Terms and Conditions of Business
Racing FX is a registered trading agent of RFX Financial Services Limited “RFX FS” referred to as “the Company”, Bewley House, 1 Park Road, Esher, KT10 8NP (registered and trading address). The Company is registered, in England and Wales with company registration number 07334869,
The Company is also Authorised and regulated by the Financial Conduct Authority Reg No. 530005 Payments Services Regulations 2009. The company is registered with HM Revenue & Customs as a Money Services Business “MSB” (Reg. No. 12692783).
1. DEFINITIONS AND INTERPRETATION
In this Agreement:
“Applicable Regulations” means all laws and regulations from time to time in force relating directly or indirectly to the buying or selling of Currency and the transaction related payments, including the Money Laundering Regulations 2003, the Proceeds of Crime Act 2002 and the Payment Services Regulations 2009.
“Authorised Trader” means a person or persons authorised by the Company to accept an order or orders from the Customer. The company maintains a list of Authorised Traders.
“Business day” means any day, other than a Saturday, Sunday or other public holiday in the England.
“Close Out” a termination of a Transaction prior to the original agreed date or prior to settlement of the Transaction.
“Company Currency” means the currency that the Company agrees to sell to the Customer and the Customer agrees to purchase in a Transaction.
“Company Website” means www.racingfx.co.uk or any web sites operated by the Company.
“Conditions” means these terms and conditions and include a completed and signed Customer Application form and Compliance Check List in the Company’s current form.
“Customer Communications” means all communications between the Customer and the Company, including, but not limited to telephone, verbal, email, fax and the Company Website.
“Currency” means the official currency in use in any jurisdiction.
“Customer” means a person or persons who having executed a set of these Conditions place an Order.
“Customer Currency” means the Currency that the Customer agrees to sell to the Company and the Company agrees to purchase in a Transaction.
“Default Event” means:
In the case of a Customer;
(a) If the Customer is in breach of his obligations in a Transaction
(b) If a Customer is unable to pay his debts as they fall due
(c) The Customer’s funds for The Transaction fail to arrive by The Settlement Date
(d) If in the opinion of the Company any information provided by the Customer is deliberately incorrect or misleading in any material respect
(e) If any event occurs which the Company reasonably believes will have a material adverse effect on the Customer’s ability to comply with his obligations under these Conditions
(f) If the Company reasonably believes that the Customer or a Transaction is or is likely to be in breach of any Applicable Regulations.
In the case of the Company, this means a breach of terms of a Transaction by the Company which if applicable of remedy is not remedied within 5 Business days after the Customer has served written notice on the Company relating to such failure.
“Destination Account” means the bank account, or bank accounts, which the parties agree in a Transaction is the bank account(s) to which the Customer Currency is to be sent by the Company.
“Document” means any electronic or paper document.
“Forward Trade”: means the purchase and sale of Currency for Settlement on a pre determined date in the future.
“Force Majeure” means in relation to either party any circumstances beyond the reasonable control of that party (including without limitation any acts or restraints of Governments or public authorities, strikes, lock‐outs, or other industrial action, terrorism, war, revolution, riot or civil commotion).
“Margin Deposit” means the amount that the company may request the Customer to provide in advance to secure a transaction.
“Money Transfer” means the transfer of funds to the Customers, Destination Account.
“Order” means an order by the Customer for the purchase and sale of Currency containing the information in Annex 1. The Company may receive the order verbally, by fax, by email or the Company Website.
“Order Acceptance Notice” means a notice from the Company to the Customer notifying the Customer that
(i) an order has been accepted; and
(ii) the terms of the order, which may include, but not limited to, the information in Annex 1
“Payment Method” means that the Customer will only transfer funds to the Company electronically. The Company will not accept cheques, cash, credit cards, bankers’ drafts and any other payment means unless agreed by both parties prior to the Transaction and approval by the Company’s compliance officer.
“Proceedings” means any action or other proceedings relating to these Conditions or a Transaction.
“Settlement” means the payment or payments by the Customer to the Company of Customer currency relating to a Transaction.
“Settlement Date” means the date that the Company and the Customer have agreed is the date by which the Customer must have made Settlement in a Transaction.
“Spot Trade” means the purchase and sale of Currency for Settlement within two business days after the date of the Order.
“Transaction” means an agreement between the Company and the Customer for the sale and purchase of Currency.
“Variation” means the difference between the original opening value of the Transaction and the current market value of the Transaction were it to be Closed Out (for example, as a result of exchange rate movements on a Forward Trade), up to a maximum of the full value of the Transaction.
References in these Conditions to any statute or Applicable Regulations include any subsequent modification, amendment or extension.
2.1 A copy of these Conditions has been accepted in any form (electronic, hard copy etc.) by the customer to indicate the Customer’s agreement and acceptance of them and the Company and the Customer agree that each Transaction incorporates these Conditions.
2.2 The Company and the Customer enter into a Transaction (“the time of contracting”) on acceptance by the Company of an Order.
2.2.1 Where an Order is accepted by email, the Order will be deemed to be accepted when an Order Acceptance Notice is transmitted to the Customer’s email address (regardless of whether or when it is received by the Customer).
2.2.2 Where an Order is accepted by fax, the Order will be deemed to be accepted when an Order Acceptance Notice is transmitted to the Customer’s fax or email address (regardless of whether or when it is received by the Customer).
2.2.3 Where an Order is accepted by the Company Website, the Order will be deemed to be accepted when an Order Acceptance Notice is transmitted to the Customer’s email address (regardless of whether or when it is received by the Customer).
2.2.4 Where an Order is accepted verbally (via telephone) the Order will be deemed to be accepted when an Authorised Trader verbally confirms to the Customer that the order has been accepted or when an Order Acceptance Notice is transmitted to the Customer’s email address (regardless of whether or when it is received by the Customer).
2.3 The Company may accept or refuse an Order at its absolute discretion without giving any reason to the Customer and without any liability to the Company.
3. CUSTOMER OBLIGATIONS
3.1 Unless agreed and confirmed in writing by both the Company and the Customer prior to a Transaction, the Customer agrees and acknowledges that any payments due to the Company must be made by the customer and drawn on an account of the Customer and not that of a third party. Any payment received on behalf of the Customer from a third party will be refused and returned by the Company and shall not constitute a payment to the Company for the purposes of a Transaction.
3.2 The Customer will pay by the Payment Method any balance unpaid of the Customer Currency due to the Company in a Transaction on or before Settlement Date.
3.3 In the case of a Forward Trade, the Customer will pay the Customer Currency due in two parts;
(a) the Margin Deposit in full and cleared funds no later than the business day we tell you it is due in our Order Acceptance Notice (b) the balance of the Transaction amount, in cleared funds by no later than the business day we tell you in our Order Acceptance Notice will be the Settlement Date for the Transaction.
3.4 In addition to the Margin Deposit and the Transaction balance referred to in 3.3(b), the Company may also require addition Margin Deposit to make up for any Variation that may have occurred on the Transaction in the event that the Margin Deposit less Variation reduces the security held to less than 1% (one) of the Transaction value. We may ask for proof that you have instructed your bank to pay us the additional Margin Deposit we require within 24 (twenty four) hours of our request. Failure to provide us with this proof on demand may result in a Close Out of the Transaction, the Transaction will then be deemed a Default Event.
3.5 Following a Default Event, and where the Company has properly terminated a Transaction, the Customer shall be liable to and hereby indemnifies the Company for any loss that the
Company may suffer in selling the Company Currency purchased in relation to that Transaction.
3.6 The Customer agrees that the Company may record, without notice to the Customer, any Customer Communications, upon which the Company and the Customer;
(a) Discuss a Transaction
(b) Enter into any Transaction
(c) Terminate a Transaction
(d) Discuss an Order
(e) Have any pertinent communications
3.6.1 Such recordings shall be evidence in any dispute between the Company and the Customer.
3.7 The Customer agrees to comply with and adhere to all Applicable Regulations in relation to any Transaction and to provide information required by the Company in relation to any
3.8 All payments due from the Customer to the Company will be paid in full and the Customer will have no right of set off or counterclaim in relation to any payment due to the Company from the Customer.
3.9 The Customer confirms that no Transaction will be for the purposes of speculative activity (with the intention of profiting solely from currency movements) and that there shall be physical delivery of the Currency to the Destination Account in accordance with the terms of a Transaction.
3.10 The Customer confirms and understands that:
(a) Funds may take a number of working days to arrive as cleared funds in the Destination Account
(b) The number of days taken will vary from country to country
(c) The number of days has to take into account Bank Holidays and other vacation periods that may be different from the UK
(d) Planning for payment arrival (for example, into a Notary’s account), is the Customer’s responsibility
3.11 The Customer agrees and confirms that he is and will be a principal in all Transactions and will not act as an agent.
3.12 The Customer confirms that he is over 18 (eighteen) years of age and is not suffering from any disability or impairment that may affect their capacity to enter into a Transaction with the Company.
4. COMPANY’S OBLIGATIONS AND LIMITATIONS ON COMPANY’S LIABILITY
4.1 The Company will not be under any obligation to pay the Company Currency to the Destination Account until it has unconditionally received the Customer Currency in full as cleared effects.
4.2 Following receipt of the Customer Currency unconditionally in full as cleared effects the Company will make payment of the Company Currency to the Destination Account (less any deduction permitted by these Conditions).
4.3 The Company shall have the right to deduct from the Company Currency to be sent to the Destination Account such sums as it may be required to deduct by law together with any other deductions applicable to the Transaction.
4.4 The Customer warrants that the that information provided to the Company under the transaction about his personal and financial circumstances remains true and materially accurate without any obligation on the part of the Company to make any enquiries before each Transaction and the rights of the Company arising under these Conditions or in any way relating to a Transaction and the liability of the Customer for any breach of these Conditions shall not be thereby affected.
4.5 The Company shall not be liable to the Customer for any delay, failure or error in sending the Company Currency to the Destination Account pursuant to a Transaction where such delay failure or error is caused by:‐
(a) Failure or error of any machine, data processing system or transmission link (whether under the control of the Company or a third party); or
(b) Any period of essential maintenance, critical change, repairs, alteration to or failure of computer systems (whether under the control of the Company or any third party); or
(c) The acts or omissions of any third party
(d) The Company fulfilling its obligations under The Applicable Regulations
4.6 Where the error, failure or delay in sending the Company Currency to the Destination Account pursuant to a Transaction is caused by the negligence of the Company; the Company will be responsible for any losses that might ordinarily be expected to occur as a result. This may (but will not necessarily) include bank charges, lost interest or a fall in the value of the Customer Currency against the Company Currency during the period of the error, failure or delay. However this will not include any loss of profit or any type of loss arising from any failure by the Customer to enter into or to perform a Contract with a third party even if these were losses that might ordinarily be expected to occur as a result of the error, failure or delay. Also this will not include any kept claim for consequential losses.
4.7 In any case where the Company is liable to the Customer in respect of any Transaction (whether under statute, or in tort contract or otherwise) the Company’s liability shall be limited to the lesser of:
(a) the total amount paid by the Customer to the Company in respect of the Transaction; or
(b) Ten Thousand Pounds (£10,000.00).
4.8 The Customer agrees to insure against any losses that are greater than the sum set out in Clause 4.7
4.9 Without prejudice to Clause 4.6 and subject to the provisions of this Clause 4, The Company’s total aggregate liability to the Customer for any liability incurred in connection with this agreement will not exceed the lessor of;
(a) the total amount paid by the Customer to the Company in respect of the Transaction; or
(b) Five Hundred Thousand Pounds (£500,000.00).
5. COMPANY’S RIGHTS AGAINST CUSTOMER FUNDS
Where the Company properly terminates a Transaction, the Company shall be entitled to set off any loss suffered against any monies paid to the Company by the Customer without prejudice to the indemnity of the Customer contained in Clause 3.3.
6. NO ADVICE
While the Company can provide the Customer with information, it does not provide advice. In placing an Order and entering into any Transaction the Customer agrees that he will rely upon his own judgment.
7.1 While the Company will not charge the Customer commission in relation to any Transaction the Company shall be entitled to make the charges to the Customer set out in these terms and conditions and to deduct these charges from monies held by the Company for the Customer.
7.2 Intermediary or receiving bank charges may arise over which the Company has no control. The Customer acknowledges that the Company will not be held liable for such charges and that the Customer should contact the receiving bank directly with regards to any charges that may be applied against funds received by the bank prior to them crediting the beneficiary account.
8. FOREIGN CURRENCY RATES
Notwithstanding that an exchange rate is agreed at the time of contracting in relation to a Transaction the Company cannot guarantee the same rate of exchange in relation to any other Transaction.
9. TIME OF THE ESSENCE
Time is of the essence for each Transaction in relation to the payment of Customer Currency to the Company.
10. DEFAULT INTEREST AND TERMINATION PAYMENTS
10.1 If the Customer fails to make payment due to the Company under Clause 3.2 and without affecting the right of the Company to terminate a Transaction, the Company reserves the right to charge interest on any monies due to it from the Customer at a rate of 4% above the base rate from time to time of Barclays Bank Plc between the date of the Default Event and either Settlement or termination of a Transaction.
10.2 If a Transaction is terminated by the Company following a Default Event in addition to the liability of the Customer under Clause 3.5 the Customer will pay an administration fee of £150.00.
11.1 The Company or the Customer may terminate a Transaction with immediate effect upon the occurrence of the Default Event on the part of the other by either verbal or written notice to the other. Termination of a Transaction shall not affect the rights of either the Company or the Customer in relation to any breach of the terms of a Transaction arising before such Termination.
11.2 Where the Company terminates a Transaction following the occurrence of a Default Event it shall be entitled at its discretion to sell or retain Company Currency purchased in relation to that Transaction.
12. WRITTEN CONFIRMATION OF TRANSACTION
12.1 The Company will use reasonable endeavours to issue a written confirmation of a Transaction to the Customer but any failure by the Company to do so shall not affect the validity of a Transaction.
12.2 Where there is a failure of the system recording telephone calls operated by the Company, the written confirmation by the Company of the terms of a Transaction or the termination of a Transaction shall be evidence of the terms of a Transaction or termination of a Transaction and shall be final and binding on the Customer and the Company.
13. REPRESENTATIONS AND WARRANTIES
13.1 On a continuing basis, prior to each Transaction the Customer is deemed to represent and warrant that he understands all of his obligations under these Conditions in relation to the relevant Transaction and will comply with his obligations to the Company in the relevant transaction and that all information provided to the Company was true, accurate and complete when provided to the Company and remains true, accurate and complete in all material respects on entering into any Transaction except to the extent that any changes have been notified by the Customer to the Company in writing before a Transaction.
13.2 The Customer further warrants that all funds paid or to be paid to the Company are free from encumbrances (save in relation to any rights which the Company has under these Conditions) and comply with all Applicable Regulations.
13.3 The Customer will at the request of the Company provide the Company with any information that may be required from time to time under any Applicable Regulations.
14. NO RIGHT OF CANCELLATION
If the Customer has any right given by statute or statutory instrument to cancel a Transaction the parties agree that the Customer will not be able to cancel any Transaction once the performance by the Company of the services in relation to that transaction has begun.
15. ENTIRE CONTRACT
15.1 The parties agree that the terms and conditions set out in these Conditions together with an Order that has been accepted by the Company represents the entire agreement in relation to any Transaction.
15.2 The parties agree that save with regard to information provided by the Customer referred to in Clause 4.4 that all liabilities for and remedies in respect of any cognisant or negligent representations made are excluded.
15.3 The parties agree that save with regard to the representations referred to in Clause 4.4 neither party has placed any reliance whatsoever on any representations, agreements, statements or understandings (whether oral or in writing including any promotional literature) made prior to the date of this contract other than those expressly incorporated or recited in this contract.
15.4 For the avoidance of doubt nothing in this Clause applies to fraud on the part of either party.
16. USE OF THE INTERNET
16.1 The Customer acknowledges that email or use of a website may not be a secure medium for the communication of sensitive information. The Customer agrees that communication by email or its use of the Company’s Website will be at the Customer’s own risk.
16.2 Whenever the Customer places an Order by fax, email or the Company’s Website;
16.2.1 The Customer accepts that the Company cannot absolutely verify;
(a) that an Order is either properly placed by the Customer
(b) does not contain errors
16.2.2 Orders by fax, email or the Company’s Website are at the risk of the Customer.
16.2.3 The Customer agrees to indemnify the Company against all losses that it may incur as a result of the Company accepting an Order made by fax, email or the Company’s Website
16.2.4 The Customer acknowledges that the Company is under no duty to make any enquiries concerning instructions sent by fax, email or the Company’s Website that are believed by the Company to be genuine instructions from the Customer.
16.3 The Customer acknowledges that the Company’s Website contains material that is the copyright of the Company and the Customer acknowledges that he will not acquire any rights to such material by downloading it.
17. FORCE MAJEURE
17.1 Neither party is liable for failure to perform or delay in performing any of its obligations in relation to a Transaction in so far as the performance of such obligations is prevented by Force Majeure.
17.2 The Company and/or the Customer as applicable shall promptly notify the other party of the occurrence of a Force Majeure event and use all reasonable endeavours to continue to perform its obligations in relation to the Transaction but if a Force Majeure event prevents a party from fulfilling its obligations under a Transaction for an unreasonable period the other party may forthwith terminate the Transaction by notice in writing to that party but without prejudice to the other terms and conditions of a Transaction.
No variation of any Transaction will be valid unless it is in writing, signed by or on behalf of each of the parties.
19. PROTECTION OF PERSONAL INFORMATION
19.1 The Company is required to comply with the provisions of the Data Protection Act 1998 and will only use information relating to a Customer to enable the Company to comply with Applicable Regulations, to fulfill its obligations in any Transaction, to assess its risk in relation to the Customer or to any Transaction, for enforcing its rights in relation to a Transaction, for training purposes and to allow the Company or any subsidiary to provide the Customer with details of its products or services and for fraud prevention and debt tracing. signature by the Customer of these Conditions signifies the consent of the Customer to such use of information.
19.2 While the Company is required by Applicable Regulations to carry out investigations of the Customer it also makes enquiries for the purposes of assessing its own risk. The Company will search the record of the Customer through a credit reference agency and/or fraud prevention agency that will be added to the record of the Customer. Details of the search will also be seen by other similar organisations and information may therefore also be passed as between such organisations to help to prevent fraud. The credit reference or fraud prevention agency may refer to the Electoral Register and may use a credit scoring or other automated alternating process to verify the identity of the Customer and the financial standing of the Customer. The Company will record with the credit reference agency any default or failure of the Customer to comply with the terms of the Transaction. The Company is therefore authorized to disclose information outside the Company to licensed credit agencies, fraud prevention and other agencies, where it is required to do so by Applicable Regulations, for the purpose of compliance and regulatory reporting, and to confirm the Customer’s identity for money laundering purposes which may include checking the Electoral Register or to any person to whom the Company will or intends to transfer its rights or obligations.
19.3 The link between joint Customers and/or any individual identified, as the financial partner of the Customer will be created by credit reference agencies that will link these financial records. The Customer and anyone else with whom the Customer has a financial link understands that each others information will be taken into account in relation to all future Orders for either or both. This linking will continue until one of the Customer or his financial partner successfully files a disassociation at the credit reference agencies.
19.4 The data controller for the purposes of the Data Protection Act 1998 is the Data Protection Officer.
19.5 The Customer authorises the Company to transfer information relating to him to the Customer’s bank holding the Destination Account or other adviser of the Customer whether or not outside England and Wales (and notwithstanding that within that jurisdiction the data protection legislation offers less protection to the customer than under English law) or to any Governmental department or authority or any bank or other financial institution in order to comply with Applicable Regulations or pursuant to an order of a Court of competent jurisdiction.
19.6 If the Customer writes to the Company and pays a fee, the Customer has a right for access to the information held by the Company about the Customer.
19.7 The Customer has a right of access to information held by credit reference agencies about the Customer on payment of a fee. If the Customer asks, the Company will tell the Customer the name and address of the credit reference agencies the Company may use.
19.8 The Company is authorised to monitor and record telephone conversations for the purposes set out in Clause 3.4.
19.9 The Company will share customer information with Currency Wire Limited, it's Money Service Business.
19.20 The Company may share customer information with another firm or individual in the event that the Customer was introduced to the company by this third party. In the event that the Customer does not want the company to provide such information to an introducing agent/party they should write to the Company instructing that information should not be provided to a third party.
20. COMPLAINTS PROCEDURE
The Company has a written policy for the internal handling of complaints and how we ensure that we deal with each complaint promptly and fairly. You can obtain a summary from the Company should you so request. Should you have cause to complain for any reason a copy of our policy for handling complaints will be automatically sent to you. Any complaint relating to a money transfer must be made or confirmed in writing and the complaint should be addressed to the Compliance Officer, Currency Wire, 100 Pall Mall, London, SW1Y 5NQ
Clients should be aware that if they are unhappy with any response to a complaint received from the company when relating to a Money Transfer, they may complain directly to the Financial Ombudsman Service, South Quay, 183 Marsh Wall, London E14 9SR.
21. PARTIAL INVALIDITY
All the provisions in a Transaction are distinct and severable and if any term or provision is held or declared to be unenforceable illegal or void in whole or in part by any Court, regulatory authority or other competent authority, it will to that extent be deemed not to form part of the Transaction and the enforceability legality and validity of the remainder of the Transaction will not be affected. However, if as a result of the operation of this Clause the rights and obligations of a party are materially altered to the detriment of that party, that party may terminate the Transaction by written notice to the other within five Business days from the date of the relevant decision of the relevant Court or other competent authority.
22.1 Any notices in writing in connection with the Transaction may be delivered either by hand or first class pre‐paid letter post or by fax or email to the receiving party at the address set out in the relevant customer application form or otherwise previously notified to the other party in writing.
22.2 Notice in writing will take effect :‐
(a) If delivered personally, at the time of delivery to the address referred to above;
(b) If sent by mail, two days after posting it;
(c) If sent by fax or email, to the fax or email address of the Customer set out in the Application Form, at the time of its transmission.
22.3 Any notice given verbally shall take effect at the time at which it was given.
23. CONTRACT (RIGHTS OF THIRD PARTIES) ACT 1999
The parties agree that it is not their intention that the contractual rights arising in relation to a Transaction should be enforceable by a third party.
24. LAW AND JURISDICTION
English Law governs these Conditions and each Transaction and the parties submit to the non‐exclusive jurisdiction of the English Courts.
The information that may be included in an Order and Order Confirmation Notice may include, but is not limited to, the following information:
(i) the Currencies being purchased and sold by the Customer,
(ii) the quantity of such Currencies,
(iii) the applicable rate of exchange
(iv) the Settlement Date
(v) the Destination Account including; the address of the bank at which the Destination Account is held; the number of the Destination Account; and other relevant information regarding the Destination Account
(vi) method of payment