DELEGATE AGREEMENT

By completing and submitting this online application form (the “Application Form”), You (also hereafter referred to as the “Delegate”) agree to be bound by the terms of the Agreement which relate to Your use and access to the Account, the Payroll Product and/or the Accounts Payable Product and/or the FX and International Payments Product as applicable (hereafter collectively referred to as the “Products”) on behalf of the Introduced SME.

For the avoidance of doubt, the use of FX and International Payments Product by the Introduced SME shall be subject to the Nook Terms and Conditions.

1. Interpretation and defined terms

1.1. In this Agreement: (a) a reference to a clause or schedule is a reference to a clause or schedule in this Agreement; (b) headings are for reference only and shall not affect the interpretation of this Agreement; (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; and (f) reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.

1.2. Unless expressly defined in this Agreement, the following words and expressions shall have the following meanings:

• Account means the electronic money account issued by Us to an Introduced SME in accordance with the Modulr Terms and Conditions.
• Accounts Payable Product means the processing of invoices and the payment of such invoices (via the Account), using various payment methods (as set out in the Pricing Schedule) and as provided by Modulr.
• Agreement means this Delegate Agreement.
• Applicable Law means all laws, including the requirements of any regulatory authority, applicable to a party to this Agreement including but not limited to anti-money laundering, anti-bribery, data privacy and tax laws.
• Authorised User means the individuals (of the Delegate) elected by You to be responsible for the management of the Account, strictly subject to the terms of agreement between the You and the Introduced SME.
• Confidential Information means any information (whether or not recorded in documentary form, or stored on any magnetic or optical disk or memory) relating to: the business, products, affairs, strategy, contracts, customer relationships, commercial pipelines, business contacts, prospective customers, existing customers, business models, customer pricing, management systems, business methods, corporate plans, maturing new business opportunities, research and development projects, marketing and sales information, sales targets and statistics, discount structures, suppliers and potential suppliers, source codes, computer programs inventions, know-how, technical specifications and other technical information relating to products and services.
• Commencement Date means the date on which You accept the terms and conditions of this Agreement.
• Data Protection Laws means the following, to the extent they are applicable to a party: the Data Protection Act 2018, the General Data Protection Regulation (EU) 2016/679,the Electronic Communications Data Protection Directive 2002/58/EC, the Privacy and Electronic Communications (EC Directive) Regulations 2003 and all Applicable Laws and regulations relating to processing of personal data and privacy (as amended or replaced from time to time), including where applicable the guidance and codes of practice issued by the Information Commissioner (in the United Kingdom) or other applicable supervisory authority.
• Fees means those fees payable by the Delegate in respect of the access to and use of the Account, the Payroll Product, the Accounts Payable Product and/or the FX and International Payments Product (as applicable), as set out in the Pricing Schedule and as amended from time to time.
• FX and International Payments Product means the provision of international payments (in currencies other than EUR and GBP) and foreign exchange services (in accordance with the currencies listed here, as amended from time to time) by Payaable Limited (“Nook”), which for the avoidance of doubt, shall be subject to the Nook Terms and Conditions. Nook is a Modulr Group Company which is registered in England and Wales with Company Number 12921042 and with office at 128 City Road, London, England, EC1V 2NX. Nook is registered with the Financial Conduct Authority as an EMD Agent (reference number: 972652) of The Currency Cloud Limited (TCCL), an Electronic Money Institution authorised by the Financial Conduct Authority (reference number: 900199).
• Group means in relation to a party, that party, any subsidiary, or any holding company from time to time of that party, and any subsidiary from time to time of a holding company of that party. Each company in a Group is a member of the Group.
• Group Company means in relation to a party, any member of its Group.
• Information means any due diligence information which You provide to us in order to access and use the Account, the Payroll Product and/or the Accounts Payable Product.
• Intellectual Property Rights means without limitation all patents (including models and inventions), trademarks, service marks, trade names, internet designations including domain names, business names, copyrights, design rights, database rights, rights to or in computer software, know-how, trade secrets, rights to or in confidential information and all other intellectual property rights and rights or forms of protection of a similar nature or effect which may subsist anywhere in the world whether or not registered or capable of registration, together with all applications for registration of, and any licence to use, any of the foregoing and "Intellectual Property" shall be construed accordingly.
• Introduced SME means Your customer (which are registered and incorporated in the United Kingdom) which You wish to refer to Us, in order for such customers to have access to and use of the Accounts, the Payroll Product, the Accounts Payable Product and/or the FX and International Payments Product (as applicable).
• Minimum Term means the minimum term to be applied to Your Agreement (where applicable), as set out in the Pricing Schedule.
• Modulr Terms and Conditions means Our terms of business and the Account terms and conditions which relate to the use of the Accounts, the Payroll Product and/or the Accounts Payable Product (as applicable) by the Introduced SME.
• Online Portal means the interface provided by us to You to enable You to access the Accounts and to use the Payroll Product, the Accounts Payable Product/and or the FX and International Payments Product (as applicable) on behalf of the Introduced SME.
• Our, Us, We means Modulr Finance Limited (“Modulr”), or Modulr FS Limited (“Modulr FS”), as applicable. Modulr FS is a company registered in England and Wales under company number 09897919, whose registered office is at Scale Space, 58 Wood Lane, London, United Kingdom, W12 7RZ. Modulr FS is an Electronic Money Institution authorised by the Financial Conduct Authority (reference number 900573). Modulr is registered with the Financial Conduct Authority as an EMD Agent (reference number: 900699) of Modulr FS. Any non-regulated services contemplated under Our agreement with the Introduced SME (including, but not limited to the Online Portal) are provided by Modulr.
• Payroll Product means the payment of payroll and tax (via the Account), using various payment methods (as set out in the Pricing Schedule) and as provided by Modulr.
• Permitted Use has the meaning given at clause 2.2 below.
• Pricing Schedule means the schedule which sets out the Fees payable by the Delegate in relation to the access to and use of the Accounts, the Payroll Product, the Accounts Payable Product and/or the FX and International Payments Product (as applicable).
• You, Your means the legal entity which has agreed to the terms of this Agreement via an authorised representative for such legal entity.

2. BACKGROUND

2.1. You wish to introduce Introduced SMEs to Us in order for such customers to have access to and use of the Accounts, the Payroll Product and/or the Accounts Payable Product.

2.2. Upon Your successful onboarding (and onboarding of the Introduced SME) in accordance with clause 3 below, You require access to and use of the Accounts, the Payroll Product and/or the Accounts Payable Product (as provided to the Introduced SME pursuant to the Modulr Terms and Conditions) in order for You to provide Your services to such Introduced SMEs (in accordance with the terms of the contract between the Delegate and the Introduced SME (the “Permitted Use”)). You acknowledge and agree that You (and not Us) are fully responsible for Your contractual obligations to the Introduced SME under the terms of Your agreement with such Introduced SME.

2.3. In consideration of clauses 2.1 and 2.2 above, We hereby agree to the Permitted Use subject to compliance with the terms and conditions set out herein.

3. ONBOARDING OBLIGATIONS

3.1. You shall provide Us with: (i) all Your Know-Your-Customer information (“KYC”), and (ii) all KYC information in relation to the Introduced SME, as required in order for Us to conduct the necessary due diligence checks as required to meet Our legal and regulatory obligations. For the avoidance of doubt, We reserve the right to request any further KYC information (in respect of You and/or an Introduced SME) as required in order to discharge Our legal and regulatory obligations.

3.2. Upon Our confirmation that You and the Introduced SME have met Our KYC requirements, You shall (subject to clause 4) be granted access to, and may utilise, the Accounts, the Payroll Product and/or the Accounts Payable Product (as applicable) as an Authorised User only.

4. DELEGATE OBLIGATIONS

4.1. The Delegate represents and warrants that:

1. it has a contract in place with its Introduced SME which permits it to have access to, and use of the Accounts, the Payroll Product and/or the Accounts Payable Product (as applicable) as an Authorised User only, subject strictly to the instructions of the Introduced SME as permitted under such contract. For the avoidance of doubt, We have no liability or responsibility for the Delegate’s failure to comply with this clause 4.1(a);
2. its employees and agents: (i) take all reasonable care to ensure that the Accounts, the Payroll Product and/or the Accounts Payable Product (as applicable) access credentials (including login details to the Online Portal, where applicable) are kept confidential to each Authorised User; and (ii) do not share any information that would enable another party to access the Accounts, the Payroll Product and/or the Accounts Payable Product;
3. it shall not to make any commitment, representation, guarantee or warranty to an Introduced SME, or any other third parties, regarding the Accounts, the Payroll Product and/or the Accounts Payable Product which is inconsistent with or beyond those expressly contained in this Agreement;
4. the person accepting this Agreement has the requisite authority to contractually bind the Delegate and We accept no liability in the event that such persons are not duly authorised by the Delegate;
5. it shall comply with any requests of Modulr, as required to comply with Our legal and/or regulatory obligations (which shall include, but shall not be limited to, consumer duty requirements);
6. it shall supply Modulr with such information as reasonably required by Modulr in order for Modulr to meet its obligations under Applicable Law (which shall include, but shall not be limited to, consumer duty requirements);
7. it shall maintain (and provide to Modulr upon Modulr’s reasonable request) information relating to the introduction of Introduced SMEs to Modulr; and
8. (where applicable) it represents and warrants that, in accordance with its contractual agreement with the Introduced SME, it has the requisite authority (from the Introduced SME) to receive access to such Introduced SME’s API key (which are provided by Us to the Introduced SME under the terms of the Modulr Terms and Conditions).

5. REFERRAL COMMISSION

5.1. Subject to the terms of Schedule 1 – Commission Schedule, the Delegate may receive a commission payment from Modulr (“Commission”) in respect of Introduced SMEs introduced to Modulr under this Agreement.

6. REVOCATION OF APPOINTMENT AS AN AUTHORISED USER

6.1. We reserve the right, in accordance with Our legal and regulatory obligations, to revoke Your access to the Account, the Payroll Product and/or the Accounts Payable Product (as applicable) at any time on reasonable written notice to You.

6.2. It is acknowledged that where the Introduced SME has not authorised the appointment of the Delegate as an Authorised User, or subsequently revokes the Delegate’s appointment as an Authorised User, We shall revoke: (i) Your access to the Account, the Payroll Product and/or the Accounts Payable Product (as applicable); and (ii) terminate this Agreement.

7. CONFIDENTIALITY

7.1. Each party shall not, either during the term of the Agreement or at any time after termination of the Agreement, use or disclose to any third party (and shall use its best endeavours to prevent the publication or disclosure of) any Confidential Information of the other party, except as permitted by clause 7.2.

7.2. Each party may disclose the other party's Confidential Information:

1. to its or any of its Group Companies’ employees, officers, representatives, subcontractors or advisers who need to know that information for the purposes of exercising the party's rights or carrying out its obligations under or in connection with this Agreement. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party's confidential information comply with this clause 7.2; and
2. as may be required by law, to a court of competent jurisdiction or any governmental or regulatory authority.

7.3. No party shall use any other party's Confidential Information for any purpose other than to exercise its rights and perform its obligations under or in connection with this Agreement.

7.4. The provisions of this clause 7 shall apply for the duration of this Agreement and after its termination or expiry without limit of time.

8. Fees

8.1. The Fees payable by the Delegate in respect of the Account, the Payroll Product and/or the Accounts Payable Product (as applicable) are set out in the Pricing Schedule, as amended from time to time.

8.2. Unless explicitly stated otherwise, all Fees shall be invoiced monthly in arrears. Invoices shall be paid within thirty (30) days of the date of the invoice.

8.3. We reserve the right to: (i) amend the Fees (on notice) in the event and to the extent that the underlying payment scheme charged to us are increased, (ii) pass on any charges incurred by us (such as negative interest charges) because of holding e-money balances on Your behalf, and (iii) apply a price adjustment at each anniversary of the Commencement Date to the extent of and in line with the United Kingdom consumer price index published by the Office for National Statistics.

8.4. Unless stated otherwise, all our Fees are exclusive of VAT, and any other applicable taxes or levies under any Applicable Laws, which will be payable separately.

9. LIABILITY

9.1. Nothing in this Agreement shall operate to limit a party or its agent’s liability to the other for: (a) fraud committed by a party, its employees, agents, or subcontractors; (b) death or personal injury resulting from negligence of a party or that of its employees, agents, or sub-contractors; or (c) any liability which cannot be limited or excluded by law.

9.2. Subject to clause 9.1., Modulr (and its Group Companies) shall not be liable for: (a) any losses caused by or arising from the default or negligence of You or Your employees, agents, or sub-contractors or Authorised Users; (b) special, incidental, indirect, or consequential loss or damage, including without limitation any direct or indirect loss or damages resulting from loss of use, loss of data, loss of profits, loss of goodwill, loss of business arising out of or in connection with this Agreement or loss or damage suffered by You as a result of an action brought by a third party, even if such loss was reasonably foreseeable; or (c) losses or damage caused to or incurred by third parties.

9.3. Subject to clauses 9.1. and 9.2., Modulr (and its Group Companies’) aggregate liability (including any liability for the acts and omissions of its employees agents and sub-contractors) to You (including any breach of its contractual obligations arising under this Agreement or any representation statement or tortious act or omission including negligence arising under or in connection with this Agreement shall be limited to lesser of one hundred thousand pounds (£100,000), or (where applicable) the total Fees paid to Us under the Agreement in the twelve (12) month period immediately preceding the claim.

9.4. In the provision of the Account, the Payroll Product and/or the Accounts Payable Product (as applicable) by Us, You shall indemnify Modulr (and its Group Companies) against any and all actions, claims, costs, damages, demands, expenses, liabilities, losses, and proceedings Modulr (and its Group Companies) directly or indirectly incurs, or which are brought against Us in respect of the following; (i) any Transaction or other direction given by You, an Authorised User in relation to an Account; and (ii) if You have acted fraudulently, been negligent or has misused any Account, the Payroll Product and/or the Accounts Payable Product (as applicable).

9.5. In the context of the provision of the Account, the Payroll Product and/or the Accounts Payable Product (as applicable) by Us, Modulr (and its Group Companies) will not be liable for any loss incurred as a result of errors made by You, Your Authorised Users, employees, or agents. Nor shall Modulr (and its Group Companies) be liable for any loss incurred to You as a result of any act or omission by You, Your Authorised Users, employees, or agents.

9.6. You must notify us of Your intention to make a claim against us within twelve (12) months from the date of the event giving rise to Your claim. If You fail to notify us, We will have no liability to You in respect of such event.

10. TERM AND TERMINATION

10.1. Unless otherwise terminated in accordance with the provisions of this Agreement, this Agreement will commence on the Commencement Date and shall continue for the Minimum Term. At the end of the Minimum Term, the Agreement shall automatically renew for successive periods of the Minimum.

10.2. Either Party may terminate this Agreement by giving two (2) months’ notice.

10.3. Notwithstanding clauses 10.2., We may terminate this Agreement immediately by giving written notice (which includes, but is not limited to, notice via email) to You if:

10.3.1. You commit a material breach of this Agreement, provided that (where such breach is capable of remedy) You have been advised in writing of the breach and it have not rectified this within thirty (30) days of receipt of such notification. A breach shall be considered capable of remedy if time is not of the essence in performance of the obligation and if the defaulting party can comply with the obligation within the thirty (30) day period; or

10.3.2. a decree or order by a court is entered against You adjudging that You are insolvent or ordering the winding up or liquidation of Your affairs; or a petition is filed seeking reorganisation, receivership, examinership, administration, arrangement, adjustment, composition or liquidation of, or in respect of, You under any applicable law and is not dismissed within ten (10) days of being filed; or a receiver, administrator, liquidator, examiner, assignee, trustee, sequestrator, secured creditor or other similar official is appointed over or the business or any substantial part of Your property or assets; You institutes proceedings to be adjudicated insolvent, or You consent to the institution of insolvency proceedings, or file a petition or answer or consent seeking reorganisation, administration, examinership, relief or liquidation under any applicable law, or consent to the filing of any such petition or to the appointment of a receiver, examiner, administrator, liquidator, assignee, trustee, sequestrator, secured creditor or other similar official Your business or of any substantial part of a party’s property, or makes an assignment for the benefit of creditors, or You admit in writing Your inability to pay Your debts generally as they become due; or any other event occurs which under any applicable law would have an effect analogous to any of the events listed in this clause 10.3.2.

10.4. We may terminate or suspend this Agreement in whole or in part immediately by giving written notice (which includes, but is not limited to, notice via email) to You if: (i) You fail to pay any Fees due to Us; (ii) Modulr is required to do so by Modulr FS or a regulator; (iii) You are unable to satisfy Modulr’s compliance and due diligence requirements (as required by its legal and regulatory obligations); (iv) You have provided false, incomplete or misleading information; (v) You have engaged in fraudulent, money laundering, terrorism financing or other illegal activity or We have reasonable suspicions in respect of the same, and/or (vi) 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 its prior written consent.

10.5. Following a party’s submission of notice to terminate this Agreement; (a) Your access and use of the Account(s), the Payroll Product and/or the Accounts Payable Product(as applicable) shall be blocked immediately; and (b) You will notify Introduced SMEs that, in order to continue to use the Accounts, the Payroll Product and/or the Accounts Payable Product (as applicable), the Introduced SME will have an to option to either: (i) sign a revised contract with Us; (ii) link their Account to a new Delegate, or (iii) terminate their contract with Us. For the avoidance of doubt, all Fees which Modulr incurs during this period shall remain payable. For the avoidance of doubt, any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this Agreement shall remain in full force and effect.

10.6. The termination of this Agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination.

11. DATA PROTECTION

11.1. For the purposes of the Data Protection Laws: (i) You and Us will each be independent Controllers in connection with fulfilling their respective obligations under this Agreement; and (ii) You and Us are not acting as joint controllers. Both parties will comply with all applicable requirements of the Data Protection Laws. This clause 11 is in addition to, and does not relieve or replace, a party's obligations under the Data Protection Laws. For the purposes of this clause 11, the terms “Controller” shall have the meaning given in the Data Protection Laws.

11.2. Each party shall not do or permit anything to be done which might jeopardise or contravene the other party's compliance with Data Protection Laws.

11.3. Further information about how We use personal information can be found in Our Privacy Policy.

12. MUTUAL OBLIGATIONS

Each party agrees to comply with all Applicable Law in connection with its performance of this Agreement.

13. INTELLECTUAL PROPERTY

13.1. For the term of this Agreement, and in accordance with the terms of this Agreement, We grant the Delegate a non-exclusive, worldwide, royalty-free licence to and/or to use the Online Portal and/or Our brand (where applicable) for the purposes set out in this Agreement.

13.2. In consideration of the rights granted under clause 13.1., You agree that: (i) You shall only use Our Intellectual Property in manner consistent with this Agreement and in accordance with any written guidelines as provided by Us from time to time; (ii) You shall not prepare any derivative work based on Our Intellectual Property, nor shall You translate, reverse engineer, decompile of disassemble any Modulr Group Company’s Intellectual Property; and (iii) if You suggest improvements or changes to the Account, the Payroll Product and/or the Accounts Payable Product, You agree that any Intellectual Property in such suggestion(s) is/are Our Intellectual Property and We may use such Intellectual Property in its own discretion.

13.3. Unless stated otherwise under this Agreement, neither party may use the other party’s Intellectual Property without the prior written consent of that other party.

13.4. Nothing in this Agreement shall operate to create or transfer any right in any Intellectual Property belonging from one party to the other.

13.5. We may make certain logos, trademarks and similar devices owned by Us available for use by You on a temporary basis (“Modulr Marks”). You agree to use the Modulr Marks only in accordance with written instructions provided by Us, as amended from time to time.

13.6. Throughout the term of the Agreement, You agree to undertake such joint marketing activity or case studies as agreed between the parties.

13.7. Both parties agree to not circulate any press materials, statements or other publications or material referring to the scope of this Agreement without prior consent of the other party, such consent will not be unreasonably delayed or withheld.

14. ASSIGNMENT

14.1. Access to and use of the Account, Payroll Product and/or the Accounts Payable Product are provided to You only. You may not novate, assign, or otherwise transfer this Agreement, or any interest or right under this Agreement.

14.2. You agree that We may, in Our sole discretion, assign, subcontract or transfer some or all of Our rights and obligations or delegate any duty of performance under the Agreement, in compliance with Applicable Law.

15. FORCE MAJEURE

Modulr (and its Group Companies) will not be liable for the non-performance or failure to provide any part of the Account, the Payroll Product and/or Accounts Payable Product occurring as a result of any events that are beyond the reasonable control of Modulr (and its Group Companies) including 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 (and its Group Companies) have no reasonable control.

16. General

16.1. Notices. Any notice which a party is required or authorised to serve on the other shall be sufficiently served if it is in writing and sent to the relevant address or email and marked for the attention of the person identified in the Application Form: (a) by hand; (b) by registered or recorded post; or (c) if it is sent by email, to the email address provided by You. Notices sent by registered or recorded post shall be deemed to be received within three Business Days following the date of posting. Notices sent by email shall be deemed to be received on the day of transmission (if sent before 4.00 p.m. on a Business Day but otherwise at 10.00 a.m. on the next Business Day) and are subject to the sender receiving a confirmation of delivery receipt of such email. This clause does not apply to the service or any proceedings or other documents in any legal action, or, where applicable, any arbitration or other method of dispute resolution.

16.2. No Partnership. Nothing in this Agreement shall create a partnership or joint venture between the parties and save as expressly provided in this Agreement, neither party shall enter into or have authority to enter into any engagement or make any representation or warranty on behalf of or pledge the credit of or otherwise bind or oblige the other party.

16.3. Variation. We may make changes to the Agreement at any time as we deem necessary to comply with applicable laws and regulations or as required by Our business needs. Where possible, and if applicable law permits Us to do so, we will notify You of such changes as soon as is reasonably practicable.

16.4. Waiver. The failure of a party to insist upon strict compliance with any term or provision of the this Agreement on any occasion shall not be construed as a waiver with regard to any subsequent failure to comply with such term or provision. No provision of this Agreement shall be waived except by a written instrument signed by the party to whom the waiver affects.

16.5. Severance. If any provision of this Agreement is held invalid, illegal or unenforceable for any reason by any court of competent jurisdiction, such provision shall be severed and the remainder of the provisions hereof shall continue in full force and effect as if this Agreement had been executed with the invalid illegal or unenforceable provision eliminated. In the event of a holding of invalidity so fundamental as to prevent the accomplishment of the purpose of this Agreement, the parties shall immediately commence good faith negotiations to remedy such invalidity.

16.6. Third Party Rights. No third party shall be entitled to enforce the rights set out in this Agreement and the Contracts (Rights of Third Parties) Act 1999 shall not apply. 

16.7. Entire Agreement. This Agreement shall constitute the entire agreement of the parties with respect to its subject matter and supersedes all prior representations, warranties, arrangements, and agreements between them relating to it. Neither party shall be entitled to rely on any representation, warranty, arrangement, or agreement which is not expressly contained in this Agreement. 

16.8. Governing Law. This Agreement shall be governed by the laws of England Wales, and the parties submit to the exclusive jurisdiction of the courts of England and Wales.

17. Customer Support

17.1. You can contact customer support (using the contact details set out below) if You have any queries about the Account, the Payroll Product and/or the Accounts Payable Product.

17.2. As part of Our commitment to providing a quality customer service, We may periodically monitor telephone communications to ensure that Our high quality service standards are maintained. You consent to such monitoring and recording of telephone communications and agree to make Your Authorised Users aware of such practices.

Telephone:	0303 313 0060
Email:	support@modulrfinance.com
Correspondence Address (and for service of notices)	Scale Space, 58 Wood Lane, London, United Kingdom, W12 7RZ