Effective Date: 7 September 2023
1. Definitions
The definitions in this clause apply in these Terms of Use.
Data Protection Laws: means any applicable global data protection laws and any associated regulations or instruments and any other data protection laws, regulations, regulatory requirements, or codes of practice applicable to the processing of Personal Data under these Terms of Use.
Information: any information disclosed by, or on behalf of, Xe and obtained by You relating to the Application.
Personal Data: has the meaning given to it (or to the nearest equivalent term, such as “Personal Information”) in the applicable Data Protection Laws, and for the purposes of these Terms of Use includes any information relating to (i) an identified or identifiable natural person and, (ii) an identified or identifiable legal entity (where such information is protected similarly as personal data or personally identifiable information under applicable Data Protection Laws).
Trial Period: one year from date of first access of the Application.
Xe Payments API: Xe’s proprietary payments application programming interface service that enables payments, remittances and foreign exchange transactions including, but not limited to, spot trades, forward trades and options.
2. Sandbox Terms of Use
2.1 These Sandbox Terms of Use ("Terms of Use") are between the customer, being the firm or company with whom we contract (“You”), and HiFX Europe Limited ("Xe") and apply to the Xe Payments API (“Application”) that Xe has provided you, in order for you to access the Application in a standalone environment (the "Sandbox") for testing and development purposes (the "Objective"). By accessing the Sandbox, you agree to these Terms of Use. If You do not agree to these Terms of Use, You should not access the Sandbox and access to the Sandbox may be immediately suspended or terminated.
3. Licence
3.1 Xe hereby grants You a personal, non-transferable, non-exclusive licence to use the Application during the Trial Period solely for the purposes of the Objective. You acknowledge and agree that the Application will, or may, automatically "time out" (that is to say, cease to operate) at the end of the Trial Period or where there has been inactivity for a period of longer than 90 calendar days.
3.2 During the Trial Period this licence may be terminated immediately by Xe giving written notice if You are in breach of any of Your obligations under these Terms of Use. The licence may be terminated by You during the Trial Period upon seven days' written notice. Upon termination, You shall within five working days return to Xe all copies of all or part of the Application on any tangible medium and any documents containing any item of the Information and shall completely delete all electronic copies of all or any part of the Application and/or the Information.
3.3 You agree to only use the Sandbox for testing and development purposes, excluding without limitation any production services. You acknowledge that Xe may reset the Sandbox at any time in its sole discretion.
3.4 For no charge or attribution, Xe may use and incorporate any feedback or suggestions for improvements or modifications to the Sandbox, Payments API code, or any related materials that you suggest or provide, including but not limited to any suggestions you provide through any survey Xe solicits ("Feedback"). To the extent such Feedback is used by or for Xe or incorporated into the Sandbox, Payments API code, or related materials, you: (i) agree that it has no right or claim of ownership to such Feedback; and (ii) without additional consideration will and hereby do irrevocably assign and transfer to Xe any and all rights or claims of ownership in or to any of the Feedback on a continuous basis.
3.5 The Sandbox is provided "as is" and on an "as available” basis. Xe does not warrant that the Sandbox is error free or uninterrupted. Except for the warranties and representations that are expressly set forth in these Terms of Use, Xe makes no representation or warranty of any kind, express, implied, or statutory, including but not limited to implied warranties of merchantability, fitness for a particular purposes, suitability, title, non-infringement, or claim of right or any warranties or obligations arising from course of dealing, usage, or trade practice, and all such representation and warranties and obligation are hereby disclaimed.
3.6 The Sandbox may contain errors or inaccuracies that could cause failures, including without limitation, loss or corruption of data from the Sandbox and/or servers, computers, or other hardware connected thereto. Xe is not obligated to provide any maintenance, technical, or other support for the Sandbox. Any activities that you perform using or accessing the Sandbox are at your own risk.
3.7 It is Your responsibility to keep safe any password or other security features you may use enabling you to access the Application. You will notify Xe without undue delay on becoming aware of the loss, theft, misappropriation or unauthorised use of any such password or other security feature, including the details of payment card, assigned to You or held by You.
4. Prohibited Use
In addition to your obligations under 3.6, you will not:
(a) use the Sandbox for any commercial purposes;
(b) share your access to the Sandbox with any third parties;
(c) use the Sandbox to violate any law, statute, or regulation applicable to you or Xe;
(d) use the Sandbox to cause harm to Xe or any third parties;
(e) access the Sandbox for the purpose of monitoring its availability, performance, and functionality, or for any other benchmarking or competitive purposes;
(f) transmit any virus, trojan horse, or other harmful code that may cause unauthorized access to, damage to, interfere with, or otherwise adversely affect the Sandbox; or
(g) reverse engineer, disassemble, decrypt, or otherwise extract the Sandbox's source code.
5. Non-disclosure
5.1 In consideration of the disclosure by Xe to You of the Application and the Information for the purpose of the Objective, You undertake that You will respect and preserve the confidentiality of the Application and the Information for a period of ten years after the date of such disclosure (subject to clause 3.3 below). You shall not without the prior written consent of Xe:
(a) communicate or otherwise make available the Information or the Application to any third party; or
(b) use the Information or Application for any commercial, industrial, or other purpose other than the Objective; or
(c) copy, adapt, or otherwise reproduce the Information or Application save as strictly necessary for the purposes of the Objective.
5.2 You may disclose the Application and Information or any part thereof, with the prior consent of Xe, to any employee who needs access to the Application and the Information in connection with the Objective. In such an event You agree to ensure, before such disclosure, that the employee in question is made aware of the confidential nature of the Application and Information and understands that they are bound by conditions of secrecy no less strict than those set out here. You agree to monitor the use of the Application and Information by these employees and to enforce their obligations of confidence at the request of Xe.
5.3 The obligations contained in this clause 5 shall not apply, or shall cease to apply, to such part of the Information as You can show to the reasonable satisfaction of Xe:
(a) has become public knowledge other than through the fault of You or an employee of You to whom it has been disclosed in accordance with clause 3.2 above; or
(b) was already known to You prior to disclosure to it by Xe; or
(c) has been received from a third party who neither acquired it in confidence from Xe, nor owed Xe a duty of confidence in respect of it.
5.4 At any time at the request of Xe, You shall return to Xe (or destroy at Xe’s discretion) all copies of all or any part of the Application and Information which have been provided to You pursuant to these Terms of Use, together with all analyses, studies and other materials produced by You which contain, or could reveal, all or any part of the Information or Application, and any summaries (in whatever form) prepared by You of oral Information disclosed by Xe.
6. Property Rights
6.1 Xe owns the Application, Information, and all related documentation. You acknowledge that any disclosure pursuant to these Terms of Use shall not confer on You any intellectual property or other rights in relation to the Application or the Information other than its right to use under clause 3.1.
6.2 Ownership of all complete or partial copies of the Application and related documentation shall at all times remain with Xe. You agree to mark any copies of the Application which it may make in any tangible medium with a notice that such copy belongs to Xe.
6.3 If a third party notifies You of any claim that the use of the Application or Information infringes any right of a third party, You agree to immediately notify Xe. If any such claim is made to You or Xe, You shall, at Xe's request, immediately cease use of the Application. If Xe is unable to allow You to continue evaluation of the Application, the provisions of clause 3.2 shall apply.
7. Personal Data Protection
7.1 By using the Application, you acknowledge and agree that, both parties may process Personal Data of each other’s partners, affiliates, officers, directors, managers, members, employees, agents, representatives, or advisors (“Representatives”). Where such processing takes place, each of the parties shall comply with its respective obligations under applicable Data Protection Laws and inform its Representatives of the content of the provisions of this clause and fulfil any other requirements that may be applicable to the Processing of their Personal Data, without the other Party having to carry out any additional action in terms of notice or consent requirements.
7.2 Xe shall only process minimal amounts of business-related Personal Data in relation to your use of the Sandbox, therefore it is not deemed necessary to enter into a separate data processing agreement with You. However, You must ensure that any transfer of Personal Data to Xe is completed in compliance with the Data Protection Laws.
7.3 Xe will implement and maintain appropriate technical and organisational measures to ensure a level of security appropriate to the risk, including from unauthorised or unlawful processing of Personal Data, or accidental loss or destruction of, or damage to, that Personal Data, and will process all Personal Data received from you in compliance with the provisions and principles set out in the Data Protection Laws.
7.4 You acknowledge and agree that your participation in the Sandbox does not affect your responsibility or liability if Personal Data is corrupted, damaged or improperly used or disclosed by you in the course of the Sandbox.
8. Limitation of Liability
8.1 You indemnify and hold harmless Xe, its directors, shareholders, and representatives ("Personnel"), its affiliates, and their Personnel against loss, liability, claims, damages or expenses (including attorney's fees) related to your breach of these Terms of Use.
8.2 Notwithstanding any contrary provision of this agreement or the failure of essential purpose of any limited remedy, to the fullest extent not prohibited by applicable law:
(a) in no event will Xe’s aggregate and cumulative liability for any losses and damages arising out of or related to these Terms of Use, the Sandbox, any related materials, or any subject matter hereof, whether based on a claim of breach of contract or warranty, negligence or other tort, strict liability or otherwise under any theory of law, exceed GBP£100.00 (one hundred pounds sterling).
(b) in no event will Xe be liable to You or Your representatives for any consequential, incidental, indirect, exemplary, special, hybrid or punitive damages, or damages for lost profits, revenue, goodwill or savings, loss of use, business interruption, loss of data, cost of replacement goods or reputational harm, whether or not based on a claim of breach of contract or warranty, negligence or other tort, strict liability or otherwise under any theory of law, even if such party was advised of the possibility of such losses or damages.
9. General
9.1 The person signing these Terms of Use confirms that they are authorised to enter into these Terms of Use on Your behalf, and to bind You to these terms and conditions.
9.2 The Contracts (Rights of Third Parties) Act 1999 shall not apply to these Terms of Use.
9.3 If any court of competent jurisdiction finds that any part of these Terms of Use is invalid, unlawful or unenforceable for any reason those parts (to the extent possible) shall be deleted from these Terms of Use and the remaining parts (to the extent possible) shall remain in force and continue to be binding on You and Xe.
9.4 You shall comply with all applicable laws, including but not limited to:
(a) any applicable Data Protection Laws;
(b) any applicable laws, rules and regulations which relate to aspects of anti-money laundering and/or counter terrorist financing;
(c) any applicable sanctions, laws and regulations in the United States and United Kingdom, including (without limitation), those administered by the Office of Foreign Assets Control of the United States Department of Treasury.
9.5 No variation of these Terms of Use shall be effective unless it is in writing and signed by or on behalf of both parties.
9.6 Save assignment of these Terms of Use by Xe to an affiliate, neither party shall be entitled to cede, delegate, encumber, assign, or otherwise transfer any of its rights and/or obligations in terms of, and/or interest in, these Terms of Use to any third party without the prior written consent of the other party.
9.7 No waiver, indulgence or extension of time which either party ("Grantor") may grant to the other, nor any delay or failure by the Grantor to enforce, whether completely or partially, any of its rights, shall constitute a waiver of or limit any of the existing or future rights of the Grantor in terms hereof, save in the event and to the extent that the Grantor has signed a written document expressly waiving or limiting such right.
9.8 These Terms of Use and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales. However, Xe may enforce Your obligation of confidence in the courts of any jurisdiction having competence to issue an injunction directly enforceable against You.