The Real Asset Co. Ltd. and The Customer
Effective date for new customers: 26.11.2013. Effective date for existing customers: 10.12.2013.
From now on in this document, excluding a limited number of technical exceptions, The Real Asset Co. Ltd. shall be referred to as TRAC.
Before reading the rest of this document, you should note the general points below that relate to use of the TRAC exchange market.
- Every TRAC account records the units of commodities you own. The value of these holdings can rise or fall when measured against a national currency and price fluctuations of the commodities. These exchange and value risks are all borne by the customer.
- TRAC is not authorised to, and does not and will not advise on the merits or suitability of any investment, trade or decision taken with regard to a trade and will not and does not give any investment advice.
- In entering this execution only trading platform all customers accept that all decisions to invest, buy, sell and/or trade are their sole responsibility and that TRAC is in no way liable for that decision. If any customer is uncertain as to what to do they must seek independent investment advice.
- All instructions to buy and sell commodities are final and irreversible.
- You bear responsibility for the security of your TRAC account by keeping your log in credentials secure.
- All TRAC customers must identify themselves, and TRAC verifies the information you provide.
- Restrictions are placed on TRAC accounts until the client has provided, and TRAC has verified and accepted, personal identification information.
- Accepts that this Agreement documents the contractual relationship between TRAC and the Customer. A hard copy of this Agreement shall constitute proof and evidence in a Court of Law of the commercial and other terms of this contractual relationship.
- Accepts that in the event of a discrepancy between these terms and the content of the Website, the terms of this Agreement will always hold precedence.
- Represents that he/she has fully read and understood the terms of this Agreement.
- Consents to be bound by the terms of this Agreement, and by the rights and obligations created here within.
- Accepts that he/she agrees to benefit from using the TRAC exchange market as was intended by the company founders, and is provided for in this Agreement.
- TRAC reserves the right to close any customer’s account, selling his commodity holdings and return his funds to him in cash (at full prevailing current market value, less any and all commissions and fees due), if TRAC feels that the customer has breached any of the terms and conditions, without any recourse from the customer, or future liability for TRAC.
a) Unless stated, or a contextual requirement arises, the expressions listed below shall bear the following meanings ascribed to them here.
i) ‘We’, ‘the Company’, ‘us’ means The Real Asset Co. Ltd. , offices at Office 104, 25 Nutford Place, London, W1H 5YQ, and registered in England and Wales with company number 07385324;
ii) ‘Assets’ means precious commodities, real assets and alternatives or any product traded on the TRAC platform;
iii) ‘Agreement’ means this agreement between the Customer and TRAC and specifically excludes the content of the Website except as provided herein;
iv) ‘Customer’, ‘client’, or ‘Applicant’ or ‘You’ means the person who opens and uses a TRAC account;
v) ‘Designated Client Account’ means the account TRAC holds with its partner bank, which clients deposit into;
vi) ‘Funds’ means any currency accepted by TRAC;
vii) ‘Website’ means the content and information found on the World Wide Web at: www.therealasset.co.uk;
viii) ‘Password’ means the alpha-numeric string of characters you chose, and confirm, to access your TRAC account with;
x) ‘Vault’ means a precious commodity storage facility in which precious commodities are stored by TRAC. These commodities are sold in electronic form on the Website;
b) Unless the context indicates the contrary, any word implying the singular also includes the plural and vice versa.
- Access to company management
TRAC wants to be as open and accessible as possible for its customers. In the pursuit of due diligence and peace of mind, TRAC account holders are welcome to come and meet the management by appointment. Customers should contact email@example.com, or use the email function on the homepage, to arrange such a meeting, where upon a meeting with at least a one member of the senior management will be arranged when is convenient for all parties.
- Introduction and purpose of our business relationship
a) The TRAC exchange market is a service that allows customers to easily and cost effectively to buy, hold and sell real assets, precious commodities, and alternatives, delivered via the World Wide Web. Units of precious commodity are converted into electronic form where they are then available for exchange. You have chosen to use TRAC’s service for these reasons and understand that by using the service, TRAC will earn a profit from spreads, interest, commission, and storage fees.
b) TRAC is not a bank, and thus not subject to regulation by the Financial Conduct Authority (FCA);
c) Subject to the terms of this Agreement, the Customer is able to buy assets using TRAC’s service that can be delivered into the customers personal custody where he desires it, although there are costs associated with delivery detailed on the Website;
d) Where the mechanics and logistics of delivery into the client’s personal custody are complicated and/or restricted, it will be at TRAC’s complete discretion as to what units of comparable value are able to be delivered;
e) Delivery details for each product are always found in the relevant product market page of the Website.
- Creating an Account
a) Customers may establish an account by completing the registration form found on the Website and then clicking that he/she accepts this Agreement. The Customer must comply in full with this Agreement at all times. TRAC reserves the right to restrict the usage of a Customer’s account, where TRAC believes there has been improper use of its service. Such restrictions can prevent the Customer from accessing their account, creating orders, and withdrawing funds;
b) When clients create an account TRAC can choose to extend promotional balances of commodity to the client. These promotional balances are an incentive for clients to register and use TRAC’s service and are subject to the following terms:
i) A ‘deposit’ is where a client makes a bank transfer to fund their account with TRAC;
ii) A ‘trade’ is where a client makes an order to buy commodity with their funded account, and the order is matched in TRAC’s marketplace and settled;
iii) ‘Invest’ is where a client makes an order to buy commodity with their funded account, and the order is matched in TRAC’s marketplace and settled;
iv) ’30 days’ means 30 days from when the client created their TRAC account.
c) TRAC relies on the information submitted by applicants, and the applicant warrants the accuracy and completeness of all this information. The Customer shall notify TRAC immediately of any changes to the information he provided when creating an account;
d) The Customer accepts that:
i) He must use his TRAC account in accordance with the terms of this agreement;
ii) He is obligated to comply with any instructions that relate to the maintenance of a TRAC account.
- Your data
a) To use the TRAC service you must furnish the company with information about you, which you then permit TRAC to store on TRAC’s databases in order to provide you with the service you desire;
b) You accept a duty to keep contact details held by TRAC up to date and accurate, and TRAC shall be entitled to rely on those contact details provided. TRAC accepts no responsibility for customer losses arising because the customer has failed to maintain the accuracy of their contact details;
c) TRAC will only disclose your personal information to third parties where it is legally obliged to do so (Eg – government investigation), or where it needs to ensure completion of a transaction you made in TRAC;
d) Where information is provided by your bank when you transfer a deposit to TRAC, you permit TRAC to check your bank details against those you register with TRAC, and those displayed on the bank statement you submit in TRAC’s extended registration;
e) You undertake to identify yourself before funding your account, and authorise TRAC to make the necessary enquiries to verify your identity. You can provide TRAC with your identity by completing TRAC’s extended registration and uploading your proof of ID and address documents to TRAC’s secure servers;
f) You are obliged to provide clear evidence of the bank account from which you transfer the deposit to TRAC. This evidence will need to display most of, if not all, the following: bank’s country, bank name, branch name or address, branch/sort/routing code, account name, account number, SWIFT code, and IBAN number.
g) When you wish to withdraw funds, and you add your bank details, TRAC will then verify these details against the bank statement you uploaded when completing TRAC’s registration process. You are responsible for checking these details, and for changing them prior to validation if incorrect. If the details remain incorrect after validation, you must inform TRAC immediately at firstname.lastname@example.org. Once this verification takes place, TRAC is able to validate your registered account details, and you will be able to execute a withdrawal instruction. Progress as to account validation is visible on the Website and will also be communicated to Customers via email. By instructing a withdrawal to the validated account with details you registered with TRAC, you are representing that the details are accurate and correct. TRAC takes no responsibility for losses resulting from provision of incorrect bank details;
h) The details you register with TRAC of your linked bank account can be changed in extremis, at the discretion of TRAC’s management. You will communicate such a need to email@example.com for appraisal. Any new bank account you wish to then use as your linked account must be in your name, and registered to the address details you signed up with, as was required for your previous linked bank account.
i) You accept that TRAC is entitled to charge you an administration fee for changing your linked bank account, as published in the ‘Costs’ section of the Website;
j) There is also a charge for change of address linked to the same account, which is also published in the ‘Costs’ section of the Website;
k) Where you change your name you will organise the account name of your linked bank account to be changed by your bank accordingly. TRAC does not accept simultaneous changes of name and linked bank account details within a TRAC account;
l) The Customer must inform TRAC of any changes to his personal information that he provided when he registered for a TRAC account. TRAC may from time to time contact users to verify correct information is held on them. Where customers do not respond to such communications, TRAC reserves the right to restrict the functionality of TRAC accounts;
m) TRAC accounts are required to have an active email address as a point of communication to the customer. To change email addresses, a customer may need to have their old email address active so that he can receive the validation link in an email and use this to activate their new email as the point of email communication between the company and the user. Where a customer’s email becomes inactive and unusable, Customers are able to change their registered email address using the Website.
- Verifying the customers’ identity
To comply with European Anti-Money Laundering Regulations TRAC is obliged to verify its customers’ registration information.
a) Individuals – where you are signing up to the TRAC service as a private individual TRAC needs to verify your account details with a copy of your identity document and bank statement;
b) Corporates – where a company, trust, or other entity signs up to the TRAC service as a commercial enterprise TRAC needs to verify the identity document of the CEO, principal, or trustee, and a bank statement as in a) above. In addition to this, you are obliged to provide either evidence of incorporation, or copy of trust deeds, within 2 weeks to alert TRAC of your different account status.
- Using the Website: orders, trades and settlement
a) You accept that you are of sound body and mind, and are fully competent of using the TRAC exchange market to make you commodity investments;
b) You therefore take full responsibility and liability for all trading decisions and orders made from your TRAC account, that are then matched, partially matched, or left hanging, in the market;
c) Orders created from your TRAC account are submitted to TRAC’s servers by you via the internet;
d) Your orders to buy commodities will be accepted by TRAC provided you have sufficient funds of the relevant currency in your TRAC account to settle the entire trade;
e) Your orders to sell commodities will be accepted by TRAC provided you have sufficient reserves of that commodity in your TRAC account to settle the entire trade;
f) Purchase limits by price are applied by TRAC to your trading activities. This is to maintain an orderly market, and to prevent customers from falling victim to any extremely unattractive orders they may create;
g) Your orders are limited to certain quantities of commodity which TRAC chooses at its absolute discretion;
h) Upon receipt of a customer order, TRAC will automatically attempt to match this order with another account holder’s matching order. The system is designed to achieve the optimum price for your orders, even possibly matching your with a more attractive price where possible;
i) Orders are processed via the TRAC matching engine and queuing technologies to provide a ‘first come, first served’ environment;
j) Your orders can expire through time or cancellation or otherwise;
k) Your order is ranked according to the attractiveness of its price;
l) You can cancel any open orders at your discretion, which TRAC will then remove from its market place to prevent from matching;
m) You understand and accept that when your order is matched in the market, before you are able to cancel your order, you will then no longer be able to remove the order as it is at least partially complete and you are bound by the terms of the trade, although any remaining open element of the order will be removed;
n) TRAC is entitled to remove orders from its market place when they exceed one week in age, or are more than 10% off the market price for that commodity;
o) Where TRAC removes order from its markets, it accepts an obligation to inform the customer by email;
p) TRAC acknowledges order creation via display messages on its Website;
q) The status of a customers’ orders can be checked on the Website, and may be communicated to the customer via email;
r) You authorise TRAC to accept your order as an instruction and to settle immediately where your order is able to execute in part or whole;
s) TRAC accepts full responsibility for the ability of executed orders to settle. TRAC guarantee that sellers of money to buy commodities have sufficient funds to settle the trade, and that sellers of commodity to buy money have sufficient commodity reserves to settle the trade;
t) Buyers’ wallets are credited with commodity or money they want to buy, and debited with commodity or money they want to sell. Conversely, at the same time the seller’s wallet is debited with commodity or money they wish to sell and credited with commodity or money they wish to buy. Ownership of the commodity and money is being reallocated within the TRAC system net of fees;
u) Transactions within TRAC are settled immediately at the point of trade;
v) No material change in commodity takes place when a trade is made, ownership is merely changing of the physical commodity;
w) Payment of monies required for the settlement of trades happens by book entry in the TRAC system;
x) No material changes to the funds held at TRAC’s partner bank takes place either, ownership of a portion of these funds held on deposit is merely being exchanged;
y) When a trade is settled, settlement of funds occurs simultaneously with the settlement of commodity. The buyer and seller receive their desired part of the trade simultaneously;
z) Upon settlement you will therefore see your new commodity and money balances almost instantly;
aa) You undertake to use the TRAC services for legitimate purposes only. In particular, you undertake not to (i) engage in any activity which has the purpose or effect of causing damage to, or in any way hindering TRAC’s business operations or generating or increasing a liability on TRAC, including without limitation any tax, levy or duty collecting authority; or (ii) manipulate the TRAC market in bad faith or in a manner which TRAC believes has the purpose or effect of adversely affecting the integrity of the Exchange.
bb) You will not attempt to hack, make unauthorised alterations or introduce any kind of malicious code, or virus to the Website or the Company by any means. Unless given prior written approval from TRAC, you will not (a) reverse engineer or decompile (whether in whole or part) any software available through the Website; or (b) make copies, modify, reproduce, transmit, alter or distribute all or any part of the Website or any material or information contained on it.
cc) You will not make offensive comments, use offensive or pornographic material or potentially defamatory or inflammatory remarks in connection with the discussion board or any other part of the Website including within your own username or other information contributed to any TRAC site.
dd) You will not disguise or interfere in any way with the IP address of the computer you are using to access the Exchange or otherwise take steps to prevent TRAC from correctly identifying the actual IP address of the computer you are using whilst accessing the Exchange.
ee) You understand and accept that any and all of the intellectual property rights including trademarks, service marks, trade names, copyright and other rights used or embodied by TRAC or the Website are and shall at all times remain the company’s property;
ff) All information, content, and material presented to TRAC’s customers by TRAC, excluding information specific to a customer’s TRAC account, remains the property of TRAC. Customers may not reproduce, disclose, or circulate such information without the written consent of TRAC;
gg) The Customer acknowledges and accepts that he may have his TRAC account restricted at any time where TRAC has reasonable grounds to believe that the user is compromising the intellectual property rights of TRAC or engaging in an activity which, in TRAC’s opinion is potentially a threat to its operation or the smooth running of the business.
- Products and markets on TRAC
a) Some products and markets on TRAC are offered in conjunction with commercial partners of TRAC;
b) The details, fees and nature of these products will be made clear on the relevant market page;
c) In offering these products and markets, TRAC will only work with highly respected third parties to ensure integrity of product and market;
d) Some of these products may involve some product management by TRAC’s commercial partner, and by agreeing to this Agreement you accept this situation as well as the commercial partner’s expertise and agree to this third party service provision;
e) Buying into such a product or market requires you to transact exactly the same as if you were buying gold on TRAC;
f) Where you require delivery, according to the restrictions imposed by TRAC, it will be the responsibility of TRAC, not TRAC’s commercial partner, to arrange delivery according to the details listed here.
- Access and instructing transactions
a) Your personal and financial data that are held within your TRAC account are protected from unauthorised access by username and password log in credentials. You are responsible for keeping this information secret, and TRAC will not be liable for any customer losses incurred due to the Customers’ failure to ensure complete confidentiality of their log in credentials;
b) You can reset your password where required by clicking the ‘Forgotten password’ link on the Website. An automated email will then be sent to your registered email address. Upon receipt of this email you can follow the instructions and answer your security question to be able to reset your password. It is your responsibility to reset your password immediately should you believe in any way that the confidentiality of said password has been, or may have been compromised;
c) TRAC retains the right to restrict withdrawal instructions being made from your TRAC account after your password has been reset if TRAC has reasonable grounds for concern;
d) Your password is never visible to TRAC staff, and is protected using industry standard encryption technology;
e) TRAC’s primary means of communication with the Customer is through the internet;
f) When you are logged into the Website you accept that all data exchanged between you and TRAC moves across the internet via the https protocol. This security protocol is accepted as being the legitimate standard amongst internet based service providers for secure and private data exchange;
g) You are responsible for ensuring that you have a reliable and secure email account, that presents email correspondence from TRAC to you in a timely and accurate fashion;
h) Email correspondence is deemed to have been received and accepted by the Customer unless querying counter communication is received by TRAC within 24 hours;
i) TRAC also retains the right to contact you via SMS. The Customer is deemed to have received and accepted the SMS correspondence unless a querying counter communication is received by TRAC within 24 hours. TRAC will rely on the accuracy of its own transmission data, and the records of TRAC’s telecommunications provider;
j) TRAC retains the responsibility of ensuring that its SMS correspondence is correctly received by its SMS gateway provider, but will not have or hold any responsibility or liability for non-delivery of SMS correspondence outside of its control (eg – client’s phone turned off);
- Custody of your money
a) TRAC will always bank with one of the UK’s most reputable banks, and will do its best to ensure that client funds are always deposited and held at a bank of adequate and reputable standing;
b) TRAC holds the responsibility for ensuring that all client deposits are received and held in the designated client accounts with its partner bank;
c) TRAC confirms that its partner bank acknowledges that funds held in the client segregated accounts are client monies held in custody by TRAC;
d) TRAC has the right to manage monies held in the designated client account as follows:
- To buy physical commodities from another TRAC account holder when you have created a buy order. Money is not leaving the bank account here, ownership of the funds is just changing (one client is selling money to buy a commodity, whilst the client the other side of the trade is selling a commodity to buy money).
- To honour withdraw instructions that you have executed.
- To pay fees and commissions owed to TRAC.
- To buy physical commodities from the recognised markets on your behalf, where you have legitimately instructed a trade in these markets.
e) TRAC will ensure that at all times there are sufficient funds in the designated client account to pay back the cumulative cash balances of all TRAC accounts, and to have said monies at call within a business day;
f) Customers’ withdrawal instructions are only processed after having been approved by an operations operative and senior company officer;
g) TRAC will display a daily reconciliation of TRAC’s client funds at the partner bank to enable the Customer to check these against TRAC’s own records of client monies held as cash on TRAC’s server (ie – the total funds that all TRAC’s clients hold in their TRAC accounts as cash);
h) You agree to fund your TRAC account from your validated bank account;
i) TRAC expects, and it is your responsibility to ensure that your bank provides the following with each deposit to TRAC:
- Bank name
- Branch name/code
- Account name
- Account number
- Your 6 character unique depositing reference;
j) Any failure by your bank to provide the information listed in i) above could delay your TRAC account being credited. Deposits from un-validated bank accounts can be held by TRAC until the Customer provides satisfactory remittance information;
k) Where client remittance details are provided independently of the bank transfer, TRAC retains the right to suspend withdrawals from the affected TRAC account for a discretionary period;
l) TRAC will not accept cheques, cash, banker’s drafts or unreferenced deposits as a means of crediting a TRAC account. All deposits must take the form of cleared funds from bank accounts, that are identifiable from their associated unique depositing reference;
m) Where TRAC is not satisfied with the source of a deposit TRAC retains the right to return the funds minus a ‘Deposit Return’ fee published in the ‘Costs’ section of the Website;
n) Where reasonable supporting evidence can be provided by the Customer regarding source of funds, TRAC is entitled to use its discretion and allow crediting of a TRAC account;
o) TRAC is entitled to ask for as much detail as it requires regarding a customer proving the source of their funds;
p) TRAC is not responsible for losses arising where a client seeks to fund their account by incorrect means;
q) After passing TRAC’s ‘Know Your Client’ checks, and having your bank account details validated by TRAC, you are able to execute a withdrawal instruction on the TRAC platform;
r) Once a withdrawal request is received, TRAC will act upon it, so you are entirely responsible for checking the accuracy of the transfer details prior to accepting the withdrawal instruction;
s) TRAC will transfer funds as instructed by the client within three working days via the most appropriate transfer medium;
t) TRAC will not pay any transfer charges (Eg – international transfer fees), and will opt that the recipient bank account accepts the associated fees, and it will not deduct any fees and costs from the transferred funds prior to transfer;
u) TRAC accepts no responsibility or liability for other fees generated in other parts of the banking system by your transfer (Eg – Your funds being received by a SWIFT correspondent bank, prior to arriving at you bank when an international transfer is being processed);
v) TRAC reserves the right to conduct extra security checks before acting on a client’s withdrawal request to preserve the integrity of its service.;
w) Where a TRAC account has remained empty of commodity holdings, and funded below $20, £15, or EUR 18, for a period of 2 years, TRAC is entitled to accumulate this small balance into a ‘charity pot’ to be donated to one of the company’s chosen company charities as a ‘customer donation’;
x) Where commodity and currency balances are offered to clients as part of TRAC’s promotional activities, and either an account is not used, or funded over $100, £60, or EUR 75, or the Customer has not completed the registration process and provided TRAC with identification details, within 60 days, TRAC reserves the right to reclaim such commodity and currency balances;
y) Where insufficient cash balances are held in customer TRAC accounts to meet customer fee and commission obligations, TRAC is entitled to shave the smallest required unit off your commodity holdings to satisfy these fees (for example, but not excluding – a gram of commodity, or 0.01 carat of gem stone, or 0.001 of a case of fine wine or bottle/cask or otherwise of valuable alcoholic beverage);
z) Where a customer withdrawal request is made when said customer has outstanding fees to pay, these fees can and will be deducted from the amount the customer has instructed to withdraw;
aa) TRAC has been created and modelled to allow customers to easily and cost effectively invest in commodities using their legitimately acquired funds, and has been modelled to deter money launderers from finding TRAC’s service conducive to their needs;
bb) Except in the most extenuating circumstances TRAC therefore enforces a policy of needing clients to deposit from, and withdraw to, a single bank account;
cc) TRAC will keep your financial data private at all times, except where it is required to comply with Government or regulatory intervention;
dd) Client confidentiality is assured at all times, unless money laundering or criminal activity can be reasonably suspected.
- Custody of your commodities
a) TRAC only offers for sale assayed bullion bars from a recognised market professional according to the best practices of the local bullion markets;
b) Your commodities are held as weighed bars of metal and are vaulted with TRAC’s chosen providers according to a legally binding storage agreement TRAC has executed with them;
c) TRAC warrants that your commodities are held as bailment for the sole purpose of ensuring proper safekeeping, and legal protection of your assets within professional vaults;
VAULT OPERATORS AND TERMS:
d) Vault operators are companies that specialise in the management of receipts of bullion, as well as storage, insurance, and delivery, according to practices required by the professional bullion and commodity markets;
e) TRAC uses the most respected vault operators and storage providers in the field to provide secure custody of your commodity assets and by submitting your application you authorise TRAC to act as agent to arrange the storage, transportation and insurance of your commodity assets. You authorise TRAC to enter into contracts on your behalf in relation to the storage, transportation or insurance of your commodity assets (“Third Party Contracts”) and acknowledge and accept that such Third Party Contracts may contain provisions permitting a lien to be exercised over the commodity assets in certain circumstances.
f) TRAC’s professional storage partners have accepted and understood TRAC’s business model, and therefore agree that TRAC will pay client storage and insurance fees on your behalf relating to your commodity assets;
g) TRAC’s storage partners also provide industry specific insurance cover to protect your commodity holding. This cover to you is included in your storage fees. TRAC reserves the right to immediately increase the storage charges in line with any increases from the storage operator. TRAC’s storage partners provide TRAC with documentary evidence of this insurance, which TRAC is happy to publish knowing that some customers will want to confirm that existence of this cover and its terms;
h) You acknowledge and accept that certain storage partners in certain jurisdictions may request your name and address details in order to comply with their anti- money laundering and ‘know your client’ procedures and checks. By submitting your application you authorise TRAC, where necessary, to send your name and address details onto such storage partners for this sole purpose.
i) Commodities stored with TRAC’s vault operators and storage providers are ‘allocated’ meaning that the quantity of bullion which is owned by TRAC’s customers at any one time is fully backed (i.e. if it was ever required, it would be possible to distribute that bullion amongst TRAC’s customers in the quantities owned) and regarded as your property by the vault operator or storage provider;
j) However, you understand and accept that your commodity ownership does not relate to a specific bar of bullion, i.e. it is not identifiable (unless you have followed the “Reserve Your Bar” method), but to a specific quantity of commodity in a storage facility provided by TRAC’s storage partner;
k) “Reserve Your Bar” is available where you own or wish to purchase a minimum of 100g of bullion. You will be allocated a certificate stating the individual bar number. Where you already own bullion with TRAC and you wish to “Reserve Your Bar” this will be subject to the transaction fees described here.
l) Your commodity assets, once allocated to you, cannot be used by TRAC for any purpose;
m) In accordance with industry practices, TRAC’s contracted storage partners have agreed to keep the assets of TRAC’s customers specifically identified as belonging to TRAC’s customers and physically segregated at all times from assets owned by other parties who are not TRAC’s customers;
n) Through TRAC’s storage agreement TRAC’s contracted storage partners have also agreed to take full responsibility for vaulting, storing and insuring commodity assets held with them from the inception of full custody, to relinquishment of custody following legitimate instruction from TRAC;
o) When you instruct a commodity purchase on the Website, the asset is delivered by the seller within the storage facility provided by TRAC’s storage partner to you. TRAC then becomes your appointed custodian of this commodity asset. Conversely, when you sell a commodity asset on the Website, the asset is delivered by you within storage facility provided by TRAC’s storage partner terminating your bailment to the extent you instructed on Website;
p) On a daily basis, or as near to daily as reasonably practicable, TRAC will publish on its Website reconciled customer records of commodity ownership in the storage facilities, and all monies held in the designated client bank accounts;
q) As part of preserving TRAC’s ownership records against loss, TRAC will always ensure that its database is backed up according to industry standards;
r) You are able to request delivery of your commodity assets (subject to certain conditions set out in this Agreement), but you understand that TRAC has not been designed to provide a service involving regular physical delivery and that various fees and local tax obligations my fall upon the client requesting delivery;
s) Delivery details and restrictions are found in the relevant market page for each product;
t) Delivery of metal bars can only be accommodated in whole bar form, in the bar sizes described here
u) Delivery fees vary depending on customer needs and costs will be fully passed onto the customer;
v) To facilitate delivery TRAC is entitled to demand extra levels of identification, and the Customer shall indemnify TRAC against identity fraud by taking out the appropriate insurance cover;
w) Requests for delivery must be made to TRAC, not to the storage partners;
x) When certain quantities or values of commodity are requested for delivery, a local bank or equivalent institution may need to be identified as the destination for delivery. TRAC will exercise its discretion as to what quantities and values require such delivery procedures;
y) When you request physical delivery your anonymity may be lost where such transactions are monitored by the concerned authorities. TRAC will not bear responsibility for the loss of this anonymity or its consequences;
z) Where your physical withdrawal carries with it any tax, duties and/or VAT implications you are required to understand your circumstances, and TRAC is entitled to deduct tax obligations from client holdings where necessary;
aa) TRAC accepts full responsibility for establishing security procedures to prevent any unauthorised removal of commodities from its a storage partners storage facilities;
bb) TRAC supports several currencies. Orders are only capable of matching with other orders in the same currency;
cc) TRAC will store and vault commodities in several locations (E.g. London, HK, Dubai, Singapore, Geneva and Zurich) and may extend its range of vaulting locations to satisfy client demands. Orders are only capable of matching with orders relating to the same vault location. I.e. – an order to buy gold in the Singapore vault can only match with a sell order in the Singapore vault.
a) Clients are only charged fees where they are the beneficiary of a service provided by TRAC. TRAC is entitled to decide where its ‘service’ starts and stops for the purpose of situations where fee collection is applicable, and for those where it is not;
b) The Customer authorises TRAC to deduct from his account and or holdings to satisfy any fees the Customer owes, and or incurs;
c) TRAC reserves the right to change its fee structure for any user according to its needs, subject to a notice period of 10 days, excluding changes to transaction fees (incurred when buying/selling commodities) and storage fees;
d) TRAC reserves the right to charge and collect administrative fees to cover costs incurred by TRAC assisting clients in extraordinary, unique and unpredictable circumstances. TRAC will retain complete discretion to decide what constitutes such extraordinary, unique and unpredictable circumstances;
e) Where possible TRAC will publish fees outside of transactional and storage fees on its Website;
f) Each fee that the Customer is charged shall be recorded for their records in their client statement, along with a reasonable explanation for its incurrence by TRAC;
g) The Customer acknowledges their complete responsibility for telephone, satellite, TV, and/or internet service provider charges incurred by them whilst using the TRAC exchange market.
- Changes in terms and fee structure
a) Subject to a 10 day notice period and communicated to the Customer via the Website, alongside email correspondence where possible, TRAC may alter its fee structure and fee collection methods;
b) TRAC may amend the terms of this Agreement where it communicates such amendment via announcements on its Website, alongside email correspondence where possible.
- Risk warnings
TRAC cannot be held responsible for the following risks:
- Client investment or divestment decisions, and the merits thereof;
- Any and all trading client transaction decisions;
- Commodity price fluctuations:
- iMonetary Geo-Politics:
This includes, but is not exclusive to, phenomena such as government action to manipulate currencies; government action to constrain commodity ownership; government action to re-appropriate privately held assets. When TRAC has available, TRAC will endeavour to offer a choice of storage locations to help the Customer alleviate some of these risks via their choice of storage location;
v) Bank failure or Financial Crisis:
TRAC uses high profile and respected banking partners at which to hold client deposits in designated client fund accounts. However, even the biggest banks, and strongest parts of the financial system are not free from the risk of failure. Your entitlement to compensation should one of TRAC’s banking partners fail would be dependent on the local authority in question. Timescales and ease of securing compensation are not the responsibility of TRAC;
vi) Identity theft of any nature:
TRAC is not responsible for compromises in the security of your TRAC account log in credentials, and the consequences thereof;
vii) Illiquid Markets:
TRAC cannot guarantee the Customer that they will be able to buy or sell the instant they desire the trade. This is not uncommon in markets. However, TRAC’s markets are engineered, and receive order liquidity in such a way from TRAC’s Market Making partners, that eventually your order (if competitive) will be matched and your trade settled;
viii) Delisting markets:
TRAC reserves the right to delist markets. If for any reason TRAC wishes to delist a market, maybe because there has been very low take up and activity, TRAC will need to ensure that it can sell the whole unit/s at a fair price. TRAC will give at least 7 days notice to any existing holders of these assets that TRAC will be closing this market. TRAC will ask for competitive quotes from at least 2 reputable sources before agreeing a sale. The exact details of the transaction will be passed on to any outstanding holders of that asset to prove that a fair price was achieved for the sale. The equivalent cash value of the clients holding will then be returned whole to the client’s TRAC account;
ix) Website availability:
a) The Website may be inaccessible on rare occasions where circumstances dictate the need for system maintenance and repair. TRAC is not responsible for the risk of your transactions not being executed during these times. System repairs and maintenance will usually be carried out at the times of least customer activity unless in emergency. Open orders will ordinarily survive service interruptions, but where this is not possible and open orders have to be removed from the system and any unmatched part of the order will be deemed cancelled. TRAC will take all reasonable measures to communicate such events and customer inconveniences to TRAC’s customers. You also accept the unavoidable risks associated with networked computers and agree to TRAC’s methods of dealing with rare interruptions to TRAC’s service. You therefore fully understand the risks associated with leaving an open order hanging in TRAC’s market place for anything more than a day;
b) Due to the nature of the business and associated technology etc, there is a likelihood that there may very occasionally be a disruption to the trading service (due to technical, internet line service, main server issues, etc or other events), and you therefore accept and agree that on these occasions, TRAC will not be liable for any losses, or potential losses which may or may not have occurred as a result of this loss of service at any time. You agree that you will take no action whatsoever in these circumstances with regard to the loss of service and will in no way seek compensation, or redress for any potential, theoretical or estimated losses which may or may not have occurred.
x) Force Majeure:
A Force Majeure is an extraordinary event or circumstance beyond the control of the parties to this Agreement, such as, but not restricted to, a war, strike, riot, crime, or an event described by the legal term “act of God” (e.g., flooding, earthquake, volcanic eruption), prevents one or both parties from fulfilling their obligations under the contract. TRAC is in no way liable for any client loss due to Force Majeure.
xi) Limits of Insurance:
Insurance cover for precious commodities is subject to a number of exclusions that are viewed as uninsurable by the underwriting industry in relation to the protection of your commodity assets. These exclusions cover risks such as, but not excluded to, nuclear war, and TRAC is in no way responsible for these risks. That said, TRAC will always have an unavoidable responsibility to secure client properties in ways that are acceptable to good industry practices.
TRAC does however have a duty of care to its customers and is responsible for the following risks which it seeks to manage to ensure their lowest levels of existence:
i) Commodity theft:
TRAC is responsible for monitoring its vault and storage partners and their security measures and records, whilst also ensuring maintenance of sufficient insurance cover by the storage partner to cover all commodity assets stored by them for TRAC’s customers. TRAC is responsible for any failures of duty here;
ii) Theft of monies from the designated client account:
TRAC has modelled its operations to ensure that transfers out of the designated account have to be approved by two senior officers of the company. However, where TRAC fails in its duty to offer safe custody of client monies, and is seen to be grossly negligent by a court, it can be held liable;
iii) Record Keeping:
TRAC is responsible for ensuring satisfactory company records and accounts so that relevant third parties can audit TRAC as dictated by regulations, and to preserve the on-going integrity of the business and mode of operation;
iv) Company Failure:
TRAC has structured and modelled itself in such a way that in the highly unlikely circumstances that the company should fail, your rights to your commodity assets would not be affected, however, there may be some delays and/or inconvenience in your securing of that property;
v) Failure of TRAC IT infrastructure:
The chances of a catastrophic data loss are extremely low. TRAC backs up its databases to location independent cloud storage facilities to ensure that such data loss is a temporary problem for the company, not a disaster impossible to recover from. TRAC’s clients can also save copies of TRAC’s holdings list with their holding code clearly showing, thus proving their ownership of their commodity assets in extremis.
- Corrections and Errors
a) TRAC is entitled to correct administrative errors after the event, and to make all necessary corrections to your account records;
b) No user of TRAC’s exchange market, including TRAC, has the right to profit from system failure. TRAC’s markets have been designed to eliminate risk to users from their own trading errors, but the system relies on the technology powering TRAC’s market place as well as input from other third parties (eg – pricing information). TRAC cannot be held responsible or liable for failure of external links in the IT infrastructure. You accept this fact and that TRAC is entitled to make discretionary system adjustments after any such failure in TRAC’s pursuit of ensuring a fair, efficient, and well-ordered market;
c) The Customer agrees to check their TRAC account regularly to ensure that their balances and account activity are to the best of their knowledge correct;
d) Where the Customer has reasonable grounds for suspecting that his account has been tampered with, he must immediately contact firstname.lastname@example.org. Said communications to TRAC will be acknowledged within 2 days, and responded to as a matter of urgency by a senior officer of the company;
e) If the Customer does not contact TRAC within 30 days of holding reasonable grounds for suspecting that his account has been tampered with, the Customer accepts and acknowledges that TRAC’s ability to assist with their grievance has been reduced, and their responsibility for investigating and possibly rectifying said grievance is significantly diminished;
f) If the customer does not inform TRAC of any tampering of his account within 30 days of the first occurrence then, whilst TRAC will make its best endeavours to rectify the situation, TRAC will not be liable for any loss or damages whatsoever which may or may not have been suffered by the client.
- Termination and in the event of death
a) TRAC accounts are not designed to be terminated by the client, as it was intended that they could remain dormant for periods of time when the client does not wish to take a new investment position. However, in the rare likelihood that a client desires termination of their account, the TRAC management can take their request into consideration, and if they so choose exercise their discretion and instruct an account termination.
b) In the event of death TRAC has various procedures that TRAC follows which are documented in the FAQs section of the Website. Through these procedures TRAC endeavours to process your TRAC account with the instructions of your legally authorised executors.
- Confidentiality and Privacy
This site contains links to other sites. TRAC is not responsible for the privacy practices or the content of such other web sites;
b) In order to process your application during the extended registration TRAC needs to know your name, e-mail address, postal address, passport number, date of birth, job title, and payment details. TRAC also uses this information to keep you fully appraised about the status of any application;
c) TRAC asks you for your telephone number in case TRAC needs to contact you urgently if there is a problem with your application;
d) If you tell TRAC that you do not want TRAC to use this information as a basis for further contact with you, TRAC will respect your wishes;
e) When you place offers or access your account information you are linked to a secure server. The secure server software (SSL) encrypts all information you input before it is sent to TRAC. Furthermore, as required by data protection legislation, TRAC follows strict security procedures in the storage and disclosure of information which you have given TRAC, to prevent unauthorised access. TRAC’s security procedures mean that TRAC may occasionally request proof of identity before TRAC is able to disclose sensitive information to you. TRAC will make a sincere effort to respond in a timely manner to your request to correct inaccuracies in your personal information. To correct inaccuracies in your personal information please return the message containing the inaccuracies to the sender with details of the correction requested. TRAC does not disclose any personal information that it collects from customers to outside parties. TRAC does not sell, trade or rent your personal information to others. You agree to receive marketing and supplementary information from TRAC or TRAC’s trusted partners, unless you do not give your consent to this by ticking the ‘opt out’ box during registration. TRAC may provide aggregate statistics about TRAC’s customers, sales, traffic patterns and related site information to reputable third-party vendors, but these statistics will include no personally identifying information. Other companies that place advertising on TRAC’s site may collect information about you when you view or click on their advertising content. TRAC does not control their collection of information. You should contact these advertisers or content providers directly if you have any questions about their use of this information. Although TRAC encourage TRAC’s co-branding partners to adopt privacy policies similar to this one, TRAC does not control their information collection and distribution policies;
g) While the Website is not directed towards children, TRAC is committed to comply with applicable laws and requirements with reference to data protection legislation affecting children;
i) Note that the information you enter may be transferred outside the United Kingdom or European Economic Area for the purposes of processing or data back-up, by submitting your application, you consent to this transfer. Your personal information may also be used by TRAC to occasionally notify you about important functionality changes to TRAC’s Web site, new services and special offers TRAC thinks you’ll find valuable.
- Communication to the Customer
a) Email messages are sent as required by the various parts of TRAC’s service, and shall be deemed to have been received by the Customer on the day the email is posted from TRAC’s email servers;
b) The Customer agrees that TRAC may contact him with regard to his TRAC account, and other company related issues, on any of the communication channels offered by the information he bestows upon TRAC during registration;
c) The Customer shall not undertake any activity which limits the ability of TRAC to contact him via these communication channels;
d) The Customer may also contact TRAC by all available communication channels. Starting with TRAC’s customer support service at email@example.com.
- Actions for Dormant Accounts
a) If the Customer fails to access his TRAC account for more than five years, the account shall be judged dormant. TRAC agrees to then try all available channels of communication to contact the Customer, until all channels have been exhausted and no reply from said customer has been received for 60 days. If TRAC is then unable to trace a next of kin, having exhausted all means of communication with the holder of a dormant account, TRAC will then judge any commodity assets held within this account as discarded. This dormant account can then be closed by TRAC, and the discarded assets forfeited and paid to TRAC. TRAC reserves the right to charge administration fees for TRAC’s endeavours to locate the holder, or next of kin, of a dormant account holder;
In the event that any of the provisions of this Agreement are broken or are deemed invalid or unenforceable, all remaining provisions shall remain in effect and thus enforceable.
- Limitation of Liability
a) The below provisions detail TRAC’s full financial liabilities (and liabilities for the acts and omissions of TRAC’s employers, agents, and contractors) to TRAC’s customers in respect of:
i) Any serious breach of the terms of this Agreement; and
ii) Any representation, omission, or tortuous act (including gross negligence) covered by or in connection with the terms of this Agreement.
b) To the greatest extent as is permitted by law, all warranties, conditions, and all other terms implied by either stature or common law, are fully excluded herefrom (section 12 of the Sale of Goods Act 1979 implies certain conditions which are specifically not excluded here).
c) No provision in the terms of this Agreement limits the liability of TRAC:
i) Under section 2(3) of the Consumer Protection Act 1987; or
ii) for death or personal injury caused by the gross negligence of TRAC; or
iii) for matters that TRAC cannot legally exclude its liability from; or
iv) for fraud and misrepresentations deemed fraudulent.
d) Subject to b) and c) above:
i) TRAC’s total liability under contract, misrepresentation, restitution, tort, or otherwise, arising due to non-compliance with the terms of this Agreement shall at all times be limited to the value of your cash and commodity holdings within TRAC; and
ii) TRAC holds no liability whatsoever for customer losses in value, profit, goodwill or otherwise, due to falls in commodity or currency values; and
iii) TRAC holds no liability whatsoever for claims for consequential compensation (however caused) which arise in connection with the terms of this Agreement.
- In event of company liquidation
In the extremely unlikely event that TRAC should cease trading the company would be wound up in an orderly way by an administrator. During this process client assets would be sold for the best available price in the market (unless client owned an specific bar or number of grams enabling a request for delivery according to these deliverable bar sizes and fees), after receiving at least two quotes, and the cash balances returned to the customer, within 90 days of the company ceasing trading. TRAC’s clients’ assets are fully ‘allocated’, meaning that they are 100% their property and cannot appear on TRAC’s balance sheet, and therefore can receive no claim upon them from any potential creditor of TRAC. As such even were TRAC to be wound down, clients’ assets will be protected from company failure by ‘allocated’ ownership.
- Governing Law and Regulation
a) In all cases, the contracting parties to this Agreement shall settle all and any disputes as may arise as set out below. First you will contact TRAC with your problem and TRAC will attempt to try and resolve it immediately. Then, if it cannot be resolved immediately by TRAC, TRAC asks that you then put your grievance in writing and TRAC arranges a local meeting in London between duly authorized officers of the respective parties to try and resolve the issues. In the event of any continued disagreement or dispute arising out of any provision of this Agreement which have not been resolved after 30 days, the parties hereto mutually agree that the matter shall then be submitted to arbitration in accordance with the rules and regulations of the English Arbitration Association and the Chartered Institute of Arbitrators in the UK.
b) The arbitration shall be governed by both the Arbitration Act 1996 and Rules as agreed between the parties. Should the parties be unable to agree on an arbitrator or arbitrators, or be unable to agree on the Rules for Arbitration, any party may, upon giving written notice to other parties, apply to the President or the Deputy President, for the time being, of the Chartered Institute of Arbitrators for the appointment of an Arbitrator or Arbitrators and for any decision on rules that may be necessary.
c) The arbitration proceedings shall take place in the United Kingdom in London within 30 days of the notice of going to arbitration, and judgement upon reward shall be final, binding and conclusive upon all parties, and maybe entered into the court of the forum having jurisdiction over parties hereto. By your execution of this Agreement, you submit to the arbitration process and to the jurisdiction of the United Kingdom, and that the maximum total liability (including all associated costs, penalties etc.) for TRAC will be the cash value of the assets held in the client’s (your) account.
d) TRAC is not regulated by the Financial Conduct Authority (FCA) because it does not deal in or with paper financial instruments, just physical commodities. By offering ownership of these physical commodities, where complex services involving paper based rights and counter-party risk are not involved, the business activity of TRAC fall outside of such financial services regulation.
- Conforming to Laws
a) You acknowledge and accept full responsibility for paying taxes as required by your local authorities, and for seeking expert independent tax advice to understand you full tax implication of using the TRAC service;
b) TRAC in no ways set out of offer professional investment or tax advice, and any tax related representations the company makes are for TRAC’s customers to digest at their own will in full knowledge of this fact;
c) The Customer is responsible for their complete compliance with all the laws of the jurisdiction from which the Customer accesses the Website;
d) The Customer is responsible for ensuring they have the relevant permissions to use the TRAC service and Website;
e) The Customer’s responsibilities under this provision will cease after termination of this Agreement.
a) This Agreement forms the record of agreement between the service provider, in TRAC, and the Customer, in you;
b) The provisions within this Agreement, and none outside this Agreement, shall constitute the terms of this business relationship;
c) Neither party can waive any of the rights or obligations contained here within.