SCHEDULE 5
TRANSFERMATE CUSTOMER TERMS AND CONDITIONS
Framework Agreement
This Framework Agreement (this “Framework Agreement”), which contains the terms and conditions that govern your access to and use of the Services (as defined below), is an agreement between TRANSFERMATE LIMITED, a company incorporated and registered in Ireland with company registration number 477669 and whose registered office is at IDA Business & Technology Park, Ring Road, Kilkenny, Ireland (“Transfermate”) and you or the entity you represent (“Customer’”). By agreeing to the terms and conditions of use of bank transfer services provided to Customer by WEX (as defined below) that reference this Agreement, Customer agrees to the terms of this Agreement. If you are entering into this Agreement for an entity, such as the company you work for, you represent that you have legal authority to bind that entity. For the purposes of Section 20.3 (Notice Address), Customer’s notice address shall be the address set forth in its agreement with WEX.
WHEREAS
- (A) Transfermate is a service provider which provides technology solutions incorporating international money transfer and foreign exchange services, and whose Subsidiaries are authorised and regulated to provide payment services in various jurisdictions globally.
- (B) Transfermate is a strategic partner of WEX Europe Limited and its group affiliates(“WEX”) under which certain of Transfermate’s payments solutions are accessible through the Platform.
- (C) The Customer wishes to procure technology and payment services hereunder from Transfermate for use through the Platform or through the Website.
- (D) Transfermate is willing to provide such services to the Customer through the Platform or the Website in accordance with the terms and conditions of this Framework Agreement. This Framework Agreement is in addition to any separate terms and conditions, privacy policies, and other rules required by WEX, either related to the Services or otherwise.
IT IS AGREED as follows
1 INTERPRETATION AND DEFINITIONS
1.1 In this Framework Agreement:
1.1.1 references to persons includes individuals, bodies corporate (wherever incorporated), joint ventures, unincorporated associations and partnerships or any State body;
1.1.2 the headings are inserted for convenience only and do not affect the construction of the agreement;
1.1.3 the use of the singular number shall be construed to include the plural, and the use of the plural the singular, and the use of any gender shall include all genders.
1.1.4 any reference to any Applicable Law or other enactment or statutory provision is a reference to it as it may have been, or may from time to time be amended, modified, consolidated or
re‐enacted;
1.1.5 any phrase introduced by the words "including", "includes", "in particular", "for example" or similar shall be construed as illustrative and without limitation to the generality of the
related general words;
1.1.6 any reference to a document shall include all authorised amendments of, supplements to, and replacements of that document;
1.1.7 any obligation not to do anything shall include an obligation not to suffer, permit or cause that thing to be done;
1.1.8 References to clauses are to clauses of this Framework Agreement; and
1.1.9 a reference to any body shall, if that body is replaced by another organisation, be deemed to refer to that replacement organisation and if that body ceases to exist, be deemed to refer
to the organisation which most or substantially serve the same purpose or functions as that body.
1.2 The additional terms contained in the schedules (and all documents incorporated or referenced therein) (the “Schedules”) form part of this Framework Agreement.
1.3 In the event of any conflict or inconsistency between the terms of this Framework Agreement and any document or agreement referred to herein such conflict shall be resolved in the following order of priority:
1.3.1 Schedule 1;
1.3.2 the terms of this Framework Agreement; and
1.3.3 the remaining Schedules to this Framework Agreement.
1.4 For the purpose of this Framework Agreement, capitalised terms shall have the following meaning:
1.4.1 Account means the Transfermate account that is created in connection with the Customer being granted access to the Platform or Website;
1.4.2 Applicable Laws means all statutory instruments, regulations, orders, and other legislative provisions which in any way relate to this Framework Agreement or the provision of the Services;
1.4.3 Beneficiary means the intended recipient of the Payment Transaction who will be notified to Transfermate by Customer through the Platform or Website;
1.4.4 Business Day means a day (other than a Saturday or Sunday) on which banks are generally open for business in Ireland;
1.4.5 Charges means the charges agreed between Customer and WEX from time to time;
1.4.6 Corporate Chart means a diagram which sets out the entities in the Customer’s group structure, including details of all of the Subsidiaries of the Customer;
1.4.7 Account Information means all information required by Transfermate to complete an application to open an Account, including, but not limited to know‐your‐customer
information, anti‐money laundering information, and associated Customer and User information and includes Personal Data;
1.4.8 Data Protection Laws means all applicable privacy and data protection law;
1.4.9 Effective Date means the date of execution of this Framework Agreement and where executed on two different dates shall mean the later of the two execution dates;
1.4.10 Final Transfer means the transfer of funds by Transfermate into the account of the Beneficiary;
1.4.11 Framework Period means the term of this Framework Agreement commencing on the Effective Date until terminated;
1.4.12 Funding Account means those accounts listed in Schedule 2.2 which Customer wishes to use to fund Payment Transactions, whether entered by Customer or by Customer’s Subsidiary;
1.4.13 Intellectual Property Rights means patents, trademarks, service marks, logos, get‐up, trade names, internet domain names, rights in designs, copyright (including rights in computer software) and moral rights, database rights, semiconductor topography rights, utility models, trade secrets, rights in know‐how, and other intellectual property rights, in each case whether registered or unregistered and including applications for registration and rights to apply, and all rights or forms of protection having equivalent or similar effect anywhere in the world;
1.4.14 Lodgement means the transfer of funds from the Funding Account to the Nominated Account in respect of the Payment Transaction;
1.4.15 Nominated Account means the Transfermate bank account to which Customer’s Lodgement is required to be made;
1.4.16 Payment Transaction refers to the agreement for Transfermate to effect a funds transfer on Customer’s behalf whether at a live exchange rate, a pre‐agreed exchange rate or without a foreign exchange element;
1.4.17 Platform means the platform, portal and/or marketplace hosted by WEX and provided directly to the Customer;
1.4.18 Services means the services set out at Schedule 1 but for clarity include only those Services provided by Transfermate and do not include the access or use of the Platform;
1.4.19 Subsidiaries has the meaning given to that term by Section 7 of the Companies Act 2014;
1.4.20 Terms and Conditions means the terms and conditions of this Framework Agreement;
1.4.21 Transfermate Personnel means the employees and permitted agents of Transfermate;
1.4.22 Website means transfermate.com, or where the context so permits, other portals and APIs that are hosted by Transfermate.
2 CLAUSE RESERVED
3 SERVICE OBLIGATIONS
3.1 Transfermate shall provide the Services to the Customer in accordance with the terms of this Framework Agreement and Applicable Laws.
3.2 The provision of the Services shall be subject to the service terms set out at Schedule 1 (“Service Terms”), which may be updated from time to time by Transfermate and notified to the Customer in accordance with clause 10.
3.3 The Services provided by Transfermate are provided on an execution-only basis, meaning that Transfermate does not provide any investment advice, including without limitation, on the merits of the Services and its likely implications. Customer must make a decision to use the Services based solely on Customer’s own judgment, having availed of, if necessary, prior independent financial advice. It is for each Customer to evaluate whether the Services are appropriate in terms of each Customer’s
experience, financial objectives, and circumstances.
4 CUSTOMER OBLIGATIONS
4.1 The Customer shall comply with its obligations as set out in Schedule 1 and within this Framework Agreement.
4.2 Customer shall be obliged to complete Schedule 2.2 in respect of each Funding Account to the satisfaction of Transfermate, prior to which no Services may be provided by Transfermate. Where additional Funding Accounts are requested to be added following the commencement of Services, Transfermate shall make all reasonable efforts to process such requests on receipt of a written request from the Customer which provides equivalent detail to that set out in Schedule 2.2. In the event that a Subsidiary holds the Funding Account then either (1) that Subsidiary must be listed in Schedule 2.1, or (2) the Subsidiary must first be added as a beneficiary of the Services as set out in clause19.3.
4.3 It is the Customer’s obligation alone to ensure compliance with any Applicable Laws relevant to Customer’s country of residency with regards to the use of the Services. For avoidance of doubt, the ability to access to the Services does not necessarily mean that the Services, and/or Customer’s activities through it, are legal under the Applicable Laws relevant to Customer’s state or country of residence.
4.4 The Customer confirms that they have read and shall comply with Transfermate’s AML Policy set out at Schedule 3.
4.5 The Customer confirms that it consents to WEX sharing Account Information with Transfermate for the purpose of performing Transfermate’s obligations under this Agreement. Customer acknowledges and agrees that WEX shall have no responsibility or liability arising from or related to the accuracy, quality or legality of such Account Information.
5 TRANSFERMATE PERSONNEL
5.1 Transfermate shall be responsible for the acts and omissions of all Transfermate Personnel.
5.2 Transfermate shall ensure that Transfermate Personnel provided are suitably qualified, adequately trained and capable of providing the applicable Services for which they are engaged.
6 COMMUNICATIONS, USERS ACCESS AND SECURITY
6.1 Communications:
6.1.1 Other than the formal notices provided for at clause 20.2, all communications in relation to the operation of the Services shall be communicated via the WEX engagement channels available to the Customer.
6.2 User Set Up and Monitoring:
6.2.1 WEX shall notify Transfermate of the persons that Customer requires to have access to the Services (the “Users”).
6.2.2 All Users must be approved and registered by Transfermate before using the Services, and access to the Services shall be strictly restricted to approved Users. Transfermate is under no obligation to approve a User.
6.2.3 Customer is obliged to immediately notify Transfermate through the Platform or Website of any change to the list of Users.
6.2.4 It is the Customer’s obligation to ensure that each User understands the Services and has the legal authority to access the Services. Neither Transfermate nor WEX is under any obligation to conduct checks on Users or oversee a User’s activity.
6.3 Access and Passwords:
6.3.1 Upon logging onto the Platform or Website and selecting to use the Service (i.e., by entering the username and the corresponding password), access will be granted to each User, and neither Transfermate nor WEX will be required to take any further steps to verify that the person accessing the Account is a User.
6.3.2 Each User's registration is for that User only. Users are prohibited from sharing their username and password with any other person, and to do so shall be a material breach of this Framework Agreement by the Customer.
6.4 Safeguards and Corrective Measures
6.4.1 Each Party shall implement appropriate technical and organisational measures to assure a level of security appropriate to the risk associated with the delivery and receipt of the Services.
6.4.2 Each Party shall promptly inform the other Party of any actual or suspected unauthorised access, use or other abuse of either their respective systems which impacts on the Service, of which it becomes aware.
7 WARRANTIES
7.1 Each Party warrants that:
7.1.1 this Framework Agreement is executed by a duly authorised representative of that Party; and
7.1.2 it has the corporate power and capacity to enter into this Framework Agreement and to perform its obligations.
7.2 Transfermate warrants to the Customer that:
7.2.1 the Services shall be provided exercising all due skill, care and diligence;
7.2.2 the Nominated Accounts shall be set up for the sole purpose of receiving Lodgements, and remitting Final Transfers to Beneficiaries. The Nominated Accounts and all funds in the Nominated Accounts will be segregated from any funds belonging to Transfermate, its affiliates or any third party. Transfermate agrees that, to the extent permitted by law, it will ensure that no lien may be placed on the funds in the Nominated Accounts; and
7.2.3 it has full legal right, power and authority to provide the Services to Customer.
7.3 Except as provided in this Framework Agreement, there are no express warranties, representations, undertakings terms or conditions (whether or written, express or implied by statute, common law or otherwise) made by Transfermate and all warranties, representations, undertakings, terms and conditions (whether or written, express or implied by statute, common law or otherwise) implied to be made by Transfermate including without limitation implied warranties as to satisfactory quality, fitness for a particular purpose and the use of reasonable care and skill which, but for this legal notice, might have effect in relation to the Services, are hereby excluded to the extent permitted by law.
8 DATA PROTECTION
8.1 In this Framework Agreement, the terms Personal Data, Data Processor, Supervisory Authority, Data Subject, Process, and Data Controller are as defined in the Data Protection Laws, and cognate terms shall be construed accordingly. Subprocessor means any person (including any third party, but excluding an employee of Transfermate or any of its sub‐contractors) appointed by or on behalf of Transfermate to process Personal Data in connection with this Framework Agreement
8.2 Both Parties acknowledge that in performing its obligations under this Framework Agreement and in the Customer availing of the Services, Transfermate may process Personal Data on behalf of Customer. In such circumstances, the Parties acknowledge that Customer is the Data Controller and Transfermate is the Data Processor in respect of the Personal Data it Processes on behalf of the Customer, and Transfermate shall comply with its then in force Privacy Policy.
8.3 Transfermate agrees that it shall acquire no rights or interest in the Personal Data, and shall only Process the Personal Data in accordance with this Framework Agreement and any other written instructions of the Customer unless required to do so by applicable Data Protection Law to which the Data Processor (or its Subsidiaries) is subject, and in such a case, the Data Processor shall notify the Customer of that legal requirement before processing, unless that law prohibits such notification.
8.4 Customer understands that the delivery of the Services shall necessitate Transfermate on occasion to transfer Customer Personal Data internationally, and the Customer consents to such transfer on the understanding that Transfermate shall take the necessary legal and contractual safeguards to ensure that the data transfer is compliant with the applicable Data Protection Law.
8.5 Transfermate agrees to assist the Customer, including taking appropriate technical and organisational measures, to respond to requests by data subjects, exercising their rights under Data Protection Law, within such reasonable timescale as may be specified by the Customer.
8.6 Transfermate will ensure that its Personnel who Process Personal Data under this Framework Agreement are subject to obligations of confidentiality in relation to such Personal Data.
8.7 Transfermate shall implement appropriate technical and organisational measures to assure a level of security appropriate to the risk to the security of Personal Data, in particular, from accidental or unlawful destruction, loss, alteration, unauthorised, disclosure of or access to Personal Data including:
8.7.1 the pseudonymisation and encryption of Personal Data;
8.7.2 the ability to ensure the ongoing confidentiality, integrity and availability and resilience of Transfermate's systems used for such Processing;
8.7.3 the ability to restore the availability and access to Personal Data in the event of an incident; and
8.7.4 a process for regularly testing, assessing and evaluating the effectiveness of technical and organisational measures for ensuring the security of the processing.
8.8 Transfermate agrees that neither it nor its Subsidiaries shall engage any third party to Process the Customer's Personal Data without imposing on such third party, by means of a written contract, the same data protection obligations as set out in this Framework Agreement and shall ensure that if any third party engaged by Transfermate, in turn, engages another person to Process any Personal Data, the third party is required to comply with all of this Clause’s obligations in respect of Processing of Personal Data.
8.9 Transfermate shall remain fully liable to the Customer for Processing by any third party as if the Processing was being conducted by Transfermate.
8.10 Transfermate will immediately inform the Customer if, in its opinion, an instruction given or request made pursuant to this agreement infringes Data Protection Law.
9 CHARGES AND TAXATION
9.1 There are no charges payable directly to Transfermate for the provision of the Services hereunder.
9.2 Customer shall pay WEX directly for all Charges arising from the Services hereunder and any invoice disputes, questions or other invoice-related matters are between Customer and WEX.
10 CHANGE CONTROL
10.1 Transfermate reserves its right to make incremental changes to the Services provided and where those amendments are classified by Transfermate, acting in good faith as upgrades, updates or improvements to the Services, which have no adverse impact on the Customer, or are a result of Transfermate’s compliance with Applicable Laws, the changes shall not be required to comply with the provisions of clause 20.7. Such changes foreseen herein, shall be limited to changes to Schedule 1 and Schedule 3, and shall be notified to the Customer using the means provided for under clause 6.1 in advance of taking effect, and if the Customer disputes Transfermate’s right to make such a change, then the matter shall be treated as a Dispute under clause 20.15.
10.2 Other than those incremental changes set out at clause 10.1, other Framework Agreement changes are governed by clause 20.7.
11 INDEMNITY AND LIMITATIONS OF LIABILITY
11.1 Neither Party limits or excludes its liability for:
11.1.1 Death or personal injury caused by its negligence or the negligence of its employees;
11.1.2 Fraud or fraudulent misrepresentation by it or its employees;
11.1.3 Any act or omission of the Party which causes the other Party to be in breach of Data Protection Laws; or
11.1.4 Any liability to the extent that it cannot be limited or excluded by Applicable Laws.
11.2 Customer assumes responsibility in full for any direct losses arising from:
11.2.1 all Payment Transactions entered by Users using authorised usernames and passwords; and
11.2.2 Customer’s failure to obtain appropriate agreement and consent from Subsidiaries in relation to funding Payment Transactions from any a Funding Account in the name of the Subsidiary.
11.3 Except as otherwise provided in this Agreement, Transfermate shall not be liable for any suspension, withdrawal, interruption or termination of Customer’s access to the Services.
11.4 Customer shall indemnify, defend and hold Transfermate, its affiliates, subcontractors and partners, harmless against any and all damages or other amounts payable to a third party claimant, as well all costs, liabilities, losses, and expenses (including reasonable legal fees) suffered by Transfermate, arising out of or resulting from any claim, suit, proceeding or cause of action brought by a third party claimant which may result from Customer’s: (i) misuse of the Services, (ii) breach of the Framework Agreement, or (iii) failure to comply with the Applicable Law.
11.5 Subject to clauses 11.1, 11.2 and 11.4, the aggregate liability of either Party and its affiliates, subcontractors and partners for all other claims, liabilities, losses damages, costs, and expenses howsoever arising (whether in contract, tort (including negligence), breach of statutory duty or otherwise) in respect of this Framework Agreement, shall not exceed $50,000. However, that the liability limitation set forth in this paragraph shall not apply in connection with any material breach of Confidentiality and Data Protection obligations caused by the negligence or intentional misconduct of either Party or of that Party’s employees, agents or representatives.
11.6 Subject to clauses 11.1, in no event shall either party be liable to the other party for: (a) indirect loss, including (i) loss of profits; (ii) loss of business; (iii) loss of revenue; (iv) depletion of goodwill or similar losses; (v) loss of anticipated savings; (vi) loss of goods; (vii) loss of use; (viii) loss of data; and (ix) loss of production (to the extent that each such loss is indirect); or (b) special, incidental, indirect or consequential damages.
12 INSURANCE
12.1 Transfermate shall maintain insurance coverage that is appropriate in respect of this Framework Agreement.
13 FORCE MAJEURE
13.1 Neither Party shall be liable to the other Party for any delay or non‐performance of its obligations under this Framework Agreement to the extent to which such delay or non‐performance arises from any:
13.1.1 act of God, governmental intervention, war, fire, flood, explosion, civil commotion, armed hostilities, act of terrorism, revolution;
13.1.2 blockade, embargo, strike, lock‐out, sit‐in, industrial or trade dispute;
13.1.3 accident to (or breakdown of) plant or machinery, shortage of any material, labour, transport, electricity or other supply or regulatory intervention, in each case caused by forces outside of Party’s reasonable control;
13.1.4 adverse weather or disease;
13.1.5 act or intervention of a competent judicial or regulatory authority; or
13.1.6 any event (including any act or omission of any third party) beyond its reasonable control which could not reasonably be planned for or avoided.
13.2 For the avoidance of doubt, this clause 13 will not exclude or limit liability for any delay or non‐performance of a Party’s obligations under this Agreement arising from the Covid‐19 pandemic.
14 INTELLECTUAL PROPERTY RIGHTS
14.1 Customer grants to Transfermate a non‐exclusive, royalty-free, sub‐licensable worldwide license to use the Customer Intellectual Property Rights for the purpose of performing its obligations under this Framework Agreement for the duration of the Framework Period.
14.2 Transfermate (and where applicable its Subsidiaries or affiliates) are the sole and exclusive owner(s) of all Intellectual Property Rights which form directly or indirectly Services and any other Intellectual Property Rights arising from Customer’s use of the Services or other ancillary services, but excluding the Platform on which the Service is provided by Transfermate. This Framework Agreement does not grant Customer any title, rights or interest beyond a right of limited use as expressly set forth in this clause 14.
14.3 Transfermate grants to Customer a non‐exclusive, royalty‐free, assignable, worldwide, sub‐licensable license to use Transfermate Intellectual Property Rights so far as necessary for the performance of this Framework Agreement and for the purpose of Customer obtaining the benefit of the Services on condition that:
14.3.1 Customer may only use the contents as authorised by Transfermate;
14.3.2 no documents or related graphics are modified by Customer in any way;
14.3.3 no graphics are used separately from the corresponding text;
14.3.4 Transfermate copyright and trademark notices appear in all copies;
14.3.5 Customer acknowledges that the names, images and logos identifying Transfermate and the Services are proprietary Transfermate marks;
14.3.6 no part may be reproduced or stored in any other website or included in any public or private electronic retrieval system or service without Transfermate’s prior written permission;
14.3.7 it is not used for any purpose that infringes, misappropriates, or otherwise violates any other Intellectual Property Right or other right of any person, or that violates any Applicable Law; and
14.3.8 derivative use of the Services is strictly prohibited, including data mining, robots or similar data gathering, reverse engineering and extraction tools, irrespective of whether there is an intent to impair the Services. Such activities are deemed a material breach of this Framework Agreement.
14.4 On termination of this Framework Agreement, the license herein granted ceases with immediate effect.
15 CONFIDENTIAL INFORMATION
15.1 Each Party shall:
15.1.1 keep confidential the terms of this Framework Agreement and all information, whether in written or any other form, which has been disclosed to it by or on behalf of the other Party in confidence or which by its nature ought to be regarded as confidential (including, without limitation, any business information in respect of the other Party which is not directly applicable or relevant to the arrangements contemplated by this Framework Agreement); and
15.1.2 ensure that its officers, employees, and representatives keep secret and treat as confidential all such documentation and information.
15.2 Clause 15.1 does not apply to information:
15.2.1 which shall after the date of this Framework Agreement become published or otherwise generally available to the public, except in consequence of an act or omission by the other Party to this Framework Agreement in contravention of the obligations in clause 15.1;
15.2.2 to the extent made available to the recipient Party by a third party who is not under any obligation of confidentiality in respect of such information to the other Party or which has been disclosed under an express statement that it is not confidential;
15.2.3 to the extent required to be disclosed by any Applicable Laws or by any recognised stock exchange or governmental or other regulatory or supervisory body or authority of competent jurisdiction to whose rules the Party making the disclosure is subject, whether or not having the force of law, provided that the Party disclosing the information shall notify the other Party of the disclosure (and of the circumstances in which the disclosure is required) as early as reasonably possible before such disclosure is made, and shall take all reasonable action to avoid and limit such disclosure;
15.2.4 which has been independently developed by the recipient Party otherwise than in the course of the exercise of recipient Party's rights under this Framework Agreement;
15.2.5 to the extent made available to either Party's legal or professional advisers provided it is made available under strict confidentiality obligations and solely for the purpose of professional advice;
15.2.6 disclosed to any applicable tax authority either to the extent required by a legal obligation or to the extent reasonably required to assist the settlement of the disclosing Party's tax affairs or those of any of its shareholders or any other person under the same control as the disclosing Party; or 15.2.7 which the recipient Party proves was already known to it before receipt from the disclosing Party.
15.3 The provisions of this clause 15 shall survive termination or expiry of this Framework Agreement.
16 ANNOUNCEMENTS AND PUBLICITY
16.1 Neither Party shall make any announcement relating to this Framework Agreement or its subject matter without the prior written express approval of the other Party except as required by law or by any legal or regulatory authority in which case that Party shall notify the other Party as soon as is reasonably practicable.
17 TERM AND TERMINATION
17.1 Either Party may terminate this Framework Agreement with 60 days prior written notice to the other Party.
17.2 This Agreement commences upon mutual execution by both Parties and continues, unless terminated in accordance with Clauses 17.1, 17.3, or 17.4, or until the earlier of (i) the termination or expiration of Customer’s applicable subscription agreement with WEX relating to the provision of the Services hereunder on the Platform or (ii) Customer’s written notice to cease using the Services hereunder in order to move to a new provider for such services on the Platform.
17.3 Transfermate may suspend the Services without notice if Transfermate deems such suspension appropriate, and shall engage with the Customer to address the reason for the suspension and make reasonable endeavours to reinstate the Services thereafter. In the event that Transfermate deems, acting reasonably, that it has due cause for not lifting the suspension, it shall notify Customer and WEX of same, and following a 30 day period during which the Customer may request that the matter shall
be treated as a Dispute under clause 20.15, Transfermate shall permanently withdraw the Services from the Customer.
17.4 Either Party may terminate this Framework Agreement with immediate effect (and for the avoidance of doubt, without incurring any liability or charges for such termination) by giving notice to the other Party if any of the following occurs or is threatened to occur:
17.4.1 the other Party commits a breach of this Framework Agreement, which breach is incapable of remedy or has not been remedied within 10 Business Days of other Party becoming aware of same;
17.4.2 the other Party is or becomes insolvent or unable to pay its debts or threatens to suspend making payments with respect to all or any class of its debts;
17.4.3 an order has been made, petition presented, resolution passed or meeting convened for the winding up of, or making of any administration order for, other Party;
17.4.4 a receiver or examiner has been appointed over the any part of the property of the other party;
17.4.5 a composition in satisfaction of debts, scheme of arrangement, or compromise or arrangement with creditors or members (or any class of creditors or members) has been proposed, sanctioned or approved in relation to the other Party;
17.4.6 an encumbrancer takes possession of, or a trustee or administrative receiver or similar officer is appointed in respect of, all or any part of the business or assets of the other Party, or distress or any form of execution is levied or enforced upon or sued out against any such assets and is not discharged within 7 calendar days of being levied, enforced or sued out;
17.4.7 anything analogous to any of the events described in clauses 17.4.2 to 17.4.6 inclusive, occurs under the laws of any applicable jurisdiction;
17.4.8 the other Party ceases or threatens to cease carrying any material part of its business; or
17.4.9 it is required or advised to do so by any applicable regulator or government entity after such
notice as is reasonable in the circumstances.
18 POST-TERMINATION OBLIGATIONS
18.1 Customer shall remain responsible for any Payment Transaction made or initiated until Transfermate confirms that no Payment Transaction is outstanding.
18.2 Payment Transactions which are scheduled to be made after the Customer’s access to the Service is terminated or suspended will not be effected, unless Transfermate explicitly notifies Customer otherwise at the time of termination.
19 ASSIGNMENT AND SUB‐CONTRACTING
19.1 Neither Party shall nor shall purport to assign, transfer, charge or otherwise deal with any of its rights or obligations under this Framework Agreement or grant, declare, create or dispose of a right or interest in it.
19.2 Transfermate is entitled to sub‐contract some or all of its activities to third parties, including but not limited to its regulated Subsidiaries, subject to these activities being either in respect of Transfermate’s non‐regulated activities, or the sub‐contractors or Subsidiaries being approved regulated entities, notwithstanding which, Transfermate shall remain responsible for all obligations which are performed by such sub‐contractors or Subsidiaries and for the acts or omissions of these
sub‐contractors or Subsidiaries, as if they were the acts or omissions of Transfermate.
19.3 The sole recipient of the Services shall be the Customer. In the event that any Subsidiary (or Subsidiaries) of the Customer wishes to benefit from the Customer’s access to the Services, Customer may either include the details of these Subsidiaries at Schedule 2.1 (including a certified Corporate Chart), or may add Subsidiaries by way of making a request to WEX / Transfermate accompanied by a certified Corporate Chart, which shall be managed as a change in accordance with clause 10. Irrespective of the means of recording the Subsidiaries, the Customer understands that the following conditions must be met by the Customer before the Subsidiary can benefit from the Services provided to the Customer, and by signing this Framework Agreement and providing Us with a completed Schedule 2 in advance of receipt of Services, the Customer warrants that the following is true:
19.3.1 Customer holds and controls, either directly or indirectly, greater than 50% of the shares in the Subsidiary;
19.3.2 Customer holds written authority from the Subsidiary to enable Subsidiary to benefit from the Services, including any applicable data protection measures;
19.3.3 The Subsidiary shall always act under the Customer’s direction; and
19.3.4 The Customer accepts full responsibility for the actions of its Subsidiary.
19.4 Customer understands that Transfermate has no duty to the Subsidiary, and that all Services provided and legal obligations are owed solely to the Customer;
19.5 Customer understands that Transfermate can only provide Services (1) where Transfermate or its Subsidiaries is licensed to do so, (2) where the business of the Subsidiary accedes to Transfermate’s risk appetite, and (3) where Transfermate has suitable accounts in the currencies required.
19.6 Customer acknowledges that Transfermate may, at its discretion and without being obliged to provide a reason, require additional documentation on the Subsidiary prior to, or while providing the Services, and in certain circumstances, may decline to or cease to permit a Subsidiary benefit from the provision of the Services to the Customer.
19.7 It shall be a matter for Transfermate to determine, at its sole discretion:
19.7.1 the operational mechanics and controls required to permit the Subsidiary avail of the Services;
19.7.2 what documentation (if any) it shall require the Customer to provide on behalf of each Subsidiary; and
19.7.3 whether Customer and each Subsidiary are to be permitted fund Payment Transactions from all, some or none of the Funding Accounts.
20 GENERAL
20.1 Survival of clauses: Termination of this Framework Agreement shall not affect either of the Party's accrued rights or liabilities or affect the coming into force or the continuance in force of any provision which is expressly or by implication intended to come into or continue in force on or after such termination is effective, including without limitation, clauses 8, 11, 14, 15, 18.
20.2 Notices: Any formal notice to be given by one Party to the other Party under, or in connection with, this Framework Agreement shall be in writing and signed by or on behalf of the Party giving it. It shall be served by delivering it by hand, or sending it by pre‐paid recorded delivery, special delivery or registered post (collectively “by post”) or by email, to the address set out in clause 20.3 and in each case marked for the attention of the relevant Party (or as otherwise notified from time to time in accordance with the provisions of this clause). Any notice so served by hand or post shall be deemed to have been duly given in the case of:
20.2.1 delivery by hand, when delivered;
20.2.2 by post, at 10 am on the second Business Day following the date of posting, provided that in each case where delivery by hand occurs after 6 pm on a Business Day or on a day which is not a Business Day, service shall be deemed to occur at 9 am on the next following Business Day. References to time in this clause are to local time in the country of the addressee.
20.3 Notice Address: The addresses of the parties for the purpose of clause 20.2 are as follows:
Customer
Address:
For the attention of:
Transfermate
Address: IDA Business & Technology Park, Ring Road, Kilkenny, Ireland
For the attention of: Legal Counsel, legal@transfermate.com
20.4 Costs and Expenses: Each Party shall pay its own costs, charges and expenses incurred in connection with the preparation and completion of this Framework Agreement.
20.5 Entire Agreement: This Framework Agreement sets out the entire agreement and understanding between the Parties in respect of the subject matter of this Framework Agreement, and supersede all prior communications between the parties, whether written or oral with respect to the subject matter hereof.
20.6 Representations: It is agreed that:
20.6.1 no Party has entered into this Framework Agreement in reliance upon any representation, warranty or undertaking of the other Party, which is not expressly set out herein;
20.6.2 no Party shall have any remedy in respect of misrepresentation or untrue statement made by the other Party or for any breach of warranty which is not contained herein;
20.6.3 this clause shall not exclude any liability for, or remedy in respect of, fraudulent misrepresentation.
20.7 Amendment: No release, discharge, amendment, modification or variation of this Framework Agreement shall be valid unless it is in writing and signed by or on behalf of both Parties.
20.8 Severability: If and to the extent that any provision of this Framework Agreement is held to be illegal, void or unenforceable, such provision shall be given no effect and be deemed not to be included in this Framework Agreement, without invalidating any of the remaining provisions of this Framework Agreement.
20.9 Waiver: Unless expressly agreed, no release, discharge, amendment, modification or variation shall constitute a general waiver of any provisions of this Framework Agreement, nor shall it affect any rights, obligations or liabilities under or pursuant to this Framework Agreement which have already accrued up to the date of such release, discharge, amendment, modification or variation, and the rights and obligations of the parties under or pursuant to this Framework Agreement shall remain in
full force and effect, except and only to the extent that they are so released, discharged, amended, modified or varied.
20.10 Failures and Delays: No failure or delay by either Party in exercising any right or remedy provided by law under or pursuant to this Framework Agreement shall impair such right or remedy or operate or be construed as a waiver or variation, or preclude its exercise at any subsequent time, and no single or partial exercise of any such right or remedy shall preclude any other or further exercise of any right or remedy.
20.11 Remedies Cumulative: The provisions of this Framework Agreement, and the rights and remedies of the parties under this Framework Agreement, are cumulative and are without prejudice and in addition to any rights or remedies a Party may have whether arising under common law, equity, statute, custom or otherwise. No exercise by a Party of any one right or remedy under this Framework Agreement, or under common law, equity, statute, custom or otherwise, will (save to the extent, if any, provided expressly in this Framework Agreement, or by common law, equity, statute or custom) operate so as to hinder or prevent the exercise by it of any other such right or remedy.
20.12 Damages not Adequate: Without prejudice to any other rights or remedies that both Parties may have, damages alone may not be an adequate remedy for any breach of this Framework Agreement by the other Party. Accordingly, either Party shall be entitled to the remedies of injunctions, specific performance or other equitable relief for any threatened or actual breach of this Framework Agreement by the other Party.
20.13 Third Party Enforcement: No one other than the Parties to this Framework Agreement shall have any right to enforce the terms and conditions of this Framework Agreement.
20.14 Legal Relationship: The Parties shall have the status of independent contractors, and nothing herein will be deemed to place the parties in any other relationship, including employer‐employee, principal‐agent, a fiduciary relationship, partners or joint ventures. Accordingly, neither Party shall be authorised to act in the name of, or on behalf of, or otherwise bind the other Party save as expressly permitted by the terms of this Framework Agreement.
20.15 Dispute Escalation and Resolution: The Relationship Managers shall use all reasonable efforts to resolve in an amicable and co‐operative manner issues which are raised by any Party in relation to this Framework Agreement (a “Dispute”). If the Dispute cannot be resolved by the Relationship Managers within five (5) Business Days after the Dispute has arisen, a Party may give notice to the other Party in writing (a “Dispute Notice”) that a Dispute has arisen. Within five (5) Business Days after the Dispute Notice, the Dispute shall be referred to a senior executive of each Party for resolution.
20.16 Counterparts: This Framework Agreement may be executed in any number of counterparts, and by the parties to it on separate counterparts, each of which when so executed will constitute an original but all of which together will evidence the same agreement.
20.17 Execution: The parties agree that this Framework Agreement may be executed electronically. Transmission of an executed counterpart of this Framework Agreement (but for the avoidance of doubt not just a signature page) by email (in PDF, JPEG or other agreed format) shall take effect as delivery of an executed counterpart of the Framework Agreement.
20.18 Governing Law: This Framework Agreement and the relationship between the parties shall be governed by, and interpreted in accordance with the laws of Ireland.
20.19 Jurisdiction: Each of the Parties agree that the courts in Ireland are to have exclusive jurisdiction to settle any dispute (including claims for set off and counterclaims) which may arise in connection with the creation, validity, effect, interpretation or performance of, or the legal relationships established by, this Framework Agreement or otherwise arising in connection with this Framework Agreement and for such purposes irrevocably submit to the jurisdiction of the courts in Ireland.
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