17. Term and termination
17.1 Term. This Agreement shall come into force on the Commencement Date and, unless the Agreement and/or any Service is otherwise terminated earlier in accordance with any provision of this Agreement, this Agreement and the Services shall continue thereafter until it is terminated in accordance 17.3 or 17.4.
17.2 Immediate termination/suspension. Without limiting any of our other rights, we may suspend the performance of the Services (in whole or in part), or terminate the Agreement (in whole or in part) with immediate effect by giving written notice to you if:
(a) you commit a material breach of any term of the Agreement and (if such a breach is remediable) fail to remedy that breach within 30 days of you being notified in writing to do so;
(b) you fail to pay any amount due under the Agreement on the due date for payment;
(c) you take any step or action in connection with you entering administration, provisional liquidation or any composition or arrangement with your creditors (other than in relation to a solvent restructuring), applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of your assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
(d) you suspend, threaten to suspend, cease or threaten to cease to carry on all or a substantial part of your business;
(e) you undergo a change of control (control shall have the meaning given to it in s1124 of the Corporation Tax Act 2010) and we have not provided our prior written consent which shall not be unreasonably withheld.
(f) your financial position deteriorates to such an extent that in our opinion your capability to adequately fulfil your obligations under the Agreement has been placed in jeopardy.
(g) we suspect criminal activity on your Seapoint Profile or your Seapoint Profile is being used fraudulently;
(h) we reasonably believe you are in breach of Applicable Law;
(i) we are legally required to do so, including by any relevant Authority;
(j) a Service Provider has suspended or terminated their services to you;
(k) a Service Provider has suspended its services to us or our agreement with the Service Provider is terminated.
(l) you are in breach of the Acceptable Use Policy; or
(m) you have given us false or inaccurate information, or we have been unable to verify any information you have provided.
17.3 Seapoint Termination. We may terminate the Agreement at any time by giving you 30 days prior written notice that we are closing your Profile and ending the provision of the Services.
17.4 Customer Termination. You can stop using any part of the Services or close your Seapoint Profile and stop using all Services and terminate the Agreement at any time, by giving us 30 days’ prior written notice.
17.5 Consequences of termination.
(a) On termination or expiry of the Agreement:
(i) you must return all Seapoint Materials;
(ii) you will not be able to use the Services. All rights granted to you under this Agreement will end;
(iii) all of your payment obligations under this Agreement for Services provided through to the effective date of termination will immediately become due and payable;
(iv) each Party shall comply with clause 15.4.
(b) Termination of the Agreement will not affect your or our rights and remedies that have accrued as at termination.
17.6 Survival. Any provision of the Agreement that expressly or by implication is intended to come into or continue in force on or after termination will remain in full force and effect.
18. Anti-bribery and anti-corruption
18.1 Each Party (Notifying Party) shall during the Term:
(a) comply with the Relevant Requirements;
(b) establish, maintain and enforce its own policies and procedures, including but not limited to adequate procedures under the Bribery Act 2010, to ensure compliance with the Relevant Requirements;
(c) notify the other Party (in writing) if it becomes aware of any breach of clause 18.1(a), or has reason to believe that it has received a request or demand for any undue financial or other advantage in connection with the performance of this Agreement;
(d) promptly notify the other Party (in writing) if a foreign public official becomes an officer or employee of the Notifying Party or acquires a direct or indirect interest in the Notifying Party. Each Party warrants that it has no foreign public officials as direct or indirect owners, officers or employees at the Commencement Date;
18.2 Breach of this clause 18 shall be deemed a material breach.
18.3 For the purpose of this clause 18, the meaning of adequate procedures and foreign public official and whether a person is associated with another person shall be determined in accordance with section 7(2) of the Bribery Act 2010 (and any guidance issued under section 9 of that Act), sections 6(5) and 6(6) of that Act and section 8 of that Act respectively.
19. Events outside our control
19.1 We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under the Agreement that is caused by any act or event beyond our reasonable control (Event Outside Our Control).
19.2 If an Event Outside Our Control takes place that affects the performance of our obligations under the Agreement:
(a) we will contact you as soon as reasonably possible to notify you; and
(b) our obligations under the Agreement will be suspended and the time for performance of our obligations will be extended for the duration of the Event Outside Our Control. We will resume the provision of the Services to you after the Event Outside Our Control is over.
19.3 You may cancel the Agreement affected by an Event Outside Our Control which has continued for more than 60 days. To cancel please contact us at support@seapoint.co.
20. Communications between us
20.1 When we refer to "in writing" in this Agreement, this includes email.
20.2 Any notice or other communication given by one of us to the other under or in connection with the Agreement must be in writing and be delivered personally, sent by pre-paid first-class post or other next working day delivery service, or email.
20.3 A notice or other communication is deemed to have been received:
(a) if delivered personally, on signature of a delivery receipt or at the time the notice is left at the proper address;
(b) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second working day after posting; or
(c) if sent by email, at 9.00 am the next working day after transmission.
20.4 In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an email, that such email was sent to the specified email address of the addressee.
21. General
21.1 Assignment and transfer
(a) We may assign or transfer our rights and obligations under the Agreement to another entity.
(b) You may only assign or transfer your rights or your obligations under the Agreement to another person if we agree in writing.
21.2 Non-exclusive. The provision of the Services under this Agreement is not exclusive.
21.3 Waiver. A waiver of any right or remedy under this Agreement or by law is only effective if given in writing and shall not be deemed to be a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under this Agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.
21.4 Severance. Each paragraph of the Agreement operates separately. If any court or relevant authority decides that any of them is unlawful or unenforceable, the remaining paragraphs will remain in full force and effect.
21.5 Third party rights. The Agreement is between you and us. No other person has any rights to enforce any of its terms.
21.6 Entire agreement. This Agreement constitutes the entire agreement between the Parties and supersedes and extinguishes all previous and contemporaneous agreements, promises, assurances, and understandings between them, whether written or oral, relating to its subject matter. You acknowledge that you have not relied on any statement, promise or representation or assurance or warranty that is not set out in the Agreement.
21.7 Language. The Agreement is made only in the English language.
21.8 Non-solicitation. You must not attempt to procure services that are competitive with the Services from any of our directors, employees or consultants, whether as an employee or on a freelance basis, during the period that we are providing the Services to you and for a period of six months following termination of the Agreement.
21.9 Governing law and jurisdiction. The Agreement is governed by English law and we each irrevocably agree to submit all disputes arising out of or in connection with the Agreement to the exclusive jurisdiction of the English courts.
22. Definitions and interpretation
22.1 Definitions
a) Affiliate: in relation to a Party, any entity that directly or indirectly controls, is controlled by, or is under common control with that Party from time to time.
b) Agreed Purpose: the sharing of personal information between the Customer and Seapoint to enable Seapoint to:
(i) provide the Services and manage Seapoint’s relationship with the Customer;
(ii) comply with all Applicable Law, including conducting anti-money laundering, financial crime and other screening checks; and
(iii) comply with this Agreement and the Privacy Policy.
c) Applicable Law: all laws, legislation, regulations, binding codes of practice, or rules or requirements of any relevant Authority applicable to the activities undertaken or procured by the Parties under this Agreement, as interpreted by taking into account any code of practice or guidance issued by any Authority with which reputable financial institutions in the United Kingdom are required or accustomed to comply.
d) Authority: any national, state, or local government or regulatory authority, agency, court, or other entity asserting executive, legislative, administrative, or judicial jurisdiction over a Party.
e) Account Information Service: the provision of consolidated information on one or more payment accounts held by you with another payment service provider or with more than one payment service provider including when the information is provided:
(i) in its original form or after processing; and
(ii) only to you or to you and to another person in accordance with your instructions.
f) Business Day: a day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
g) Business Hours: the period from 9.00 am to 5.00 pm on a Business Day.
h) CDD Information: any information relating to the Customer provided to or obtained by Seapoint in connection with clause 4.
i) Charity: a body whose annual income is less than £1 million and is: (i) in England and Wales, a charity as defined by section 1(1) of the Charities Act 2011 (meaning of “charity”); (ii) in Scotland, a charity as defined by section 106 of the Charities and Trustee Investment (Scotland) Act 2005 (general interpretation); (iii) in Northern Ireland, a charity as defined by section 1(1) of the Charities Act (Northern Ireland) 2008 (meaning of “charity”) or as defined in the PSRs from time to time.
j) Commencement Date: the date on which we notify you (in our sole and absolute discretion) that your application for provision of Services has been accepted.
k) Confidential Information: all information (however recorded or preserved) that one Party or any of its Affiliates (discloser) discloses or makes available to the other Party or any of its Affiliates (recipient) in connection with this Agreement and which would be regarded as confidential by a reasonable business person. It includes any information of a confidential nature relating to the Fees or either Party's operations, products, processes, trade secrets or know-how. It does not include information that:
i.is or becomes generally available to the public (other than as a result of the recipient's breach);
ii.was available to the recipient on a non-confidential basis before disclosure by the discloser;
iii.was, is or becomes available to the recipient on a non-confidential basis from a person who, to the recipient's knowledge, is not bound by a confidentiality agreement with the discloser or otherwise prohibited from disclosing the information to the recipient;
iv.is developed by or for the recipient independently of the information disclosed by the discloser; or
v.the Parties agree in writing is not confidential or may be disclosed.
l) Consumer: an individual who, in contracts for payment services to which the PSRs apply, is acting for purposes other than a trade, business or profession.
m)Customer Materials:
i.all documents, information, items and materials in any form (whether owned by the Customer or a third party)which are provided by the Customer to the Supplier in connection with the Services; and
ii.all information and details of your instructions and transactions transmitted via the Services.
n) Data Discloser: a Party that discloses Shared Personal Data to the other Party.
o) Data Protection Legislation:all applicable data protection and privacy legislation in force from time to time in the UK including the UK GDPR; the Data Protection Act 2018 (DPA 2018) (and regulations made thereunder); the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended and all other legislation and regulatory requirements in force from time to time which apply to a Party relating to the use of personal data (including, without limitation, the privacy of electronic communications); and the guidance and codes of practice issued by the Information Commissioner or other relevant regulatory authority and applicable to a party.
p) Group: in relation to a company, that company, any subsidiary or holding company from time to time of that company, and any subsidiary from time to time of a holding company of that company.
q) Losses: all liabilities, damages, losses (including loss of profits, loss of business, loss of reputation, loss of savings and loss of opportunity), fines, awards, expenses and costs (including all interest, penalties, legal costs (calculated on a full indemnity basis) and reasonable professional costs and expenses).
r) Micro-enterprise: an enterprise (i.e. any person engaged in an economic activity, irrespective of legal form) which employs fewer than 10 persons (full time or equivalent) and whose annual turnover and/or annual balance sheet total does not exceed EUR 2 million or the sterling equivalent or as defined in the PSRs from time to time.
s) Network Rules: all applicable rules, regulations and/or operating guidelines issued by a card scheme, payment network or alternative payment method provider from time to time relating to any of your transactions or related processing of your data.
t) Permitted Recipients: the Parties to this Agreement, the employees, contractors, officers, advisers and/or Affiliates of each Party, any third parties engaged to perform obligations in connection with this Agreement.
u) Pricing Schedule: the document which sets out the Fees payable to Seapoint in connection with the Services.
ii) Product Documentation: any documentation, tools, tutorials and/or guidelines applicable to the Seapoint products and services that are made available to you from time to time.
v) Product Specific Terms: any specific terms and conditions in relation to a product or service that we provide to you, which are notify or made available to you (as applicable).
w) Representatives means, in relation to a Party, its employees, officers, representatives, contractors, subcontractors and advisers.
x) Relevant Requirements: all applicable laws, statutes, regulations, and codes relating to anti-bribery and anti-corruption including but not limited to the UK Bribery Act 2010.
y) Seapoint API: if made available by Seapoint at its sole discretion, the technical interface setting out the protocols and specifications required to effect an integration
of the Customer’s technical systems with the Seapoint Platform for Authorised Users to use the Services.
z) Seapoint Marks: all trade marks, logos, trade names, domain names and any other
logos or materials of Seapoint or its licensors.
aa) Seapoint Profile: the electronic information profile that records your business details
and that is used to log into and use the Seapoint Platform.
bb)Seapoint Platform: the proprietary technology and associated products devised by Seapoint to provide with Services.
cc)Service Provider: any service provider contracted by Seapoint to provide certain services to you which you may access through the Seapoint Platform.
dd)Services: the services selected on the Application Form and/or made available on the Seapoint Platform to the Customer (including the Seapoint API).
ee)Shared Personal Data: the Parties may share some or all of the following types of personal data regarding data subjects:
i.full name;
ii.email address;
iii. phone number and other contact information;
iv. date of birth;
v.nationality;
vi.public information about the data subject;
vii.other relevant verification or due diligence documentation as required to comply with Applicable Law;
viii.transaction data (including any payer or payee details)
ix.any other data that is necessary or relevant to carry out the Agreed Purposes.
ff) Supported Currency: EUR.
gg)Party: We or you, collectively “Parties”.
hh)Term: has the meaning given to this term in clause 17.1.
ii)Third Party Terms: the terms and conditions applicable to the services provided by a Service Provider to you and listed in Annex 1.
22.2 Interpretation
a) Clause, Schedule and paragraph headings shall not affect the interpretation of this Agreement.
b) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
c) The Schedules form part of this Agreement and shall have effect as if set out in full in the body of this Agreement. Any reference to this Agreement includes the Schedules.
d) Unless the context otherwise requires, words in the singular include the plural and in the plural include the singular.
e) Unless expressly provided otherwise in this Agreement, a reference to legislation or a legislative provision is a reference to it as amended, extended or re-enacted from time to time.
f) Unless expressly provided otherwise in this Agreement, reference to legislation or a legislative provision includes all subordinate legislation made from time to time under that legislation or legislative provision.
g) Any words following the terms including, include, in particular, for example or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words preceding those terms.
Annex 1: Third Party Terms
1. Modulr terms and conditions
MFBV INTRODUCED CLIENT SCHEDULE
INTRODUCED CLIENT TERMS OF BUSINESS
BACKGROUND
Modulr Finance B.V. (“Modulr”) is a provider of Modulr Products (as described to you by Partner Platform), which includes the provision of an electronic money account for businesses and associated payment services. These Introduced Client Terms of Business govern the Modulr Products that Modulr agrees to provide to the Introduced Client.
These Introduced Client Terms of Business (including all the attached Schedules), together with the Modulr Account Terms and Conditions set out the terms on which the Modulr Products are provided and constitute the Agreement between Modulr and the Introduced Client.
THE PARTIES AGREE AS FOLLOWS:
1. Interpretation
1.1. In these Introduced Client Terms of Business: (a) a reference to a clause is a reference to a
clause in these Introduced Client Terms of Business; (b) headings are for reference only and
shall not affect the interpretation of these Introduced Client Terms of Business; (c) the
singular shall include the plural and vice versa; (d) a reference to a person includes a natural
person, corporate or unincorporated body (whether or not having separate legal
personality) and that person's personal representatives, successors and permitted assigns;
(e) a reference to a party shall include its personal representatives, successors and
permitted assigns; (f) reference to a statute or statutory provision is a reference to it as
amended, extended or re-enacted from time to time.
2. Modulr Products
2.1. Modulr will make available to the Introduced Client such products that are provided
to the Partner Platform and as described by Partner Platform in the application process.
2.2. The Introduced Client agrees to the Partner Platform providing all such information to Modulr who will check and verify the identity of the Introduced Client, its directors, beneficial owners and Authorised Users as required by law.
2.3. The Introduced Client acknowledges that a search of the available public registers may take place for anti-money laundering purposes on the individuals listed in clause 2.2 above. 2.4. The Introduced Client acknowledges that the individuals noted in clause 2.2 above may have their their personal details accessed by third parties for the specific purpose of anti-money laundering and countering the financing of terrorism (AML/CFT), identity verification and fraud prevention.
2.5. The Account is provided by Modulr to the Introduced Client in accordance with the Modulr
Account Terms and Conditions. Modulr Products provided to the Introduced Client under
this Agreement are for the sole use by the Introduced Client.
2.6. The Introduced Client can use the Account and Cards (where applicable) to make
Transactions on the terms and conditions set out in the Modulr Account Terms and
Conditions. A record of all
Transactions relating to the Account can viewed on the Website or accessed via the
Partner Platform (as applicable).
2.7. The Introduced Client shall promptly notify Customer Services as soon as it becomes aware
login and security information enabling access to its Modulr Products have been lost, stolen
or compromised.
2.8. From time to time Modulr may carry out additional checks on the Introduced Client, i
including the identity of its directors, beneficial owners and the nature of its business in
accordance with its Due Diligence Procedure and as required by law. Modulr may contact
the Introduced Client or the Partner Platform (as applicable) for such purposes. The
Introduced Client agrees to provide such information as necessary.
2.9. The Introduced Client shall comply with all legislation and regulation as it applies to the Introduced Client. Any failure to comply with relevant legislation or regulation shall be considered a material breach of the Agreement and may result in Modulr discontinuing the provision of the Modulr Products as set out in clause 6.4.
2.10. The Introduced Client shall implement as appropriate Modulr’s reasonable security recommendations it notifies to the Introduced Client from time to time.
3. Authorised Users
3.1. Access to the Modulr Products is restricted to individuals that have been designated
by the Introduced Client as Authorised Users.
3.2. The Introduced Client must notify Modulr of all individuals it wishes to be an Authorised
User.
3.3.Each Authorised User is permitted to access and use the Modulr Products in accordance
with these Introduced Client Terms of Business.
3.4. The Introduced Client will be responsible for training its Authorised Users in the
appropriate use of Modulr Products.
3.5. The Introduced Client shall ensure its Authorised Users;
3.5.1 take all reasonable care to ensure Modulr Product access credentials, including login details to the Website, where applicable, are kept confidential to each Authorised User; and
3.5.2 do not share any information that would enable another party to access the Introduced Client’s Modulr Account.
3.6. The Introduced Client acknowledges and agrees that each Authorised User is authorised by the Introduced Client to act on its behalf. Modulr shall deem any instruction given by an Authorised User is an instruction given by the Introduced Client.
3.7. The Introduced Client will be responsible for timely notification to Modulr of any revocation of Authorised User access and will be liable for Transactions made, Fees incurred and use of Modulr Products by an Authorised User until Modulr has had two full Business Days to act on any received notice. This clause shall not apply to Introduced Clients accessing Modulr Products via the Partner Platform.
3.8. Where the Introduced Client accesses Modulr Products through a Partner Platform, such Partner Platform will be considered the Authorised User. In this instance if additional Authorised Users are required they must be requested by the Partner Platform. The use of a Partner Platform to access the Modulr Products by the Introduced Client are set out in further detail below.
4. Accessing Modulr Products through a Partner Platform
4.1. In the event the Introduced Client utilizes a Partner Platform to access Modulr Products, the Introduced Client agrees and authorises the Partner Platform to instruct Modulr to access and
use the Modulr Products on behalf of the Introduced Client, which shall include but not be limited to making Transactions, viewing and retrieving Transaction data, initiating refunds and closing the Account.
4.2. The Introduced Client acknowledges and agrees that Modulr shall have no liability whatsoever with respect to the performance, availability or quality of any Partner Platform.
4.3. The Introduced Client acknowledges and agrees to the following:
4.3.1. it must satisfy itself that its Platform Partner Agreement grants the Partner Platform all permission necessary to operate the Account on the Introduced Client’s behalf; 4.3.2. the Platform Partner will be granted full access to operate the Introduced Client’s Account as an Authorised User of the Introduced Client;
4.3.3. it is responsible for monitoring Partner Platform activities on its Account. Any queries relating to such activities will be raised with the Partner Platform directly and settled between Partner Platform and the Introduced Client;
4.3.4. the Introduced Client has no recourse against Modulr for any act or omission of the Partner Platform with respect to its Account;
4.3.5. the Introduced Client understands it can only access its Account to make Transactions, review Transactions made or otherwise use Modulr Products through the service provided by the Partner Platform; and
4.3.6. it will only use the Account for the purpose set out in the Partner Platform Agreement.
4.4. On receipt of notification by Modulr from the Partner Platform that it wishes to terminate this Agreement, this Agreement shall terminate. Any funds in the Introduced Client’s Account will be returned in accordance with the terms of the Modulr Account Terms and Conditions.
4.5. If the Introduced Client has any complaint or concern relating to the Modulr Account or other Modulr Products, such complaint or concern shall be raised directly to the Partner Platform, who shall deal with it in accordance with Modulr’s Complaints Policy, a copy of which is available on request from the Partner Platform and on the Website.
5. Customer Services
5.1. The Introduced Client can contact Customer Services if it has any queries about the Modulr Products. Information may be requested from the Introduced Client, including but not limited to, its Authorised Users, Cardholders or Transaction information so that it can verify the identity of an Authorised User , the Cardholder and/or the Modulr Products provided to such Introduced Client.
5.2. Any information shared by the Introduced Client will be kept strictly confidential. Where such information is provided in connection to a service provided by a third party, for example, the Account, then the Introduced Client’s information will only be used in accordance with instructions of such third party and only for the purpose of providing Customer Services to the Introduced Client on behalf of such third party.
5.3. As part of Modulr’s commitment to providing a quality customer service, its managers periodically monitor telephone communications between its employees and Introduced Clients to ensure that Modulr’s high quality service standards are maintained. The Introduced Client consents to such monitoring and recording of telephone communications and agrees to make its Authorised Users aware of such practice.
6. Term and Termination
6.1. This Agreement shall commence on the date the Introduced Client receives confirmation from Modulr or the Partner Platform (where applicable) of its successful application for Modulr Products and shall continue until terminated by the Introduced Client, Partner Platform (if acting on behalf of the Introduced Client) or Modulr.
6.2. The Introduced Client or the Partner Platform (where applicable) may terminate this Agreement immediately by notifying Customer Services in writing by post or email.
6.3. Modulr may terminate this Agreement and close the Introduced Client’s Account(s) by providing the Introduced Client with at least two months’ notice.
6.4. Modulr may suspend or terminate this Agreement immediately if, for any reason, the Introduced Client (i) is unable to satisfy the Due Diligence Procedures, (ii) for breach of this Agreement, (iii) has provided false, incomplete or misleading information, (iv) has engaged in fraudulent, money laundering, terrorism financing or other illegal activity or we have reasonable suspicions in respect of same or (v) we are required to do so under any applicable law or regulation or at the direction of any regulatory, law enforcement or other competent authority. Modulr shall notify you as soon as possible, unless prohibited by law, of such suspension or termination of the Agreement.
6.5. This Agreement will automatically terminate when all Accounts of the Introduced Client are closed (for any reason).
6.6. Modulr may terminate or suspend this Agreement in whole or in part immediately by giving written notice to the Introduced Client if Modulr ceases to provide Cards pursuant to the provisions of Schedule 1.
6.7. On termination of this Agreement for any reason, any balance remaining in the Introduced Client’s Account(s) shall be returned to the Introduced Client in accordance with the Modulr Account Terms and Conditions. The Introduced Client shall pay immediately all outstanding Fees due (where applicable) under this Agreement and in the event of a negative balance in an Account, shall reimburse Modulr such amount equal to the negative balance.
7. Intellectual Property
7.1. The Introduced Client acknowledges all Intellectual Property Rights in the Modulr Products are owned by or provided under licence to Modulr. Modulr grants the Introduced Client a non exclusive, royalty-free licence for the duration of this Agreement to access and use the Modulr Products only for the purpose contemplated by this Agreement.
7.2. Nothing in this Agreement shall operate to create or transfer any Intellectual Property Right to the Introduced Client.
8. Force Majeure
8.1. Modulr will not be liable for the non-performance or failure to provide any part of the Modulr Products occurring as a result of any events that are beyond the reasonable control of Modulr, for example, but not limited to, fire, telecommunications or internet failure, utility failure, power failure, equipment failure, employment strife, riot, war, terrorist attack, non-performance of third party suppliers, acts of God such as storm or lightening damage, or other causes over which Modulr has no reasonable control.
9. Assignment Transfer and Subcontracting
9.1. The Modulr Products provided to the Introduced Client are personal to the Introduced Client. The Introduced Client cannot novate, assign or otherwise transfer this Agreement, any interest or right under this Agreement (in whole or in part) without the prior written consent of Modulr. This clause shall have proprietary effect (goederenrechtelijke werking). 9.2. The Introduced Client agrees Modulr may, in its sole discretion, assign, or transfer some or all of its rights and obligations or delegate any duty of performance set out in the documents forming this Agreement. Modulr may subcontract any of its obligations under this Agreement.
9.3. In the event of any transfer of this Agreement by Modulr to another service provider, Modulr will notify the Introduced Client no later than two months before the proposed transfer; if the Introduced Client does not want to transfer to the new provider, the Introduced Client must notify Modulr of its objection in writing to Customer Services. On receipt of such notification, Modulr will terminate this Agreement. Any balance remaining in the Introduced Client’s Account(s) will be returned to the Introduced Client in accordance with the redemption procedure set out in the Modulr Account Terms and Conditions.
10. Liability
10.1. Nothing in this Agreement will operate to limit either party’s liability with respect to fraud or for death or personal injury resulting from negligence, in either case whether committed by that party or its employees, agents or subcontractors.
10.2. Modulr makes no warranty that access to and use of the Modulr Products will be uninterrupted or error free.
10.3. The Introduced Client acknowledges and agrees that Modulr is not liable to the Introduced Client for any loss, liability or damages the Introduced Client suffers which result from, are related to, or in any way are connected with any fraud control, restriction measures, or other measures implemented from time to time including as required for compliance with legal and regulatory requirements, unless such loss, liability or damage is a direct result of Modulr’s fraud, gross negligence or willful misconduct in procuring the implementation of fraud control or purchase restriction measures that Modulr has expressly agreed in writing to procure for the Introduced Client.
10.4. Modulr shall not be liable to the Introduced Client for any loss or damage the Introduced Client may suffer as a result of any act or omission of an Authorised User or Cardholder or an Authorised User’s use or Cardholder’s use or inability to use of the Modulr Products. 10.5. The Introduced Client agrees to indemnify Modulr against any and all actions, claims, costs, damages, demands, expenses, liabilities, losses and proceedings Modulr directly or indirectly incurs or which are brought against Modulr if the Introduced Client, or an Authorised User, or a Cardholder has acted fraudulently, been negligent or has misused a Modulr Product or any of the services provided under this Agreement.
10.6. Modulr shall not be responsible in any way for any interest or claims of any third parties in respect of the Modulr Products, except as required by law or regulation.