Cloud Pay Terms Archive

These terms (the “Terms of Use”), contains the terms that govern your access to and use of the Services (as defined below), provided by 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”), to you or the entity you represent (“Customer”).  Each of Customer and TransferMate are a Party, together the Parties.

1.  INTRODUCTION

1.1  TransferMate is a service provider which provides technology solutions incorporating international money remittance and foreign exchange services, and whose Subsidiaries are authorised and regulated to provide payment services in various jurisdictions globally.

1.2  Transfermate is a strategic partner of CloudPay (otherwise known as “Partner”) under which certain of TransferMate’s payments solutions are accessible through the services provided by the Partner and the Partner’s system (the “Platform”).

1.3  The Customer wishes to use the payment services provided by Transfermate via the Platform and TransferMate (through a separate agreement with Partner) is entitled to provide these Services.

2.  INTERPRETATION AND DEFINITIONS

2.1  In these Terms of Use:

2.1.1  references to persons includes individuals, bodies corporate (wherever incorporated), joint ventures, unincorporated associations and partnerships or any State body;

2.1.2   the headings are inserted for convenience only and do not affect the construction of the agreement;

2.1.3   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.

2.1.4   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;

2.1.5   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; and

2.1.6   References to Clauses are to clauses of these Terms of Use.

2.2   For the purposes of these Terms of Use, capitalised terms shall have the following meaning:

2.2.1   Account means the Transfermate account that is created in connection with the Customer;

2.2.2   Applicable Laws means all statutory instruments, regulations, orders and other legislative provisions which in any way relate to these Terms of Use or the provision of the Services;

2.2.3   Beneficiary means the intended recipient of the Payment Transaction who will be notified to Transfermate by Customer through the Platform;

2.2.4   Business Day means a day (other than a Saturday or Sunday) on which banks are generally open for business in Ireland;

2.2.5   Confirmation Form means the document which contains the Customer consent to these Terms of Use.

2.2.6   Contract means the agreement formed between the Parties regarding a Payment Transaction which is subject to these Terms of Use.

2.2.7   Duly Executed Mandate means the ACH mandate, the direct debit mandate or such other instruction / authorisation to Transfermate specifying an account held by the Customer or Subsidiary of the Customer;

2.2.8   Effective Date means the date of set out on the Confirmation Form and where executed on two different dates shall mean the later of the two execution dates;

2.2.9   Final Transfer means the transfer of funds by Transfermate into the account of the Beneficiary;

2.2.10   Funding Account means those accounts from which Customer wishes to use to fund Payment Transactions;

2.2.11   Go-Live Date means the date on or after the Effective Date that Transfermate has confirmed it has received all the documentation set out at Clause 5.2 and the Services can be provided by Transfermate to the Customer and its Subsidiaries.

2.2.12   Intellectual Property Rights or “IPR” 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;

2.2.13   Lodgement means the transfer of funds from the Funding Account to the Nominated Account in respect of the Payment Transaction(s), whether made prior to, or subsequent to, the Payment Transaction being made;

2.2.14   Nominated Account means the Transfermate bank account to which Customer’s Lodgement is required to be made;

2.2.15   Payment Transaction refers to the agreement for Transfermate, which shall be requested by Partner, 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;

2.2.16   Platform means the platform, portal and/or marketplace hosted by Partner and services provided directly to the Customer under a separate legal agreement between Customer and Partner;

2.2.17   Services means the services by which Customer can make payroll payments for it’s employees on the Platform, internationally and domestically, using Transfermate’s globally regulated money movement rails;

2.2.18   Subsidiary of a Party means an entity of which more than 50 percent of the voting power is owned directly or indirectly by that Party, including through one or more Subsidiaries of that Party;

2.2.19   Transfermate Personnel means the employees and permitted agents of Transfermate;

3.  DURATION

3.1   These Terms of Use commence on the Effective Date and shall continue in full force and effect until terminated in accordance with Clause 18.

4.  SERVICE OBLIGATIONS AND DESCRIPTION

4.1  Transfermate shall provide the Services to the Customer in accordance with the terms of these Terms of Use, its obligations to Partner and Applicable Laws, which may be updated from time to time by Transfermate and notified to the Partner in accordance with Clause 11.

4.2  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.

4.3  Customer may make a Lodgement by payment of a wire transfer or electronic funds transfer. TransferMate including via Partner, will provide Customer with the requisite details of the Nominated Account at the time at which the Contract is agreed, and it is Customer’s obligation to ensure Customer uses the correct Nominated Account. In the alternative, Customer may make a Lodgement by setting up a Direct Debit (‘DD’) or Automated Clearing House (‘ACH’) facility, as long as all details supplied by Customer on the Duly Executed Mandate(s) are correct and valid, and that only authorised signatories on the Customer Funding Account have signed the Duly Executed Mandate

4.4  Other than by availing of the means set out at Clause 4.3, no other means is available for funding the Nominated Account, specifically TransferMate do not accept cash, cheques or any equivalent. Any attempts by Customer to make the Lodgement by any such prohibited means shall be invalid under the Contract, causing a delay and potentially a breach of the Contract by the Customer.

5.  CUSTOMER OBLIGATIONS

5.1  The Customer has no obligations under these Terms of Use except as set out below.

5.2  Customer shall work with Partner to complete a Confirmation Form or equivalent in respect of each Funding Account to the satisfaction of Transfermate, prior to the Go-Live Date, and where additional Funding Accounts are requested to be added following the Go-Live Date, shall issue a written request to Partner. In the event that a Subsidiary holds the Funding Account then Customer confirms that the Subsidiary is a valid beneficiary of the Services as set out in Clause 20.3. Customer shall obtain appropriate agreement and consent from Subsidiaries in relation to funding Payment Transactions from a Funding Account in the name of the Subsidiary and shall be responsible for any failure to obtain such consent.

5.3  Customer is responsible for all Payment Transactions entered by Users using authorised usernames and passwords.

5.4  Where funding by Direct Debit / ACH, Customer shall comply with the obligations under those schemes, including ensuring there are sufficient funds in Customer Funding Account to meet the direct debit payment and that the direct debit payment has been authorised by the correct entity and persons.

6.  TRANSFERMATE PERSONNEL

6.1  Transfermate shall be responsible for the acts and omissions of all Transfermate Personnel.

6.2  Transfermate shall ensure that Transfermate Personnel provided are suitably qualified, adequately trained and capable of providing the applicable Services for which they are engaged.

7.  COMMUNICATIONS, USERS ACCESS AND SECURITY

7.1  Communications:

7.1.1   Other than the formal notices provided for at Clause 21.2, all communications in relation to the operation of the Services shall be through the Partner and via the Platform, the Parties authorise Partner to act on that Party s behalf in engagements with the other Party.

7.2  User Set Up and Monitoring:

7.2.1   Partner shall advise TransferMate of the list of persons that Customer requires to have access to the Services (the “Users”), but Customer acknowledges that Transfermate is under no obligation to approve a User.

8.  WARRANTIES

8.1  TransferMate warrants that:

8.1.1   it has the corporate power and capacity to enter into these Terms of Use and to perform its obligations.

8.1.2   the Services shall be provided exercising all due skill, care and diligence;

8.1.3   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 Subsidiaries, 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

8.1.4   it has full legal right, power and authority to provide the Services to Customer.

8.2   Customer warrants that the information given by Customer to TransferMate is accurate and that the Lodgement will not constitute a breach of any Anti-Money Laundering and Exchange Control Laws and regulations

8.3   Except as provided in these Terms of Use, 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.

9.  DATA PROTECTION

9.1   In respect of all Customer Personal Data (as defined in the Data Protection Laws), received by TransferMate, the Parties agree that TransferMate shall be a processor (or sub-processor if applicable) acting under instructions from Partner, and a separate provision between Customer and Partner governs how Partner processes Customer Personal Data and in turn how Partner appoints and maintains any sub-processing activity, including the subprocessing conducted by TransferMate

10. CHARGES AND TAXATION

10.1   There are no charges payable directly to Transfermate for the provision of the Services hereunder.

11. CHANGE CONTROL

11.1   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, or are a result of Transfermate’s compliance with Applicable Laws, this shall not constitute a change under Clause 21.5, provided always that such changes shall have no adverse impact on the Customer (collectively “Incremental Changes”).

11.2   Other than those incremental changes set out at Clause 11.1, other Terms of Use changes are governed by Clause 21.5.

12.  INDEMNITY AND LIMITATIONS OF LIABILITY

12.1  Neither Party limits or excludes its liability for:

12.1.1   In respect of TransferMate, any failure to pay monies to the designated Beneficiary by TransferMate, unless the reason for such non-payment by TransferMate is provided for herein;

12.1.2   In respect of Customer, any breach of its obligations under Clause 5 which leads to a loss for TransferMate or its Affiliates; or

12.1.3   Any liability to the extent that it cannot be limited or excluded by Applicable Laws.

12.2  Except as otherwise provided in these Terms of Use, Transfermate shall not be liable for any suspension, withdrawal, interruption or termination of Customer’s access to the Services.

12.3  Subject to Clauses 12.1 and 12.2, 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 these Terms of Use, shall not exceed £50,000.

12.4  Subject to Clauses 12.1, 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; ; and (viii) loss of production (to the extent that each such loss is indirect); or (b) special, incidental, indirect or consequential damages.

13. INSURANCE

13.1  Transfermate shall maintain insurance coverage that is appropriate in respect of these Terms of Use.

14. FORCE MAJEURE

14.1  Neither Party shall be liable to the other Party for any delay or non-performance of its obligations under these Terms of Use to the extent to which such delay or non-performance arises from any:

14.1.1   act of God, governmental intervention, war, fire, flood, explosion, civil commotion, armed hostilities, act of terrorism, revolution;

14.1.2   adverse weather;

14.1.3   act or intervention of a competent judicial or regulatory authority; or

14.1.4   any event (including any act or omission of any third party) beyond its reasonable control which could not reasonably be planned for or avoided.

15. INTELLECTUAL PROPERTY RIGHTS

15.1  As between Transfermate and Customer, Customer shall own all Intellectual Property Rights in or to all Customer’s Personal Data, and nothing contained in these Terms of Use shall be construed to convey any Intellectual Property Rights in or to the Customer’s Personal Data to Transfermate. Notwithstanding the foregoing, Customer grants to Transfermate the limited rights to use, compile, process, and store Customer’s Personal Data to the extent necessary to provide the Services to Customer pursuant to the provisions of these Terms of Use.

16. CONFIDENTIAL INFORMATION

16.1  Each Party shall treat the information received from the other Party whether via Partner or directly as Confidential Information governed by each Party’s respective agreements with Partner and shall be liable to Partner in the event that the receiving Party fails in its obligations to keep such information confidential.

16.2  The provisions of this Clause 16 shall survive termination or expiry of these Terms of Use.

17. ANNOUNCEMENTS AND PUBLICITY

17.1  Neither Party shall make any announcement relating to these Terms of Use 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.

18. SUSPENSION AND TERMINATION

18.1  These Terms of Use commence in accordance with Clause 3 and, unless terminated in accordance with Clauses 18.3, continues indefinitely, until the earlier of (i) the termination or expiration of Customer’s applicable subscription agreement with Partner relating to the provision of the Services hereunder on the Platform or (ii) Customer’s or Partner’s written notice to cease using the Services hereunder in order to move to a new provider for such services on the Platform, provided TransferMate is provided with at least 10 Business Days prior notice.

18.2  Transfermate may suspend the Services without notice if Transfermate deems such suspension appropriate in order to observe its regulatory or legal obligations, and shall engage with Partner (who shall in turn notify 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 Partner 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 21.15, Transfermate shall permanently withdraw the Services from the Customer.

19. POST TERMINATION OBLIGATIONS

19.1  The Parties shall remain responsible for any Payment Transaction made or initiated prior to terminations.

20. ASSIGNMENT, SUB-CONTRACTING AND USE BY CUSTOMER’S SUBSIDIARIES

20.1  Transfermate shall 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.

20.2  The sole end recipient of the Services shall be the Customer. The Customer may enable its Subsidiaries to benefit from the Services by requesting this from Partner, confirming certain points in relation to the Subsidiaries and providing some high level information on those Subsidiaries as requested by Transfermate.

20.3  Customer understands that Transfermate has no duty to the Subsidiary, and that all Services provided and legal obligations are owed solely to the Customer;

21. GENERAL

21.1  Survival of clauses: Termination of these Terms of Use 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 9, 12, 15, 16, 19 and 21.

21.2  Notices: Any formal notice to be given by one Party to the other Party under, or in connection with, these Terms of Use shall be in writing and signed by or (where that notice is served by Partner or any other authorised 3^rd party) on behalf of the Party giving it. It shall be served by delivering it by hand, by email or sending it by pre-paid recorded delivery, special delivery or registered post (collectively “by post”), to the address set out in Clause 21.3 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:

21.2.1   delivery by hand or email, when delivered;

21.2.2   by post, at 10am on the second Business Day following the date of posting, provided that in each case where delivery by hand occurs after 6pm on a Business Day or on a day which is not a Business Day, service shall be deemed to occur at 9am on the next following Business Day. References to time in this Clause 21 are to local time in the country of the addressee.

21.3  Notice Address: The addresses of the Parties for the purpose of Clause 21.2 are as follows:

Customer:

Customer’s notice address shall be care of the Partner

Transfermate:

Address: IDA Business & Technology Park, Ring Road, Kilkenny, Ireland

For the attention of: Legal Counsel, legal@transfermate.com

21.4  Entire Agreement: These Terms of Use sets out the entire agreement and understanding between the Parties in respect of the subject matter of these Terms of Use, and supersede all prior communications between the Parties, whether written or oral with respect to the subject matter hereof.

21.5  Amendment: Other than Incremental Changes, TransferMate shall not amend, modify or vary these Terms of Use, without providing Partner and Customer 180 days advance notice of such amendment, modification or variation. In the event that Transfermate issues notice of such proposal to change these Terms of Use, the Parties and Partner shall meet to discuss the impact of such proposed change.  Such change shall only be permitted to take effect once the Parties have mutually agreed to such change in writing.

21.6  Severability: If and to the extent that any provision of these Terms of Use is held to be illegal, void or unenforceable, such provision shall be given no effect and be deemed not to be included in these Terms of Use, without invalidating any of the remaining provisions of these Terms of Use.

21.7  Waiver: Unless expressly agreed, no release, discharge, amendment, modification or variation shall constitute a general waiver of any provisions of these Terms of Use, nor shall it affect any rights, obligations or liabilities under or pursuant to these Terms of Use 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 these Terms of Use shall remain in full force and effect, except and only to the extent that they are so released, discharged, amended, modified or varied.

21.8  Failures and Delays: No failure or delay by either Party in exercising any right or remedy provided by law under or pursuant to these Terms of Use 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.

21.9  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 these Terms of Use.

21.10  Dispute Escalation and Resolution: The Parties shall nominate representatives to 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 nominated representatives 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.

21.11  Counterparts: These Terms of Use 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.

21.12  Governing Law: These Terms of Use and the relationship between the parties shall be governed by, and interpreted in accordance with the laws of Ireland.

21.13  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, these Terms of Use or otherwise arising in connection with these Terms of Use and for such purposes irrevocably submit to the jurisdiction of the courts in Ireland.