FOREIGN EXCHANGE AGREEMENT
TERMS AND CONDITIONS
1.1 The terms and conditions set out in this document and the application form completed as part of the account opening process, together with any supplementary terms which may be provided from time to time, and the particulars of any Confirmation, constitute your agreement with us (the “Agreement”) for the foreign exchange and related services provided by Associated Foreign Exchange, Inc. (“AFEX”).
1.2 These terms and conditions (“Terms”) apply to all transactions and matters involving AFEX and your company (“Client”), regarding foreign exchange and related services. Client’s use or continued use of the Services constitutes Client’s acceptance of, and a contractual agreement to be bound by these Terms. These Terms supersede all prior written or verbal agreements. These Terms may be supplemented, amended or superseded by AFEX (i) from time to time in AFEX’s sole discretion upon written notice to you or (ii) with immediate effect to the extent required under applicable law.
1.3 Associated Foreign Exchange, Inc., a California Corporation located at Warner Center, 21045 Califa Street, Woodland Hills, California 91367, is licensed and regulated as a Money Transmitter by several State Regulatory Agencies, and is registered as a Money Services Business (MSB) with the Financial Crimes Enforcement Network (FinCEN), a bureau of the United States
Department of the Treasury Financial.
1.4 You may request a further copy of the Agreement or these terms and conditions at any time during the term of the Agreement. This Agreement and all communications between us under the Agreement shall be in English.
2.1 “Account” means a single account held by AFEX for the Clients’ funds.
2.2 “Account Application” means AFEX’s Business Account Application and the Foreign Exchange Agreement.
2.3 “Additional Partial Prepayment” (Margin Call) means an additional security payment required by AFEX in connection with a Forward Contract or Option Contract. The amount of such payment shall be determined solely by AFEX and shall be based on the actual adverse foreign currency fluctuation relative to Client’s original Forward Contract or Option Contract purchase price, or an adverse change in Client’s financial standing and/or credit worthiness.
2.4 “Additional Partial Prepayment Notice” means any notice by AFEX to the Client that an Additional Partial Prepayment Amount is payable.
2.5 “AFEX”, “we”, “us”, and “our” means Associated Foreign Exchange, Inc., any related Body Corporate of AFEX, including AFEX’s ultimate holding company and all subsidiaries of that parent entity.
2.6 “Authorized User” means any natural person listed as an Authorized Trader on the Account Application.
2.7 “Balance Due” means the amount of funds sold to AFEX by the Client less any Partial Prepayment already paid.
2.8 “Balance Due Date” means the date on which payment must be received by AFEX. The Balance Due Date must be a Business Day.
2.9 “Beneficiary” means the Client or any payee so designated by the Client.
2.10 “Blocked Person” means any person, entity or government agency of a Sanctioned Country with which AFEX is, or is likely to be, prohibited from dealing or otherwise engaging in any transaction by any Anti-Money Laundering Laws or with whom AFEX believes it is prohibited from conducting transactions by virtue of government- issued sanctions presently in force or created at a future date.
2.11 “Business Day” means a day on which banks are open for general banking business in all jurisdictions involved in the Trade Order, including both countries of the currencies involved in the Trade Order.
2.12 “Client” means the party entering into this Agreement with AFEX.
2.13 “Contract Date” means the date on which the Client and AFEX entered into a Trade Order.
2.14 “Confirmation” means a) the Trade Confirmation sent by AFEX to the Client setting out details of the Trade Order and b) the payment confirmation sent by AFEX to Client setting out the details of the Delivery Instructions.
2.15 “Delivery Date” means the date on which funds are available for disposition upon receipt of the Client’s Beneficiary payment instructions, provided the Client has fully paid for the purchased funds and complied with this Agreement. The Delivery Date must be a Business Day.
2.16 “Delivery Instructions” means the identifying information, including but not limited to the bank account number and bank identifying number, by which AFEX will deliver Client’s funds to Beneficiary.
2.17 “Draft” means a check or other negotiable instrument made out in a specified single currency.
2.18 “Exotic Currency” means a currency with little liquidity and limited dealing, which is neither a major nor a minor currency. Exotic currencies are typically issued by an emerging market country. “Facility” means any trading lines, settlement line or foreign currency exposure limit that AFEX has granted to Client.
2.19 “Foreign Currency” means any currency other than United State Dollars (USD).
2.20 “Forward Contract” means a binding Agreement wherein the Client agrees, that on a specific date or range of dates in the future, the Client will purchase a specific amount of funds in one currency from AFEX and also agrees to sell a specific amount of funds in another currency to AFEX.
2.21 “Insolvent” means that an entity is insolvent or otherwise unable to pay its debts as they become due, or upon the filing of any proceeding(whether voluntary or involuntary) for bankruptcy, insolvency or relief from creditors.
2.22 “Interest Rate” means two percent (2%) over the prime rate of interest then in effect, or that rate of interest publicly announced as the base rate on corporate loans by large U.S. Money Center Commercial Banks, as published in the Wall
Street Journal. The daily Interest Rate shall be the Interest Rate divided by three hundred and sixty five (365).
2.23 “Loss” or “Losses” mean any and all market losses associated with movements in the foreign exchange rates, damages, costs, liabilities, claims, judgments, penalties, fines, expenses (including reasonable attorneys’ and accountants’ fees and
expenses), costs of investigation, amounts paid in settlement, court costs and other expenses of litigation.
2.24 “Online System” means any electronic system or interface, such as AFEXDirect, provided by AFEX to its Clients for the purpose of placing Trade Orders and payment management. AFEX may revise the Online System at any time or change its
domain, without prior notice and without Client’s consent.
2.25 “Option Contract” means a contract that gives the holder the right, but not the obligation, to engage in a foreign exchange transaction at a specified amount at a nominated foreign exchange rate on a nominated future date.
2.26 “Partial Prepayment” means security, expressed as a percentage of the funds sold to AFEX or an absolute value. Partial Prepayment may be required by AFEX as a condition of the Trade Order. Subject to Force Majeure, Partial Prepayments are non-refundable until maturity of the Trade Order.
2.27 “Parties” mean Client and AFEX.
2.28 “Payment” means good cleared funds received by AFEX from, or on behalf of, the Client.
2.29 “Premium Amount” means an amount, expressed as a percentage of the funds to be purchased from or sold to AFEX or an absolute value, payable by the Client to AFEX for an Option Contract. Premium Amounts may be required by AFEX,
in its sole discretion, as a condition of a Trade Order for an Option Contract. Premium Amounts are non-refundable and payable regardless of whether the Client exercises the option.
2.30 “Services” means AFEX’s provision of various foreign exchange and related services, including without limitation buying and selling of foreign currencies and making or receiving of cross-border payments, purchase and sale of wires and bank drafts in foreign currency and forward contracts.
2.31 “Settlement” means the total amount, including the cost of currency acquisition as well as any fees and charges (excluding any fees and charges set forth in any Addendum, if applicable), the Client owes to AFEX, less any Partial Prepayment or Additional Partial Prepayment Amount payment made and held by AFEX.
2.32 “Trade Order” means an order placed with AFEX via telephone, facsimile or electronic mail, or any other mutually agreeable means by which trades are communicated between the Client and AFEX.
2.33 “User” means any Authorized Party authorized by Client to use the Online System.
2.34 “Value Dating Policy” means AFEX’s policy governing which exchange rate date will apply, and is subject to change from time to time.
3. ACCOUNT OPENING PROCESS
3.1 Account Opening Process. All Clients must have a fully completed and approved application and other necessary account setup documentation on file with AFEX, including a list of designated persons authorized to initiate valid and legally
binding funds transfer orders and other orders and instructions (including cancellations and amendments) (collectively, “Transactions”) on Client’s behalf. If Client will be placing transactions online, Client must also provide specimen signatures and oral, written and/or electronic passwords to be used to authenticate Orders. Client is responsible for safeguarding
these passwords and agrees to be responsible for any and all use of such passwords. AFEX may in its sole discretion request additional account setup documents or information at any time, or approve, reject or terminate Client relationships,
or suspend or cancel Services.
4. CONDUCTING BUSINESS WITH AFEX
4.1 Provision of Services. As described in Section 1 above, where any of the Services involve the conversion of amounts from one currency into another currency, including Forward Contracts. AFEX will provide such part or parts of the Services as involves currency conversion and remittance as principal.
4.2 Reliance on Instruction. Client hereby authorizes AFEX to accept, act and rely upon any Instruction that AFEX reasonably believes to have been made by Client to provide the Services set forth in the Instruction from Client.
4.3 Trade Orders. By Placing a Trade Order with AFEX, Client agrees to the terms and conditions set forth in this Agreement and reaffirms Client’s representations in Section 17 below and the accuracy of the information in the Client’s Account Application. Upon receipt of a Trade Order submitted in accordance with AFEX’s Trade Order process, AFEX will issue a Confirmation to the Client confirming the Trade Order as stated in the Confirmation. Client acknowledges that Client
is solely responsible for the accuracy of the Trade Order and agrees to keep copies of any Trade Orders transmitted to AFEX. Client assumes all risks if the Trade Order is altered during its transmission, and agrees to carefully review the Confirmation. Subject to this Agreement, AFEX is under no obligation to provide any Service unless a Confirmation has been delivered to the Client.
4.4 Trade Confirmations. Client agrees to promptly notify AFEX if Client does not receive a Confirmation for its Trade Order or Delivery Instructions. Client agrees that in order to perform transactions for Client, AFEX must assume that Client’s Instructions are those that appear on the Confirmation and therefore Client will meet its related financial obligations unless AFEX is informed by Client of the error or discrepancy prior to the execution of the Trade Order or release of payment according to Delivery Instruction.
4.5 Assignment of Interest. Client understands that no interest will be paid to Client by AFEX with respect to any funds held on behalf of Client (i.e., funds awaiting Instruction, funds maintained in a Holding Balance, Partial Prepayment’s or Additional Partial Prepayments, etc.).
4.6 Means of Processing Orders. AFEX and its correspondent banks may use whatever intermediary banks, payments systems or methods AFEX deems commercially reasonable and appropriate for each Order. Client agrees to be bound by applicable law, regulations, clearing house rules or other rules or procedures of any funds transfer or communications system that is
used in the transaction, including, but not limited to the Uniform Commercial Code and Federal Reserve, CHIPS and SWIFT rules, regulations and operating procedures. Client agrees that it may be necessary for AFEX to use one or more intermediary or correspondent banks or banking networks to complete each Order. While AFEX will make every reasonable effort in good faith to insure the rapid completion of each Order, AFEX is not responsible for the speed and timing of funds processing by other banks or systems beyond the control of AFEX. AFEX is not responsible for any fees that may be deducted by any intermediary or correspondent bank or by the beneficiary’s bank in association with any Order or returned Order.
4.7 Transmission and Acceptance of Orders. When placing Orders, Client will provide AFEX with all information AFEX may require via authorized electronic and non-electronic processes. Client agrees that AFEX may rely on such information
provided in processing such Orders. Client agrees that any error in such information, including, but not limited to, incorrect beneficiary account number or name, beneficiary bank name, or other account, IBAN or routing or transit numbers are
the Client’s sole responsibility and liability. AFEX may reject any Order if (i) AFEX determines, in good faith and in its sole discretion, that such Order is not authentic, (ii) AFEX does not receive sufficient funds from the Client to cover such Order by the AFEX operational deadline, or (iii) the Order is incorrect, incomplete or unsatisfactory to AFEX for any reason. All aspects of Orders (whether transmitted by Internet or otherwise), including, but not limited to, rates and fees, are subject to final approval and confirmation by AFEX. From time to time, AFEX may require Client to provide to AFEX additional information
on its payment beneficiaries, purpose of payment, and payment volume so as to conform to AFEX’s compliance and “Know Your Customer” policies.
4.8 OFAC Screening. All Orders must be screened for compliance with U.S. Office of Foreign Assets Control (“OFAC”) regulations and other foreign regulations where AFEX or its affiliates conduct business. Should any party to an Order be or
appear to be a sanctioned person or entity under OFAC regulations, AFEX may be required by law to block related funds or to reject the Order. AFEX shall not be responsible for applying to OFAC for a license to release any blocked funds or to complete any prohibited Order.
5. EXCHANGE RATES AND FOREIGN EXCHANGE
5.1 Exchange Rates and Foreign Exchange. AFEX will perform foreign exchange on behalf of the Client at exchange rates confirmed with the Client. AFEX will execute Client’s Orders in the currency requested by the Client. At the Client’s option, AFEX may provide daily multi-currency fixed exchange rates at fixed rates advised by AFEX to the Client. AFEX, in its sole discretion, shall determine the fixed exchange rates applicable for a given business day at the beginning of such business day; AFEX reserves the right, at any time and without prior notice, to amend such rates at its own discretion, and in such case AFEX will make reasonable efforts to communicate such amended rate to the Client.
6. FOREIGN EXCHANGE FORWARD AND OPTION CONTRACTS
6.1 Authorization. The Client hereby authorizes AFEX to enter into Forward and Option Contracts based on Trade Orders from the Client in accordance with the terms and conditions of this Agreement. AFEX will provide the Client a Confirmation stating the details of the particular transaction. The Client acknowledges that each Forward and Option Contract is governed by and subject to the terms and conditions of this Agreement and, upon acceptance by AFEX orally or in writing, that each constitutes a binding contract. Forward and Option Contracts may not be cancelled by the Client once the Trade Order is placed with AFEX.
6.2 Regulatory Reporting. The Client acknowledges that AFEX will be relying on the information the Client provided above in order to comply with AFEX’s requirements under the Dodd-Frank Act. The Client authorizes AFEX to report all information about a Forward or Option Contract entered into by the Client that is required to be reported to a swap data repository. Furthermore, Client agrees to notify AFEX promptly in writing of any changes regarding the information provided above (and, in any case, before entering into any Forward Contracts following such change).
6.3 Partial Prepayment for Contracts. Within 24 hours of a Client’s Instruction to enter into a Forward or Option Contract, unless otherwise agreed in writing or in a Trade Order, AFEX must receive the Partial Prepayment from the Client. Should
the Client fail to pay the Partial Prepayment within the required time, AFEX may in its sole discretion cancel the Forward or Option Contract with immediate effect, or complete the transaction. In such circumstances, the Client will be liable to
AFEX for any Losses.
6.4 Additional Partial Prepayment. AFEX may, unless otherwise agreed in writing or in a Trade Order, in its sole discretion request from the Client one or more Additional Partial Prepayment Amounts. The Client agrees to provide the Additional Partial Prepayment Amounts to AFEX within 24 hours of AFEX issuing any Additional Partial Prepayment Notice. Should the Client fail to pay any Additional Partial Prepayment Amounts as specified within the Additional Partial Prepayment Notice within the required time, AFEX may in its sole discretion cancel the Forward or Option Contract with immediate effect, or complete the transaction. In such circumstances, the Client will be liable to AFEX for any Losses.
6.5 Premium Amounts. Upon placing a Trade Order for an Option Contract, AFEX may require, in its sole discretion, the Client to pay to AFEX a Premium Amount. Should the Client fail to pay any Premium Amount within twenty-four (24) hours of AFEX’s demand (or as otherwise specified by AFEX), AFEX may cancel the Option Contract with immediate effect, or complete the transaction at AFEX’s sole discretion. In such circumstances, the Client will be liable to AFEX for any Losses.
6.6 Risks Involved. The Client acknowledges that the foreign currency market is volatile. Client expressly accepts the risk that if the currency of the purchased funds weaken or strengthen during the period covered by the Forward Contract and is weaker/stronger on the Delivery Date, as applicable, the value of the amount of currency which the Client agreed to sell to AFEX may be less favorable than the current price for the purchased currency. Client further expressly accepts the risk that fluctuations in the currency market might result in any Option Contract having a reduced value, or even no value, at the time of the maturity of the Option Contract.
6.7 Settlement Using Partial Prepayment. In the event of default in any payment by the Client, AFEX may satisfy any Losses, out of any Partial Prepayment or Additional Partial Prepayment Amount(s) or any other Payment held by AFEX on the Client’s behalf, or pursuant to any other obligations AFEX has to the Client, without prior notification to the Client. In the event Partial
Prepayment is insufficient, the Client shall remain liable to AFEX for the remaining amount payable under Settlement and will promptly pay on demand the amount of any Losses. If Settlement is paid to AFEX electronically, the Client agrees that Settlement shall not be recalled by the Client without AFEX’s prior written consent.
6.8 Assignment of Interest. The Client understands that no interest will be paid to the Client by AFEX with respect to any funds held on behalf of the Client. In consideration for the Client’s use of the Services, the Client irrevocably transfers and
assigns to AFEX or any of its related entities, as the case may be, any ownership right that the Client may claim to have in any interest that may accrue with respect to any funds held on behalf of the Client. For avoidance of doubt, such assignment extends only to any interest earned on any such funds.
6.9 Not Futures Transactions. The Client is aware that Forward or Option Contracts purchased are over- the-counter contracts and are not tradable on or guaranteed by, any licensed exchange or market.
6.10 Legal Entity Identifier. Client shall obtain and maintain, at Client’s own expense, a Legal Entity Identifier (“LEI”) and shall provide such Legal Entity Identifier to AFEX. The Client acknowledges that the Client’s Legal Entity Identifier may be provided by AFEX to the or to Depository Trust & Clearing Corporation (DTCC), a Swap Data Repository. The Client understands that AFEX will have no ability to ensure whether DTCC or any Swap Data Repository maintains the Client’s Legal Entity Identifier on a confidential basis and Client does hereby indemnify and save harmless AFEX from any disclosure of Client’s Legal Entity
Identifier by the DTCC, any Swap Data Repository or any party acting on their behalf.
7. TRANSACTIONS INVOLVING EXOTIC CURRENCIES
7.1 Exotic Currency Trading. AFEX may perform foreign exchange transactions involving exotic currencies on behalf of the Client prior to the execution of the Trade Order.
7.2 Risks Involved. Client acknowledges that exposure to exotic currencies carries a substantial risk of loss. Exotic currencies are defined by limited market liquidity and tend to not be backed by secure financial and political structures. These factors make them prone to significant and unpredictable market fluctuations.
7.3 Settlement. Due to the risk these transactions may represent to AFEX, AFEX must receive payment for any exotic currency transaction one day prior to the value date as stated on the trade confirmation. If payment is not received by AFEX one day prior to the value date, AFEX may sell the funds back to the market, which may represent a significant loss to the Client.
7.4 Delivery. Client acknowledges that it is the Client’s responsibility to provide AFEX with the correct and complete delivery instructions prior to the execution of the Trade Order. The Client may execute the Trade Order only upon approval by AFEX of the delivery instructions, including the Beneficiary’s bank information.
8. INCOMING FOREIGN CURRENCY TRANSACTION
8.1 From time to time, we may agree to purchase from you foreign currency in the form of an incoming draft (from a third party) or remittance payable to you.
8.2 We reserve the right to withhold payments for incoming drafts or remittances until we, in our sole discretion, are satisfied that cleared funds have been actually and irrevocably received by us. Subject to this, payments received prior to 1:00 PM Pacific Time on a Business Day will normally be released to you on that Business Day. Payments received after 1:00 PM Pacific Time on a Business Day will normally be released to you on the next Business Day. If you have not given us advance notice of an incoming remittance or the payment details are otherwise incomplete, and we have not otherwise agreed to the applicable currency conversion rate, this process could take longer.
8.3 In the event of any incoming draft or remittance sold by you to AFEX which is subsequently returned or recalled, you irrevocably agree to indemnify us in respect of such amount, together with any costs or expenses incurred by us,
including any foreign exchange losses or charges, in handling the returned or recalled item and you authorize us to recover such amounts by direct debit from your Designated Account.
8.4 Unless otherwise agreed, payments we make to you in respect of incoming foreign currency drafts and remittances will be made in United States Dollars to your Designated Account.
9.1 Lost Drafts. In the event a draft issued by AFEX is not received by the Beneficiary for any reason, Client agrees to notify AFEX as soon as Client becomes so aware. Upon notification to AFEX of the Beneficiary’s non-receipt, AFEX will use reasonable efforts to place a stop payment on the draft as soon as practicable. Client agrees to indemnify and hold AFEX harmless from and against any and all Losses incurred as a result of the stop payment. If AFEX determines that the draft has been cashed, AFEX shall be under no obligation to issue a refund or replacement draft. If AFEX determines that the draft has not been cashed and a stop payment has been placed on such draft, AFEX may issue a refund at an appropriate rate or issue a replacement draft. In such event, Client agrees to take all reasonable steps to ensure no attempt is made to cash the original draft and such draft is returned to AFEX. If Client recovers such draft, Client shall hold it in trust for AFEX. If a replacement draft is issued and the original draft was nonetheless cashed, AFEX may place a stop payment on any replacement draft and seek immediate reimbursement from Client, whether or not AFEX is able to be reimbursed by the paying bank.
9.2 Purchase of Foreign Currency Drafts. AFEX may agree in writing to purchase and exchange into US Dollars, or a Foreign Currency, a draft issued in favor of Client as the Beneficiary. In connection with such a Trade Order, Client will present an
original of such draft to AFEX so that AFEX may determine its validity. Any draft deemed invalid will be returned to Client as soon as reasonably practicable. In the event that AFEX agrees to purchase such a draft, Client agrees to endorse the draft to AFEX as instructed by AFEX and have an Authorized Party sign the endorsed draft. Any payments made by AFEX in connection with such a draft will be made in accordance with AFEX’s Value Dating Policy. In the event AFEX is unable to negotiate the draft, whether such draft is not genuine, returned as NSF, destroyed during negotiation, or otherwise, Client will immediate reimburse AFEX for any funds paid in connection with the transaction and indemnify and hold AFEX harmless for any Losses in connection therewith.
10. CROSS-CURRENCY TRANSACTIONS
10.1 From time to time, we may agree to purchase from you foreign currency in the form of a remittance payable to you in settlement (in whole or part) of an outgoing foreign currency draft or remittance.
11. CANCELLATION, AMENDMENT AND RECALL OF ORDERS
11.1 No Cancellation by Client. Once a Trade Order has been placed with AFEX, a Trade Order may not be cancelled by Client without written approval from AFEX, whether such Trade Order was placed via telephone, facsimile, electronic mail, AFEXDirect or otherwise.
11.2 Suspension or Trade Order Cancellation. AFEX may reject, suspend, disregard or cancel a Trade Order, or refuse to issue a Confirmation for a Trade Order, if AFEX believes, in its sole discretion, that; (a) the Trade Order is unclear; (b) the Trade Order requires any action by AFEX on a non-Business day; (c) the Trade Order was not authorized by an Authorized User; (d)
consummation of the Trade Order would require AFEX to exceed the Facility granted to Client; (e) Client is in default of this Agreement; (f) performance of the Services would be unlawful or contravene the requirements of any government or regulatory authority; (g) Client is Insolvent; or (h) AFEX cannot reasonably provide the Services for reasons beyond AFEX’s reasonable control. Client agrees to indemnify, defend and hold harmless AFEX from any Losses in connection
with any Trade Order(s) that are defective for any of the foregoing reasons.
11.3 If a remittance transaction has been processed in accordance with incorrect payment instructions, at your request we will make reasonable efforts to recover the funds involved.
11.4 In the event AFEX seeks to revoke, cancel, recall or amend a Trade Order at your request, you agree to be responsible for costs involved in reversing, recalling, amending or cancelling the Trade Order (or seeking to reverse, amend or cancel a
transaction), including: a) our fees and charges; b) any applicable fees or charges imposed by third parties; or c) exchange rate differences.
12. ERRORS AND DISCREPANCIES
12.1 Client must promptly review each confirmation, advice or transaction history sent by AFEX and will promptly notify AFEX of any error, discrepancy or irregularity (including any unauthorized Trade Order), not to exceed sixty (60) calendar days
after such confirmation, advice or transaction is sent or made available. Client may not assert any claim against AFEX in connection with any errors, discrepancies or irregularities if (i) Client did not exercise reasonable care in examining
such communication which reflected such errors, discrepancies or irregularities, or (ii) Client did not notify AFEX in writing and in a reasonably prompt manner, not to exceed sixty (60) calendar days after such communication is sent or made
available, that Client disputes any information thereon or missing therefrom. Client shall provide AFEX with all information necessary for AFEX to investigate the error, discrepancy or irregularity. Client may not institute any legal proceeding
against AFEX for any such claim unless (a) written notice has been given in the manner as provided herein, and (b) such legal proceeding shall be commenced within six (6) months.
13.1 Payment of Balance Due. Client shall pay all amounts due to AFEX on the Balance Due Date. AFEX may refuse to deliver any funds to Beneficiary unless and until full Payment, in the form of good cleared funds, from the Client has been received by AFEX. Delivery of the funds purchased from AFEX will be made by AFEX upon the receipt of Payment of the Balance
Due and the Client hereby accepts AFEX’s standing authority to deliver funds upon receipt of such Payment. Failure by the Client to make final Payment in full by the Delivery Date will result in Client’s liability as set forth in Section
13.2, including without limitation interest on the Balance Due, calculated at the Interest Rate. AFEX reserves the right to deduct said interest from the purchased funds and any funds in Client’s Account.
13.2 Non-payment. If the client fails to make payment for the transaction when required, AFEX may cancel the Trade Order or proceed with the transaction and take any and all steps necessary to recover the balance due. Client indemnifies and holds AFEX harmless from any and all Losses incurred by AFEX as a result of Client’s failure to pay the amount due, with daily interest accruing at the Interest Rate on all unpaid amounts.
13.3 Right of Offset. AFEX may satisfy or partially offset any liability that may arise against any collateral AFEX holds for the Client, or any obligation AFEX has to the Client, without prior notice to the Client. In the event such collateral is insufficient, the Client will remain liable to AFEX and will promptly pay on demand the amount of any Losses suffered by AFEX or its affiliates.
13.4 Payment Instructions. Provided that Client has fully paid for the funds purchased from AFEX and complied with this Agreement, AFEX will hold those funds until AFEX’s receipt of disposition instructions from the Client. The Client may
initiate payments from the Account by providing instructions to AFEX. At its discretion, AFEX may require signed written instructions.
14. ONLINE SYSTEM
14.1 Use of Online System. In order to use the Online System, Client will be required to create an electronic account and agrees to provide AFEX with a written list of Users, or those Authorized Users that Client would like to access and use
AFEXDirect on Client’s behalf. Upon AFEX’s approval of such Users, AFEX grants such users a non-exclusive, non-transferable license to use AFEXDirect for the sole purpose of accessing the Services. Users may have full or limited access to
the Online System, in AFEX’s sole discretion. If Client desires for AFEX to terminate one of its User’s access to AFEXDirect, Client agrees to issue such request in writing, to be confirmed by AFEX in writing. Without limiting this Section 14, until such time as AFEX confirms such User’s access has been terminated, such User may remain authorized and Client will remain
responsible for any transactions placed and other activity by such User.
14.2 Access. AFEX will provide each User with a username and temporary password to access the Online System. It is the sole responsibility of Client and the User to safeguard the security of the User’s password, and the Client and User agree that User will change the temporary password to a unique password promptly upon issuance, and periodically change User’s password thereafter to ensure security. The Client agrees that its Users will not use the account of another person without permission and will provide accurate and complete information to AFEX in all circumstances. Client and the User expressly acknowledge and agree that such use is made in accordance with this Agreement and any additional user agreement or manual provided by AFEX, including maintaining any minimum operating and Internet browser requirements. AFEX may suspend, limit or
terminate a User’s access or Client’s access to the Online System, without notice, at any time for any reason whatsoever, including without limitation violation of this Agreement or any reason set forth in Section 17.
14.3 Client’s Responsibility for Use of Online System. The Client and User are solely responsible for any and all activity on Client’s Account, and each agrees to notify AFEX immediately upon becoming aware of any unauthorized use of Client’s Account. AFEX will have no responsibility for any Losses incurred by reason of any use, whether authorized or unauthorized, and Client agrees to hold AFEX harmless from any expenses or Losses AFEX may incur by reason of the use of Client’s Account. Client agrees that its Users, employees, agents, or affiliates will not (a) attempt to collect or harvest any personally identifiable information, including account names of other Clients; (b) solicit additional users of the Online Service; (c) use
the Online Service to communicate with other users or for any commercial purpose; or (d) use the Online Service in any way that may damage, disable, overburden, or impair AFEX’s servers or networks, or interfere with any other Client’s use and enjoyment of the Online Service. Client will not try to gain unauthorized access to any services, user accounts, computer systems or networks, through hacking, password mining or any other means.
14.4 Exchange Rate. Once a User approves a Trade Order, either by clicking “Yes” or otherwise, Client shall be deemed responsible for such Trade Order as if Client had placed the Trade Order. The exchange rate visible on the computer screen at
the time the User places the Trade Order will be the exchange rate applicable to Client’s Trade Order. Once placed, a Trade Order may not be canceled by Client without written approval from AFEX.
14.5 Electronic Communications from AFEX. Client acknowledges that the Online Service may include certain communications from AFEX, its affiliates, or its partners, such as service announcements and administrative messages, and that these communications are considered part of the Online Service and Client may not be able to opt-out of receiving them. Unless explicitly stated otherwise, any new features that augment or enhance the current Service, including any new Service, shall be subject to this Agreement. 14.6 Online System Provided “As Is”. The Online System (and all other related services) is provided
“as is” with no representations or warranties of any kind, either express or implied. AFEX shall have no responsibility for transmission errors, faulty or unreliable Internet connections or website downtime. All Disclaimers, Limitation on Liability and Indemnity terms set forth in Section 20 shall apply fully to the Client’s or User’s use of the Online System, as well as any other means of accessing such Services.
15. FORCE MAJEURE.
15.1 Force Majeure. In the event that AFEX is unable to deliver purchased funds due to circumstances beyond AFEX’s control, including but not limited to government acts, wars, strikes, riots, other civil disturbances, legal process, electronic
failure or mechanical failure, AFEX shall have no liability for direct, indirect, special, incidental or consequential damages, including, but not limited to, loss of profits or expenses, arising in connection with any transaction entered into with the Client pursuant to this Agreement, any Forward or Option Contract or any Forward or Option Contract Confirmation.
16. TERM AND TERMINATION.
16.1 Term and Termination. In the absence of an express agreement to the contrary, AFEX may terminate this Agreement, and Client’s access to AFEXDirect, with or without cause by giving at least five (5) Business Days’ notice to the Client, or immediately at any time without notice if: (a) the Client is Insolvent; (b) applicable regulatory or law enforcement authority initiates a regulatory or enforcement action or investigation against the Client which, in the reasonable judgment of AFEX
will materially impair the terms of the Agreement, the expected economic value of this Agreement, or the business reputation of AFEX; (c) in the event the Client breaches this Agreement, any terms of a Trade Order; or (d) in the event the transactions originating under this Agreement are deemed by AFEX, in AFEX’s sole discretion, to represent a regulatory compliance or business risk. Where the Agreement is terminated by AFEX, the Agreement remains in force until all funds owed by the Client to AFEX are paid in full.
17. REPRESENTATIVES AND WARRANTIES.
17.1 Representatives and Warranties. The undersigned, on behalf of Client, represents and warrants that:
(a) The undersigned has the authority to complete the Account Application and this Agreement on behalf of the Client; (b) All information on the Account Application is true and complete, and Client will promptly advise AFEX of any changes to such information. (c) Client will have legal title to all funds used in connection with Trade Orders entered into hereunder; (d) Client will fully comply with all applicable laws and regulations; (e) Client has all requisite authorizations and approvals to make any payments for the Services; (f) Client will enter into a Forward or Option Contract, if at all, for risk management purposes and not speculation; and (g) the Client, a Corporation or any other form of legal entity, the undersigned and the entity each has the authority to enter into this Agreement, place Trade Orders, and enter into Forward or Option Contracts and that all Authorized Parties are authorized to do so on Client’s behalf.
18.1 Regulatory Compliance. Client agrees to use the Services only for lawful purposes and in full compliance with applicable law and all other relevant laws, rules, regulations and codes of practice, as may now or hereafter be in effect, including without limitation those arising from the applicable laws or regulations pertaining to (a) filings, registrations, approvals,
consents, licenses, authorizations, and reporting requirements; (b) anti-money laundering; (e.g. customer identification and “know your customer”; currency transaction reporting and recordkeeping, suspicious transaction and activity detection, monitoring and reporting); and (c) OFAC sanctions programs. Client represents and warrants that with respect to Service-related transactions (a) Client’s organization has an effective program (including, where appropriate, internal policies, training, procedures and controls) to reduce the risk of OFAC sanctions violations and money laundering (including
transactions involving blocked persons, narcotics trafficking, terrorist financing, official corruption or fraudulent activity) and to prevent violations of the aforementioned laws; (b) all transaction details provided to AFEX are complete, truthful
and accurate; (c) all Orders are initiated only from Client locations physically located within the United States of America or otherwise approved by AFEX; (d) Client will not allow any third party to re-sell, access or subcontract (e.g., through use
of “payable-through” or “concentration” accounts) the Service to any other person or entity.
18.2 USA Patriot Act Disclosure. To help the government fight the funding of terrorism and money laundering activities, Federal law requires all financial institutions to obtain, verify, and record information that identifies each customer who
opens an account. When you open an account AFEX will ask for Client’s Taxpayer Identification Number. AFEX may also ask Client for certified articles of incorporation, a government-issued business license, a partnership agreement, a trust instrument or other identifying documents.
18.3 Nonresident Alien and Foreign Corporation Withholding; Foreign Account Tax Compliance Act (“FATCA”). The Parties acknowledge and agree that it is the Client’s responsibility to determine the chapter 3 and chapter 4 status of the Payee in accordance with Internal Revenue Code sections 1441 through 1446 and 1471 through 1474, and that the Parties’ expectation is that AFEX would not know or have reason to know of the withholding status of a payment to a Payee. Accordingly, Client represents and warrants to AFEX that Client has determined the chapter 3 and chapter 4 status of the Payee in accordance with Internal Revenue Code sections 1441 through 1446 and 1471 through 1474, and the regulations promulgated thereunder, and has withheld the appropriate amount, if any, required. Client shall indemnify and hold harmless AFEX from and against any claims by the U.S.Internal Revenue Service (IRS) for tax, interest, and penalties, and expenses incurred by AFEX arising out of or in respect of the Client’s under-withholding or other noncompliance with respect to the IRS withholding rules, including but not limited to FATCA. This indemnity will survive the completion of any payment and the termination of this Agreement.
18.4 Limitation on Services. Client represents that the Services are being used for business/commercial purposes only.
19. USE OF INFORMATION, CONFIDENTIALITY AND DISCLOSURE
19.1 Personal Information. AFEX does not disclose non-public personal information about its Clients or former Clients, but may disclose such information in certain limited circumstances such as the following: (a) where it is necessary to effect,
administer, or enforce a transaction requested or authorized by the Client, or in connection with servicing or processing a financial product or service requested or authorized by the Client, (b) where such sharing is reasonably necessary to protect the confidentiality or security of Client records, the services or products AFEX offers, or transactions AFEX processes or handles, (c) to protect against or prevent actual or potential fraud, identity theft, unauthorized transactions, claims or other liability, as well as for resolving Client disputes or inquiries or checking credit, (d) to comply with federal, state or local laws or
regulations or other legal requirements, such as subpoenas or other legal process. The preceding list sets forth examples only, and is not meant to be comprehensive. AFEX also restricts access to Clients’ non-public personal information, except
to those employees who need to know that information to provide products or services to the Client or fulfill certain obligations described above. AFEX also maintains physical, electronic and procedural safeguards to guard Clients’ non-
public personal information.
19.2 Permission and authorization is hereby granted by the Client to AFEX or its affiliates, and any credit or other information services company, and to State and Federal government representatives, without regard to whether they are listed herein,
to verify, receive, exchange, and obtain business and other information as part of the application or at any time thereafter in connection with the ongoing application evaluation process, review of activity and/or collection of any obligation arising from the business relationship. Client further agrees that neither AFEX nor anyone who has furnished AFEX any information
concerning Client shall be responsible for any losses or damages. Client may claim resulting from said verification, receipt, exchange, or obtaining of credit or other information. Client acknowledges that AFEX may be compelled to disclose information to a regulatory or supervisory authority (whether pursuant to an examination, audit or otherwise), or to a party entitled to such disclosure pursuant to a subpoena, restraining order, writ of attachment or execution, levy, garnishment, court or administrative warrant, or similar legal process affecting or relating to same served upon AFEX, and such legal process appears valid on its face to AFEX. Client shall indemnify AFEX and hold AFEX harmless from and against any and all claims, demands and costs resulting from, as a consequence of or in any manner in connection with, such disclosure.
Unless Client has instructed AFEX otherwise in writing, AFEX may disclose Client information (whether obtained from Client’s Service-related transactions or account setup) to other AFEX entities and affiliates in order to develop or offer to Client other products and services.
19.3 New Products and Services. Unless the Client has indicated otherwise, AFEX may contact the Client (by telephone, mail, or other means) with information about the products and services available which AFEX suspects may be of interest to the Client. If the Client prefers not to receive marketing promotions, the Client should advise AFEX in writing and AFEX will cease such contact.
20. DISCLAIMER; LIMITATION OF LIABILITY; INDEMNITY.
20.1 DISCLAIMER. AFEX DISCLAIMS ANY AND ALL LIABILITY FOR DAMAGES, INCLUDING, BUT NOT LIMITED TO, DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, FOR LOSS OF PROFITS OR EXPENSES ARISING IN CONNECTION WITH ANY TRANSACTION ENTERED INTO WITH THE CLIENT PURSUANT TO THIS AGREEMENT, INCLUDING ANY FORWARD OR OPTION CONTRACT.
20.2 LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES SHALL AFEX BE LIABLE
TO THE CLIENT OR TO ANY OTHER PARTY FOR LOST REVENUE, PROFITS OR FOR ANY OTHER SPECIAL, INCIDENTAL OR
CONSEQUENTIAL DAMAGES, EVEN IF AFEX HAS BEEN INFORMED OF SUCH POTENTIAL LOSS OR DAMAGE AS A RESULT
OF OR ARISING OUT OF THE RELATIONSHIP BETWEEN THE PARTIES OR IN ANY WAY CONNECTED TO THIS AGREEMENT THIS LIMITATION OF LIABILITY SHALL SURVIVE NOTWITHSTANDING FAILURE OF THE ESSENTIAL PURPOSE OF ANY WARRANTY OR LIMITED REMEDY. THE PARTIES AGREE THAT THE DISCLAIMER AND THIS LIMITATION REPRESENTS A REASONABLE ALLOCATION OF RISK, WITHOUT WHICH AFEX WOULD NOT HAVE ENTERED INTO THE TRANSACTION. THE LIMITATIONS OF LIABILITY STATED IN THIS AGREEMENT SHALL HAVE EFFECT TO THE EXTENT PERMITTED BY APPLICABLE LAW.
20.3 Indemnity. The Client hereby undertakes to comply strictly with the terms and conditions of this Agreement and to indemnify AFEX in respect to any Losses that may arise as a consequence of the Client’s breach of any representations
and warranties or non-compliance with this Agreement.
21. COMMUNICATION AND NOTICES
21.1 Account activity reports, notices (including notice of any changes to this Agreement), disclosures and other communications may be sent to Client electronically, by fax, in writing or made available online.
21.2 Client agrees that AFEX may communicate with Client electronically, via e-mail to Client’s primary contact or other Authorized Users or via AFEXDirect or another AFEX website. AFEX may send the communications by e-mail, post them on
a website, through links provided on a statement or other notice, or any combination of these or other means. All such communications will be considered to have been provided in writing. Client agrees that it is the Client’s responsibility
to access all such communications.
21.3 All mailed communications will be deemed received five (5) Business Days after the date of the mailing unless Client actually receives it earlier or when received in the case of a communication delivered by hand. All electronic
communications that AFEX provides including account activity reports will be deemed to be received on the day that AFEX sends the notification e-mail and/or post the electronic communication online even if Client does not access the electronic communication for any reason. Fax communications will be deemed to have been received at the time of transmission.
21.4 Client must inform AFEX immediately if Client changes the address or other contact information (such as a postal or e-mail address and telephone or fax numbers) Client has given to AFEX. If AFEX has been unable to deliver any communications or these have been returned, AFEX will consider Client in breach of this agreement and AFEX may stop attempting to communicate with Client until AFEX receives accurate contact information. AFEX is not responsible for any failure to receive any communication (including a statement) if AFEX sends it to the address or in accordance with other contact information for Client’s account appearing in AFEX’s records or if AFEX does not send the communication because previous communications have been undeliverable.
21.5 If Client chooses to use unencrypted electronic mail to initiate payment requests or other instructions or otherwise communicate with AFEX, Client’s use of such electronic mail with respect to AFEX’s Services will be subject to the these Terms. Client further agrees to bear the risk that such electronic mail may be corrupted, modified, garbled or hacked or its confidentiality may be breached and that such reliance may result in a loss. In addition, Client agrees that AFEX may rely on the integrity of facsimile transmissions that Client sends us and Client agrees to bear the risk that the information AFEX
receives differs from that sent to AFEX, and that such reliance may result in a loss.
21.6 Telephone Recordings. In order to ensure that Client’s instructions are carried out accurately, for customer service purposes, or in the interest of security and fraud prevention, AFEX may, without giving you any further notice, record and/or
monitor any telephone conversations with Client, including Authorized Users. Such recording may be done in any form convenient to AFEX. All telephone recordings are AFEX’s sole property. AFEX may retain all or any such recordings for
such period as AFEX considers appropriate and Client agrees that such recordings may be relied upon by AFEX in the event of any dispute, including in any proceedings.
22.1 AFEX does everything it can to make sure its clients get the best possible service. AFEX does recognize, however, that this may not always be the case. When that happens AFEX always encourages the Client to tell AFEX so that AFEX can put matters right.
22.2 If Client is not satisfied with any aspect of AFEX’s services, Client can tell AFEX about Client’s concerns or make a
complaint by contacting Client’s Account Executive or AFEX’s Compliance Department at email@example.com.
23. INTELLECTUAL PROPERTY
23.1 AFEX grants the Client an exclusive, revocable, non-transferable license to use the AFEXDirect online system. Client may not, under any circumstances, rent, lease or sub-license the AFEXDirect online service. Client may not reverse engineer, decompile, disassemble or modify AFEXDirect, nor attempt to gain knowledge of the source code of the system in any manner whatsoever.
23.2 All copyright, trademarks, service marks, trade secrets, registered and unregistered design rights and other intellectual property rights in AFEXDirect, shall remain at all times the sole and exclusive property of AFEX and Client shall have no right or interest in or to any such intellectual property rights, except the right to access and use the Service as provided for in the Agreement. All rights not expressly granted to Client are reserved.
24. GENERAL TERMS AND CONDITIONS.
24.1 Third Parties. This Agreement is not intended to, and shall not, confer upon anyone other than the Parties and their lawful successors and assigns any legal or equitable rights, benefits, claims or remedies of any nature.
24.2 No Waiver. AFEX’s failure to exercise any of its rights under this Agreement shall not be deemed a waiver of such rights or remedies at a later time.
24.3 Attorneys’ Fees. If either party brings an action or proceeding to enforce the terms of this Agreement or declare rights under this Agreement, the prevailing party in any such action, proceeding, trial or appeal will be entitled to its reasonable attorneys’ fees to be paid by the losing party as fixed by the court.
24.4 Counterparts. This Agreement may be executed in one or more counterparts. Signatures may be exchanged by facsimile, with original signatures to follow. Each party to this Agreement agrees that it will be bound by its own facsimile signature
and that it accepts the facsimile signatures of the other parties to this Agreement.
24.5 Severability. If any provision hereof shall be held to be unenforceable by a court of competent jurisdiction, the remainder of the provisions hereof shall remain in effect and shall be binding upon the Parties.
24.6 Governing Law; Jurisdiction. This Agreement is governed by the laws of California, without regard to the law of conflicts, and the parties agree to be subject to the exclusive jurisdiction and venue of the State or Federal courts located in the County of Los Angeles, State of California with respect to any disputes arising out of this Agreement. Nothing in this Agreement shall limit the right of AFEX in its absolute discretion to bring proceedings in relation to any dispute or claim arising out of or in connection with this Agreement in the courts of any other jurisdiction. Client hereby waives any and all rights under applicable law to have a jury trial in connection with any action brought by Client to enforce its rights and remedies hereunder.
24.7 Assignment. Client shall not assign this Agreement nor any rights or obligations hereunder without AFEX’s written consent. If AFEX provides its written consent to any assignment of this Agreement, the Agreement shall be binding upon
the successors, heirs, and assigns of the Parties.
25. ENTIRE AGREEMENT
25.1 Entire Agreement. This Agreement constitutes the entire agreement between Client and AFEX with respect to the subject matter hereof and supersedes all previous negotiations, commitments and writings. AFEX reserves the right, in its sole discretion, to change, amend, or otherwise modify this Agreement from time to time upon written notice to the Client. Any
changes, amendments, or modifications so conveyed to the Client shall be effective as to transactions entered into by the Client from the date such modification goes into effect.