This Denarii Master Services Agreement (“MSA”) constitutes a legally binding agreement between the customer identified on the Order Form/Statement of Work (“Customer”) and the relevant Denarii entity with whom the Customer has signed the applicable Order Form/Statement of Work, together referred to as the “Parties” and each individually as a “Party.” .
Specific services terms, product details and any applicable license and/or subscription terms will be set forth in applicable Order Form(s) and SOW(s), each of which become binding on the Parties and incorporated into this MSA upon execution of an Order Form and/or SOW. Each Order Form and/or SOW is governed by and incorporates the following documents in effect as of the date of last update of such documents, collectively referred to as the “Agreement” that consists of:
- the Order Form and/or Statement of Work; and
- this MSA.
In the event of a conflict, the order of precedence is as set out above in descending order of control.
MSA Version: 2 June 2021
Denarii may amend this MSA from time to time. Amendments will be effective upon Denarii’s posting of an updated MSA at this location or the amended policies or supplemental terms on the applicable service. Your continued access or use of any Denarii Service after such posting constitutes your consent to be bound by this MSA, as amended.
Each Party agrees that the following terms and conditions govern each Order Form and/or SOW that references this MSA:
“Account” means a unique account established by Customer to enable its Authorized Users to access and use a Denarii Service.
“Account Administrator” is an Authorized User who is assigned and expressly authorized by Customer as its agent to manage Customer’s Account, including, without limitation, to configure administration settings, assign access and use authorizations, request different or additional services, provide usage and performance reports, assist in third-party product integrations, and to receive privacy disclosures. Customer may appoint an employee or a third-party business partner or contractor to act as its Account Administrator and may change its designation at any time by written notice to Denarii.
“Affiliate” of a Party means any entity that the Party directly or indirectly owns or controls more than fifty percent (50%) of the voting interests of the subject entity. Any legal entity will be considered a Party’s Affiliate as long as that interest is maintained.
“API” means application programming interface.
“Authorized User” means one individual natural person, whether an employee, business partner, contractor, or agent of Customer or its Affiliates who is registered by Customer to use the Denarii Services. An Authorized User must be identified by a unique email address and user name, and two or more persons may not use the Denarii Services as the same Authorized User. If the Authorized User is not an employee of Customer, use of the Denarii Services will be allowed only if the user is under confidentiality obligations with Customer at least as restrictive as those in this Agreement and is accessing or using the Denarii Services solely to support Customer’s and/or Customer Affiliates’ internal business purposes.
“Close Out” means any action Denarii may take to close out, cover or reduce its exposure in relation to the relevant Contract including any action Denarii reasonably considers appropriate in the circumstances;
“Confidential Information” means (a) for Denarii and its Affiliates, the Denarii Services and Documentation; (b) for Customer and its Affiliates, Customer Data; (c) any other information of a Party or its Affiliates that is disclosed in writing or orally and is designated as confidential or proprietary at the time of disclosure to the Party, including its Affiliates, receiving Confidential Information (“Recipient”) (and, in the case of oral disclosures, summarized in writing and delivered to the Recipient within thirty (30) days of the initial disclosure), or that due to the nature of the information the Recipient would clearly understand it to be confidential information of the disclosing Party; and (d) the specific terms and conditions of this Agreement between the Parties. Confidential Information does not include any information that: (i) was or becomes generally known to the public through no fault or breach of this Agreement by the Recipient; (ii) was rightfully in the Recipient’s possession at the time of disclosure without restriction on use or disclosure; (iii) was independently developed by the Recipient without use of or reference to the disclosing Party’s Confidential Information; or (iv) was rightfully obtained by the Recipient from a third party not under a duty of confidentiality and without restriction on use or disclosure.
“Contracts” means any one or more of the agreements between the Customer and Denarii for the sale, purchase, and delivery of currency in relation to Denarii Payment Channel Service;
“Customer Data” means any content, materials, data and information that Customer or its Authorized Users input into the Denarii Cloud Services, including, but not limited to, any Customer or End-User personal data and information. Customer Data does not include any component of the Denarii Services or material provided by or on behalf of Denarii.
“Documentation” means Denarii’s then-current technical and functional documentation for the Denarii Services as made generally available by Denarii.
“Denarii Cloud Service(s)” means any subscription-based or fee-per-transaction solution including the Denarii Connect Service, Denarii Optimize Service and the Denarii Payment Channel Service (including the related Foreign Exchange Services) and, as applicable, any other services (including cloud add-on services) provided by Denarii under this Agreement.
“Denarii Connect Service” means the Denarii super API service for cross-border payments which unifies multiple third-party API payment channels into a single API integration.
“Denarii Optimize Service” means the Denarii optimisation service in relation to Transactions.
“Denarii Payment Channel Service” means the payment channel service/Denarii rails provided by Denarii via API in relevant jurisdictions.
“Denarii Service(s)” means the services identified on the Order Form and/or SOW or Denarii website, as applicable, and obtained by Customer pursuant to this Agreement, including but not limited to Denarii Cloud Services and Professional Services.
“End User” means an end user of a Customer;
“Foreign Exchange Services” means the foreign exchange services provided by Denarii including quoting and execution of foreign exchange contracts;
“Indemnified Party(ies)” means, as the case may be, the Party (whether Denarii or Customer) being indemnified for a third-party claim, including its employees, directors, agents, and representatives.
“Indemnifying Party(ies)” means the Party (whether Denarii or Customer) that is providing indemnification under Section 9 (Third-Party Claims).
“Insolvency Event” means in relation to either Party: If such Party becomes insolvent or a bankruptcy petition is presented against any such person or any steps are taken to appoint an administrator, judicial factor or similar officer to any such party or to commence the winding up or dissolution of any such party or to otherwise apply to the court for a moratorium or make a proposal to creditors for a voluntary arrangement or any such party grants a trust deed for creditors or takes any action with a view to the readjustment, rescheduling forgiveness or deferral of any part of any such Party’s indebtedness or any such person enters into any arrangement, compromise or composition with or assignment for the benefit of its creditors or any class of them (except for the purposes of a solvent reconstruction or amalgamation), or a receiver, receiver and manager, or other controller, administrator or similar officer to be appointed with respect to, or takes control of, the assets or undertakings of any such Party;
“Margin” means collateral paid by the Customer to Denarii, including additional margin and increased margin;
“MUT” means the Transactions undertaken by End Users of the relevant Customer on a monthly basis via the Denarii Cloud Service with each such transaction identified pursuant to a unique transaction id.
“Order” means the accepted commercial terms of a Contract (which will incorporate the terms of this MSA and any relevant Order Form/SOW);
“Order Form” means the order form provided by Denarii that sets forth the pricing and options of the Denarii Services selected by Customer.
“Order Start Date” means the start date of the applicable Order Form as defined in that Order Form.
“Professional Services” means any integration, consulting, architecture, training, transition, configuration, administration, and similar ancillary Denarii Services that are set forth in an Order Form or Statement of Work (“SOW”).
“Settlement Date and Time” means the date and time specified within the Contract, by which funds must be received by or available to Denarii;
“Transaction” means a successful cross-border payment transaction undertaken by an End User of the relevant Customer via the Denarii Cloud Service and identified pursuant to a unique transaction id.
2. USAGE AND ACCESS RIGHTS
2.1 Right to Use. Denarii will provide the Denarii Services to Customer as set forth in the Order Form and/or SOW or Denarii website, as applicable. Subject to the terms and conditions of this Agreement, Denarii grants to Customer a worldwide, limited, non-exclusive, non-transferrable right and license during the Term, solely for its and its Affiliates’ internal business purposes, and in accordance with the Documentation, to: (a) use the Denarii Services; (b) implement, configure, and through its Account Administrator, permit its Authorized Users to access and use the Denarii Services; and (c) access and use the Documentation. Customer will ensure that its Affiliates and all Authorized Users using the Denarii Services under its Account comply with all of Customer’s obligations under this Agreement, and Customer is responsible for their acts and omissions relating to the Agreement as though they were those of Customer.
2.2 Restrictions. Customer shall not, and shall not permit its Authorized Users or others under its control to do the following with respect to the Denarii Services:
(a) use the Denarii Services, or allow access to it, in a manner that circumvents contractual usage restrictions or that exceeds Customer’s authorized use or usage metrics set forth in this Agreement, including the applicable Order Form or SOW;
(b) license, sub-license, sell, re-sell, rent, lease, transfer, distribute, time share or otherwise make any portion of the Denarii Services or Documentation available for access by third parties except as otherwise expressly provided in this Agreement;
(c) access or use the Denarii Services or Documentation for the purpose of: (i) developing or operating products or services intended to be offered to third parties in competition with the Denarii Services, or (ii) allowing access to its Account by a direct competitor of Denarii;
(d) reverse engineer, decompile, disassemble, copy, or otherwise attempt to derive source code or other trade secrets from or about any of the Denarii Services or technologies, unless and then only to the extent expressly permitted by applicable law, without consent;
(e) use the Denarii Services or Documentation in a way that (i) violates or infringes upon the rights of a third party, including those pertaining to: contract, intellectual property, privacy, or publicity; or (ii) effects or facilitates the storage or transmission of libelous, tortious, or otherwise unlawful material including, but not limited to, material that is harassing, threatening, or obscene;
(f) fail to use commercially reasonable efforts to not interfere with or disrupt the integrity, operation, or performance of the Denarii Services or interfere with the use or enjoyment of it by others;
(g) use the Denarii Services to create, use, send, store, or run viruses or other harmful computer code, files, scripts, agents, or other programs, or circumvent or disclose the user authentication or security of the Denarii Cloud Service or any host, network, or account related thereto or use any aspect of the Denarii Services components other than those specifically identified in an Order Form or SOW, even if technically possible; or
(h) use, or allow the use of, the Denarii Services in violation of Section 13.5 (Trade Restrictions).
2.3 Suspension of Access. Denarii may suspend any use of the Denarii Services, or remove or disable any Account or content that Denarii reasonably and in good faith believes violates this Agreement. Denarii will use commercially reasonable efforts to notify Customer prior to any such suspension or disablement, unless Denarii reasonably believes that: (a) it is prohibited from doing so under applicable law or under legal process (such as court or government administrative agency processes, orders, mandates, and the like); or (b) it is necessary to delay notice in order to prevent imminent harm to the Denarii Services or a third party. Under circumstances where notice is delayed, Denarii will provide notice if and when the related restrictions in the previous sentence no longer apply.
2.4 Freemium Account. If Customer registers for, and uses, a freemium account (“Freemium Account”), the terms and conditions of this Agreement will apply. In relation to a Freemium Account, the use of the Denarii Cloud Service by a Customer may be limited in certain ways as notified to a Customer via the Account, Denarii website or by email from time to time. DENARII’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO CUSTOMER’S USE OF A FREEMIUM ACCOUNT IS $100.
3.1 Customer Data. Customer Data processed using the Denarii Services is and will remain, as between Customer and Denarii, owned by Customer. Customer hereby grants Denarii the right to process, transmit, store or disclose the Customer Data in order to provide the Denarii Services to Customer subject to the terms of Section 11.2 (Required Disclosure) below.
3.2 Denarii Services. Denarii, its Affiliates, or its licensors own all right, title, and interest in and to any and all copyrights, trademark rights, patent rights, database rights, and other intellectual property or other rights in and to the Denarii Services and Documentation, any improvements, design contributions, or derivative works thereto, and any knowledge or processes related thereto and/or provided hereunder. Unless otherwise specified in the applicable SOW, all deliverables provided by or for Denarii in the performance of Professional Services, excluding Customer Data and Customer Confidential Information, are owned by Denarii and constitute part of the Denarii Service(s) under this Agreement.
3.3 Third-Party Services or Materials. Customer may choose to obtain products, services or materials that are provided or supported by third parties (“Third-Party Services and Materials”) for use with Denarii Services. Denarii assumes no responsibility for, and specifically disclaims any liability or obligation with respect to, any Third-Party Services and Materials that are provided pursuant to the terms of the applicable third-party license or separate agreement between the licensor of the Third-Party Services and Customer. Denarii does not represent and/or warrant in any manner that Third-Party Services and Materials are accurate, current, or comply with laws, rules and/or regulations of, or are otherwise valid and enforceable in or appropriate for, the jurisdiction in which the Third-Party Services and Materials are used or for Customer’s purposes. Customer will provide and/or obtain any equipment or telecommunications lines and links that may be necessary for it to use the relevant Denarii Services,and Customer acknowledges that certain software and equipment used by the Customer may not be capable of supporting certain features of the Denarii Services. For the avoidance of doubt, Denarii is not responsible for providing the Customer with any equipment or telecommunications lines and links that may be necessary for you to use the Denarii Services.
3.4 Feedback. Denarii encourages Customer to provide suggestions, proposals, ideas, recommendations, or other feedback regarding improvements to Denarii Services and related resources (“Feedback”). To the extent Customer provides Feedback, Customer grants to Denarii a royalty-free, fully paid, sub-licensable, transferable (notwithstanding Section 13.2 (Assignability)), non-exclusive, irrevocable, perpetual, worldwide right and license to make, use, sell, offer for sale, import, and otherwise exploit Feedback (including by incorporation of such feedback into the Denarii Services) without restriction; provided that such Feedback does not identify Customer, its Affiliates, or Authorized Users, or include any Customer Data without Customer’s prior written consent.
4. SECURITY AND CUSTOMER DATA
4.1 Security. Denarii will use commercially reasonable industry standard security technologies in providing the Denarii Services. Denarii has implemented and will maintain appropriate technical and organizational measures, including information security policies and safeguards, to preserve the security, integrity, and confidentiality of Customer Data and personal data and to protect against unauthorized or unlawful disclosure or corruption of or access to personal data.
4.2 Customer Data. Customer is responsible for Customer Data (including Customer and End User personal data) as entered into, supplied or used by Customer and its Authorized Users in the Denarii Services. Further, Customer is solely responsible for: (i) determining the suitability of the Denarii Services for Customer’s business (ii) complying with any applicable data privacy and protection regulations, laws or conventions applicable to Customer Data and Customer’s use of the Denarii Services and (iii) ensuring that its Account and relevant Denarii Services are only accessed by an Authorized User and that login details, passwords,or other security features associated with Customer’s access remain safe and secure at all times. If the Customer has any knowledge or any suspicion that any of these security features have been stolen, misappropriated, improperly disclosed to a third party or used without authorisation or otherwise compromised, the Customer will contact Denarii immediately. Customer grants to Denarii the non-exclusive right to process Customer Data (including personal data) in accordance with the applicable data protection provisions and any required technical and organizational measures, attachment and/or appendix, for the sole purpose of and only to the extent necessary for Denarii: (a) to provide the Denarii Services; (b) to verify Customer’s compliance with the restrictions set forth in Section 2.2 (Restrictions) if Denarii has a reasonable belief of Customer’s non-compliance; and (c) as otherwise set forth in this Agreement.
4.3 Use of Aggregate Data. Customer agrees that Denarii may collect, use, and disclose quantitative data derived from the use of the Denarii Services for its business purposes, including industry analysis, benchmarking, analytics, and marketing. All data collected, used, and disclosed will be in aggregate and deidentified form only and will not identify Customer, its Authorized Users, Customer Data, End Users or any third parties utilizing the Denarii Services.
5. PAYMENT OF FEES
5.1 Fees. Except as expressly set forth in the applicable Order Form or SOW, Customer will pay all fees set forth in the Order Form or SOW in accordance with the following: (a) Denarii Services fees are invoiced annually in advance; (b) the first invoice will coincide with the Order Start Date or effective date of a SOW; (c) payment will be due within thirty (30) days from the date of the invoice; and (d) all amounts will be denominated in the currency set out in the applicable Order Form or SOW. In the event that the term of the applicable Order Form or SOW will auto-renew upon the Order End Date, Denarii will provide at least two months’ written notice to the Customer of any increase in fees planned on or subsequent to such Order End Date. Upon execution by Customer and Denarii, each Order Form and/or SOW is non-cancellable and non-refundable except as provided in this Agreement, and the Term as set forth in the Order Form for Denarii Cloud Services is a continuous and non-divisible commitment for the full duration of the Term regardless of any invoice schedule. Customer may withhold from payment any charge or amount disputed by Customer in good faith pending resolution of such dispute, provided that Customer: (i) notifies Denarii of the dispute prior to the date such payment is due, specifying in such notice (A) the amount in dispute, and (B) the reason for the dispute set out in sufficient detail to facilitate investigation by Denarii and resolution by the parties; (ii) makes timely payment of all undisputed charges and amounts; (iii) works diligently with Denarii to resolve the dispute promptly; and (iv) pays all amounts that are determined to be payable by resolution of the dispute (by adversarial proceedings, agreement or otherwise) within ten (10) days following such resolution.
5.2 Purchase Orders. If Customer issues a purchase order, then it shall be for the full amount set forth in the applicable Order Form or SOW, and Denarii hereby rejects any additional or conflicting terms appearing in a purchase order or any other ordering materials submitted by Customer, and conditions assent solely based on the terms and conditions of this Agreement as offered by Denarii. Upon request, Denarii shall reference the purchase order number on its invoices, provided, however, that Customer acknowledges that it is Customer’s responsibility to provide the corresponding purchase order information (including a purchase order number) to Denarii upon the signing of any Order Form. Customer agrees that a failure to provide Denarii with the corresponding purchase order shall not relieve Customer of its obligations to provide payment to Denarii pursuant to Section 5.1 (Fees) above.
5.3 Offsets; Late Charges; Attorneys’ Fees. If Denarii owes any amounts to Customer that are not derived from this Agreement, such amounts will not be withheld or offset against any invoice issued under this Agreement. Denarii may assess late charges equal to the lesser of one and one-half percent (1.5%) of the unpaid balance per month or the highest rate permitted by applicable law. Customer will be responsible for any reasonable attorneys’ fees, costs, and expenses incurred by Denarii to collect any amounts that are not paid when due. If Customer fails to timely pay any amounts due under this Agreement, then without limitation of any of its other rights or remedies, Denarii may suspend performance of those Denarii Services until Denarii receives all past due amounts from Customer.
5.4 Third Party API Fees. Irrespective of if: (i) the Customer has a direct agreement with a relevant third-party API payment channel or (ii) the Customer has no agreement with a relevant third-party API payment channel and is instead relying upon Dernarii’s relationship with such third party API payment channel, the Customer will be responsible for any fees and charges of any such third party API payment channel with respect to all Transactions undertaken or attempted.
6.1 Tax Responsibility. All payments required by this Agreement are stated exclusive of all taxes, duties, levies, imposts, fines or similar governmental assessments, including sales and use taxes, value-added taxes (“VAT”), goods and services taxes (“GST”), excise, business, service, and similar transactional taxes imposed by any jurisdiction and the interest and penalties thereon (collectively, “Taxes”). Customer shall be responsible for and bear Taxes associated with its purchase of, payment for, access to or use of the Denarii Services. Taxes shall not be deducted from the payments to Denarii, except as required by law, in which case Customer shall increase the amount payable as necessary so that after making all required deductions and withholdings, Denarii receives and retains (free from any Tax liability) an amount equal to the amount it would have received had no such deductions or withholdings been made. If Customer claims tax exempt status for amounts due under this Agreement, it shall provide Denarii with a valid tax exemption certificate (authorized by the applicable governmental authority) to avoid application of Taxes to Customer’s invoice. Each Party is responsible for and shall bear Taxes imposed on its net income. Customer hereby confirms that Denarii can rely on the ship-to name and address set forth in the Order Form(s) or SOW Customer places directly with Denarii as being the place of supply for Tax purposes. The Parties’ obligations under this Section 6.1 (Tax Responsibility) shall survive the termination or expiration of this Agreement.
6.2 Invoicing Taxes. If Denarii is required to invoice or collect Taxes associated with Customer’s purchase of, payment for, access to or use of the Denarii Services, Denarii will issue an invoice to Customer including the amount of those Taxes, itemized where required by law. If applicable, Customer shall provide to Denarii its VAT, GST or similar tax identification number(s) on the Order Form or SOW. Customer shall use the ordered Denarii Services for Customer’s business use in the foregoing location(s) in accordance with the provided VAT or GST identification number(s).
7. TERM AND TERMINATION
7.1 Term. The term of an Order Form is the period of time, including all renewals thereto, that begins on the Order Start Date and, unless terminated sooner as provided herein, will continue until the Order End Date (both dates as specified on the Order Form (the “Term”)), provided that, as may be set out in an applicable Order Form and if no relevant termination notice is received, the relevant term may auto-renew for a further period of time equal to the original Term specified in the relevant Order Form on the applicable Order End Date. In the case of a SOW for Professional Services, if no end date is specified in the SOW, then the SOW shall expire upon completion of Professional Services or early termination as permitted by this Agreement. The term of this Agreement shall continue as long as an Order Form or SOW referencing or incorporated into this MSA remains valid and in effect. Prior to the Order Start Date, Denarii may, upon mutual agreement, start providing Professional Services and/or provide Customer access to the Denarii Services, which will be governed by this Agreement. Termination or expiration of any Order Form or SOW shall leave other Order Forms or SOWs unaffected.
7.2 Termination for Breach; Termination for Insolvency. If either Party commits a material breach or default in the performance of any of its obligations under this Agreement, then the other Party may terminate this Agreement in its entirety by giving the defaulting Party written notice of termination, unless the material breach or default in performance is cured within thirty (30) days after the defaulting Party receives notice thereof. Either Party may terminate this Agreement in its entirety upon written notice if the other Party becomes the subject of a petition in bankruptcy or any proceeding related to its insolvency, receivership or liquidation, in any jurisdiction, that is not dismissed within sixty (60) days of its commencement, or an assignment for the benefit of creditors.
7.3 Post-Termination Obligations. If this Agreement expires or is terminated for any reason: (a) Customer will pay to Denarii any amounts that have accrued before, and remain unpaid as of, the effective date of the expiration or termination; (b) any and all liabilities of either Party to the other Party that have accrued before the effective date of the expiration or termination will survive; (c) licenses and use rights granted to Customer with respect to Denarii Services and intellectual property will immediately terminate; (d) Denarii’s obligation to provide any further services to Customer under this Agreement will immediately terminate, except any such services that are expressly to be provided following the expiration or termination of this Agreement; and (e) the Parties’ rights and obligations under Sections 6.1, 7.3, 8.3, and 10 through 13 will survive.
8. WARRANTIES AND DISCLAIMERS
8.1 Denarii Service Warranties. Denarii warrants that during the applicable Term, the Denarii Services, when used as authorized under this Agreement, will perform substantially in conformance with the Documentation associated with the applicable Denarii Services. Customer’s sole and exclusive remedy for any breach of this warranty by Denarii is for Denarii to repair or replace the affected Denarii Services to make them conform, or, if Denarii determines that the foregoing remedy is not commercially reasonable, then either Party may terminate this Agreement.
8.2 Mutual Warranties. Each Party represents and warrants that: (a) this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against it in accordance with the terms of this Agreement; (b) no authorization or approval from any third party is required in connection with its execution, delivery, or performance of this Agreement (c) it holds and will maintain all required permits, licenses, consents, registrations (whether from a governmental agency or otherwise) and other governmental authorizations necessary for conducting, carrying out and continuing to perform its business and operations and (d) it will at all times comply with relevant laws and regulations issued by relevant competent authorities in jurisdictions in which it operates its business.
8.3 Disclaimer. Except for the express representations and warranties stated in this Section 8 (Warranties and Disclaimers) or SOW, Denarii: (a) makes no additional representation or warranty of any kind — whether express, implied in fact or by operation of law, or statutory — as to any matter whatsoever; (b) disclaims all implied warranties, including but not limited to merchantability, fitness for a particular purpose, and title; and (c) does not warrant that the Denarii Services are or will be error-free or meet Customer’s requirements. Customer has no right to make or pass on any representation or warranty on behalf of Denarii to any third party.
8.4 Denarii will use reasonable efforts to ensure that the relevant Denarii Services are available 99.5% of the time during each calendar month (“Availability”). Availability excludes unavailability due to scheduled maintenance or a force majeure event (described below in section 13.4). Denarii will promptly inform the Customer if the Denarii Services become unavailable.
8.5 Denarii shall not treat End Users as its customers for the purposes of providing the Denarii Services. The Customer is solely responsible and liable for all acts and omissions of End Users including without limitation (i) all dealing services provided to End Users and the correct inputting of trade details (ii) End User limits default, spreads and permissions and the setting of trading limits, products,default spreads and user permissions for End Users (iii) all Know Your Customer (“KYC”) and/or customer due diligence (“CDD”) requirements relating to End Users and the on-boarding of End Users (iv) all operational matters relating to End Users including inputting any manual End User’s payment details, following up with End Users for payment details, any late arrival of funds, settlement with End Users, and monitoring the open positions of End Customers (v) all sales, marketing and account management in relation to End Users, including the promotion and marketing of foreign exchange deliverable services and/or international payments services to End Users, End User account management and execution of trades over the phone to End Users, and any relevant training for End Users.
9. THIRD-PARTY CLAIMS
9.1 By Denarii. Denarii will indemnify Customer, and its employees, directors, agents, and representatives from, and defend the Indemnified Parties against, any actual or threatened: (a) third-party claim; (b) third-party legal action; or (c) administrative agency action or proceeding (“Claim”) to the extent arising from or related to: (i) any breach by Denarii of specified security safeguards related to the Denarii Services that results in the breach of its confidentiality obligations in Section 11 (Confidentiality); and (ii) any infringement of any third-party intellectual property rights by the Denarii Services as provided by Denarii, or the Indemnified Party’s use thereof when used as authorized under this Agreement, provided, however, that Denarii will not be responsible for alleged infringement that is due to the combination of Denarii Services with goods or services provided by third parties.
9.2 By Customer. Customer will indemnify Denarii, and its employees, directors, agents, and representatives from, and defend the Indemnified Parties against, any Claim to the extent arising from or related to: (a) use of the Denarii Services by Customer or its Account Administrator or Authorized Users in violation of this Agreement, the Documentation, or applicable law; (b) any breach by Customer of its obligations under Section 2.2 (e)-(h) (Restrictions) or Section 11 (Confidentiality); or (c) the nature and content of all Customer Data processed by the Denarii Services.
9.3 Procedures. The Parties’ respective indemnification obligations above are conditioned on: (a) the Indemnified Parties giving the Indemnifying Party prompt written notice of the Claim, except that the failure to provide prompt notice will only limit the indemnification obligations to the extent the Indemnifying Party is prejudiced by the delay or failure; (b) the Indemnifying Party being given full and complete control over the defense and settlement of the Claim (as long as the settlement does not include any payment of any amounts by or any admissions of liability, whether civil or criminal, on the part of any of the Indemnified Parties); (c) the relevant Indemnified Parties providing assistance in connection with the defense and settlement of the Claim, as the Indemnifying Party may reasonably request; and (d) the Indemnified Parties’ compliance with any settlement or court order made in connection with the Claim. The Indemnifying Party will indemnify the Indemnified Parties against: (i) all damages, costs, and attorneys’ fees finally awarded against any of them with respect to any Claim; (ii) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by any of them in connection with the defense of the Claim (other than attorneys’ fees and costs incurred without the Indemnifying Party’s consent after it has accepted defense of such Claim); and (iii) all amounts that the Indemnifying Party agreed to pay to any third party in settlement of any Claims arising under this Section 9 (Third-Party Claims) and settled by the Indemnifying Party or with its approval.
9.4 Infringement Remedy. If Customer is enjoined or otherwise prohibited from using any of the Denarii Services or a portion thereof based on a Claim covered by Denarii’s indemnification obligations under Section 9.1 (By Denarii) above, then Denarii will, at its sole expense and option, either: (a) obtain for Customer the right to use the allegedly infringing portions of the Denarii Services; (b) modify the allegedly infringing portions of the Denarii Services so as to render them non-infringing without substantially diminishing or impairing their functionality; or (c) replace the allegedly infringing portions of the Denarii Services with non-infringing items of substantially similar functionality. If Denarii determines that the foregoing remedies are not commercially reasonable, then either Party may terminate this Agreement, and in such case, Denarii will provide a prorated refund to Customer for any prepaid fees received by Denarii under this Agreement that correspond to the unused portion of the Term. Without limiting Denarii’s obligation to indemnify Customer as set forth in Section 9.1 (By Denarii) above, the remedy set out in this Section 9.4 (Infringement Remedy) is Customer’s sole and exclusive remedy for any actual or alleged infringement by Denarii of any third-party intellectual property rights in the event that Customer is enjoined or otherwise prohibited from using any of the Denarii Services or a portion thereof based on a Claim covered by Denarii’s indemnification obligations under Section 9.1 (By Denarii).
10. LIMITATIONS OF LIABILITY
10.1 Exclusion of Damages. EXCEPT FOR THE PARTIES’ OBLIGATIONS UNDER SECTION 9 (THIRD-PARTY CLAIMS), UNDER NO CIRCUMSTANCES, AND REGARDLESS OF THE NATURE OF THE CLAIM, SHALL EITHER PARTY (OR THEIR RESPECTIVE AFFILIATES) BE LIABLE TO THE OTHER PARTY FOR LOSS OF PROFITS, SALES OR BUSINESS, LOSS OF ANTICIPATED SAVINGS, LOSS OF USE OR CORRUPTION OF SOFTWARE, DATA OR INFORMATION, WORK STOPPAGE OR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, COVER, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THE TRANSACTIONS CONTEMPLATED UNDER THIS AGREEMENT, EVEN IF APPRISED OF THE LIKELIHOOD OF SUCH LOSSES.
10.2 Limitation of Liability. EXCEPT FOR: (A) THE PARTIES’ OBLIGATIONS UNDER SECTION 9 (THIRD-PARTY CLAIMS); (B) DAMAGES RESULTING FROM DEATH OR BODILY INJURY ARISING FROM EITHER PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; AND (C) DENARII’S RIGHT TO COLLECT UNPAID FEES DUE HEREUNDER, TO THE EXTENT PERMITTED BY LAW, THE TOTAL, CUMULATIVE LIABILITY OF EACH PARTY (OR THEIR RESPECTIVE AFFILIATES) ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SERVICES PROVIDED HEREUNDER WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, SHALL BE LIMITED TO THE AMOUNTS PAID BY CUSTOMER FOR THE DENARII SERVICE(S) GIVING RISE TO THE CLAIM DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE FIRST EVENT GIVING RISE TO LIABILITY. THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT ENLARGE THIS CUMULATIVE LIMIT. FURTHERMORE, DENARII SHALL HAVE NO LIABILITY WHATSOEVER TO A CUSTOMER IN RELATION TO ACTIONS OR OMISSIONS BY A THIRD PARTY API PAYMENT CHANNEL.
10.3 Incorrect Information or Defective Execution. In relation to the Denarii Payment Channel Service, Denarii will not be liable to Customer for the non-execution of a payment or for the defective execution of a payment if the information a Customer provides is incorrect. Denarii will not be liable for errors, mistakes, or non-performance arising from the payee/beneficiary bank if the payee/beneficiary bank fails to process the payment correctly. In either case, Denarii will make reasonable efforts to recover the funds involved in the payment. The Customer will be responsible for the costs incurred by Denarii for any such recovery.
104. Independent Allocations of Risk. Each provision of this Agreement that provides for a limitation of liability, disclaimer of warranties, or exclusion of damages represents an agreed allocation of the risks of this Agreement between the Parties. This allocation is reflected in the pricing offered by Denarii to Customer and is an essential element of the basis of the bargain between the Parties. Each of these provisions is severable and independent of all other provisions of this Agreement, and each of these provisions will apply even if the warranties in this Agreement have failed of their essential purpose.
11.1 Restricted Use and Nondisclosure. During and after the Term, Recipient will: (a) use the Confidential Information of the other Party solely for the purpose for which it is provided; (b) not disclose such Confidential Information to a third party, except on a need-to-know basis to its Affiliates, attorneys, auditors, consultants, and service providers who are under confidentiality obligations at least as restrictive as those contained herein; and (c) protect such Confidential Information from unauthorized use and disclosure to the same extent (but using no less than a reasonable degree of care) that it protects its own Confidential Information of a similar nature.
11.2 Required Disclosure. If Recipient is required by law to disclose Confidential Information of the other Party or the terms of this Agreement, Recipient will give prompt written notice to the other Party before making the disclosure, unless prohibited from doing so by the legal or administrative process, and cooperate with the disclosing Party to obtain where reasonably available an order protecting the Confidential Information from public disclosure.
11.3 Ownership. Recipient acknowledges that, as between the Parties, all Confidential Information it receives from the disclosing Party, including all copies thereof in Recipient’s possession or control, in any media, is proprietary to and exclusively owned by the disclosing Party. Nothing in this Agreement grants Recipient any right, title or interest in or to any of the disclosing Party’s Confidential Information. Recipient’s incorporation of the disclosing Party’s Confidential Information into any of its own materials will not render Confidential Information non-confidential.
11.4 Remedies. Recipient acknowledges that any actual or threatened breach of this Section 11 (Confidentiality) may cause irreparable, non-monetary injury to the disclosing Party, the extent of which may be difficult to ascertain. Accordingly, the disclosing Party is entitled to (but not required to) seek injunctive relief in addition to all remedies available to the disclosing Party at law and/or in equity, to prevent or mitigate any breaches of this Agreement or damages that may otherwise result from those breaches. Absent written consent of the disclosing Party to the disclosure, the Recipient, in the case of a breach of this Section 11 (Confidentiality), has the burden of proving that the disclosing Party’s Confidential Information is not, or is no longer, confidential or a trade secret and that the disclosure does not otherwise violate this Section 11 (Confidentiality).
12. GOVERNING LAW AND VENUE
12.1 The Parties agree to the following country-specific provisions for governing law and venue for all claims and disputes arising out of or relating to this Agreement. This Agreement will be interpreted, construed, and enforced in all respects in accordance with the following laws based on the ship-to address of the Customer reflected on the Order Form.
(a) United Kingdom, a Member State of the European Economic Area, or Switzerland. This Agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including without limitation non-contractual disputes or claims) are governed by and construed in accordance with English law. Each Party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims). The provisions of the U.N. Convention on Contracts for the International Sale of Goods are expressly excluded and do not apply to this Agreement.
(b) Australia. This Agreement is governed by the laws of New South Wales, Australia, and both Customer and Denarii agree to submit to the non-exclusive jurisdiction of the New South Wales courts. The provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods are expressly excluded and do not apply to this Agreement. Any legal action arising under this Agreement must be initiated within two years after the cause of action arises. Each Party hereby irrevocably waives, to the fullest extent permitted by law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Agreement.
(c) Singapore. This Agreement is governed by the laws of Singapore, and both Customer and Denarii agree to submit to the non-exclusive jurisdiction of the courts of the Republic of Singapore. The provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods are expressly excluded and do not apply to this Agreement. Any legal action arising under this Agreement must be initiated within two years after the cause of action arises.
(d) Philippines. This Agreement is governed by the laws of the Philippines, and both Customer and Denarii agree to submit to the non-exclusive jurisdiction of the courts of the Philippines.Any legal action arising under this Agreement must be initiated within two years after the cause of action arises.
(e) For all other locations. This Agreement is governed by the laws of the Emirate of Dubai and the applicable federal laws of the United Arab Emirates without reference to its choice of law rules to the contrary. The Parties hereby irrevocably consent to the courts of DIFC in the city of Dubai having exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of this Agreement. To the extent permitted by law, choice of law rules, the United Nations Convention on Contracts for the International Sale of Goods shall not apply. Notwithstanding the foregoing, either Party may at any time seek and obtain appropriate legal or equitable relief in any court of competent jurisdiction for claims regarding such Party’s intellectual property rights. Each Party hereby irrevocably waives, to the fullest extent permitted by law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Agreement.
12.2 To the extent allowed by law, the English version of this Agreement is binding and other translations are for convenience only.
13.1 Relationship. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties. Except as set forth in this Agreement, nothing in this Agreement, expressed or implied is intended to give rise to any third-party beneficiary.
13.2 Assignability. Neither Party may assign its rights or obligations under this Agreement without the other Party’s prior written consent. Notwithstanding the foregoing, either Party may assign its rights and obligations under this Agreement to an Affiliate as part of a reorganization, or to a purchaser of its business entity or substantially all of its assets or business to which rights and obligations pertain without the other Party’s consent, provided that: (a) the purchaser is not insolvent or otherwise unable to pay its debts as they become due; (b) the purchaser is not a competitor of the other Party; and (c) any assignee is bound hereby. Other than the foregoing, any attempt by either Party to transfer its rights or obligations under this Agreement will be void.
13.3 Notices. Any notice required or permitted to be given in accordance with this Agreement will be effective only if it is in writing and sent using: (a) Denarii Services; (b) certified or registered mail; or (c) email to legal@Denarii.com. Each Party hereto expressly consents to service of process by registered mail. Either Party may change its address for receipt of notice by notice to the other Party through a notice provided in accordance with this Section 13.3 (Notices). Notices are deemed given upon receipt if delivered using Denarii Services, two (2) business days following the date of mailing, or one (1) business day following delivery by email.
13.4 Force Majeure. In the event that either Party is prevented from performing, or is unable to perform, any of its obligations under this Agreement due to any cause beyond the reasonable control of the Party invoking this provision (including, without limitation, for causes due to war, fire, earthquake, flood, hurricane, pandemics, riots, acts of God, telecommunications outage not caused by the obligated Party, or other similar causes) (“Force Majeure Event”), the affected Party’s performance will be excused and the time for performance will be extended for the period of delay or inability to perform due to such occurrence; provided that the affected Party: (a) provides the other Party with prompt notice of the nature and expected duration of the Force Majeure Event; (b) uses commercially reasonable efforts to address and mitigate the cause and effect of such Force Majeure Event; (c) provides periodic notice of relevant developments; and (d) provides prompt notice of the end of such Force Majeure Event. Obligations to pay are excused only to the extent that payments are entirely prevented by the Force Majeure Event.
13.5 Export Control. The Denarii Services, Documentation, and the provision and derivatives thereof may be subject to the export control and sanctions laws and regulations of the United States and other countries that may prohibit or restrict access by certain persons or from certain countries or territories (“Trade Restrictions”).
(a) Each Party shall comply with all applicable Trade Restrictions. In addition, each Party represents that it is not a Restricted Party, nor is it owned or controlled by, or acting on behalf of any person or entity that is a Restricted Party. “Restricted Party” means any person or entity that is: (a) listed on any U.S. government list of persons or entities with which U.S. persons are prohibited from transacting, including, but not limited to, OFAC’s List of Specially Designated Nationals and Other Blocked Persons, the U.S. State Department’s Nonproliferation Sanctions lists, the U.S. Commerce Department’s Entity List or Denied Persons List located at https://www.export.gov/article?id=Consolidated-Screening-List; or (b) subject to end destination export control regulations, such as, but not limited to, the U.S. Export Administration Regulations and EU Dual-Use Regulation EC 428/2009.
(b) Customer acknowledges and agrees that it is solely responsible for complying with, and shall comply with, Trade Restrictions applicable to any of its own or its Affiliates’ or Authorized Users’ content or Customer Data transmitted through the Denarii Services. Customer shall not and shall not permit any Authorized User to access, use, or make the Denarii Services available to or by any Restricted Party or to or from within in a country or territory subject to comprehensive U.S. sanctions (currently including, but not limited to, Cuba, the Crimea region of the Ukraine, Iran, North Korea, and Syria).
13.6 Anti-Corruption. In connection with the services performed under this Agreement and Customer’s use of Denarii’s products and services, the Parties agree to comply with all applicable anti-corruption and anti-bribery related laws, statutes, and regulations.
13.7 Publicity. Neither Party shall refer to the identity of the other Party in promotional material, publications, or press releases or other forms of publicity relating to the Denarii Service unless the prior written consent of the other Party has been obtained, provided, however, that Denarii may use Customer’s name and logo for the limited purpose of identifying Customer as a customer of the Denarii Service.
13.8 Waiver. The waiver by either Party of any breach of any provision of this Agreement does not waive any other breach. The failure of any Party to insist on strict performance of any covenant or obligation in accordance with this Agreement will not be a waiver of such Party’s right to demand strict compliance in the future, nor will the same be construed as a novation of this Agreement.
13.9 Severability. If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect.
13.10 Entire Agreement. This Agreement is the final, complete, and exclusive expression of the agreement between the Parties regarding the Denarii Services provided under this Agreement. This Agreement supersedes and replaces, and the Parties disclaim any reliance on, all previous oral and written communications (including any confidentiality agreements pertaining to the Denarii Services under this Agreement), representations, proposals, understandings, undertakings, and negotiations with respect to the subject matter hereof and apply to the exclusion of any other terms that Customer seeks to impose or incorporate, or which are implied by trade, custom, practice, or course of dealing. This Agreement will prevail over terms and conditions of any Customer-issued purchase order or other ordering documents, which will have no force and effect, even if Denarii accepts or does not otherwise reject the purchase order or other ordering document.
SCHEDULE 1 – FOREIGN EXCHANGE SERVICES
The following provisions will apply to the Denarii Payment Channel Service and related Foreign Exchange Services.
1. Individual Contracts. Each Contract shall be an individual contract and Denarii may at any time and at its sole discretion refuse to offer terms for any Contract.
2. Execution Only. Denarii shall not provide you with any advice in connection with the Denarii Payment Channel Service and related Foreign Exchange Services (such as, whether to proceed or not to proceed with a Contract and in respect of timing). Denarii may provide market information but this shall not constitute investment advice. Denarii does not accept responsibility for a Customer’s decision to enter into a Contract. Any decision to transact is the decision of the Customer and Denarii will not be liable for any loss or opportunity loss if exchange rates move before or after a Customer transacts.
3. Orders. Denarii offers all the commercial terms for a proposed Contract via a Customer’s Account interface. These terms will include amongst other things the exchange rate and other fees Denarii is offering which may be different from a quote you have previously been given by Denarii. Once the Customer accepts those commercial terms by way of input of relevant instructions in its Account, the Customer will become legally bound to perform the Contract in accordance with the terms of the Order. Following receipt of an Order, we shall subsequently transmit electronically to you a confirmation which will confirm the details of the Order. Once an Order has been agreed, a Customer may not amend or cancel the relevant Contract.
4. Settling Contract. The Customer must pay all funds specified by Denarii in connection with a Contract (including any applicable transfer charges by electronic transmission) in full and in cleared funds into a client account specified by Denarii. Payment must be received by Denarii on or before the Settlement Date and Time or such earlier date as Denarii may specify and for the full value of the currency to be sold by the Customer under the Contract. If funds do not arrive on or before the Settlement Date and Time, Denarii may at its sole discretion roll the trade to the next settlement day and apply a charge in accordance with the provisions of the relevant agreement between Denarii and the Customer, or Close Out the Contract. Where practicable, Denarii will give notice to the Customer before rolling the trade to the next settlement day.
5. Disputes. If a dispute arises between Denarii and the Customer relating to the existence or terms of any Contract (a “Disputed Contract”), Denarii may at its sole discretion Close Out the Disputed Contract pending settlement of the dispute. Denarii will notify the Customer of such action as soon as practical but if Denarii does not the validity of any action by Denarii shall not be affected.
6. Default & Refusal to Perform. Notwithstanding Sections 2, 4 and 5, Denarii may at its sole discretion refuse to perform or Close Out a Contract, including but not limited to upon or at any time after any of the following events:
- the Customer fails to settle a Contract by the agreed Settlement Date and Time;
- if Denarii has reason to believe that the Customer are using any Contract or the Denarii Payment Channel Services for investment or speculative purpose;
- either Denarii or the Customer cancel a Contract
- the Customer fails to pay Margin or additional Margin by the due date as requested by Denarii;
- the Customer fails to pay the deposit or additional deposit by the due date requested by Denarii;
- an Insolvency Event occurs or the Customer take steps to or suspend payment of its debts;
- the Customer fails in any respect to fully and promptly comply with any obligations owed to Denarii, or if any information supplied by the Customer or any representations made by the Customer are or become materially inaccurate;
- it becomes or may become unlawful for Denarii to maintain or to provide the Denarii Payment Channel Services or if the Customer or Denarii are requested not to perform or to close out a Contract (or any part thereof) by any governmental or regulatory authority whether or not that request is legally binding; or
- Denarii considers it necessary to do so for its own protection including (without limitation) in the following circumstances: (i) protection from fraud; (ii) protection from your default; and (iii) protection from broad-based market failure.
Where practicable, Denarii will provide the Customer with notice prior to making the decision to refuse to perform or Close Out a Contract, save in the circumstances described in clauses (h) or (i) above where it may not be possible for us to give prior notice.
If the Customer becomes aware of the occurrence of any such event or any circumstances that mean that any such event is likely to occur, the Customer must notify Denarii immediately.
If any event referred to above takes place, Denarii shall, at its discretion, be entitled to cancel any outstanding Contracts and charge the Customer all of the costs, expenses and losses that Denarii may incur (including any action Denarii may take to cover or reduce its exposure). Any Margin held by Denarii in respect of Contracts shall be returned to the Customer after deducting all other sums due to Denarii (including any fees or losses resulting from closing out the Contract). Denarii shall not be responsible in any way for any delay in payment by Denarii under this Schedule 1 caused by the Customer or any other third party.
7. Close Out. Denarii reserves the right in its sole discretion to Close Out a Contract at any time including without limitation where the Customer decides to cancel a Contract. The Customer will be liable on demand for all costs, expenses and losses that Denarii may incur as a result of any Close Out of a Contract pursuant to this MSA and Denarii will have no liability for any losses that may be sustained by the Customer as a result of a Close Out nor shall Denarii be liable to account to the Customer for any gains. Denarii reserves the right to select which Contracts are subject to Close Out irrespective of any End Users.
8. Margin. Denarii shall require Margin on demand as collateral to protect Denarii from financial losses which it may incur as a result of Contracts being Closed Out (either on a Customer’s request or at the discretion of Denarii). Denarii reserves the right to increase the Margin required at any stage up to the Settlement Date and Time to allow for changes in the foreign exchange rate or volatility which Denarii believes may increase its risk under the contract. Denarii may make a Margin call to increase Margin held at any point. The Margin call will be for such sum as Denarii considers necessary. Full ownership and title to all funds sent to Denarii as Margin shall transfer to Denarii absolutely and the Customer, or any party acting on its behalf, shall have no interest in such funds which Denarii will be entitled to deal with in its own right. For the avoidance of doubt, this means that Denarii has the right to pledge or grant a security interest over it,or transfer or deposit it to or with an exchange or clearing house, a broker, a bank or any other financial institution or payment service provider. All and any part of Margin may be applied across all and any Contracts. Customer, or any party acting on its behalf, shall not be entitled at any time to the return of any Margin without the prior written consent of Denarii.
9. Payment of Margin. Margin must be paid to Denarii in cleared funds. Margin or additional Margin must be paid into an account specified by Denarii to the Customer in an amount specified by Denarii. All requests for Margin or additional Margin must be paid to Denarii within one business day of request. If Denarii’s Margin requirements have not been met in full, Denarii Payment Channel Services cannot commence or continue, and the trade will not be executed. Denarii reserves the right to Close Out anyContract if any payment of Margin or Margin call is not made by the due date.
10. End Users. Denarii deals with the Customer as principal only and assumes no obligations to End Users.