA may reasonably require, including without prejudice to the foregoing, any obligation required under applicable law (including the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada)) and any relevant regulations, directions and/or guidance that may be issued by the Financial Transactions and Reports Analysis Centre of Canada (“FINTRAC”) (collectively “FINTRAC Regulations”);
7.1.5 all sums paid by the Client to DELTHA under this Agreement belong to the Client, have not been obtained by illegal means, are in no way tainted by criminal activity or breach of any applicable law and are not subject to any charge, encumbrance or other security;
7.1.6 the Client is not involved in any money laundering or financing of terrorism; and
7.1.7 all of the Client’s warranties hereunder are true and correct at the date of the Agreement and continue to be true and correct at the time that each Order is executed by DELTHA.
8. DISPUTES
8.1 The parties agree and consent to:
8.1.1 the electronic recording by either party of telephone conversations between the parties, with or without an automatic tone warning device; and
8.1.2 the use of such recordings or transcripts from such recordings as evidence by either party in any dispute or anticipated dispute between the parties or relating to dealings between the parties.
8.2 Any such recordings or transcripts made by DELTHA may be destroyed by DELTHA at its discretion, subject to any record-retention requirement under applicable law (including FINTRAC Regulations).
9. TERMINATION
9.1 DELTHA shall have the right to cancel all or part of any Orders from the market without prior notice or any liability to the Client upon or at any time after the happening of any of the following events:
9.1.1 the Client fails to make any payment for an Order when due and in accordance with this Agreement;
9.1.2 the Client breaches any of the terms of this Agreement or fails to comply with its obligations to DELTHA in respect of any Order;
9.1.3 it becomes or may become unlawful for DELTHA to maintain or give effect to all or any of the obligations under this Agreement or otherwise to carry on its business, or if DELTHA or the Client are requested to close out an Order (or any part thereof) by any regulatory authority whether or not the request is legally binding;
9.1.4 an Event of Insolvency (as defined in clause 6.5.3) occurs or the Client ceases or threatens to cease to carry on all or part of its business;
9.1.5 any of the events specified above or anything analogous thereto occurs under the laws of any applicable jurisdiction; and/or
9.1.6 DELTHA at its absolute discretion considers it necessary or desirable to do so for its own protection, provided that DELTHA shall immediately inform the Client if it has closed out all or part of any Orders pursuant to this clause.
9.2 If the Client becomes aware of the occurrence of any event referred to in clause 9.1, it shall give DELTHA notice of such event forthwith.
9.3 DELTHA may retain all or any of the Client’s monies if it is required to do so by law and then deal with the money as ordered by a court or other body of competent jurisdiction.
10. DELTHA’S LIABILITY
10.1 In this clause and clause 11, “Liability” shall mean losses, costs (including legal costs), damages, expenses, taxes, duties, charges or any other liability whatsoever, whether directly or indirectly.
10.2 DELTHA shall not be liable to the Client for Liability arising out of this Agreement or any Order made in pursuance of this Agreement for any reason unless such Liability is due to the negligence of, or breach of this Agreement by, DELTHA.
10.3 If DELTHA is held liable for any Liability, DELTHA will only be liable for direct loss and DELTHA expressly excludes any liability for consequential and/or indirect loss (including loss of profits) or damage.
10.4 In any event, DELTHA’s liability to the Client under this Agreement shall not exceed Canadian Dollars One Thousand Only (CAD$1,000) in respect of any one claim or in aggregate.
10.5 Unless otherwise provided herein, DELTHA excludes all liability to the fullest extent permitted by law and, without prejudice to the generality of the foregoing, DELTHA accepts no responsibility for any delay or the fault or failure of any third party involved in the transmission, provision or delivery of any Order.
11. CLIENT’S LIABILITY
11.1 The Client shall indemnify and keep DELTHA indemnified on demand against all Liabilities incurred by DELTHA in the proper performance of the Services or the enforcement of its rights hereunder and, in particular, without prejudice to the generality of such indemnity, against all amounts which DELTHA may certify to be necessary to compensate it for all Liability sustained or incurred by DELTHA (including but not limited to DELTHA’s loss of profits) as a result of:
11.1.1 any default in payment by the Client of any sum under this Agreement or any Order when due or any other breach by the Client of this Agreement;
11.1.2 DELTHA doing and taking all and any action and steps whatsoever to carry out the terms of any Client instructions, whether oral or written, from or purporting to be from Authorised Persons for such purpose pursuant to and in accordance with clause 2 above; and/or
11.1.3 DELTHA exercising its right under these Terms to terminate all or any part of any Order.
11.2 DELTHA may charge the Client interest daily on any amounts owing to DELTHA at the rate of four per cent (4%) per annum.
11.3 In the event of a default in payment by the Client, DELTHA may without notice to the Client combine, consolidate or merge all or any of the Liabilities of the Client and may set off or transfer any sums from time to time owed to the Client in or towards the satisfaction of any of the Liabilities of the Client, and notwithstanding that the Liabilities may not be expressed in the same currency DELTHA is authorised to effect any necessary foreign currency conversions at the rates then prevailing.
12. GENERAL
12.1 No person who is not a party to this Agreement (whether or not such person shall be named, referred to, or otherwise identified, or form part of a class of persons so named, referred to or identified in this Agreement) shall have any right to enforce any term of this Agreement.
12.2 The Client agrees that nothing in this Agreement shall be deemed to create a partnership, joint venture or agency relationship between the parties.
12.3 Clauses 8, 10, 11 and this clause 12 shall survive termination of this Agreement to the extent necessary to give effect to the provisions thereunder.
12.4 This Agreement supersedes any previous agreement among the parties in connection with the matters dealt with herein and represents the entire understanding among the parties in relation thereto.
12.5 DELTHA may amend these Terms, if it has a valid reason for doing so, by notice in writing to the Client at any time and such amendment shall be binding on the Client from the date that the Client places its next proposed Order. Any such amendment shall not be retrospective or affect any rights or obligations that may already exist in respect of any Order.
12.6 In the event that any provision of this Agreement is determined to be invalid, illegal, void or unenforceable, such provision shall be deemed to be deleted from this Agreement and the remaining provisions of this Agreement shall continue in full force and effect.
12.7 The Client may not assign or transfer all or part of its rights and/or obligations under this Agreement without the prior written consent of DELTHA.
12.8 No failure to exercise, nor any delay in exercising, on the part of a party any right or remedy under this Agreement shall operate as a waiver thereof. No single or partial exercise of any right or remedy hereunder shall prevent any further or other exercise thereof or the exercise of any other right or remedy.
12.9 This Agreement shall be governed by, and construed in accordance with, the laws of the Province of Ontario and the federal laws of Canada applicable therein.
12.10 Any dispute arising out of or in connection with this Agreement, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration in accordance with the Arbitration Rules of the ADR Institute of Canada, Inc. for the time being in force, which rules are deemed to be incorporated by reference into this clause. The seat of the arbitration shall be Toronto, Ontario, Canada. The tribunal shall consist of one (1) arbitrator. The language of the arbitration shall be English.