INTRODUCTION

(A) Audensa Financial Limited is authorised by the Financial Conduct Authority (“FCA”) as a payment services institution with registration number FRN 757010. HM Revenue and Customs Certificate of Registration for Money Laundering Regulation, number 12891787.

(B) Audensa Financial Limited is a deliverable foreign exchange provider, providing services for personal or commercial reasons only. Audensa Financial Limited does not and will not provide speculative foreign exchange transactions. The Customer warrants that: (i) all foreign exchange transactions undertaken have a personal or commercial reason; (ii) (in the case of a personal Customer) they are at least 18 years of age; (iii) they have full capacity and authority to enter into any FX Contract; and (iv) it will not be contravening any laws wherever by entering into or by performing a FX Contract.

1. INTERPRETATION

The definitions and rules of interpretation in this clause apply in these Conditions.

1.1 Definitions:

AF: Audensa Financial Limited incorporated and registered in England and Wales with company number 09618078 whose registered office is at 63 St Mary Axe, London EC3A 8AA.

Authorised Person: has the meaning given in clause 4.4.

Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.

Customer: the person named in the Trading Account Opening Form.

Conditions: these terms and conditions as amended from time to time in accordance with clause 13.9.

Close Out: termination of an FX Contract before the agreed date or prior to the settlement of that FX Contract.

Customer Default: has the meaning set out in clause 9.2.

Emporium: AF’s online platform.

FCA: the Financial Conduct Authority.

FX Contract: a contract between the Customer and AF for the provision of Foreign Exchange Services on and subject to these Conditions.

FX Order: the Customer’s order for Foreign Exchange Services.

Foreign Exchange Services: has the meaning given in clause 2.1(a).

Forward FX Contract: an FX Contract for the purchase of a currency for delivery at a future date.

Manifest Error: has the meaning given in clause 5.5.

Margin: a deposit payable in respect of any FX Contract (including but not limited to Forward FX Contracts) for which the Customer is or may be liable to make further payments or deliveries to AF during the life of the FX Contract.

Margin Call: has the meaning given in clause 10.4.

Matching Transaction: has the meaning given in clause 11.3.

Maturity Date: the date upon which a Trade needs to be settled in the financial markets by AF.

Payment Instruction: has the meaning given in clause 7.1.

Payment Services: has the meaning given in clause 2.1(b).

Purchase Currency: the currency being purchased by the Customer from AF.

Sale Currency: the currency being purchased by AF from the Customer.

Segregated Client Account: a bank account held by AF which is a pooled account and may contain funds received from other customers.

Services: the Foreign Exchange Services and the Payment Services.

Settlement Date: the date by which the cleared funds must be received by AF from the Customer in relation to an FX Contract.

Spot Contract: an FX Contract for the purchase of a currency for delivery within [2] days of the FX Contract being formed.

Trade: any transaction authorised by the Customer as part of an FX Contract and carried out by AF.

Trade Confirmation: the written confirmation issued by AF in accordance with clause 5.4.

Trading Account: the Customer’s trading account for the provision of Services by AF in accordance with these Conditions.

Trading Account Opening Form: the form completed by the Client whether in hardcopy or online via Emporium to request that AF opens a Trading Account.

Value Date: the date agreed by AF and the Customer as being the date upon which the Purchase Currency is to be received by the relevant recipient (which may be the Customer or one or more third parties nominated by the Customer).

1.2 Interpretation:

  • A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
  • Any phrase introduced by the terms including, include, in particular or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
  • A reference to writing or written includes fax and email.

2. SERVICES

2.1 AF may in its absolute discretion provide, or continue to provide, the following services to the Customer:

  • the entering into transactions for the sale, purchase and delivery of currency by AF on behalf of the Customer (which may include Spot Contracts or Forward FX Contracts) (“Foreign Exchange Services”); and
  • following execution of an FX Contract, the payment of the Purchase Currency (i) back to the Customer at their nominated account or (ii) onwards to such third party(ies) as is or are nominated by the Customer (“Payment Services”).

2.2 AF will deal as principal not agent for the Customer.

2.3 Under no circumstances will AF provide advice as to the suitability or otherwise of any foreign exchange transaction or the prevailing or future market trends.

2.4 AF may from time to time provide information as to the current market conditions, though any decision to submit an FX Order and/or proceed with an FX Contract is entirely at the Customer’s sole discretion and AF makes no warranty to the accuracy of, and accepts no liability whatsoever in respect of the provision of, any such information.

3. ACCOUNT OPENING AND STATUS OF THESE CONDITIONS

3.1 The Customer must register for a Trading Account before submitting any FX Orders.

3.2 These Conditions become binding on the Customer and on AF upon the Customer completing and returning a Trading Account Opening Form or by registering with AF and accepting these Conditions online (whether via Emporium or other website operated by AF) and the Customer accepts and agrees that these Conditions shall apply to all FX Contracts entered into by the Customer and AF.

3.3 By opening a Trading Account, the Customer authorises AF to accept FX Orders from any of the contact details provided by the Customer on registration.

3.4 AF may at is sole discretion and without giving reasons decline a prospective Customer’s application to open a Trading Account and may at any time and at its sole discretion and without giving reasons close a Trading Account.  Unless prohibited by law, AF shall give notice of the same to the Customer or prospective Customer (as appropriate).

4. INSTRUCTIONS AND COMMUNICATIONS

4.1 All communications from the Customer to AF must, unless otherwise agreed, be made in English.

4.2 The Customer may provide instructions to AF (including FX Orders) via the following means:

  • in person, by visiting the office of AF with a scheduled meeting time;
  • by telephone, by calling AF’s office on +44 203 582 3957 between 8.00am and 6.00pm between Monday and Friday;
  • by email to info@audensa.com, or to the email address of the Customer’s designated relationship manager; or
  • using Emporium, in accordance with the AF Online Terms & Conditions.

4.3 Subject to clause 4.4, AF shall only contact the Customer via the contact details (email, telephone or post) provided by the Customer on registration of its Trading Account or as subsequently notified in writing to AF.

4.4 The Customer may authorise another individual (each an “Authorised Person”) to place FX Orders on its behalf by providing written authorisation to AF (which may be given via Emporium).

4.5 AF is entitled (but not obliged) to act upon any instructions which are, or reasonably appear to be from, the Customer or any of its Authorised Persons.

4.6 It is the Customer’s sole responsibility to notify AF in writing upon the termination of the authority of any Authorised Person or upon any change in the Customer’s contact details.

4.7 For security purposes, AF may at any time and at its sole discretion seek to verify and confirm the accuracy of contact details or instructions received from any Customer by telephone or in writing before acting on such instructions.

5. PLACING FX ORDERS

5.1 The Customer will request the provision of Services by submitting an order (“FX Order”) in accordance with clause 4.1.

5.2 An FX Order constitutes an offer by the Customer to purchase Services in accordance with these Conditions.

5.3 AF will in its absolute discretion decide to accept an FX Order.  Upon acceptance of an FX Order, an FX Contract shall come into existence and shall be binding and irrevocable on the Customer unless otherwise provided in these Conditions.  For the avoidance of doubt, acceptance of an FX Order placed by telephone or in person will be effective during such telephone call or meeting and acceptance of an FX Order placed by email will be effective upon AF sending an acceptance email (which may or may not also constitute the Trade Confirmation).

5.4 Following an FX Contract coming into existence in accordance with clause 5.3, AF shall send a Trade Confirmation to the Customer by email or such other means as is agreed by AF.  The Trade Confirmation shall contain the following information:

  • Customer contact details (as provided by the Customer)
  • AF contact details;
  • FX Contract number;
  • Customer reference;
  • date of the trade;
  • who ordered the trade;
  • the Sale Currency and amount;
  • the Purchase Currency and amount;
  • rate of exchange;
  • the Settlement Date and payment schedule (if appropriate);
  • the amount of any Margin required;
  • the Value Date; and
  • AF bank details and the beneficiary bank details if already provided.

5.5 AF will not be bound by any FX Contract where it is reasonably determined by AF that there is a manifest or obvious misquote of the purchase or sale price of foreign currency quoted to the Customer in the relevant Trade Confirmation (including but not limited to a misquote based on a third party published price upon which AF has relied in respect of an FX Contract, having regard to the market conditions at the time the FX Order was received) (a “Manifest Error”).

5.6 Where an FX Contract provides for AF to buy Purchase Currency at a specified future exchange rate (whether higher or lower than the rate available on the date the FX Contract was made), the Customer irrevocably acknowledges and agrees that:

  • AF shall only be required to use its reasonable endeavours to obtain such rate; and
  • where AF is unable to obtain such rate within the timeframe agreed with the Customer due to prevailing market conditions, AF shall, notwithstanding any other provision of these Conditions, have no liability whatsoever to the Customer in respect thereof.

5.7 The Customer may only amend an FX Contract with the express consent of AF. AF will at its sole discretion attach conditions to any amendments.

6. PAYMENT FOR AND EXECUTION OF FX CONTRACTS

6.1 The Customer must pay for the Purchase Currency on or before the Settlement Date.

6.2 AF shall not accept cash or counter cheques from the Customer in any circumstances. All funds payable by the Customer must be remitted electronically.

6.3 AF shall not accept funds from a third party in any but wholly exceptional circumstances, such circumstances to be determined at the sole discretion of AF.

6.4 If AF does not receive the full payment by electronic funds transfer from the Customer in accordance with clause 6.1, it will advise the Customer as soon as reasonably possible. Where a Trade Confirmation specifies instalments for a Forward FX Contract, the Customer shall ensure that all payments are made to AF in accordance with such instalments.  AF reserves the right to hold and not process any FX Contract until the full balance is received in its account.

6.5 All funds received from the Customer for the purpose of Foreign Exchange Services (“Customer Funds“) shall be held in a Segregated Client Account, pending the settlement of the FX Contract. The Customer shall be the beneficial owner of these funds until such time as AF incurs any losses in connection with or arising out of any of the Customer’s outstanding Orders (including without limit, any Margin requirements AF may have). In the event that AF incurs any such losses, it will become the beneficial owner of that proportion of the Customer Funds held to AF’s losses without notice or demand from AF.

6.6 AF shall not accept payment of funds which are not received for the purpose of payment of sums due in respect of FX Contract.

6.7 AF shall be entitled to receive and retain for its own benefit any interest on any Customer Funds held.

6.8 Upon the Customer complying with its obligations in respect of an FX Contract (including but not limited to ensuring payment in full to AF in accordance with this clause 6) AF shall execute the Trade(s) and buy the Purchase Currency.

7. PAYMENT SERVICES

7.1 The Customer must provide AF with beneficiary account details for the onwards payment of the Purchase Currency (“Payment Instruction”) by the date specified by AF. AF reserves the right to require the Customer to re-confirm the accuracy of any Payment Instruction.  Where such confirmation is requested, AF will not execute the relevant payment until such confirmation is received and the Payment Instruction shall be deemed not to have been received until the required confirmation is provided by the Customer.  For the avoidance of doubt, any such failure does not affect the Customer’s liability under the FX Contract.

7.2 Provided that the Customer has settled all sums due to AF in respect of the FX Contract on or before the applicable Settlement Date, AF shall use its best endeavours to effect the payment in accordance with the Payment Instruction:

  • on the Business Day upon which the Payment Instruction is received by AF; or
  • such later date as is requested by the Customer,

PROVIDED THAT if the Payment Instruction is received by AF outside normal banking hours, it shall be deemed to have been received by AF on the next Business Day and shall be effected on that next Business Day.

7.3 Any Purchase Currency held by AF will be held in a Segregated Client Account.

7.4 AF shall not be responsible to the Customer or any nominated third party payee for any bank charges or other fees imposed by any beneficiary bank, corresponding bank or receiving bank and incurred by the Customer and/or any third party payee nominated by the Customer and shall not be responsible for any delay by the beneficiary bank in making the Purchase Currency available to the Customer or nominated third party following receipt of the same by the beneficiary bank.

7.5 Where the amount of Sale Currency received by AF is less than the amount required due to the deduction of bank charges or other fees by the Customer’s bank or any intermediary bank, AF shall be irrevocably authorised by the Customer to deduct an amount equal to such shortfall (in Sterling at the exchange rate available to AF) from any payment(s) of the Purchase Currency made by AF.

7.6 Where the Customer instructs AF to make multiple payments to third parties in respect of any single FX Contract, AF reserves the right, at its discretion, to deduct any resulting bank charges from the Purchase Currency or increase the amount of Sale Currency required from the Customer, and shall provide details of the same to the Customer.

8. CHARGES

8.1 The Customer acknowledges and understands that because AF deals as principal the exchange rate it offers the Customer will not be the same as the rate AF obtains itself.

8.2 There will be no fee or commission payable by the Customer other than as set out in these Conditions.

9. CUSTOMER’S OBLIGATIONS

9.1 The Customer shall:

  • ensure that the details of all FX Orders are complete and accurate;
  • check all Trade Confirmations and report immediately in writing to AF any discrepancies or errors included on the Trade Confirmations;
  • co-operate with AF in all matters relating to the Services;
  • provide AF with such information and funds as AF may reasonably require (including but not limited to information and/or supporting documentation about source or origin of the Customer’s funds) in order to supply the Services, and ensure that such information is accurate in all material respects;
  • obtain and maintain all necessary licences, permissions and consents which may be required before the date on which the Services are to be performed;
  • inform AF immediately by e-mail (or such other means as is agreed by AF from time to time) of any changes which may affect the Customer’s ability to comply with its obligations to settle any trade; and
  • inform AF of any personal detail changes made by the Customer via Emporium (or such other means as is agreed by AF from time to time). The Customer’s Trading Account will be immediately frozen until the changes have been verified by AF to its satisfaction.

9.2 If AF’s performance of any of its obligations under any FX Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (“Customer Default”):

  • AF shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays the AF’s performance of any of its obligations;
  • AF shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the AF’s failure or delay to perform any of its obligations as set out in this clause 9.2; and
  • the Customer shall reimburse AF on written demand for any costs or losses sustained or incurred by AF arising directly or indirectly from the Customer Default.

10. FORWARD FX CONTRACTS AND MARGINS

10.1 Where an FX Contract constitutes a Forward FX Contract, the Customer shall pay the Margin specified in the Trade Confirmation for such Forward FX Contract.

10.2 Subject to clause 10.3, the Margin will be held by AF as a security deposit against foreign exchange rate fluctuations during the course of the relevant Forward FX Contract and the Customer shall not be entitled to the return of any part of the Margin without the prior consent of AF (which shall not be unreasonably withheld or delayed).

10.3 In certain circumstances, AF will be required to deposit and/or pledge and/or otherwise grant security over some or all of the Margin with one or more of its Trade counterparties (including but not limited to brokers and banks).

10.4 AF reserves the right to call for an immediate additional Margin at any time prior to the Maturity Date (“Margin Call”), as foreign exchange rate fluctuations can occur at any time during the term of the relevant Forward FX Contract.

10.5 The Customer must ensure that it is contactable in the event of a Margin Call. In the event that AF is unable to contact the Customer by the end of the next Business Day following the date of the Margin Call, AF reserves the right to terminate the relevant Forward FX Contract. The Customer is responsible for any loss or liability AF incurs from such termination. AF reserves the right to deduct any loss or liability from the margin deposit held.

10.6 If the Customer is contacted by AF for a Margin Call, the additional Margin must be received into AF’s account within 24 hours (or such longer period as is agreed by AF in its sole discretion) of the Margin Call. Failure to successfully transfer the additional Margin may result in the termination of the relevant Forward FX Contract. The Customer is responsible for any loss or liability incurred by AF as a result of such termination. AF reserves the right to deduct any loss or liability from the Margin held.

11. TERMINATION OF AN FX CONTRACT

11.1 The Customer has no right to terminate an FX Contract without the prior written consent of AF (AF will not unreasonably withhold or delay any such consent), as AF will have already incurred liability and purchased the foreign currency on the Customer’s behalf.

11.2 AF reserves the right to terminate all or any part of an FX Contract at any time without incurring any liability for losses sustained as a result of the termination and without giving notice to the Customer in the following events:

  • if the Customer fails to make payment on or before the agreed Settlement Date;
  • where the Customer is in a material breach of such FX Contract;
  • when AF is unable to contact the Customer by the end of the next Business Day following the date of a Margin Call;
  • when it becomes unlawful for AF to carry out any Trade or where AF is obliged to terminate the FX Contract (or any part thereof) by virtue of any legal or regulatory obligation to which it is subject;
  • if a Customer who is an individual:
    • dies or, in AF’s reasonable suspicion, becomes of unsound mind;
    • is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986; or
    • suspends payment of its debts, makes or takes steps including entering into negotiations with a view to making any moratorium, assignment, composition or similar arrangement with creditors;
  • if:
    • a Customer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business [or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction];
    • a Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or
    • the Customer’s financial position deteriorates to such an extent that in AF’s opinion the Customer’s capability to adequately fulfil its obligations under an FX Contract has been placed in jeopardy; or
  • AF considers it necessary to do so for its own protection including (without limitation) in the following circumstances: (i) protection from fraud or money laundering; (ii) protection from Customer default; (iii) protection from market failure; (iv) protection from adverse or volatile market conditions; and (v) protection from loss by AF.

11.3 In the event of the termination of an FX Contract (whether pursuant to clauses 10.5 or 10.6, or by agreement between AF and the Customer, or otherwise), AF will Close Out any Trades not completed and inform the Customer of any loss or liability AF has incurred. The Customer is responsible for the loss or liability AF incurs and the Customer must pay AF in full for such loss or liability incurred on demand of AF.  [If AF is required in its reasonable opinion to enter into a second currency transaction (a “Matching Transaction”) to close out an open Trade, the Customer shall be liable to pay AF its reasonable costs incurred as well as any losses suffered as a result of any Matching Transaction.]

11.4 In respect of a Forward FX Contract which is terminated, AF reserves the right to use any such sum as may have been provided by the Customer in respect of any Margin (including any further Margin Calls) to settle all or part of the loss or liability or any sum owing from the Customer to AF and AF shall have the right to convert any sums held in currencies other than Sterling into Sterling at the exchange rate then available to it. After settlement of the loss or liability incurred, AF will return to the Customer any such sum as may remain.

12. LIMITATION OF LIABILITY: THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE

12.1 Nothing in these Conditions shall limit or exclude AF’s liability for:

  • death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
  • fraud or fraudulent misrepresentation; or
  • breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession) or any other liability which cannot be limited or excluded by applicable law.

12.2 Subject to clause 12.1:

  • AF shall not be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with any Foreign Exchange Services for:
    • any delay or failure to perform its obligations under these Conditions relating to Foreign Exchange Services or any FX Contract by reason of any cause beyond AF’s reasonable control (including but not limited to any Customer Default);
    • any loss resulting from the determination of Manifest Error by AF;
    • any loss resulting from AF acting on an FX Order which in the reasonable opinion of AF appeared to be from the Customer or one of its Authorised Persons; or
    • any loss of profits, loss of sales or business, loss of agreements or contracts, loss of anticipated savings, loss of damage to goodwill or any indirect or consequential loss; and
  • AF’s total liability to the Customer in respect of all other losses arising under or in connection with any FX Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed an amount equal to the value (in GBP) of the currency sold by AF in respect of that FX Contract as at the relevant date of settlement; and

12.3 The terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from these Conditions.

12.4 The Customer shall, on demand by AF, compensate AF from and against all liabilities, damages, losses and costs (including reasonable legal costs), duties, taxes, charges, commissions or other expenses incurred by AF in the proper performance of Foreign Exchange Services or the enforcement of its rights under these Conditions relating to Foreign Exchange Services and, in particular, but without limitation, against all amounts which AF may certify to be necessary to compensate it for all liabilities, damages, losses and costs (including reasonable legal costs), duties, taxes, charges, commissions or other expenses incurred by AF (including losses and expenses from any action AF takes to seek to cover or reduce its exposure under any FX Contracts) as a result of:

  • the Customer breaching any provision of these Conditions relating to Foreign Exchange Services or any FX Contract;
  • AF acting on a written, oral, telephone, fax or electronic FX Order which reasonably appeared to AF to be from the Customer or one of its Authorised Persons; or
  • AF or the Customer exercising its rights under these Conditions to close out all or any part of any FX Contract before the relevant Maturity Date.

12.5 This clause 12 shall survive termination of any FX Contract.

Payment Services: Unauthorised or incorrectly executed payments

12.6 Under the Payment Services Regulations 2009, the Customer may be entitled to redress for any unauthorised or incorrectly executed payments.

12.7 The Customer must notify AF by telephone or in writing as soon as possible after it becomes aware of any unauthorised or incorrectly executed payments, otherwise AF may not be liable to the Customer.

12.8 The Customer shall be liable for all losses incurred in respect of all unauthorised payments where the Customer has acted fraudulently.

12.9 Where the Customer has informed AF that an executed payment was not authorised by the Customer or an Authorised Person in accordance with these Conditions, AF shall:

  • refund to the Customer the amount of the unauthorised payment; and
  • where applicable, restore the debited payment account to the state it would have been in had the unauthorised payment not taken place,

and AF shall have no further liability to the Customer.

Payment Services: Non-execution or defective execution of payment transactions initiated by Customer

12.10 If AF fails to execute, or incorrectly executes, a payment (unless AF can prove to the Customer and, where relevant, to the relevant beneficiary’s payment service provider, that such payment service provider received the amount of the payment transaction), AF will refund to the Customer the amount of the non-executed or defective payment transaction and, where applicable, restore the debited payment Trading Account to the state in which it would have been had the defective payment transaction not taken place.   In addition, AF shall also refund to the Customer the following:

  • any direct charges for which the Customer is responsible; and
  • any interest which the Customer must pay,

as a consequence of the non-execution or defective execution of the payment transaction. AF shall have no further liability to the Customer.

12.11 AF must, on request, make immediate efforts to trace the payment transaction and notify the Customer of the outcome.

13. GENERAL

13.1 Payment Services Regulations 2009 (“Regulations”). Once an FX Contract has completed, AF may not retain the proceeds unduly and must send the Purchase Currency in accordance with the Payment Instructions unless it would be unlawful to do so. Money transfers are governed by the Regulations where the destination of funds and the recipient of those funds is located within the EEA and where the funds are in a currency of an EEA state.

13.2 The Customer is under the following obligations to assist AF with complying with the Money Laundering Regulations 2007:

  • the Customer shall provide AF with sufficient information to enable it to satisfy itself as to the Customer’s identity and the source of funds used by the Customer. Such information includes, but is not limited to, electronic identification and/or copies of photographic identification and copies of proof of address; and
  • the Customer warrants that it is not acting on behalf of, or carrying out transactions on behalf of a third party and that all Customer Funds provided for the Foreign Exchange Services legally belong to the Customer.

AF confidentially verifies most Customer identities using third party identity verification services and the Customer expressly consents to such verification.

13.3 Recording Telephone Calls. All telephone conversations may be recorded by AF without the use of a warning tone or message and may be used to resolve any disputes.

13.4 Force majeure. AF shall not be in breach of these Conditions or any FX Contract nor liable for delay in performing, or failure to perform, any of its obligations under these Conditions or any FX Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.

13.5 Assignment and other dealings.

  • AF may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights under any FX Contract and may contract or delegate in any manner any or all of its obligations under any FX Contract to any third party or agent.
  • The Customer shall not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under any FX Contract.

13.6 Confidentiality.

  • Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 13.6(b) or clause 13.8.
  • Each party may disclose the other party’s confidential information:
    • to its employees, officers, representatives, sub-contractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under these Conditions and/or an FX Contract. Each party shall ensure that its employees, officers, representatives, sub-contractorsor advisers to whom it discloses the other party’s confidential information comply with this clause 13.6; and
    • as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
  • Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under these Conditions and/or an FX Contract.

13.7 Data Protection

  • AF will be using personal information (within the meaning of the Data Protection Act 1998) provided by the Customer in order to deliver the Services to the Customer.
  • The Customer consents to the disclosure by AF of such information where AF is required to by law, to the FCA, to other regulatory authorities upon their reasonable request and to such third parties as AF deems reasonably necessary in order to prevent crime and to any such other third parties in respect of which the Customer otherwise consents.

13.8 Disclosure of certain information to Intermediaries. Where the Customer has been introduced or referred to AF by a third party or intermediary, AF may be required to disclose to such third party or intermediary certain information (which may include but not be limited to the Customer’s name, address and other personal information) relating to any relevant FX Contracts in order to facilitate the calculation of commission and other payments due from AF to such third party or intermediary.  By entering into an FX Contract the Customer consents to such disclosures.  Further information regarding these disclosure obligations is available from AF’s Compliance Team which can be contacted on +44 203 582 3957 or by email at info@audensa.com.

13.9 Variation of FX Contract. No variation of an FX Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

13.10 Amendment of these Conditions: AF may from time to time amend these Conditions by giving not less than two months’ written notice to the Customer describing the relevant amendments.  Any such amendment shall be effective on the date specified in the notice and shall be binding on and apply to all FX Contracts entered into after such date.

13.11 Waiver. A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not:

  • waive that or any other right or remedy; or
  • prevent or restrict the further exercise of that or any other right or remedy.

13.12 Severance. If any provision or part-provision of these Conditions or an FX Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of these Conditions or relevant FX Contract.

13.13 Notices.

  • Any notice or other communication given to a party under or in connection with these Conditions and/or any FX Contract shall be in writing, addressed to that party at its registered office or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, or sent by pre-paid first class post or other next working day delivery service, commercial courier, fax or email.
  • A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 13.13(a); if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by fax or email, one Business Day after transmission.
  • The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.

13.14 Third parties. No one other than a party to these Conditions or an FX Contract shall have any right to enforce any of its or their terms.

13.15 Governing law. These Conditions and each FX Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with their subject matter or formation shall be governed by, and construed in accordance with the law of England and Wales.

13.16 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with these Conditions or an FX Contract its or their subject matter or formation.

13.17 Complaints. In the unlikely event the Customer is dissatisfied with the Services, the Customer may inform AF of the complaint either verbally or in writing in accordance with AF’s complaints procedure, a copy of which is available upon request and will be sent to the Customer in the event that they make a complaint. Where the initial complaint is verbal it must be followed up immediately with a written complaint. All complaints should be addressed to the ‘Head of Compliance’ at AF’s registered office or via email to info@audensa.com. AF will send written acknowledgement of the Customer’s complaint within 5 working days. If a complaint relates to Payment Services and the Customer is dissatisfied with AF’s final response, the Customer may be entitled to refer the matter to the Financial Ombudsman Service.

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