Terminos y Condiciones

OVERVIEW

For the correct performance of the services rendered by TOQIO FINTECH LIMITED, a company registered in United Kingdom with corporate address at Harwood House, 43 Harwood Road, London, United Kingdom, SW6 4QP and company number 11760343 (“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.

END USER LICENSE

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:

  1. 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.
  2. Guidelines: additional guidelines or rules applicable to specific features, applications, products, or services which may be posted from time to time on the Platform.
  3. Software, computer programs and applications provided by the Service Provider within or in conjunction with the Platform (“Software”).
  4. 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:

  1. 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.
  2. Lease, loan, sell, resell, transfer, assign, distribute, display, disclose sublicense or otherwise commercially exploit the access to the Platform or the Service Tools.
  3. 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.
  4. 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.

PROVISION OF THE FINTECH SERVICES THROUGH 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 thirdparty.

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:

  1. notify the End User of such unlawful End User Data;
  2. 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);
  3. demand that the End User brings the unlawful End User Data into compliance with the applicable laws and with this EULA; and/or
  4. 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 Subprocessor, includes the following activities:

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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.
  6. 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:

  1. Contact and identification. Name, surname, post address, email address, national identification document, passport, driving licenses, mobile number, birth certificate, photograph, information publicly available on the internet, credit reference or fraud protection agencies, signature, e-signature, financial data and job title.
  2. Transactions and contractsPayments, 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.
  3. Other End User dataIP 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:

  1. 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;
  2. 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;
  3. ensure that access is limited to employees who need to know/access the relevant Personal Data and ensure they are bound by confidentiality obligations to keep the Personal Data confidential;
  4. 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;
  5. 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);
  6. collaborate with the Controller in guaranteeing the data subject’s rights;
  7. notify the Controller as soon as possible of any personal data breach of which they may be aware;
  8. 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;
  9. 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
  10. 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:

  1. give instructions on the data processing, on the terms specified in this EULA;
  2. fulfil the obligations that the applicable laws on data protection in force at any time impose on the Controller;
  3. 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;
  4. 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
  5. 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 Subprocessor 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:

  1. 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:

    1. business management activities;
    2. improvement of the coordination with the End User and its commercial activities;
    3. improvement of the efficiency of the Platform or, generally, the Service Tools;
    4. evaluating, testing and developing new solutions to the Fintech Services; and
    5. understanding how the End User uses the Platform or, generally, the Service Tools, as well as its preferences.
  2. 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:

    1. contributing to the Service Provider’s market intelligence, statistical analysis, and reports on trends;
    2. understanding how the End User benefits from taking the Fintech Services;
    3. understanding the implications of the Fintech Services in the market;
    4. nourishing the algorithm of the Software integrated within the Service Tools contributing to the Service Provider’s “know-how”.
  3. 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.

CONFIDENTIALITY

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:

  1. is or becomes publicly known other than through any act or omission of the receiving party;
  2. was in the other party’s lawful possession before the disclosure;
  3. is lawfully disclosed to the receiving party by a third-party without restriction on disclosure;
  4. is independently developed by the receiving party, whose independent development can be shown by written evidence; or
  5. 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:

  1. 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
  2. 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:

  1. 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;
  2. 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;
  3. 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;
  4. for any consequences resulting from any error, interruption, discontinuance, suspension or other type of unavailability of the Platform or the Service Tools;
  5. 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
  6. 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 the 24-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:

  1. 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
  2. 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
Unplanned Outage Notification 2 hours Server logs
Unscheduled maintenance performed outside Normal Business Hours 6 hours Email Communication and Server Logs
Planned Outage Notification (Out of Hours) 24 hours Email Communication and Server Logs
Complaints 10 hours Email, Phone and Chat Communication

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:

  1. planned maintenance;
  2. 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
  3. 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:

  1. 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;
  2. inconveniencies caused by software, equipment or services provided by other providers hired by the End User; or
  3. 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:

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.

 

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:

  1. 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.
  2. For the Fintech Services, the use of the Platform or, generally, the Service Tools on a monthly basis.
  3. 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.
  4. 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 must accrue on a daily basis on such due amounts at the rate applicable to commercial transactions under Law 3/2004, of December 29th, commencing on the due date and continuing 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 per week 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.

Annex III

List of the Service Provider’s current subcontractors

Processor Description
Amazon Web Services File storage, cloud services and backup services in Ireland (Privacy Shield certified).
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).
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).
Google Mail Emails sent to the Service Provider are processed by Gmail in accordance with the Google 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 Analytics Users are bound by the Google Analytics Terms of Service. 
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.