User Agreement

Last updated: August 6, 2018

Use of a Tempus Account, is subject to these terms and conditions:

GLOSSARY

In this Agreement:

Account Application means any of the following applications as completed and certified by the Client: Corporate Client Agreement, Tempus Online, Master Forward Agreement, and Commercial Credit Agreement;

Agreement means these terms and conditions;

Business Day means a day on which commercial banks are open for business (including dealing in foreign exchange) in the place specified for purpose;

Client means the person (both natural and legal), firm or organization for which an Account Application was completed and approved by Tempus and to whom Tempus provides Services;

Commencement Date means the date on which Tempus first opens the Client’s Tempus Account;

Deal means a transaction entered into by the Client (in the case of a natural person) or through anyone Tempus reasonably believes to be the Client’s Authorized Representative (in the case of a legal person) and Tempus for the provision of one or more services;

Information Provider means any entity providing Tempus, whether directly or indirectly, with Market Information including, but not limited to, stock exchanges and news service providers;

Intellectual Property means all Tempus inventions, registered and unregistered designs, copyright work, trade mark and confidential information, including but not limited to Tempus Online;

Market Information means information relating to the financial markets, including market data, research, analysis, forecasts and commentary;

Payment means payments made by Tempus on behalf of the Client;

Services mean foreign currency exchange, global payments, Tempus Online and other services offered by Tempus;

Settle and/or Settlement means settlement payments made by the Client to Tempus or received by Tempus on behalf of the Client.

Tempus means any member of the Tempus companies, including but not limited to Tempus and Tempus, Inc.; and

Tempus Online means the electronic foreign exchange and global payment dealing platform provided by Tempus;

TERM

1.0 This Agreement will take effect on the Commencement Date and will continue for an indefinite period of time until terminated in accordance with the provisions of this Agreement.

DEALS

2.0 The Client and Tempus enter into a Deal (“time of contracting”) upon verbal, written, or electronic acceptance by the Client, not when the Deal is subsequently confirmed. Verbal acceptance includes, but is not limited to, orally over the telephone. Written acceptance includes, but is not limited to, email and fax. Electronic acceptance includes but is not limited to, clicking the ‘Book Now’ button on Tempus Online.

2.1 If Client submits an order or transaction, Client is requesting that Tempus process the transaction, an offer which we may accept or reject at our sole discretion from our place of business in Washington, DC.

2.2 Tempus will provide the Client with written confirmation of each Deal (the “Confirmation”), which will be faxed, emailed or mailed to the Client after the Deal has been completed. In cases where the Deal is made through use of Tempus Online, the Confirmation will be presented to the Client following the Client’s acceptance of the Deal by clicking the ‘Book Now’ button. The Confirmation will describe each Deal by setting out: (1) the respective names of the parties; (2) the respective amounts and currencies bought and sold; (3) the rate of exchange; (4) the value date; and (5) date of settlement. The Confirmation will be in English. Confirmations will be deemed conclusive and binding on the Client if not objected to upon receipt with such objection confirmed in writing within (1) Business Day after dispatch of the Confirmation. The Deal will not be invalidated if for any reason the Confirmation is not emailed, faxed, mailed or presented to the Client, including as a result of any computer malfunction. If for any reason the Confirmation is not received by or presented to the Client, the records of Tempus with respect to that Deal will constitute conclusive evidence of the terms of the Deal and may be used as evidence in any dispute arising with respect to a Deal. If a Confirmation is not received or presented to the Client for any reason, the Client should notify Tempus immediately by contacting a Tempus representative, and Tempus will provide the Client with a Confirmation.

2.3 Once a Deal has been entered into, the Client must make a settlement on the settlement date provided in the related Confirmation. The Client must ensure that any account from which the Client’s settlement obligations under a Deal are to be made contain sufficiently cleared funds to settle the Deal. If the account does not contain sufficiently cleared funds to settle the Deal, the Client will be liable for any resulting fees payable and must ensure that cleared funds are immediately provided.

2.4 If the Client instructs Tempus to make a payment on a date that is not a Business Day in the jurisdiction where the beneficiary of such payment is located, the payment date for the Deal will be the first day following that is a Business Day, notwithstanding anything to the contrary in the Confirmation and subject to the Deal being properly settled by the Client.

2.5 Tempus will use its reasonable efforts to process the Client’s Deals on the same day they are submitted. Tempus cannot control nor be responsible for the time it takes financial institutions to process transactions.

2.6 The Client agrees that it will not use its Tempus Account for any speculative purposes.

2.7 Any negotiable item issued by Tempus in favor of the Client which is lost, stolen, or destroyed in transit will be reported by the Client to Tempus within ninety (90) days of such occurrence. Upon receipt of a signed indemnity agreement from the Client affirming that the Client has not received value for such item, Tempus will immediately issue and deliver to the Client a replacement item in the applicable value.

2.8 The Client acknowledges that Tempus is not a depository institution.

2.9 It is the Client’s sole responsibility to ensure that beneficiary and financial institution information are up to date and accurate at all times. Tempus has no obligation to seek updates from the Client for its beneficiary or financial institution information, and Tempus is not liable to the Client for any loss or claim that may arise as a result of Tempus not having obtained or received the Client’s accurate and up-to-date beneficiary or financial institution information.

2.10 If the Client has a dispute with a beneficiary or financial institution concerning a payment made via Tempus, the Client agrees to settle the dispute directly with the beneficiary or financial institution.

CANCELLATION OF A DEAL

3.0 The Client acknowledges and agrees that once the Deal has been entered into, the Deal is the Client’s binding obligation and that the cancellation of any such Deal will be entirely within the sole and absolute discretion of Tempus. In the event that the Client wishes to request Tempus to cancel a Deal, the Client must notify Tempus immediately by contacting a Tempus representative.

3.1 If the Client has any right given by statute or statutory instrument to cancel a Deal, the parties agree that the Client will not be able to cancel any Deal once the performance by Tempus of the Services in relation to that Deal has begun.

3.2 If the Client fails to settle the Deal on the settlement date, without limiting any other remedies that it may have, Tempus may, in its absolute discretion cancel the Deal.

3.3 If the Deal is cancelled by Tempus for a reason described in paragraphs 3.0 to 3.2 above, the Client agrees to reimburse Tempus for any losses or expenses incurred by Tempus as a result of cancelling the Deal, including but not limited to breakage costs and trading losses. In the event there is a profit on the date of cancellation, the Client agrees that the profit will belong to Tempus.

CURRENCY RATES

4.0 Notwithstanding that an exchange rate is agreed at the time of contracting in relation to a Deal, Tempus cannot guarantee the same exchange rate in relation to any other transaction.

4.1 Rates are indicative and will only be finalized upon completion of all account documentation and review.

FEES

5.0 The Client will pay to Tempus such fees and charges as notified by Tempus from time to time. In addition, the Client is responsible for the payment of all intermediary bank fees or bank fees associate with returned funds except where such return is attributable solely to breaches or default by Tempus.

CONFIRMATIONS

6.0 The Client acknowledges and agrees that in cases where Deals are not made through use of Tempus Online that unless otherwise specified in writing by the Client, the Confirmation will be sent to the email address provided in the Account Application. In the event no email address is provided on the Account Application, the Confirmation will be sent to the fax number provided on the Account Application. In the event that neither an email address nor a fax number is provided on the Account Application, the Confirmation will be sent to the mailing address provided on the Account Application by regular mail/postal service. The Client is responsible for ensuring that the email address, fax number, and mailing address are accurate and up to date at all times.

6.1 Confirmations that may be sent by email, fax, or mail, including any information transmitted with it, are intended for the use of the addressee(s) and are confidential. If the Client is not the intended recipient, review, disclosure, conversion to hard copy, dissemination, reproduction or other use of any part of the communication is strictly prohibited, as is the taking or omitting of any action in reliance upon this communication. If the Client receives a communication in error or without authorization the Client will notify Tempus immediately and delete the entire communication from any computer, disk drive, or other storage medium.

6.2 The Confirmation will be evidence of the terms of a Deal and will be final and binding on the Client and Tempus.

ACCOUNT OPERATION

7.0 The Client authorizes the opening of an account with Tempus for Services.

7.1 The Client represents that those individuals set out in the Account Application (as may be amended from time to time in writing) have authority to enter into Deals on the Client’s behalf and/or have authority to instruct Tempus to book, negotiate and conclude terms, including settlement to Tempus and delivery instructions (“Authorized Representatives”).

7.3 The Client represents that any Deal will be enforceable against the Client.

7.4 The Client’s representations in this Agreement are deemed to be repeated on each date on which the Client enters into any Deal.

7.5 The Client agrees that it will not, under any circumstances whatsoever, deposit funds, whether cash, draft, check or otherwise, directly into any of Tempus’s bank accounts worldwide. Failure to comply with this provision will permit Tempus to cancel the Deal and/or terminate this Agreement at its sole discretion.

7.6 The Client agrees and confirms that it is and will be a principal in all Deals and will not act as an agent.

7.7 No variation of any Deal will be valid unless it is in writing, signed by or on behalf of each party.

7.8 Tempus may verify communications or the source of the communications before Tempus accepts the instructions, but Tempus is not obligated to do so.

RECORDS

8.0 Tempus may maintain a database of all the Client’s instructions per required state and federal law.

INFORMATION SOURCES

9.0 Market Information provided by Tempus through any means has been independently obtained from various Information Providers through sources believed to be reliable. NEITHER TEMPUS NOR THE INFORMATION PROVIDERS GUARANTEE THE TIMELINESS, SEQUENCE, ACCURACY OR COMPLETENESS OR FITNESS FOR A PARTICULAR PURPOSE OF ANY MARKET INFORMATION PROVIDED BY TEMPUS. The Market Information may include views, opinions and recommendations of individuals or organizations. The Client understands that neither Tempus nor the Information Providers necessarily endorse such views or opinions, or are providing any investment, tax, accounting or legal advice to the Client.

9.1 The Client represents that it is not relying on any communication (written or oral) of Tempus as investment advice, as recommendation to enter into a Deal or an assurance of expected results of a Deal and that each Deal entered into by the Client will be based upon the Client’s own judgment and upon advice from such advisors as the Client has deemed necessary. The Client acknowledges that Tempus is not acting as a fiduciary or advisor with respect to any deal.

9.2 The Client acknowledges and agrees that information described in 9.0 and 9.1 represent the opinion of Tempus and is not guaranteed in any way.

SET OFF

10.0 If the Client fails to settle when due under this Agreement or under a Deal, Tempus may, without prior notice set off, any amount owing by the Client to Tempus under this Agreement or under a Deal, against any amount owing by Tempus to the Client, whether or not the amount is owed to Client under this Agreement or under a Deal.

SERVICE MODIFICATIONS AND INTERRUPTIONS

11.0 Tempus may modify any or all of Tempus systems, including but not limited to, Tempus Online, at any time. Tempus systems, including but not limited to, Tempus Online may periodically be unavailable to the Client during its normal hours of operation in order to allow for maintenance, updates or other causes. Neither party will be responsible for delays or failures in performance resulting from acts beyond its reasonable control.

TERMINATION

12.0 Either party may terminate this Agreement at any time by giving the other party thirty (30) days written notice. Termination of this Agreement by either Tempus or the Client will not affect any Deals that were entered into prior to such termination, in respect of which this Agreement will continue until all obligations under those Deals have been performed. This Agreement will continue in effect until terminated by either party.

ENTIRE AGREEMENT

13.0 The terms of each Deal set out in the related Confirmation are incorporated into and form part of this Agreement and together constitute a single Agreement between the Client and Tempus. If there is any inconsistency between this Agreement and a Confirmation, this Agreement will govern. In connection with the provision of the Services, the parties may enter into separate contracts (the “Ancillary Contracts”), including but not limited to a Master Foreign Currency Forward Contract or Commercial Credit Agreement, each of which will be incorporated into and form part of this Agreement.

SUPERSEDING CLAUSE

14.0 This Agreement supersedes any and all other agreements by the parties concerning the subject matter hereof.

AMENDMENT

15.0 This Agreement may by amended by written notice by Tempus to the Client, which may include communication via Tempus Online (if the Client is a user), and by posting a notice on Tempus’ website. The Client’s continued use of the Account after the date of any such amendment will constitute the Client’s agreement and consent to such amendment.

INTELLECTUAL PROPERTY RIGHTS

16.0 The Client acknowledges that the content, format and presentation of the material in relation to the Services and Market information that Tempus provides to the Client under this Agreement may contain Intellectual Property which is either Tempus’s property or licensed to Tempus. In no event will the Client have or acquire any rights to or in respect of the Intellectual Property.

16.1 The Client agrees that it will not remove, change, alter or claim rights over any Intellectual Property, either existing or created during the term of this Agreement.

16.2 The Client acknowledges that Tempus Online and Tempus’ website (www.tempusfx.com) contains material which is copyright of Tempus and the Client acknowledges that it will not acquire any rights to such material by downloading it.

TEMPUS ONLINE

17.0 The Client, and if applicable, the Authorized Representatives, will keep Passwords, User IDs and Personal Verification Questions and Answers confidential. The use of a Password, User ID and Personal Verification Questions and Answers by the Client or by any person with or without the Client’s/Authorized Representative’s knowledge or consent, in connection with a Deal made through Tempus Online, binds the Client legally and makes the Client responsible as if the Client/Authorized Representative had given instructions to Tempus.

17.1 Tempus encourages the Client not to keep a written record of the Client’s confidential Password, User ID and Personal Verification Questions and Answers. The Client is responsible to take reasonable precautions in order to conceal the Client’s Password, User ID and Personal Verification Questions and Answers.

17.2 Tempus must be notified within 24 hours of the Client learning that the Client’s confidential password, User ID and Personal Verification Questions and Answers, was/were disclosed to, or obtained by, anyone else or may be known to anyone else. Furthermore, Tempus must also be notified within 24 hours if, as a result of the above, there was unauthorized use of the Client’s Account.

COMPLIANCE

18.0 The Client acknowledges that Tempus is a money service business and is subject to various laws and regulations including those related to anti-money laundering (“AML”) and anti-terrorist financing (“ATF”) in various jurisdictions. The Client acknowledges that Tempus has and will maintain a reasonable “know your customer” program as a part of its overall AML/ATF program and that Tempus has and will maintain records of the Client including but not limited to the Client’s name, address, nature of the principal business, and incorporation number and place of issue of an entity, or date of birth and occupation of an individual.

18.1 The Client agrees to promptly notify Tempus of any inaccuracy or change to the information provided in the Account Application and will at the request of Tempus provide Tempus with any information which may be required from time to time under any applicable laws and regulations. The Client agrees that it will notify Tempus of any such change no later than sixty (60) days after the change has occurred.

18.2 The Client acknowledges that the Client must be on one end of the Deal, in each and every Deal. For further clarity, either funds must come from the Client’s bank account or go to the Client’s bank account.

18.3 Accounts which have had no activity for a period of at least one year will be closed. In order to reactivate the Account, the Client will be required to complete the requisite compliance documentation, namely an updated Corporate Client Agreement.

18.4 The Client acknowledges that it will be required to confirm its Account details from time to time. In some cases, the Client may be required to confirm its Account details on an annual basis.

CONFIDENTIALITY

19.0 Each party will keep confidential the other’s information obtained in connection with this Agreement, unless the information is in the public domain, or disclosure is reasonably believed to be required by applicable law. Upon request by the disclosing party, the receiving party will (at the disclosing party’s option) return, delete, or destroy such information. This paragraph will survive the completion of any Deal or termination of this Agreement.

LIMITATION OF LIABILITY; INDEMNIFICATION

20.0 The Client will indemnify and hold Tempus, its directors, officers, employees and agents harmless from any claim or demand (including without limitation reasonable legal fees) (collectively, the “Losses”) made by any third party due to or arising out of Client’s use of the Services, Client’s connection to the Services, Client’s violation of the Agreement or any law or violation of any rights of a third party.

20.1 EXCEPT FOR CLAIMS UNDER SECTION 2102 OF THE CALIFORNIA FINANCIAL CODE ARISING FROM TRANSACTIONS ORIGINATING IN CALIFORNIA, IN NO EVENT SHALL COMPANY, ITS SUPPLIERS, VENDORS, SERVICE PROVIDERS, SERVICE COMPANIES, OR THEIR RESPECTIVE SUBSIDIARIES, OFFICERS, DIRECTORS, AGENTS, PARTNERS, EMPLOYEES OR CONSULTANTS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES BEYOND THE SUM OF $500.00 (IN ADDITION TO REFUNDING THE TRANSACTION AMOUNT AND TRANSACTION FEES), INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) RESULTING FROM NEGLIGENCE ON THE PART OF COMPANY, ITS SUPPLIERS, VENDORS, SERVICE PROVIDERS, SERVICE COMPANIES, OR THEIR RESPECTIVE SUBSIDIARIES, OFFICERS, DIRECTORS, AGENTS, PARTNERS, EMPLOYEES OR CONSULTANTS.

20.2 Paragraphs 20.0 and 20.1 will survive the completion of any Deal or termination of this Agreement.

SUCCESSORS AND ASSIGNS

21.0 This Agreement is binding on, and inures to the benefit of, the parties’ successors and assigns. Neither party may assign its rights or obligations under this Agreement without the other’s prior consent, that consent will not be unreasonably withheld. Notwithstanding the foregoing, either party may assign this Agreement to an affiliate which is not a direct competitor or the other party.

NOTICE

22.0 Notices are required in writing, including electronic medium

22.1 Notices which the Client needs to deliver to Tempus must be delivered by mail courier, or fax as follows:

Tempus, Inc.
1201 New York Ave NW, Suite 300
Washington, D.C. 20005, USA
Fax: 202-785-2554

22.2 Notices to the Client will be made to the address, fax or email addresses as provided in the Account Application. Failure of the Client to update the contact details on the Account Application prior to providing notice as specified under this Agreement does not void the effectiveness of the notice.

22.3 Any notice will be deemed effective (a) if delivered by mail, five days after the letter is sent; (b) if delivered by courier, on the date it is delivered, (c) if delivered by fax, on the date that transmission is sent in legible form and (d) if delivered by email, on the date that the email is sent.

22.4 The Client acknowledges and agrees that communication by email or its use of the internet will be at the Client’s own risk.

GOVERNING LAW

23.0 This Agreement, related Confirmations and telephone recordings will be construed and interpreted in accordance with the laws of the State and applicable federal laws based on the location of the Tempus entity. Specifically, for Deals made with Tempus, Inc. the laws of Washington D.C. will apply.

LEGAL FEES

24.0 In any litigation, arbitration, or other proceeding, including collection, by which a party seeks to enforce its rights under this Agreement (whether in contract, tort, or both) or seeks a declaration of any rights or obligations under this Agreement, a prevailing party will be entitled to claim and be awarded its reasonable legal fees, costs and expenses incurred.

SUBCONTRACTING

25.0 The Client agrees that Tempus may engage any third party in order to perform its responsibilities under this Agreement. Nonetheless, performance will remain under Tempus’ supervision and responsibility.

INVALIDITY

26.0 The invalidity of any provision of this Agreement will not affect the validity of other provisions.

AUTHORITY

27.0 Each party represents that it has all permissions, and authorities necessary to enter into and perform this Agreement, and that the execution and performance of this Agreement will not conflict with another agreement to which it is a party.

27.1 The Client represents that the financial and business information submitted by it (and all updates) was (or will be) accurate and complete when submitted. The Client agrees to inform Tempus immediately of any material change in its financial condition, and to update the other party on such matters annually.

COUNTERPARTS

28.0 This Agreement may be executed by the Client in any number of counterparts each of which, when executed and delivered, will be an original. Any signed counterpart transmitted by facsimile transmission will constitute an original and will be deemed to be binding when delivered.

WAIVER

29.0 No covenant or condition of this Agreement may be waived except by the written consent of Tempus.

PRIVACY

30.0 Personal information collected on the Account Application is for the main purpose of complying with applicable AML and CTF financing laws and regulations. Telephone calls to and from Tempus may be recorded to evidence business transactions, to ensure quality control and to improve internal training measures. Details are found in Tempus’s Privacy at www.tempusfx.com/privacy. The Client acknowledges that the Privacy Policy has been reviewed and is consented to.

HEADINGS

31.0 Headings within this Agreement are for convenient reference only and have no effect in limiting or extending the language of the provisions to which they refer.

FORCE MAJEURE

32.0 Neither party is liable for failure to perform or delay in performing any of its obligations in relation to a Deal insofar as the performance of such obligations is prevented by any circumstances beyond the reasonable control of a party (including without limitation any acts of God, acts or restraints of governments or public authorities, strikes, lock-outs, or other industrial action, terrorism, was, revolution, riot or civil commotion) (“Force Majeure”).

32.1 Each party will promptly notify the other party of the occurrence of a Force Majeure event and will use reasonable endeavors to continue to perform its obligations in relation to the Deal.

MISCELLANIOUS

33.0 Nothing in this Agreement will create, or be deemed to create a partnership, joint venture, employer and employee relationship, or any other relationship between the parties not specified within the terms of this Agreement.

33.1 Tempus does not knowingly collect, either online or offline, personal information from persons under the age of eighteen. You must be at least eighteen (18) years old to conduct business with Tempus. You must be able to form legally binding contracts under applicable law. Other restrictions may apply.

34.1 In accordance with the Unlawful Internet Gambling Enforcement Act of 2006(“UIGEA”), Tempus strictly prohibits conducting any and all business that is engaged in betting or wagering from knowingly accepting payments in connection with the participation of another person in unlawful gambling. Tempus does not provide any services to gambling clients including casinos or other gaming institutions, including online gambling-related operations. Tempus also strictly prohibits any and all business related to offshore companies, online pharmacies, except for well-known national chains, online adult-related operations, unlicensed alcohol and tobacco companies, outbound telemarketing, escort services, and online payday lenders.

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