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:
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:
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.
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:
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:
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:
The Processor (and Sub-processor vis-à-vis the Processor) will comply with the following provisions:
The Controller must comply with the following obligations:
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:
The End User understands those uses and by checking the boxes at the end of this EULA agrees to them.
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.
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:
In the event that the receiving party is required by law to disclose all or part of the Confidential 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:
TERM AND TERMINATION
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.
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:
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.
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 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.
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|
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:
The End User must communicate any availability issues in a timely manner through the notification channel available in the Platform.
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:
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.
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:
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.
List of the Service Provider’s current subcontractors
|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 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.|