Modulr Introduced Client Terms Of Business
BACKGROUND
Modulr is a provider of Modulr Products (as described to you by Partner Platform), which includes the provision of an electronic money account for businesses and associated payment services. The electronic money account is provided by Modulr FS. These Introduced Client Terms of Business govern the Modulr Products that Modulr agrees to provide to the Introduced Client.
These Introduced Client Terms of Business (including all the attached Schedules), together with the Modulr Account Terms and Conditions set out the terms on which the Modulr Products are provided and constitute the Agreement between Modulr, Modulr FS and the Introduced Client.
THE PARTIES AGREE AS FOLLOWS:
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Interpretation
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In these Introduced Client Terms of Business: (a) a reference to a clause is a reference to a clause in these Introduced Client Terms of Business; (b) headings are for reference only and shall not affect the interpretation of these Introduced Client Terms of Business; (c) the singular shall include the plural and vice versa; (d) a reference to a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person's personal representatives, successors and permitted assigns; (e) a reference to a party shall include its personal representatives, successors and permitted assigns; (f) reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
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Modulr Products
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Modulr will make available to the Introduced Client such products that are provided to the Partner Platform and, as described by Partner Platform in the application process.
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The Introduced Client agrees to the Partner Platform providing all such information to Modulr who will check and verify the identity of the Introduced Client, its directors, beneficial owners and Authorised Users as required by law.
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The Introduced Client acknowledges that a search of the electoral register may take place for anti-money laundering purposes on the individuals listed in clause 2.2 above.
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The Introduced Client acknowledges that a “soft footprint” search may be placed on the electronic files of the individuals noted in clause 2.2 above by the Credit Reference Agencies and their personal details may be accessed by third parties for the specific purpose of anti-money laundering and countering the financing of terrorism (AML/CFT), identity verification and fraud prevention.
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The Account and Cards (where applicable) are provided by Modulr FS to the Introduced Client in accordance with the Modulr Account Terms and Conditions. Modulr Products provided to the Introduced Client under this Agreement are for the sole use by the Introduced Client.
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The Introduced Client can use the Account and Cards (where applicable) to make Transactions on the terms and conditions set out in the Modulr Account Terms and Conditions. A record of all Transactions relating to the Account can viewed on the Website or accessed via the Partner Platform (as applicable).
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The Introduced Client shall promptly notify Customer Services as soon as it becomes aware login and security information enabling access to its Modulr Products have been lost, stolen or compromised.
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From time to time Modulr may carry out additional checks on the Introduced Client, including the identity of its directors, beneficial owners and the nature of its business in accordance with its Due Diligence Procedure and as required by law. Modulr may contact the Introduced Client or the Partner Platform (as applicable) for such purposes. The Introduced Client agrees to provide such information as necessary.
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The Introduced Client shall comply with all legislation and regulation as it applies to the Introduced Client. Any failure to comply with relevant legislation or regulation shall be considered a material breach of the Agreement and may result in Modulr discontinuing the provision of the Modulr Products as set out in clause 6.4.
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The Introduced Client shall implement as appropriate Modulr’s reasonable security recommendations it notifies to the Introduced Client from time to time.
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Authorised Users
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Access to the Modulr Products is restricted to individuals that have been designated by the Introduced Client as Authorised Users.
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The Introduced Client must notify Modulr of all individuals it wishes to be an Authorised User.
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Each Authorised User is permitted to access and use the Modulr Products in accordance with these Introduced Client Terms of Business.
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The Introduced Client will be responsible for training its Authorised Users in the appropriate use of Modulr Products.
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The Introduced Client shall ensure its Authorised Users;
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take all reasonable care to ensure Modulr Product access credentials, including login details to the Website, where applicable, are kept confidential to each Authorised User; and
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do not share any information that would enable another party to access the Introduced Client’s Account.
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The Introduced Client acknowledges and agrees that each Authorised User is authorised by the Introduced Client to act on its behalf. Modulr shall deem any instruction given by an Authorised User is an instruction given by the Introduced Client.
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The Introduced Client will be responsible for timely notification to Modulr of any revocation of Authorised User access and will be liable for Transactions made, Fees incurred and use of Modulr Products by an Authorised User until Modulr has had one full Business Day to act on any received notice. This clause shall not apply to Introduced Clients accessing Modulr Products via the Partner Platform.
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Where the Introduced Client accesses Modulr Products through a Partner Platform, such Partner Platform will be considered the Authorised User. In this instance if additional Authorised Users are required they must be requested by the Partner Platform. The use of a Partner Platform to access the Modulr Products by the Introduced Client are set out in further detail below.
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Accessing Modulr Products through a Partner Platform
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In the event the Introduced Client utilizes a Partner Platform to access Modulr Products, the Introduced Client agrees and authorises the Partner Platform to instruct Modulr to access and use the Modulr Products on behalf of the Introduced Client, which shall include but not be limited to making Transactions, viewing and retrieving Transaction data, initiating refunds and closing the Account.
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The Introduced Client acknowledges and agrees that Modulr shall have no liability whatsoever with respect to the performance, availability or quality of any Partner Platform.
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The Introduced Client acknowledges and agrees to the following:
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it must satisfy itself that its Platform Partner Agreement grants the Partner Platform all permission necessary to operate the Account on the Introduced Client’s behalf;
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the Platform Partner will be granted full access to operate the Introduced Client’s Account as an Authorised User of the Introduced Client;
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it is responsible for monitoring Partner Platform activities on its Account. Any queries relating to such activities will be raised with the Partner Platform directly and settled between Partner Platform and the Introduced Client;
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the Introduced Client has no recourse against Modulr for any act or omission of the Partner Platform with respect to its Account;
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the Introduced Client understands it can only access its Account to make Transactions, review Transactions made or otherwise use Modulr Products through the service provided by the Partner Platform; and
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it will only use the Account for the purpose set out in the Partner Platform Agreement.
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On receipt of notification by Modulr from the Partner Platform that it wishes to terminate this Agreement, this Agreement shall terminate. Any funds in the Introduced Client’s Account will be returned in accordance with the terms of the Modulr Account Terms and Conditions.
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If the Introduced Client has any complaint or concern relating to the Account or other Modulr Products, such complaint or concern shall be raised directly to the Partner Platform, who shall deal with it in accordance with Modulr’s Complaints Policy, a copy of which is available on request from the Partner Platform and on the Website.
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Customer Services
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The Introduced Client can contact Customer Services if it has any queries about the Modulr Products. Information may be requested from the Introduced Client, including but not limited to, its Authorised Users, Cardholders or Transaction information so that it can verify the identity of an Authorised User, the Cardholder and/or the Modulr Products provided to such Introduced Client.
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Any information shared by the Introduced Client will be kept strictly confidential. Where such information is provided in connection to a service provided by a third party, for example, the Account, then the Introduced Client’s information will only be used in accordance with instructions of such third party and only for the purpose of providing Customer Services to the Introduced Client on behalf of such third party.
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As part of Modulr’s commitment to providing a quality customer service, its managers periodically monitor telephone communications between its employees and Introduced Clients to ensure that Modulr’s high quality service standards are maintained. The Introduced Client consents to such monitoring and recording of telephone communications and agrees to make its Authorised Users aware of such practice.
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Term and Termination
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This Agreement shall commence on the date the Introduced Client receives confirmation from Modulr or the Partner Platform (where applicable) of its successful application for Modulr Products and shall continue until terminated by the Introduced Client, Partner Platform (if acting on behalf of the Introduced Client) or Modulr.
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The Introduced Client or the Partner Platform (where applicable) may terminate this Agreement immediately by notifying Customer Services in writing by post or email.
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Modulr may terminate this Agreement and close the Introduced Client’s Account(s) by providing the Introduced Client with at least two months’ notice.
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Modulr may suspend or terminate this Agreement immediately if, for any reason, the Introduced Client (i) is unable to satisfy the Due Diligence Procedures, (ii) for breach of this Agreement, (iii) has provided false, incomplete or misleading information, (iv) has engaged in fraudulent, money laundering, terrorism financing or other illegal activity or we have reasonable suspicions in respect of same or (v) we are required to do so under any applicable law or regulation or at the direction of any regulatory, law enforcement or other competent authority. Modulr shall notify you as soon as possible, unless prohibited by law, of such suspension or termination of the Agreement.
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This Agreement will automatically terminate when all Accounts of the Introduced Client are closed (for any reason).
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Modulr may terminate or suspend this Agreement in whole or in part immediately by giving written notice to the Introduced Client if Modulr ceases to provide Cards pursuant to the provisions of Schedule 1.
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On termination of this Agreement for any reason, any balance remaining in the Introduced Client’s Account(s) shall be returned to the Introduced Client in accordance with the Modulr Account Terms and Conditions. The Introduced Client shall pay immediately all outstanding Fees due (where applicable) under this Agreement and in the event of a negative balance in an Account, shall reimburse Modulr FS such amount equal to the negative balance.
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Intellectual Property
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The Introduced Client acknowledges all Intellectual Property Rights in the Modulr Products are owned by or provided under licence to Modulr. Modulr grants the Introduced Client a non-exclusive, royalty-free licence for the duration of this Agreement to access and use the Modulr Products only for the purpose contemplated by this Agreement.
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Nothing in this Agreement shall operate to create or transfer any Intellectual Property Right to the Introduced Client.
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Force Majeure
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Modulr and/or Modulr FS will not be liable for the non-performance or failure to provide any part of the Modulr Products occurring as a result of any events that are beyond the reasonable control of Modulr, for example, but not limited to, fire, telecommunications or internet failure, utility failure, power failure, equipment failure, employment strife, riot, war, terrorist attack, non-performance of third party suppliers, acts of God such as storm or lightening damage, or other causes over which Modulr and/or Modulr FS has no reasonable control.
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Assignment Transfer and Subcontracting
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The Modulr Products provided to the Introduced Client are personal to the Introduced Client. The Introduced Client may not novate, assign or otherwise transfer this Agreement, any interest or right under this Agreement (in whole or in part) without the prior written consent of Modulr.
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The Introduced Client agrees Modulr may, in its sole discretion, assign, or transfer some or all of its rights and obligations or delegate any duty of performance set out in the documents forming this Agreement. Modulr may subcontract any of its obligations under this Agreement.
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In the event of any transfer of this Agreement by Modulr to another service provider; if the Introduced Client does not want to transfer to the new provider, the Introduced Client must notify Modulr of its objection in writing to Customer Services. On receipt of such notification, Modulr it will terminate this Agreement. Any balance remaining in the Introduced Client’s Account(s) will be returned to the Introduced Client in accordance with the redemption procedure set out in the Modulr Account Terms and Conditions.
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It is acknowledged by the Introduced Client that Modulr enters into this Agreement on its own behalf and as agent for and on behalf of Modulr FS with respect only to clauses 10 and 14 of these Introduced Client Terms of Business.
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Liability
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Nothing in this Agreement will operate to limit either party or its agent’s liability with respect to fraud or for death or personal injury resulting from negligence, in either case whether committed by that party or its employees, agents or subcontractors.
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Modulr and Modulr FS makes no warranty that access to and use of the Modulr Products will be uninterrupted or error free.
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The Introduced Client acknowledges and agrees that Modulr and/or Modulr FS are not liable to the Introduced Client for any loss, liability or damages the Introduced Client suffers which result from, are related to, or in any way are connected with any fraud control, restriction measures or other measures implemented from time to time including as require, unless such loss, liability or damage is a direct result of Modulr and/or Modulr FS’s fraud, gross negligence or willful misconduct in procuring the implementation of fraud control or purchase restriction measures that Modulr has expressly agreed in writing to procure for the Introduced Client.
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Modulr and Modulr FS shall not be liable to the Introduced Client for any loss or damage the Introduced Client may suffer as a result of any act or omission of an Authorised User or Cardholder or an Authorised User’s or Cardholder’s use of or inability to use of the Modulr Products.
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The Introduced Client agrees to indemnify Modulr and Modulr FS against any and all actions, claims, costs, damages, demands, expenses, liabilities, losses and proceedings Modulr and/or Modulr FS directly or indirectly incurs or which are brought against Modulr if the Introduced Client, or an Authorised User, or a Cardholder has acted fraudulently, been negligent or has misused a Modulr Product or any of the services provided under this Agreement.
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Modulr and/or Modulr FS shall not be responsible in any way for any interest or claims of any third parties in respect of the Modulr Products, except as required by law or regulation.
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Reports
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Modulr may make available certain management or other reporting or business administration functionality via the Website.
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Modulr may from time to time amend, modify, replace or withdraw in whole or in part such reporting it provides without further notice.
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Data Privacy
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Modulr will collect and retain personal information about the Introduced Client and each Authorised User and Cardholder to enable Modulr to deliver the Modulr Products, the services linked to it and deal with any enquiries that the Introduced Client may have about it. Modulr is the data controller of the personal information gathered by Modulr for such purpose. If Modulr uses a third party to provide a part of the Modulr Product then that provider will be the owner and controller of the personal information they require to collect in order to operate the relevant service. The use of personal information by third-party service providers will be set out in their service terms and conditions of use. Modulr will, at such third-party provider’s direction, process personal data on its behalf, for example, to enable Modulr to provide Customer Services to the Introduced Client.
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Modulr processes personal information in accordance with relevant laws on the protection of personal data.
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If Modulr transfers the Introduced Client’s information to a third party in a country outside of the European Economic Area Modulr will ensure that the third party agrees to apply the same levels of protection that Modulr is legally obliged to have in place when Modulr processes personal data.
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Further information about how Modulr uses personal information can be found in Modulr’s Privacy Policy; please contact Customer Services for a copy of this.
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Changes to the Agreement
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Modulr may amend or modify this Agreement by giving no less than two (2) months’ notice to the Introduced Client unless Modulr is required to make such a change sooner by law. All proposed changes will be posted on the Website and communicated to the Introduced Client by such other means that Modulr agreed with the Introduced Client, for example by email. If the Introduced Client is accessing Modulr Products via a Partner Platform, all notifications will be communicated via such Partner Platform.
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The Introduced Client has no obligation to accept such amendments proposed by Modulr.
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The Introduced Client will be taken to have accepted any change to this Agreement that Modulr notifies to the Introduced Client unless the Introduced Client tells Modulr otherwise before the relevant change takes effect. In such circumstance, Modulr will treat notice of objection by the Introduced Client as notification that the Introduced Client wishes to terminate this Agreement and the use of all Modulr Products immediately. All Accounts of the Introduced Client will be closed and any balance remaining in the Introduced Client’s Account will be returned to the Introduced Client in accordance with the redemption procedure set out in the Modulr Account Terms and Conditions. In this circumstance the Introduced Client will not be charged a fee for the Account closure and return of any balance.
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General
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In these Introduced Client Terms of Business, headings are for convenience only and shall not affect the interpretation of these Introduced Client Terms of Business.
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Any delay or failure by Modulr to exercise any right or remedy under this Agreement shall not be interpreted as a waiver of that right or remedy or stop Modulr from exercising its rights at any subsequent time.
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In the event that any part of this Agreement is held not to be enforceable, this shall not affect the remainder of the Agreement which shall remain in full force and effect.
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The Introduced Client shall remain responsible for complying with this Agreement until its Account(s) are closed (for whatever reason) and all sums due under this Agreement have been paid in full.
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This Agreement is written and available only in English and all correspondence with the Introduced Client shall be in English.
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This Agreement is governed by the laws of England and the Introduced Client agrees to the non-exclusive jurisdiction of the English courts.
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The Modulr Account Terms and Conditions;
Important information you need to know
PIS Terms and Conditions
1. INTRODUCTION
1.1 The terms of Schedule 4 shall apply where the PIS is included within the Modulr Products provided to you.
1.2 These PIS Terms and Conditions, alongside the Modulr Account Terms and Conditions form the agreement between Modulr FS and you and sets out the terms that apply to your use of PIS as defined below.
1.3 We are authorised by the Financial Conduct Authority (FRN 900573) for the issuance of electronic money and providing payment services, including payment initiation services.
1.4 Unless expressly stated in this Schedule 4, the definitions contained in this Agreement shall apply to this Schedule 4.
2. DEFINITIONS
Account Servicing Payment Service Provider or ASPSP – the third party payment service provider, such as a bank, with whom you or the End User holds an online payment account (Source Account) which we will access when you use PIS;
End User – means your customer who wishes to purchase your goods and/or services using PIS, and who holds a Source Account;
Information – in relation to PIS, means any information related to you, and any personal information related to the End User;
Payment Initiation – means either (i) a payment order initiated at your request from your Source Account to your Modulr Account ; or (ii) a payment order initiated at the request of an End User from their Source Account to your Account;
Payment Initiation Service or PIS – means a service to initiate a payment from a Source Account, as more particularly described in clause 3.
Source Account – a payment account accessible online which you or an End User holds with an ASPSP;
Standing Order – a regular, recurring Payment Initiation as instructed by an End User.
3. OUR SERVICES
3.1 You can only use PIS if you have an Account. You can continue to use PIS as long as you continue to hold an Account.
3.2 You will be able to use our API to:
3.2.1 add funds to your Modulr Account from a Source Account;
3.2.2 allow an End User to initiate a payment from a Source Account to your Account; and
3.2.3 allow an End User to set up a Standing Order from their Source Account to your Account.
3.3 When using PIS to add funds to your Modulr Account, we will provide you with a redirection URL which will redirect you to your ASPSP, where you can log in using you ASPSP credentials and consent to the Payment Initiation from your Source Account.
3.4 For End Users, we will provide you with a redirection URL to provide to the End User to redirect them to their ASPSP, where they can log in using their ASPSP credentials and consent to the Payment Initiation from their Source Account.
3.5 We are not responsible for the services or provided by the ASPSP. The services provided in relation to the Source Account are subject to a separate agreement between you and your ASPSP, or the End User and their ASPSP.
4. END USERS
4.1 You will only allow End Users to request Payment Initiations and Standing Orders in accordance with these PIS Terms and Conditions and the End User Terms and Conditions (contained at Annex 1 to this Schedule 4).
4.2 You will ensure that End Users have read and accepted the End User Terms and Conditions prior to the End User using PIS.
4.3 You will keep a record of each End User’s confirmation given in accordance with clause 4.2 above and shall promptly make such records available to Modulr on request.
4.4 You acknowledge that an End User may revoke their consent to process Payment Initiations or Standing Orders at any time, and Modulr shall not be liable to you for failing to provide the Information requested by you.
4.5 We will not be able to revoke a transfer from a Source Account once it has been confirmed by an End User.
4.6 Once an End User requests us to initiate a payment from a Source Account, Modulr will make the following information available to you and you must provide it immediately to the End User:
4.6.1 a confirmation that the payment has been successfully initiated with the End User’s ASPSP;
4.6.2 a reference to identify the payment transaction and any information transferred with the payment order; and
4.6.3 the amount of payment.
4.7 Where applicable, you will comply with Modulr’s PIS Customer Requirement Guidelines as provided to you by Partner Platform and as may be amended from time to time.
5. ACCOUNT TOP UP
5.1 You may use PIS to make a payment initiation for the purpose of adding funds to your Modulr Account.
5.2 When you request us to initiate a payment from your Source Account, Modulr will make the following information available to you:
5.2.1 a confirmation that the payment has been successfully initiated with your ASPSP;
5.2.2 a reference to identify the payment transaction and any information transferred with the payment order; and
5.2.3 the amount of payment.
6. SECURITY
6.1 You must not allow another person to use security information necessary to use PIS;
6.2 We can restrict or suspend your ability to use PIS, including refusing to initiate the payment from a Source Account, if we are concerned about the security of your access to the Online Portal or the API, using PIS is causing or could cause a breach of these Terms and Conditions or if we have reasonable grounds for suspecting that you or a third party has committed or is about to commit a crime or other abuse in connection with your use of our API or Online Portal.
6.3 If we restrict or suspend your use of PIS or refuse to initiate the payment from a Source Account, we will, without undue delay and provided we are legally permitted to do so, notify you. If possible, we will provide the reasons for this and where it is possible will provide reasons for the restriction or suspension and where those reasons relate to factual matters, the procedure of rectifying any factual errors that led to the restriction or suspension. Where we need to contact you, we will use the contact details associated with your Account, such as email, or telephone. You should inform us without delay if your contact details change.
7. DISPUTES AND INCORRECT TRANSACTIONS
7.1 If you or the End User have a reason to believe that a payment from a Source Account initiated by us was unauthorised or was made incorrectly, , the owner of the Source Account (i.e. you or the End User, as the context allows) should contact their ASPSP to resolve their query and we will cooperate with the ASPSP’s investigation in to such payment. Where we believe that the incorrect payment was due to our error in respect of the part of the Payment Initiation we were responsible for, we will refund the incorrectly initiated payment back to the original Source Account.
7.2. You will be liable for all payments initiated through our API or Online Portal if you have acted fraudulently or with gross negligence (for example failed to keep your security information such as but not limited to the Online Portal log in details and API security details or Source Account credentials safe).
8. YOUR LIABILITY
8.1 You are responsible for understanding and complying with these PIS Terms and Conditions.
8.2 You agree to indemnify and hold harmless, us, Modulr and our distributors, partners, agents, sponsors, and service providers and their group companies from and against the costs of any legal action (including any loss arising from action taken by a Regulator) taken to enforce these PIS Terms and Conditions and/or any breach of these PIS Terms and Conditions by you, including in respect of any non-compliance with clauses 4.2 and 4.3 of these PIS Terms and Conditions.
9. OUR LIABILITY
9.1 In addition to our liability set out in the Modulr Account Terms and Conditions (whether arising in contract, tort (including negligence), breach of statutory duty or otherwise), where a Payment Initiation is incorrectly made from a Source Account due to our default, our liability shall be limited as appropriate (i) to refund to you an equivalent amount to which was incorrectly deducted from your Source Account; or (ii) to refund to the End User of an equivalent amount to that which was incorrectly deducted from their Source Account.
10. TERMINATION
10.1 These PIS Terms and Conditions will apply each time you use PIS in relation to your Account.
10.2 We can terminate your access to PIS at any time if we give you two months’ notice.
10.3 We can terminate your access to PIS at any time with immediate effect (and until your default has been remedied or these Terms and Conditions terminated) without any prior notice to you if:
10.3.1 we discover any of the Information that we hold for you is incorrect; or
10.3.2 if we have reason to believe that you or a third party has committed or is about to commit a crime or other abuse (including fraud) in connection with your use of PIS; or
10.3.3 you have breached these Terms and Conditions.
End User PIS Terms and Conditions
Important information you need to know
These End User PIS Terms and Conditions (“Terms and Conditions”) form the agreement between Modulr FS and you and sets out the terms that apply to your use of PIS as defined below.
Please read these Terms and Conditions carefully before you agree to use PIS provided by us.
By using PIS, you accept the terms of these Terms and Conditions. If there is anything you do not understand, please contact Customer Services using the contact details set out below. You can also request a copy of these Terms and Conditions at any time by contacting Customer Services.
1. DEFINITIONS
Account Servicing Payment Service Provider or ASPSP – the third party payment service provider, such as a bank, with whom you hold an online payment account (Source Account) which we will access when you use our Service.
Customer Services - the contact centre for dealing with queries about our Services, who can be contacted at support@modulrfinance.com or 0303 313 0060.
Data Protection Laws – the following, to the extent they are applicable to a party: the General Data Protection Regulation (EU) 2016/679, the Electronic Communications Data Protection Directive 2002/58/EC, the Privacy and Electronic Communications (EC Directive) Regulations 2003 and all applicable laws and regulations relating to processing of personal data and privacy (as amended or replaced from time to time), including where applicable the guidance and codes of practice issued by the Information Commissioner (in the United Kingdom) or other applicable supervisory authority.
Information – means any personal information related to you
Merchant - the entity legally responsible for the Modulr Account, from whom you are purchasing goods or services.
Modulr – Modulr Finance Ltd, a company registered in England and Wales with number 09897957 and whose registered office is at Scale Space, 58 Wood Lane, London, W12 7RZ. Modulr Finance Ltd (FRN: 900699) is a registered agent of Modulr FS Ltd.
Modulr Account - the electronic account provided by us to the Merchant.
Payment Initiation Service or PIS – means a service to initiate a payment at your request from a Source Account held by you, as more particularly
described in clause 3.1.
Source Account – a payment account accessible online which you hold with an ASPSP;
Standing Order - a regular, recurring Payment Initiation as instructed by you.
we, us, our or Modulr FS - Modulr FS Ltd, a company registered in England and Wales with number 09897919 and whose registered office is at Scale Space, 58 Wood Lane, London, W12 7RZ and who is regulated by the Financial Conduct Authority for issuance of electronic money under FRN 900573, or Modulr acting on Modulr FS Ltd’s behalf.
you, your - the payee who wishes to use PIS to send funds to a Merchant’s Modulr Account.
2. SCOPE OF THESE TERMS AND CONDITIONS
2.1 These Terms and Conditions apply to your use of PIS. We are authorised by the Financial Conduct Authority (FRN 900573) for the issuance of electronic money and providing payment services, including payment initiation services. Your rights and obligations relating to the use of PIS are subject to these Terms and Conditions between you and us.
2.2 These Terms and Conditions are written and available only in English and we undertake to communicate with you in English regarding any aspect of your use of PIS.
3. OUR SERVICES
3.1 You will be able to initiate a payment from your Source Account to the Merchant’s Modulr Account, or set up a Standing Order. You will need to select the linked Source Account and the amount when you ask us to initiate the payment.
3.2 We may use internet providers, web browsers and other third parties to access your Source Account held with the ASPSP, so that we can transmit the information relating to your Source Account or initiate the payment.
3.3 The services provided to you in relation to your Source Account are subject to a separate agreement between you and the ASPSP. We are not responsible for the services or provided to you by the ASPSP.
4. USING THE SERVICES
4.1 Each time you use our PIS, you are giving us your explicit consent to initiate the payment from your Source Account to the Modulr Account for the amount you select at the time of your request.
4.2 You will need to provide the same identifying information that you use when logging into to access your Source Account online with your ASPSP, such as your user name, password and/or other security information (such as answers to challenge questions or one-time-passcodes) (“Security Credentials”). You will need to provide your Security Credentials to:
4.2.1 link the Source Account; and
4.2.2 authorise a payment from your Source Account you have asked us to initiate.
4.3 We will not be able to revoke a transfer from your Source Account once you have confirmed it.
4.4 Once you request us to initiate a payment from your Source Account, the Merchant will provide:
4.4.1 a confirmation that the payment has been successfully initiated with your ASPSP;
4.4.2 a reference to identify the payment transaction and any information transferred with the payment order; and
4.4.3 the amount of payment.
5. STANDING ORDERS
5.1 You will be able to set up a Standing Order to make regular, recurring Payment Initiations to the Merchant’s Modulr Account. When setting up a Standing Order, you are giving us explicit consent to initiate a regular, recurring Payment Initiations from your Source Account to the Modulr Account for the amount you select at the time of your request.
5.2 You must provide the following information to allow us to set up the Standing Order: the date of the first Payment Initiation, the amount of the Standing Order, and if the Standing Order is not open-ended, the date of the final Payment Initiation.
5.3 If you wish to amend or cancel a Standing Order, you must contact your ASPSP. Modulr is not able to amend or cancel Standing Orders and accepts no liability for Standing Orders which have been incorrectly amended or cancelled.
6. FEES
We will not charge you any fees for using PIS.
7. SECURITY
7.1 You must not:
7.1.1 allow another person to use security information necessary to use PIS;
7.1.2 write down password(s) or any security information unless this is done in a way that would make it impossible for anyone else to recognise any of that information; or
7.1.3 disclose passwords or any security information, or otherwise make them available to any other person, whether verbally or by entering them in a way that allows them to be observed by others.
7.2 We can restrict or suspend your ability to use PIS, including refusing to initiate the payment from your Source Account, if we are concerned that using PIS is causing or could cause a breach of these Terms and Conditions or if we have reasonable grounds for suspecting that you or a third party has committed or is about to commit a crime or other abuse in connection with your use of our PIS.
7.3 If we refuse to initiate the payment from your Source Account, we will, without undue delay and provided we are legally permitted to do so, notify you, via the Merchant. If possible, we will provide the reasons for this and where it is possible will provide reasons for the restriction or suspension and where those reasons relate to factual matters, the procedure of rectifying any factual errors that led to the restriction or suspension.
8. DISPUTES AND INCORRECT TRANSACTIONS
8.1 If you have a reason to believe that a payment from your Source Account initiated using our PIS was unauthorised or was made incorrectly, you can contact your ASPSP to resolve your query and we will cooperate with the ASPSP’s investigation in to such payment. Where we believe that the incorrect payment was due to our error in respect of the part of the initiated payment we were responsible for, we will refund the incorrectly initiated payment back to the original Source Account.
8.2 You will be liable for all payments initiated through our PIS if you have acted fraudulently or with gross negligence (for example failed to keep your security information or Source Account Security Credentials safe).
8.3 In circumstances where payment is initiated from your Source Account by us is disputed by you or your ASPSP, if we require your support to enable us to establish the cause of the incorrectly initiated payment, you agree to provide us with all assistance that we reasonably require.
9. YOUR LIABILITY
9.1 You are responsible for understanding and complying with these Terms and Conditions.
9.2 It is your responsibility to keep the Merchant updated of changes to your Information, including e-mail address and mobile numbers. Failure to do so may result in us being unable to contact you regarding our PIS or to let you know about changes to these Terms and Conditions.
9.3 You agree to indemnify and hold harmless, us, Modulr and our distributors, partners, agents, sponsors, and service providers and their group companies from and against the costs of any legal action taken to enforce these Terms and Conditions and/or any breach of these Terms and Conditions by you.
10. OUR LIABILITY
10.1 Our liability in connection with this these Terms and Conditions (whether arising in contract, tort (including negligence), breach of statutory duty or otherwise) shall be subject to the following exclusions and limitations:
10.1.1 we shall not be liable for any default resulting directly or indirectly from any cause beyond our control;
10.1.2 we shall not be liable for any loss of profits, loss of business, or any indirect, consequential, special or punitive losses;
10.1.3 where payment is incorrectly initiated from your Source Account due to our default, our liability shall be limited to refund to you of an equivalent amount to that which was incorrectly deducted from your Source Account.
10.2 Nothing in these Terms and Conditions shall exclude or limit our liability for death or personal injury resulting from our negligence or fraud.
10.3 To the extent permitted by law, all conditions or warranties implied by law, statute or otherwise are expressly excluded.
10.4 The above exclusions and limitations set out in this paragraph shall apply to any liability of our affiliates and other suppliers, contractors, agents or distributors and any of their respective affiliates (if any), to you, which may arise in connection with these Terms and Conditions.
11. VARIATION
11.1 Each time you use our PIS you will be bound by the Terms of Service in force at that time.
11.2 From time to time, we may update these Terms and Conditions. If we do this then we will provide an updated copy to Merchants and you will be bound by those new terms the next time you use our PIS. If you do not agree to those changes you should not use our PIS.
11.3 If any part of these Terms and Conditions are inconsistent with any legal requirements then we will not rely on that part but treat it as if it did actually reflect the relevant legal requirement. If we need to make operational changes before we can fully comply with the new regulatory requirement, we will make those changes as soon as reasonably practical.
12. TERMINATION OR SUSPENSION
12.1 We may at any time terminate or withhold your access to all or any part of our PIS at any time, effective immediately:
12.1.1 if you have breached any provision of these Terms and Conditions (or have acted in a manner which clearly shows that you do not intend to, or are unable to comply with the provisions of these Terms and Conditions); or
12.1.2 if we, in our sole discretion, believe we are required to do so by law (for example, where the provision of the PIS to you is, or becomes, unlawful).
13. YOUR INFORMATION
13.1 You may provide us with your Information from time to time in connection with your use of PIS. Some Information, especially the Account Information, will be necessary for us to provide you with the PIS under these Terms and Conditions.
13.2 We and our affiliates are committed to maintaining your Information in accordance with the requirements of the Data Protection Laws. You acknowledge and agree that any Information provided by you or a third party on your behalf to us shall be used, kept and may be disclosed to third parties in accordance with our Privacy Policy which is available on our website. We will take all reasonable steps to ensure that your Information is kept secure against unauthorised access, loss, disclosure or destruction. Except as required by law, or in accordance with these Terms and Conditions, your Information will not be passed to anyone without your permission.
13.3 You explicitly consent to us accessing, processing and retaining any Information you provide to us for the purposes of providing payment services to you. This does not affect any rights and obligations you or we have under Data Protection Laws. You agree that we can use your Information in connection with the PIS, to enable us to review, develop and improve our products and services. This may involve providing your Information to our partners, affiliates, agents, distributors and suppliers to process transactions and for their statistical research and analytical purposes. We may also disclose your Information as required by law, regulation or any competent authority or agency to investigate possible fraudulent, unlawful or unauthorised activity. You may withdraw your consent at any time. If you do this, we will stop providing our PIS to you and stop using your Information to provide payment services to you. We may continue to process your Information for other purposes, for example where we are required by law to do so.
13.4 If we discover that the Information we hold about you is incorrect, we may have to suspend or cancel your access to the PIS until we can establish the correct Information, in order to protect us both.
14. COMPLAINTS PROCEDURE
14.1 Complaints regarding any element of the PIS provided by us can be sent to Customer Services.
14.2 All complaints will be subject to our complaints procedure. We will provide you with a copy of our complaints procedure upon request and, if we receive a complaint from you, a copy of our complaints procedure will automatically be posted or emailed to you.
14.3 In most cases we will provide a full response by email to your complaint within fifteen business days after the date we receive your complaint. In exceptional circumstances where we are unable to respond in full to your complaint, we will inform you of this giving our reasons for the delay and the timeframe within which you will receive a full reply, which in any event shall be within thirty-five days of the date we received your complaint.
14.4 If we fail to resolve your complaint to your satisfaction you may refer your complaint to the Financial Ombudsman Service (Exchange Tower, London E14 9SR, phone 0800 023 4567). Details of the service offered by the Financial Ombudsman Service are available at www.financial-ombudsman.org.uk.
15. GENERAL
15.1 Any delay or failure to exercise any right or remedy under these Terms and Conditions by us shall not be construed as a waiver of that right or remedy or preclude its exercise at any subsequent time.
15.2 If any provision of these Terms and Conditions is deemed unenforceable or illegal, the remaining provisions will continue in full force and effect.
15.3 You may not assign or transfer any of your rights and/or benefits under these Terms and Conditions and you shall be the sole party to the contract between us. We may assign our rights and benefits at any time without prior written notice to you. We may subcontract any of our obligations under these Terms and Conditions.
15.4 Save for Modulr, who act on our behalf, no third party who is not a party to these Terms and Conditions has a right to enforce any of the provisions in these Terms and Conditions.
15.6 These Terms and Conditions are governed by English law and you agree to the exclusive jurisdiction of the courts of England and Wales.
The Modulr Account Terms and Conditions; Important information you need to know
Confirmation of Payee
End User License
Overview
For the correct performance of the services rendered by GREENGAGE GLOBAL HOLDING LTD, an account registered in United Kingdom with address at 9 Little Trinity Lane, London, England, EC4V 2AD and account number 11904803 (“Supplier”), it is necessary that you agree to use this platform (the “Platform”), which is an integrated cloud computing solution for providing fintech services including banking, payment, expense and card services, analysis of financial and business data, and other financial products accessible through online and mobile banking (the “Fintech Services”).
This End User License Agreement constitutes a legally binding contract (the“EULA”) between you and the Supplier and aims to regulate the conditions of access and use of the Platform by you as an end user (the “End User”). The Supplier offers the Fintech Services through the Platform as part of the broader fintech services package it currently renders to you. Each End User must accept this EULA for the correct provision of the Fintech Services through the Platform.
The developer of the Platform is Toqio Fintech Limited, a company registered in England and Wales with corporate address at Harwood House, 43 Harwood Road, London, United Kingdom, SW6 4QP and company number 11760343 (the “Service Provider”). Service Provider provides the Platform to the End User by virtue of a contractual relationship between the Service Provider and the Supplier.
Conditions of the license and the use of the Platform.
Subject to the End User’s compliance at all times with all the terms and conditions of this EULA, the End User is entitled to access the Platform on a non-exclusive, non-transferable and non-sublicensable basis, only as end user.
The license includes the possibility to have access to the following contents (“Service Tools”), as offered by the Service Provider on a case by case basis in accordance with its agreement with the Supplier:
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Platform materials: visual interfaces, graphics, design, systems, methods, information, computer code, software, services, “look and feel”, organization, compilation of the content, code, data, and all other elements of the Platform.
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Guidelines: additional guidelines or rules applicable to specific features, applications, products, or services which may be posted from time to time on the Platform.
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Software, computer programs and applications provided by the Service Provider within or in conjunction with the Platform (“Software”).
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Content: in general, any data and information available through or contained within the structure of its Platform, the Platform Materials, Guidelines , or whatsoever, articles , documents , brochures , presentations, pictures, images, audiovisual works, other informational materials and any comments.
In order to use the Platform and the Service Tools, the End User must ensure that its network and systems comply with the Platform and each Service Tool specifications.
The End User must not:
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Make any use of or perform any acts with respect to the Service Tools other than as expressly permitted in accordance with the terms and conditions of this EULA.
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Lease, loan, sell, resell, transfer, assign, distribute, display, disclose sublicense or otherwise commercially exploit the access to the Platform or the Service Tools.
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Access, store, distribute or transmit any viruses, worms or malware, or any material on the course of its use of the Service Tools that: (a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing, or racially or ethnically offensive; (b) facilitates illegal activities; (c) depicts sexually explicit images; (d) promotes unlawful violence; (e) is discriminatory; or in a manner that (f) is otherwise illegal or causes damage or injury to any person or property.
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Make modifications to the source code or metadata provided by the Service Provider or otherwise to the Service Tools, and particularly the Software, including, but not limited to, the creation of any new applications, programs, interfaces, alternative user interfaces, the extension of the Software’s data structures, or any other changes to the Service Tools.
Either the Supplier or the Service Provider may immediately disable any End User’s access to the Platform or any of the Service Tools if the End User breaches any of the provisions of this section.
Conditions of the license and the use of the Platform.
The Fintech Services provided through the Platform will be provided in accordance with Annex I.
Charges and payment
The use of the Platform by the End User and the Fintech Services provided through it may be subject to usage and transaction fees (the “Fees”) as set forth in Annex II.
End user data
“End User Data” means files (documents of any kind, including images, receipts, invoices, transactions, additional users, text files, etc.) and any other digital data and information which is used to provide the Fintech Services or otherwise uploaded into or communicated to the Platform by the End User, including the specific accounts, transactions, and other data associated with the End User.
If the End User uploads End User Data to the Platform, the End User represents and warrants that it complies with the applicable laws and the provisions of this EULA.
As between the End User and the Supplier and the Service Provider, all rights, title and interest in and to the End User Data uploaded to the Platform belong to the End User, without prejudice to the Service Provider’s rights to use the End User Data as set forth in this EULA.
No warranty.
The Service Provider does not provide any specific warranty in connection with the End User Data.
The Service Provider does not warrant any accuracy with respect to the End User Data which is processed by or uploaded to the Platform. The End User is responsible for ensuring the accuracy of the End User Data before transmitting, submitting, processing or uploading it to the Platform.
When processing or uploading End User Data to the Platform, the Platform will automatically generate a code for each piece of End User Data, determining the exact date and time when the End User Data was processed or uploaded. Neither the Supplier nor the Service Provider warrant that the contents and the legal implications of the End User Data processed or uploaded to the Platform have been reviewed and verified. Such code does not entail the assumption of any liabilities by the Supplier or the Service Provider with regard to that document.
The End User acknowledges that the Platform is hosted in the cloud and that therefore the Service Provider cannot provide any warranty as to uptime and that, in the event of any loss or damage to End User Data, the End User's sole and exclusive remedy will be to request the Supplier that the Service Provider use reasonable commercial endeavours to restore the lost or damaged End User Data from the latest back-up of such End User Data. Neither the Supplier nor the Service Provider may be held liable for any loss, destruction, alteration or disclosure of End User Data caused by any third-party.
Unlawful End User Data.
When transmitting, submitting, processing or uploading the End User Data to the Platform, neither the Supplier nor the Service Provider have any obligation of pre-screening, monitoring or filtering any End User Data. However, if the Supplier or the Service Provider have reasonable reasons to believe that the End User Data or any actions of an End User regarding the Platform are unlawful, they are fully entitled to:
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notify the End User of such unlawful End User Data;
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deny its inclusion in the Platform, or keep the End User Data duly blocked until a proper response supported by adequate means of evidence is received from the Supplier (or the End User through the Supplier);
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demand that the End User brings the unlawful End User Data into compliance with the applicable laws and with this EULA; and/or
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remove the unlawful End User Data from the Platform.
If the End User presented adequate means of evidence proving that the End User Data is compliant with the applicable laws and this EULA, the Supplier will provide the Service Provider with such adequate means of evidence, and the Service Provider may, at its own discretion, unblock it and permit its integration on the Platform.
Personal data processing
Personal Data (sub)processing.
For the correct provision of the Fintech Services it is necessary for the Service Provider to access and process the personal data contained in the End User Data which is transmitted, submitted or uploaded to the Platform (the “Personal Data”). These processing activities will be in compliance with the applicable laws on data protection, and particularly, with Regulation 2016/679, of April 27, 2016, on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (the “GDPR”) and the Organic Act 3/2018, of December 5, on Personal Data Protection and guarantee of digital rights.
The End User will be acting as a data controller (the “Controller”) in charge of the Personal Data and the Supplier will be acting as a data processor on its behalf (the “Processor”). In turn, the Processor relies on the Service Provider to process the Personal Data for the provision of the Fintech Services through or in connection with the Platform and will therefore act as a data sub-processor (“Sub-processor”).
By means of this EULA, the Controller authorizes the Sub-processor to have access and process the Personal Data for the provision of the Fintech Services. The processing of Personal Data by the Sub-Processor does not qualify as a data transfer, but as an ancillary limited access on behalf of the Controller (through the Processor) in the terms set out in article 28 GDPR and any other applicable laws on data protection.
The processing of Personal Data carried out by the Processor and the Sub processor, includes the following activities:
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Managing the creation of the End User account in the Platform, giving responses and technical support to the End User’s requests of information concerning the Fintech Services, the Platform or the Service Tools.
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Checking the End User identity in the Platform prior to the approval of concrete financial transactions or the engagement in credit products, or other Fintech Services. Such identity check will also be helpful to protect the End User against fraud and money laundering practices, and to confirm its eligibility for taking the Fintech Services.
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Managing End User payments due to its subscription for using the Platform or, generally, the Service tools, and for taking the Fintech Services. Particularly, the management of payments extends to the execution of End User payments, the management of the Fees and other fees, charges, costs, interests and whatsoever amounts derived from each End User subscription, as well as collecting and recovering such amounts.
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Managing the End User income and expense portfolio and savings, for understanding the End User’s financial circumstances, its credit and repayment histories as well as how it deals with financial risks. These processing activities also include management of End User’s Personal Data for anticipating and “predicting” its liquidity needs according to its profile.
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Managing the End User’s business insights, by means of monitoring how it commercially operates, the position it occupies in the economic scenario, and analysing its financial position, capabilities, corporate and compliance governance and audit mechanisms.
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Connecting the End User to any core banking platform, e-money platform, payment platform, or any other technologies that enable banking and payments. Moreover, these processing activities extend to associating End User’s Personal Data to companies or entities legally, contractually linked to it or bound by any economic interdependence relationship.
The Controller acknowledges that the processing activities carried out by the Processor and the Sub-processor may be the object of changes or modifications. Consequently, the End User authorizes the modification of this EULA so to reflect the processing activities applicable to the Personal Data. The eventual changes or modifications will be considered an integral part of the EULA.
The Processor and Sub-processor may process the following types of Personal Data:
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Contact and identification. Name, surname, post address, email address, national identification document, passport, driving licenses, phone number, birth certificate, photograph, information publicly available on the internet, credit reference or fraud protection agencies, signature, e-signature, financial data and job title.
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Transactions and contracts. Payments, amounts, beneficiary details, concepts, account number, credit and debit cards and the details therein, categorization and movements data, currencies, exchange rates, bank statements, KYB and KYC forms, transfers, name of payers, name of payees’, and accounting related categories of Personal Data.
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Other End User data. IP address, internet connection data, usage of the Platform’s Products and Services, preferences when using the Platform or receiving the Fintech Services, details of the device the End User uses for accessing the Platform (e.g. phone, tablet, computer), Platform registration details (e.g. username and password), other log-in information, browsers type and versions, operating system of the End User’s device, IMEI codes, mobile network information, address book, pictures, videos, and friends’ lists from social media networks.
The Processor (and Sub-processor vis-à-vis the Processor) will comply with the following provisions:
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process the Personal Data on behalf of and in accordance with the instructions provided by the Controller. If at any time, any of them considers that a Controller instruction may infringe the applicable laws on data protection, they will inform the Controller;
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keep a record of processing activities that contains the references and requirements established in the applicable laws on data protection, and make it available to the Controller upon reasonable request;
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ensure that access is limited to people who need to know/access the relevant Personal Data and ensure they are bound by confidentiality obligations to keep the Personal Data confidential;
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implement appropriate technical and organizational measures to ensure a level of security appropriate for the risk derived from each specific data processing, considering the state of the art, the costs of implementation, the nature, scope and purposes of the processing, as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons;
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notify the Controller before the processing, unless prohibited from doing so for important reasons of public interest, where they need to transfer the Personal data to a country located outside the European Economic Area due to the correct provision of the Fintech Services (e.g. processing activities related to storage of Personal Data);
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collaborate with the Controller in guaranteeing the data subject’s rights;
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notify the Controller as soon as possible of any personal data breach of which they may be aware;
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if during the term of the provision of the Fintech Services, the Controller must perform a data protection impact assessment, including, where appropriate, prior consultation with the supervisory authority, provide reasonable assistance to the Controller, considering the nature of the processing activities and the information available at a given time;
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upon termination of the provision of the Fintech Services for any reason, the Processor and Sub-processor, at the Controller request, must delete the Personal Data processed, or return it to the Controller or to whom the latter names, and destroy any copies of the data so that the Personal Data are irretrievable, within one month of the termination date, unless the applicable laws impose on the Processor or Subprocessor obligations to retain the Personal Data for a different period; and
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allow for audits related to the processing of Personal Data by the Controller, with at least 72 hours prior notice, interfering as little as possible in the normal course of the Processor’s or Sub-Processor’s business activities.
The Controller must comply with the following obligations:
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give instructions on the data processing, on the terms specified in this EULA;
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fulfil the obligations that the applicable laws on data protection in force at any time impose on the Controller;
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promptly react to any notifications received from the Processor or the Sub-processor about the data processing, including notifications relating to security breaches and instructions given by the Controller that, in the Processor’s or Sub-processor’s opinion, infringe the applicable laws on data protection;
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carry out, where applicable, the data protection impact assessment required by the applicable laws on data protection and comply with whatsoever other obligation under any applicable laws on data protection; and
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communicate as soon as possible any changes in the Personal Data that motivate the adoption of different or additional security measures.
Subcontractors.
The Sub-processor is expressly authorized to subcontract other companies for the correct execution of its obligations under this EULA.
The Sub-processor is expressly authorized to share the Personal Data with those other subcontractors, as requested by the Processor, that will also be considered sub-processors. The Sub-processor must enter into a data processing agreement by virtue of which the subcontractors must assume the same data protection obligations in respect of the Personal Data as the ones set forth in this EULA. At the time of subscription of this EULA, the Sub processor has appointed the subcontractors listed in Annex III.
The End User acknowledges that the Sub-processor may rely on subcontractors which are located in the United Kingdom or in countries outside the European Economic Area. In this regard, the Sub-processor will observe and comply with the requirements set out in the applicable laws on data protection in force at the time of performing the data transfer, particularly, on the requirements of Chapter V GDPR, and will implement the security measures, technical and organizational measures to ensure compliance with them (including, among others, the subscription of standard contractual clauses with the subcontractors).
Ancillary uses of the End User Data (including Personal Data).
The Fintech Services and the Platform are based on technology and statistical information owned by the Service Provider, that leverages the End User input and delivers relevant financial information and analysis.
The End User accepts and agrees to the following uses of the End User Data:
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When using the Platform, the End User Data may be used to optimize and improve the Platform or, generally, the Service Tools.
These uses may include, but are not limited to:
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business management activities;
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improvement of the coordination with the End User and its commercial activities;
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improvement of the efficiency of the Platform or, generally, the Service Touls;
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evaluating, testing and developing new solutions to the FintechServices; and
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understanding how the End User uses the Platform or, generally, the Service Tools, as well as its preferences.
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The End User Data may be anonymized or aggregated to contribute to the Service Provider’s statistical information.
These uses may include, but are not limited to:
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contributing to the Service Provider’s market intelligence, statistical analysis, and reports on trends;
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understanding how the End User benefits from taking the Fintech Services;
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understanding the implications of the Fintech Services in the market;
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nourishing the algorithm of the Software integrated within the Service Tools contributing to the Service Provider’s “know-how”.
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The End User Data may be used for the purposes of sending electronic commercial communications to the End User related to the Fintech Services and the Service Tools, provided either by the Service Provider or by third parties, which may be of the End User’s interest.
These uses may include, but are not limited to the performance of “cross-selling” activities, that is, sending commercial communications concerning additional products and financial services to the existing Fintech Services, or interacting with the End User while it is using the Platform in order to receive or benefit from such additional products and financial services. Those additional products or services may be provided by the Service Provider or by third parties.
The End User Data may be used for the purposes of creating a profile of the End User within the scope of the Fintech Services for the management of the correct performance of the Fintech Services, and for achieving a greater personalization degree so to raise the End User’s interest on the financial alternatives which may be offered and ensure that they match the End User preferences. The creation of such profiles will not lead to automated decision-making activities concerning the data subjects that form part of the Personal Data.
The End User understands those uses and by checking the boxes at the end of this EULA agrees to them.
General
Each party must comply with all applicable laws on data protection in force at any given time, in relation to the processing of Personal Data to which the Processor or the Sub-processor have access in the framework of this EULA. The Controller hereby represents and warrants that it complies with the applicable laws on data protection and is entitled to upload into or otherwise communicate to the Platform the End User Data in general, and the Personal Data in particular, in accordance with this EULA. The Controller must ensure that the relevant third-parties have been informed of, and, if applicable, have given their consent to such use, processing, and transfer as required by the applicable laws on data protection.
Integration of Third-Party Services in the Platform
The Platform may integrate, enable or assist the End User to access third party services. Those third parties may be either other service providers selected by the Supplier to render services to the ultimate benefit of the End User (“Other Providers hired by the Supplier”) or, in some cases, service providers selected directly by the End User (“Other Providers hired by the End User”).
Other Providers hired by the Supplier.
The Platform allows connections to a wide range of service providers of financial products and services including core banking, cards, accounting, insurance, FX, lending, payment, KYC and KYB, amongst others.
Albeit provided through or integrated with the Platform, each Other Provider hired by the Supplier is solely responsible vis-à-vis the Supplier and ultimately the End User for its own service. The Service Provider will devote reasonable commercial efforts to ensure that those services are provided seamlessly through the Platform, but assumes no liability for them or for errors, interruptions, discontinuances, suspensions or other type of unavailability of those services or the Platform resulting or derived from those services.
Likewise, the Platform may connect with content, products or services from Other Providers hired by the Supplier via their websites. Access and use of that content, products or services is carried out at the End User’s own risk and convenience and may be subject to additional terms and conditions, rules and regulations.
The Service Provider does not make any representation or commitment, endorse, or assume any liability or obligation whatsoever in relation to the content, information, materials, products, services or transactions the End User enters into with Other Providers hired by the Supplier
From a personal data processing perspective, the Other Providers hired by the Supplier will be subcontractors acting on behalf of the Supplier, and therefore sub-processors of the Personal Data. The Service Provider is expressly authorized to share the End User Data, including the Personal Data, with those other subcontractors, as requested by the Supplier in its condition as Processor.
Other Providers hired by the End User.
The Platform allows connections via API with third-party accounting and ERP solutions (e.g. Xero, SAGE).
The Service Provider will devote reasonable commercial efforts to ensure that the services provided by Other Providers hired by the End User are connected seamlessly through the Platform, but assumes no liability for them or for errors, interruptions, discontinuances, suspensions or other type of unavailability of those services or the Platform resulting or derived from those services.
From a personal data processing perspective, the Other Providers hired by the End User will be contractors acting on behalf of the End User, and therefore processors of the Personal Data. The Service Provider is expressly authorized to share the End User Data, including the Personal Data, with those Other Providers hired by the End User, as requested by the End User in its condition as Controller.
Condifentiality
The End User and the Supplier agree to keep confidential the terms of this EULA, the content of the Platform and the Service Tools, as well as any other information provided as a result of this EULA which should in good faith be considered confidential (the“Confidential Information”). The End User Data (including Personal Data) will also be generally considered Confidential Information, without prejudice to the Service Provider’s rights to use the End User Data as set out in this EULA.
The receiving party may not disclose any aspect of the Confidential Information to any person, entity, body or institution without the disclosing party’s consent, and may not use it for any purpose other than in connection with the execution of this EULA.
A party’s Confidential Information must not be deemed to include information that:
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is or becomes publicly known other than through any act or omission of the receiving party;
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was in the other party’s lawful possession before the disclosure;
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is lawfully disclosed to the receiving party by a third-party without restriction on disclosure;
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is independently developed by the receiving party, whose independent development can be shown by written evidence; or
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is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
In the event that the receiving party is required by law to disclose all or part of the Confidential Information:
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the receiving party required to make that disclosure will notify the disclosing party in writing as soon as possible and before disclosing or delivering the Confidential Information, unless required by a competent authority not to do so, enclosing copies of the relevant documents and information, so that the disclosing party may adopt the measures it considers appropriate to safeguard its rights and the Confidential Information; and
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the disclosing party will determine the content of the Confidential Information required to be disclosed by law, unless it has already been determined by the competent authority requiring the receiving party to disclose the information.
Intellectual property rights
The Platform, the Service Tools, and particularly the Software, and all title, rights and interest, especially, without limitation, any intellectual property rights embodied therein are the sole and exclusive property of the Service Provider or its licensors. Therefore, except as permitted in this EULA, the End User is not entitled to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, distribute or communicate to the public (including making available to the public) all or any part of them in any means, support, form or media, or attempt to decompile, disassemble, reverse engineer or otherwise reduce to humanperceivable form all or any part of the Software or the rest of the Service Tools.
The End User may not copy the printed materials accompanying the Platform or the Service Tools, nor print copies of any of them if provided in an electronic form.
Ownership of the Results.
All right, title and interest in and to the result of the Fintech Services (the “Results”), including the intellectual property rights that may derive from them, belong to the Service Provider. The Service Provider’s rights do not extend to the End User Data that may be included as part of the Results.
Subject to the Supplier and the End User’s compliance at all times with the terms of this EULA, the Service Provider will grant the End User and the Supplier a non-exclusive, non-transferrable, non-sublicensable right to use the Results exclusively for their internal, non-commercial uses.
Limitation of liability
The Platform and the Service Tools are provided to the End User on an “as is” basis. All warranties, representations, conditions and all other expressed or implied guarantee of any kind whatsoever resulting from the applicable laws are excluded from this EULA to the fullest extent permitted.
Except as expressly and specifically provided in this EULA, to the maximum extent legally permitted the End User assumes sole responsibility for the application of the Results obtained from the execution of the Fintech Services and from the use of the Platform and other Service Tools, and the decisions made by the End User based on those Results.
The Service Provider must not be held liable for any damage caused by actions undertaken by the Service Provider following the Supplier’s instructions or guidelines.
To the maximum extent legally permitted, the Supplier, the Service Provider and its licensors will not be held liable:
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if the Platform or Service Tools, particularly, the Software, are not used in accordance with the Supplier’s express instructions or as dictated in the Platform;
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if the Software is used in conjunction with any third-party software for which the End User lacks sufficient rights from the third-party owner for such use;
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if the End User keeps on using the Platform or any Service Tools after notice from the Supplier or the Service Provider of the existence of an alleged or actual infringement of third-party rights;
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for any consequences resulting from any error, interruption, discontinuance, suspension or other type of unavailability of the Platform or the Service Tools;
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for any consequences resulting from the End User’s use of third-parties’ websites or browsers other than those accepted and supported by the Platform; or
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for any consequences arising from any End User activity contrary to the rights and obligations of this EULA.
Term and Termination
Term.
This EULA will commence of the date of subscription and continue for 24 months from the date on which the Platform has been delivered to the End User and the End User has accepted such delivery. Afterwards, this EULA will be automatically renewed for successive periods of 3 months, unless terminated pursuant to the following section.
Termination.
Either party may terminate this EULA by serving written notice to the other at least 30 calendar days before the expiration of the24-month term set out in the “Term and Termination” section under the “Term” subsection above. Termination will be effective upon the expiry of the 30-calendar day notice period from the receipt of the notification.
On termination of this EULA:
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the End User must stop using, return and make no further use of the Platform or, generally, the Service Tools, as well as any equipment, property and other items it has gained access to by means of taking the Fintech Services, as well as the Confidential Information belonging to the Supplier or the Service Provider; and
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the End User must pay any pending Fees or amounts owed to the Supplier under this EULA, including those corresponding to the next calendar month following the receipt of the notice of termination.
In connection with the last paragraph of the “Conditions of the license and the use of the Platform” section of the EULA, the Supplier or the Service Provider may have the right to suspend access to all or any part of the Platform, other Service Tools, or the execution of the Fintech Services, including removing content, at any time for violation of this EULA or to protect the integrity, operability, and security of the Fintech Services, the Platform and the Service Tools, effective immediately, with or without notice. Unless prohibited by law or legal process or to prevent imminent harm to the End User or any third party. The Supplier (or in certain situations the Service Provider) will typically provide notice on or before such suspension. This suspension, using good faith, will be tailored as needed to preserve the integrity, operability, and security of the Fintech Services, the Platform or, generally, the Service Tools.
This EULA may be amended from time to time by the Supplier. Amendments will be notified to the End User through the Platform and will be effective at the end of the next calendar month. If the End User does not agree to the amendments, then the End User will be entitled to terminate this EULA pursuant to the first paragraph of the “Termination” clause above. If the End User keeps on using the Platform and the Service Tools, as well as receiving the Fintech Services without giving the Supplier a proper termination notice, it will mean that it accepts the amendments. For the avoidance of doubt, no amendments may me imposed on the Service Provider without its prior, express, and written consent.
Miscellanea
Headings. The headings used in this EULA are for reference purposes only and will not affect its interpretation nor the interpretation of its clauses.
Severance In case any of the provisions contained in this EULA is held to be wholly or in part illegal, invalid or unenforceable in any respect, such illegality, invalidity or unenforceability would not affect the other provisions of this EULA, and this EULA would be construed as if such invalid or unenforceable provision had never been contained herein. The illegal, invalid or unenforceable provision will be replaced by a valid and enforceable provision which approximates as closely as possible the intent of the invalid or unenforceable provision.
No waiver. Failure of the Supplier, the Service Provider or the End User to exercise or enforce any provision of or any of its rights under this EULA must not be deemed a waiver of future enforcement of that or any other provision or right.
Notices. Any notice given under or in connection with this EULA will be in writing and will be sent by email to the End User’s main email address (or such other email address as specified), or will be made digitally through the Platform. Any notice should be deemed to have been received: (i) if sent by email, at 9.00 am on the next calendar day after transmission; or (ii) if made through the Platform, on the next login of the End User.
Force Majeure. Neither the Supplier, the Service Provider nor the End User would be in breach of this EULA nor liable for delay in performing, or failure to perform, any of their obligations under this EULA if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the affected party would be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for 10-calendar days, the party not affected may terminate this EULA by giving written notice, in which case the termination will be effective at the end of the next calendar month following the receipt of the notification.
Entire agreement. This EULA constitutes the complete and exclusive statement of the agreement between the Supplier and the End User relating to the subject matter hereof and supersedes all prior agreements, arrangements and understandings between the parties relating to that subject matter. Each of them acknowledges that in entering into this EULA it has not relied on any representation, discussion, collateral contract or other assurance except those expressly set out in this EULA. Each party waives all rights and remedies which, but for this paragraph, might otherwise be available to it in respect of any such representation, discussion, collateral contract or other assurance. As an exception, if a broader agreement were already in place between the End User and the Supplier (the “Main Agreement”) of which the services provided under this EULA were an integral part, the Main Agreement will remain in force as agreed therein, and in case of conflict, the provisions of this EULA will prevail in all that relates to the use of the Platform or the Service Tools by the End User, except if the Main Agreement were more restrictive regarding the permissible use of the Platform or the Service Tools by the End User, in which case the more restrictive provisions will apply.
No partnership or agency. Nothing in this EULA is intended to, or must be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorize any party to make or enter into any commitments for or on behalf of any other third party.
Assignment. The End User must assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this EULA.
Remedies. Except as expressly provided in this EULA, the rights and remedies provided under this EULA are in addition to, and not exclusive of, any rights or remedies provided by the applicable laws.
Language. This EULA is being entered into in English language. In the event of an inconsistency between the terms of the EULA and any translation thereof into another languages, the English version must prevail.
Governing law and jurisdiction
This EULA and any dispute or claim arising out of or in connection with it or its subject matter or formation, including non-contractual disputes or claims, must be governed by and construed in accordance with the laws of Spain, excluding its conflict of laws principles.
The End User agrees that the Courts of London, UK have exclusive jurisdiction to settle any dispute or claim that arises out of it or in connection with this EULA or its subject matter or formation (including non-contractual disputes or claims).
Annex I
Service levels
Annex I describes the target levels of service envisaged in connection with the execution of the EULA and the provision of the Fintech Services. It should be read and interpreted alongside the EULA, as it may not cover all areas applicable to the relationship between the Supplier and the End User. This annex is subject to changes and amendments at any time, as a result of subsequent agreements between the End User and the Supplier, or due to changes on the Fintech Services as detailed in Annex II.
Service levels(“SLs”)
The Fintech Services under this EULA and its annexes are subject to the following SLs:
Service Requirement | Key Performance Indicators | Measurement Mechanism |
|---|---|---|
Planned Outage Notification (Out of Hours) | 24 hours | Email Communication and Server Logs |
Complaints | 10 hours | Email, Phone and Chat Communication |
Unscheduled maintenance performed outside Normal Business Hours | 6 hours | Email Communication and Server Logs |
Unplanned Outage Notification | 2 hours | Server logs |
Availability.
The End User acknowledge that the Fintech Services are cloud based and that therefore neither the Supplier nor the Service Provider can provide any warranty as to uptime. Otherwise, the Fintech Services will be available 7 days a week, 24 hours a day, except for:
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planned maintenance;
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unscheduled maintenance performed outside normal business hours, provided that the Supplier and the Service Provider have used reasonable endeavours to give the End User at least 6 business hours’ notice in advance; and
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any unavailability caused by circumstances beyond Supplier’s or Service Provider’s reasonable control.
The End User must communicate any availability issues in a timely manner through the notification channel available in the Platform.
Exclusions.
The provision of the Fintech Services through the Platform is based on reasonable commercial endeavours to correct any non-conformances promptly, or provide the End User with alternative means of accomplishing the SLs. However, the SLs of this annex will not be applicable to:
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inconveniencies caused by the End User’s use of the Platform, or generally, the Service Tools in a manner contrary to this EULA including without limitation the use of the Platform or the Service Tools contrary to the instructions of the Supplier or the Service Provider at any given time;
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inconveniencies caused by software, equipment or services provided by other providers hired by the End User; or
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inconveniences caused by the End User’s obstruction of the Supplier’s and the Service Provider’s planned maintenance of the Platform and the Service Tools.
Responsibilities.
Neither the Supplier nor the Service Provider will be held liable for any damage resulting from the lack of accomplishment of the SLs set forth in this annex as they are provided on a best efforts basis, unless such damage is the direct result of gross negligence or wilful misconduct by the Supplier or the Service Provider. Any delivery times, turnaround times or deadlines given or agreed in connection with the SLs and the availability are target times only.
In the event the Supplier or the Service Provider failed to meet the SLs described in this annex, the End User acknowledges that such failure will not constitute a cause of early termination of this EULA and the only remedy available, unless otherwise established in the EULA, would be the initiation of a negotiation of an amendment or change of the SLs. Irrespective, as mentioned, the Supplier and the Service Provider will use reasonable commercial endeavours to correct any non-conformances of the SLs promptly.
Annex II
Details of the End User subscription, applicable charges and payments
Details of the Fintech Services.
Under this EULA, the End User may be taking the following Fintech Services through the Platform and the Service Tools:
Conditions of the license and the use of the Platform.
Accounts
The ability to store funds in different currencies in an account with an associated bank account number per the relevant jurisdiction.
Payments
Redeeming electronic money and sending the corresponding funds to a beneficiary account, the details of which you set out in your payment order.
Cards
The ability to issue, manage and track cards.
Users
The ability to invite other users onto the Fintech Platform, define their role and corresponding access to the Platform or, generally, the Service Tools and to view and manage them.
Expenses
The ability to track, manage, and categorise your expenditure.
Marketplace services
The ability to connect to third party services (e.g. accounting platforms), to enhance the overall experience of the Platform.
Fees.
The Fees applicable to the Fintech Services are available in the pricing section
Details of the payment.
When registering into the Platform, the End User will open an electric money wallet (the “Wallet”) and pre-fund it to meet all the payment obligations set forth in this EULA.
The Supplier will deduct the following Fees from the End User’s Wallet:
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For transactions or payments, Fees will be deducted at the time each transaction or payment is executed, as well as other services including, but not limited to, ATM fees, card replacement fees, inbound transaction fees and chargebacks.
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For the Fintech Services, the use of the Platform or, generally, the Service Tools on a monthly basis.
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For the other services providers, including other providers hired by the End User (e.g. Xero and Sage) and other providers hired by the Supplier (e.g. core banking providers, accounting providers, etc.), which may be rendered through the Platform and on the terms they are agreed to with such other service providers. These Fees will either be deducted from the Wallet or as part of the transaction related to the specific service rendered.
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For all bank charges and any other costs incurred or suffered by the Supplier or the Service Provider as a result of the End User’s instructions, to reverse, recall or modify any payment except as any error attributable to the Supplier or the Service Provider, at the time each cost is incurred or suffered. Some of these charges may be levied to offset the costs the Supplier or the Service Provider may incur from the banking providers for making transactions or payments. If the banks raised the charges so to process any transactions or payments, such additional charges will be passed onto the End User. A reasonable prior notice will be given under these circumstances.
The End User hereby acknowledges that the Supplier may subcontract the billing services to the Service Provider.
Any transfer of funds may be liable to taxation in each applicable jurisdiction. It is the End User’s responsibility to ascertain the applicability and extent of any taxation and to declare and pay any tax on any such sums. In the event that the Supplier or the Service Provider are required to withhold any sums in respect of taxation by any court, regulation or taxing entity in any applicable jurisdiction, the End User must permit them to do so. No obligation to account vis-à-vis the End User in respect of sums so withheld will be derived for the Supplier nor the Service Provider.
If the Supplier is not able to charge the Fees (including applicable taxes) to the End User due to funds unavailability in the Wallet or to whatsoever reasons not attributable to the Supplier, the pending amounts shall accrue on a daily basis until the Fees are paid in full. The Supplier or its contractors (e.g. the Service Provider) will try to make effective the payment once daily until the Fees are effectively deducted from the electronic money wallet the End User holds on its Platform account. The End User must ensure sufficient availability of funds on the Wallet at all times.
Without prejudice to any other rights and remedies available for the Supplier, if it has not received payment within 15-calendar days after the due date, the Supplier may, without liability to the End User, disable the End User’s password account and access to all or part of the Platform and the Service Tools -or instruct the Service Provider to do so-, and the Supplier would be under no obligation to provide any or all of the Fintech Services while the Fees concerned remain unpaid.
All amounts and Fees stated or referred to in this Annex II and the EULA: (i) must be payable in currency as in the fee table; (ii) are non-cancellable, non-refundable, and cannot be set-off against other debts; and (iii) are exclusive of value added tax and any other applicable taxes.
Modification of the Fees.
The End User may check at any given time which are the Fees applicable to the Fintech Services. This can be done through the Platform, and, concretely, the Fees are available at the Frequently Asked Questions section of the Support module.
The End User acknowledges that Fees may vary over time, and that the Supplier is entitled to increase them or any other fees payable in respect of the additional Fintech Services the End User may purchase. The Supplier will give the End User a 30-calendar days prior notice of the modification of the Fees applicable to the Fintech Services through the Platform.
If the End User does not agree to the increase of the Fees, then the End User will be entitled to terminate this EULA. If the End User keeps on using the Platform and the Service Tools, as well as receiving the Fintech Services without giving the Supplier a proper termination notice within the notice period set forth in the previous paragraph, it will mean that it accepts the new Fees applicable to the Fintech Services. The new Fees will become an integral part of this EULA in lieu of the Fees set out above.
Annex III
List of the Service Provider’s current subcontractors
Processor | Description |
|---|---|
Payrnet | The Regulated Entity which enables the banking services on this platform. |
TruNarrative | The compliance provider that enables our Know your Client and Know your Business services. |
Intercom | Service provider for Client support conversations, qualifying as a processor for End User Data if you provide End User Data inconversations with our Client support specialists (Privacy Shield certified). |
Marketplace Products | These are products that end users can selectively connect to, and if they do, we send and receive data from them. |
Xero | Accounting Platform which processes transaction data and provides access to financial information. |
Sage | Accounting Platform which processes transaction data and provides access to financial information. |
Quickbooks | Accounting Platform which processes transaction data and provides access to financial information. |
Anfix | Accounting Platform which processes transaction data and provides access to financial information. |
Twinfield | Accounting Platform which processes transaction data and provides access to financial information. |
Railsbank | Banking API service used to create bank account, execute payments and issue cards. |
Google Analytics | Users are bound by the Google Analytics Terms of Service. |
Google Cloud Vision | Processes receipt data. Users are bound by the Google Cloud Platform Terms of Service. |
Google Firebase | Processes user notifications. Users are bound by the Google Firebase Terms of Service. |
Google Mail | Emails sent to the Service Provider are processed by Gmail in accordance with the Google Terms of Service |
Google Maps | Maps processes address data into Google Maps links. Users are bound by the Google Maps/ Google Earth Additional Terms of Service (including the Google Privacy Policy).
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Twilio | Twilio allows software developers programmatically to make and receive phone calls, send and receive text messages, and perform other communication functions using its web service APIs (Privacy Shield certified). |
Amazon Web Services | File storage, cloud services and backup services in Ireland (Privacy Shield certified). |