‘Base Currency’ means the currency denomination the Client will remit to FRFX to be exchanged.
‘Client’ means the company, individual or partnership that places an Order having signed and returned these Conditions to FRFX.
‘Conditions’ means these terms and conditions.
‘Contract’ means the agreement between FRFX and the Client subject to these Conditions.
‘Currency’ means any foreign currency worldwide.
‘Currency Purchased’ means the total sum achieved by exchange and indicated on the Trade Confirmation.
‘Forms of Identification’ means evidence of the identity of the Client.
‘Forward Trade’ specifies a transaction where the value date is later than two working days after the trade date.
‘FRFX’ means First Rate FX Ltd whose registered office is at Docklands Business Centre, 10-16 Tiller Road, London, E14 8PX.
‘Margin’ means the deposit required by FRFX in advance of each Forward Trade.
‘Margin Call’ means the request made by FRFX to the Client to provide such additional amounts as it may reasonably require on account due to an adverse exchange rate movement between the date of the Contract and the Value Date. This amount shall not exceed the full value of the Base Currency.
‘Nominated Account’ means such bank account and number as are contained in the Trade Confirmation.
‘Order’ means the Client’s oral or written request for FRFX to perform the Service on the Client’s behalf.
‘Service’ means FRFX’s execution of a trade on the Client’s behalf.
‘Spot Contract’ means an Order to buy or sell currency where the Value Date is two days from the Order date.
‘Trade Confirmation’ means FRFX’s written document setting out the details of the Order, which will be sent to the Client following the oral or written instruction.
‘Value Date’ means the date contained in the Trade Confirmation by which the Client must pay for the currency.
‘Working Day’ means 09.00 to 17.30 Monday to Friday (excluding weekends and all UK bank holidays and public holidays).
2. Client Instructions
2.1 The Client may place an Order to instruct FRFX to perform a Service or action on the Clients behalf. Each Order placed must fall within and be subject to these Conditions, to the exclusion of all other representations.
2.2 An Order to purchase currency may be given orally or in writing. FRFX may accept this Order either orally or in writing and the Order for the Service will come into force when so accepted by FRFX whether or not a Trade Confirmation is signed by the Client. The Client shall accept that FRFX may record and store all telephone conversations, in accordance with the Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000 and the Data Protection Act 1998. Any such recordings may be transcribed in order to resolve any disputes between the Client and FRFX in respect of the Service.
2.3 FRFX reserves the right to request written instructions from the Client, relative to a particular Order at any time.
2.4 The Client will be solely responsible for ensuring that the details the Client supplies to FRFX are true and accurate, including without limitation, the Clients contact details, account and Order details, and they will not withhold or omit any information that may cause those details to be false or inaccurate.
2.5 FRFX may refuse to accept any Order without giving any reason. FRFX will have no liability to the Client as a result of doing so.
2.6 The Client may not revoke, rescind, withdraw or amend an Order without the written permission of FRFX.
2.7 FRFX shall accept no liability for currency fluctuations between the Trade Confirmation and the Value Date.
3. The Service
3.1 The Client warrants that they have full capacity to place an Order and that in so doing they are acting as principal, and not as agent for any third party whose identity has not been disclosed to FRFX. The Client further warrants that the Order is not for speculative purposes, and that physical delivery of the currency will be taken on the Value Date by the Client or the specified payee as disclosed with the Order.
3.2 FRFX cannot provide the Client with any investment advice, including without limitation, on the merits of any particular Order and its likely implications, nor on any investment product. The Client warrants that in placing the Order it is relying on its own judgment, and not on anything not expressly contained in these Conditions.
3.3 FRFX provides Clients with an exchange rate on the currency exchange which incorporates all its charges. This means that, except by express prior agreement, FRFX will not charge the Client any fees for the Service.
3.4 FRFX aims to deliver the Service according to the instructions received from the Client. However, banks have specified cut off times for the receipt and dispatch of electronic payment. FRFX accepts no responsibility for any delay in onward transmission attributable to the late receipt of funds or instructions relative to the cut off times of the designated bank.
4. Documentation
4.1 FRFX will request that Clients provide all such information and documentation as is necessary to enable FRFX to comply with the relevant English legislation pertinent to the Service, including without limitation the United Kingdom Money Laundering Regulations 2003.
4.2 FRFX will provide the Client with a Trade Confirmation setting out the details of each Client Order to buy or sell Currency. This will be sent either by facsimile, post or electronically and is conclusive evidence of an agreement between FRFX and the Client for the buying and selling of Currency.
4.3 Documents may be sent by FRFX to the last known facsimile, email or address of the Client. FRFX will not accept any liability for the Client failing to ensure that these contact details are kept up to date.
4.5 The Client must inform FRFX of any errors or omissions in the Trade Confirmation, within 30 minutes of receipt for a Spot Contract, and two working days for Forward Trades. Failure to do so shall be evidence of the accuracy of the Trade Confirmation.
5. Payment
5.1 By 12.00 midday on the Value Date set out in the Trade Confirmation the Client shall credit the Nominated Account with the full value of the Base Currency.
5.2 For a Forward Trade the Client will immediately pay into the Nominated Account in cleared funds a Margin of 10% of the full amount of the Base Currency or such other percentage as FRFX may specify, and will pay any outstanding balance of the Base Currency into the Nominated Account not later than one Working Day before the Value Date of the particular Forward Trade.
5.3 The Client acknowledges that the Margin payment will vest automatically to FRFX in any of the following circumstances:
5.3.1 On the Value Date;
5.3.2 If the Client is in breach of any of the Conditions;
5.3.3 The Client becomes unable to pay its debts for any reason.
5.4 The Client shall not withhold any funds by way of offset, or counter-claim, but shall pay the full value of the Base Currency as set out in the Trade Confirmation.
5.5 FRFX will make any payments to the Client, less deductions as required by law in respect of tax liabilities, and any FRFX administration fees and or bank charges.
5.6 If the Client fails to make payment in full on the Value Date, FRFX reserves the right to charge interest on the amount of the outstanding currency from the Value date to the receipt of payment, at the rate of 5% above the daily published Base Rate at Barclays Bank Plc prevailing at the time.
6. Duration, Termination
6.1 Without liability or notice to the Client, FRFX shall have the right to close out all (or any part of the Order) in the event of any of the following events:
6.1.1 Conditions are breached in relation to payments due;
6.1.2 If the Client is materially in breach of any statute or regulation or fails to comply with the obligations under the Conditions;
6.1.3 If FRFX believes (in its absolute discretion) that it has become undesirable for regulatory reasons, or to protect its own position to do so;
6.1.4 If the Client enters into an arrangement with creditors or falls under bankruptcy proceedings or threatens to cease its business.
6.2 If the Client becomes aware of any event referred to in this condition 6 they shall give FRFX immediate written notice.
7. Limitation of Liability
7.1 FRFX’s liability to the Client for any losses, costs (including legal costs), damages, expenses, taxes, charges or any other liability is set out in the following provisions.
7.2 The limitation and exclusion of liability is set out on the basis that the Client is aware of the volatility of the foreign currency exchange markets.
7.3 FRFX will not be liable to the Client for any losses which arise out of the currency fluctuations between the Trade Confirmation and the Value Date.
7.4 FRFX excludes all further liability including and without limitation, indirect loss that for the purpose of these Conditions including loss of profits, goodwill, anticipated savings, loss caused by the failure or delay of any third party in the transmission, provision or delivery of any Service or any other type of special indirect or consequential loss (including claims brought about by a third party) even if such loss was reasonably foreseeable.
7.5 Subject to the provisions of Clause 7, FRFX’s total aggregate liability to the Client for any claim incurred as a result of FRFX being in breach of the Conditions, or negligent in the performance of the Service, will not exceed the total Base Currency by the Client or £250,000 whichever is the lesser.
7.6 The Client will indemnify and keep FRFX indemnified against all liabilities incurred by FRFX in the proper performance of its business, or the enforcement of its rights hereunder and, in particular, without prejudice to the generality of such indemnity, against all sums which FRFX may certify to be necessary to compensate it for all liabilities sustained or incurred by FRFX (including but not limited to FRFX’s loss of profits) as a result of:
7.6.1 Any breach of these Conditions by the Client;
7.6.2 Any default in payment by the Client;
7.6.3 FRFX doing and taking all or any actions and steps whatsoever to carry out the terms of any Client’s written, oral or electronic instruction purporting to be from an authorized person of the Client or;
7.6.4 FRFX exercising its right under the clauses within these Conditions to close out any part of any trade and in such event FRFX shall have the right, to use Client monies held by them to offset such amounts as are owed to FRFX by the Client in respect of any Service. This shall be as an alternative to its right to seek an indemnity from the Client.
7.7 Should any of the Conditions included in this document be deemed unenforceable or illegal, the remaining Conditions will continue with full force and effect.
7.8 These Conditions may be amended from time to time. Any such amendment or variation will be agreed, in writing, with the Client and will not be retrospective.
7.9 The detail included in the Trade Confirmation will prevail over the Conditions in the event of any conflict.
7.10 Notwithstanding the limitations and terms set out above, Clients’ statutory rights are not affected.
8. General
8.1 These Conditions and FX Contract shall be governed by English law and are subject to the exclusive jurisdiction of the courts of England and Wales.
8.2 Any dispute pursuant to these Conditions will be determined by the courts of England and Wales.
8.3 Nothing in these Conditions is intended to confer any benefit on any third party (whether referred to herein by name class or other description) or right to enforce any agreement.
8.4 The Client may not assign or otherwise transfer the benefit of any agreement it has with FRFX without the express written consent of FRFX. FRFX may assign/and or novate its rights and obligations under the Conditions to any third party and the Client hereby consents without any reservation to any such assignment or novation.
8.5 Any failure by either party to exercise and any delay, forbearance or indulgence by any party in exercising any right, power, or remedy under these Conditions, will not operate as a waiver of that right power or remedy, or preclude its exercise at any subsequent time.
8.6 Nothing in these Conditions shall be deemed to create a Partnership, Joint Venture, or Agency relationship between the parties.
8.7 Any personal data supplied by the Client to FRFX for the purposes of performing the Service is protected by the provisions of the Data Protection Act 1998. Agreement to these Conditions implies that Clients’ permission is given to FRFX to use the data to assess the risk of performing the Service (including credit searches) for the purposes set out in the Conditions, and to enable it to enforce its rights under the Conditions.