This General Terms and Conditions (this “GT&C”) set out the terms and conditions governing the
provision of Services by Clarency Singapore Pte. Ltd..
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1. Definitions
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1.1 In this GT&C, unless the subject or context otherwise requires, the following words or
expressions shall have the following meanings.
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“Affiliate” means in relation to a corporation, a subsidiary of that corporation, a holding company or any other subsidiary of the holding company of that corporation.
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“Authorised Person(s)” means the person(s) authorised by each of the Parties as set out in the schedules of the relevant service agreements, to provide and exchange the payment instructions for purposes of performing the relevant service agreements.
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“Business Day” means any day from Monday to Friday excluding bank holidays and public holidays in UK, US, South Africa, Mauritius and Singapore (where applicable)and if something is required to be done on a Business Day, it shall refer to the hours of 9am to 5pm. If a transaction involves a specific jurisdiction among those that are listed in the preceding sentence, it shall refer to a day on which banks are open for business in that jurisdiction. For the avoidance of doubt, a day shall not be considered a non-Business Day solely because banks are closed on that day or it is a public holiday in one or more (but not all) of these jurisdictions.
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“Client” means the entity or individual which engages Clarency for the Services in accordance with this Contract as identified in the Currency Exchange Services Agreement and / or Offer Letter (as the case may be).
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“Confidential Information” means any information which is marked as "Confidential" or "Proprietary" or should be reasonably expected to be confidential having regard to the context of disclosure or the nature of the information; without prejudice to the generality of the foregoing, the terms of this Contract, as well as business plans, data, strategies, methods, customer and client lists, technical specifications, transaction data and customer data, in each case of each Party, shall be deemed confidential.
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“Contract” means collectively, this GT&C, the Currency Exchange Services Agreement, the Offer Letter (where applicable), the Data Processing Agreement and any relevant schedules enclosed respectively.
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“Currency Exchange Services Agreement” means the agreement between us and the Client for the provision of Currency Exchange Services (as defined in the Currency Exchange Services Agreement).
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“Clarency” or “we” means Clarency Singapore Pte.Ltd. . or any of its Affiliates, which provides the Services in accordance with this Contract, as identified in the Currency Exchange Services Agreement and / or the Offer Letter (as the case may be).
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“Offer Letter” means the agreement between us and the Client for the provision of Correspondent Services (as defined in the Offer Letter).
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“Services” means collectively, the Currency Exchange Services we provide pursuant to the Currency Exchange Services Agreement and / or Correspondent Services we provide pursuant to the Offer Letter (as the case may be).
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1.2 In this GT&C, unless the context or subject otherwise requires:
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1. any reference to "person" shall include any individual, partnership, joint venture, corporation, limited liability company, trust, association, government, governmental agency or department or any other entity;
2. any reference to “Clause” shall refer to the clause in this GT&C;
3. references to the singular number shall include references to the plural number and vice versa and the use of any gender shall include all genders; and
4. all headings in this GT&C are for ease of reference only and shall not affect the interpretation of this GT&C.
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2. Scope of Engagement
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2.1 This GT&C shall be read together with, and form an integral part of, the Currency Exchange Services Agreement, the Offer Letter (where applicable), the Data Processing Agreement and the schedule(s) enclosed respectively (collectively, this “Contract”).
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2.2 This Contract does not include any undertaking by us to provide services to any other person or entity apart from the Client, such as its parent, subsidiary or other direct or indirect affiliate. Any engagement of such other person or entity will require our separate agreement, subject to the satisfactory completion of the necessary know-your-client and applicable registration
procedures.
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3. Registration
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3.1 The Client shall complete the registration process, as stipulated by us, as a condition for us to provide the Services to the Client.
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3.2 The Client shall complete the registration process at the start of this Contract period. If the Client does not utilise the Services for a consecutive period of at least 12 calendar months, the Client may be required to complete the registration process again.
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4. Communications
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4.1 We shall provide the Services required by this Contract in accordance with the instructions given from time to time by the Client, or any of its directors or employees identified to us in the relevant service agreement(s) or otherwise agreed in writing and we will assume that that person is properly authorised to give those instructions. The Client’s Authorised Person(s) must give a sample signature or such other authentication factors as Clarency may require.
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4.2 Save as otherwise provided, any notice or consent required or permitted in this Contract shall be in writing and shall be deemed to be duly given if delivered by hand or sent by registered prepaid postage or courier or sent by email to the address, number or email address of the mutual contact person(s) of the receiving Party set out in the relevant service agreement or otherwise agreed in writing.
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4.3 All communications shall be made in the English Language.
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5. Terms of Service
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5.1 The Client shall provide instructions for each payment request to us in writing in the form prescribed in the schedule enclosed in the relevant service agreement or in any other form agreed between the Parties (“Instruction”). The Client may submit a written request to withdraw or amend the Instruction. Such withdrawal or amendment shall only be effective if the written communication of the same is made to Clarency’s Authorised Person(s) within 1 hour after the automatic confirmation of the order (“Trade Confirmation”) is issued to the Client by email or before the trade has taken place (whichever is earlier). Failure to do so will be deemed by Clarency as the Client’s acceptance of Trade Confirmation, and the Client shall be bound by the Trade Confirmation.
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5.2 The Client must not use any of the Services for the prohibited uses, as prescribed by us, including but not limited to speculation, or profiting from exchange rate fluctuations.
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5.3 Save in respect of fees and charges due to us, we will hold all monies remitted to us for the purposes of the Services in a non-interest bearing account for the Client’s benefit. We will not be responsible for any loss occurring out of any default on the part of the institution with whom such clients’ account is maintained.
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5.4 We are entitled (but not obliged) to set off the monies standing to your credit against fees and disbursements due to us, including but not limited to taxes, collateral to counterparty banks or brokers or other third party charges incurred from payments conducted as part of the Services. The Client acknowledges and agrees that we have the right to effect such a set-off against disbursements upon providing you with at least two (2) Business Days of prior written notice.
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6. Compliance with Laws and Mutual Cooperation
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6.1 The Client shall procure Clarency’s Services, strictly in accordance with the laws applicable to such Services in the jurisdiction where the Client is legally allowed to do so, including (but not limited to) laws pertaining to the prevention of circumvention of currency exchange and foreign payment restrictions, fraud, money laundering, bribery and corruption, and terrorism financing. The Client is solely responsible for the proper conduct of any and all regulatory obligations in connection with its own business and operations under this Contract. This includes (without limitation) compliance with applicable anti-money laundering and prevention of terrorism financing regulations and reporting requirements. Clarency may, in its own discretion and solely in order to ensure its compliance with laws applicable to it, conduct such checks on transactions initiated by the Client as it deems appropriate. The Client shall be solely responsible for obtaining any consent required from its end customers under any applicable data protection laws.
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6.2 In line with any applicable laws and best practice in relation to provision of Clarency’s services under this Contract, we shall conduct proper due diligence measures and hold the right to request, information necessary for the customer due diligence on the Client. The Client represents and warrants that the information it provides pursuant to this Clause 6.2 is complete, correct and accurate. Client shall provide us information and documentation upon our reasonable request in respect of the following, but not limited to:
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1. its corporate structure, owners, shareholders, directors and officers;
2. its beneficial owners;
3. its financial situation;
4. its nature of transactions, business relationship entered into with end customers and
ongoing status as a viable business;
5. its compliance and due diligence procedures;
6. any end customer to which it provides products or services;
7. its business and client structure; or
8. samples of due diligence measures undertaken with respect to individual customers.
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6.3 The Client shall use Clarency’s provision of services only in the jurisdiction or jurisdictions agreed between the Parties.
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6.4 The Client represents and warrants that, if and when required, it shall at all times maintain all permits and/or registrations necessary to carry out its business with its end customers in accordance with any applicable laws. The Client shall inform Clarency of any circumstance that may materially affect any necessary permits and/or registrations or otherwise its capability to comply with legal requirements or the terms of this Contract.
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6.5 The Client represents and warrants, respectively, that none of its officers, directors and principals, and that none of its employees participating in providing payment services hereunder or to end customers have ever been investigated, charged or convicted of any crime except those persons and their crimes that the Client has disclosed to Clarency, prior to entering into this Contract. The Client shall notify Clarency in writing within 48 hours after any of these representations and warranties cease to be true.
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6.6 The Client shall cooperate, each at its own costs, with Clarency in relation to issues of the prevention of any financial crime, money laundering and other illegal activities.
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6.7 The Client shall further cooperate in relation to any investigation, audit or proceedings or order by a government authority, law enforcement agency or court or by Clarency. The costs of such cooperation shall be borne by the Party itself, except where the investigation, audit or proceedings determine that the party in question was in default of a material legal or regulatory obligation in which case the costs of the cooperating party shall be borne by the investigated Party.
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7. Suspension and Termination
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7.1 We may suspend or terminate this GT&C (therefore, automatically the termination of this Contract) on the grounds set out in applicable statutory or regulatory provisions.
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7.2 Where Clarency suspends or terminates this Contract, all service agreements incorporated under this Contract (including but not limited to the Currency Exchange Services Agreement and the Offer Letter) shall be automatically terminated.
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7.3 Notwithstanding Clauses 7.1 and 7.2 , any breach of the terms specific to the relevant service agreement would not lead to automatic termination of other relevant service agreement(s) and this Contract, unless Clarency determines that the termination of the relevant service agreement would reasonably render other relevant service agreement(s) and this Contract unenforceable in provision of its services.
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7.4 We may terminate this Contract at any time by giving to the Client at least three (3) months’ prior written notice.
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7.5 We may terminate this Contract with immediate effect by giving notice in writing to the Client in the event that:
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1. the Client commits a breach of any material term of this GT&C or any other terms in this Contract;
2. we determine in our sole discretion that there is a threat or risk of a breach of applicable sanctions regulations by continuing this Contract;
3. the Client commits a breach of any material term of this GT&C and (if such breach is remediable) fails to remedy that breach within a period of five (5) Business Days of being notified by us to do so; or
4. the Client is unable to pay its debts as and when they fall due, or a petition in bankruptcy is presented against the Client or the Client declared bankrupt, or insolvent, or if the Client has an administrator, receiver or similar officer appointed,
goes into liquidation or are subjected to any similar event.
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7.6 In the event this Contract or the relevant service agreement(s) is suspended or terminated, the Client will still be responsible for payment of our fees accrued and/or incurred up to the date of the termination of respective service agreement(s) or which are reasonably necessary after that.
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7.7 At the time of termination, we are entitled to exercise a lien over all monies held by us on the Client’s behalf until full payment of all our fees is effected.
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7.8 The termination of this Contract or the relevant service agreement(s) shall not affect the Parties’ prior accumulated rights. Where there is termination of the relevant service agreement(s), the Parties shall continue to perform its obligations under other valid service agreement(s) and continue compliance with this GT&Cs.
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7.9 Any instruction given by the Client prior to termination of this Contract or the relevant service agreement(s) but not yet performed by us shall be deemed revoked.
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8. Indemnity and Limitations of Liability
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8.1 We shall not be liable for any losses, damages, costs, expenses or claims, incurred by the Client due to third party fraud, the Client or its authorised representative providing us with untrue, incomplete or inaccurate information or was otherwise due to the fault of the Client or its authorised representative.
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8.2 We shall not be liable to the Client for any costs, claims, damages or expenses (whether arising out of any tortious act or omission or any breach of contract or of statutory duty) of an indirect or consequential nature or that are calculated by reference to profits, income, production or accruals or loss of such profits, income, production or accruals or by reference
to accrual of such costs, claims, damages or expenses on a time basis.
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8.3 Nothing in this Contract shall operate so as to exclude or in any way limit any Party’s liability for fraud, or for death or personal injury caused by its negligence, or any other liability that may not be excluded or limited as a matter of law.
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8.4 The Client shall indemnify us and keep us indemnified from and against all claims, damages, costs, expenses (including legal fees and costs of investigation, litigation, settlement, judgment, interest and penalties), losses or liabilities directly resulting from or attributable to the negligence of, breach of statutory duty by, and/or breach of any provision of this Contract, or its legal and regulatory obligations with respect to performance of obligations under this Contract by, the Client (including but not limited to fraud or fraudulent activities conducted by the Client (including its officers, shareholders, directors, employees, agents and contractors).
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8.5 Subject to Clause 7.8 , the aggregate liability of Clarency in contract, tort, negligence or otherwise arising out of or in connection with this Contract in any period of 12 months from the commencement date or any anniversary thereof (each a "Contract Year") shall be limited to the total amount of fees earned by Clarency under this Contract in the previous Contract Year (or, in the first Contract Year, the fees earned to date).
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8.6 Subject to Clause 7.8 , Clarency shall not be liable for any losses incurred by the Client resulting from any strikes, industrial action, failure of power supply or equipment, or any other causes beyond the Clarency’s reasonable control and any instance of force majeure. The foregoing shall not affect the Client’s liability for failure to prevent or mitigate any losses by taking reasonable countermeasures including but not limited to establishing and maintaining redundant and protected systems as well as business continuity and disaster recovery plans in accordance with good industry practice.
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8.7 The Client agrees that the legal relationship for the provision of goods or services to end customers is strictly between the Client and its end customer. Without applying the general liability limits set out in this Clause 8 , the Client shall indemnify Clarency against all claims and losses incurred or arising out of or in connection with a claim by a third party against Clarency in relation to the products or services rendered by the Client to its end customers.
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9. Circumstances Beyond our Control
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9.1 We shall not be liable to the Client if and to the extent that the performance of our obligations under this Contract is prevented, hindered or delayed by any event that is beyond our reasonable control, including (without limitation) any industrial action, labour dispute, act of God, fire, flood or storm, war, riot, civil commotion, siege, security alert, act of terrorism, act of vandalism, malicious damage by third parties sabotage, virus, pandemic, epidemic the actions or instructions of the police or of any governmental or regulatory body which authorises us to perform the Services, power cut or power failure, equipment failure, systems or software or internet interconnectivity failure or the occurrence of any extraordinary fluctuation in any financial market. We will resume the performance of the obligation as soon as the factor or event occasioning the failure ceases or abates and any applicable dates for the performance of obligation shall be deferred by such period equivalent to the period during which the event was subsisting.
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10. Data Protection and Confidentiality
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10.1 The Client undertakes to collect, process and use personal data strictly in compliance with applicable data protection laws, which may include but not be limited to the EU General Data Protection Regulation 2016/679, Mauritius Data Protection Act 2017 and Singapore Personal Data Protection Act 2012 (collectively, the “Data Protection Laws”).
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10.2 Where a Party (in this Section also referred to as the “Processor”) acts as a data processor of the other Party (in this Section also referred to as the “Controller”), the Processor shall follow the reasonable instructions of the Controller with respect to the processing of personal data of the Controller, and in any event only act in accordance with such instructions, to the extent that such instructions do not infringe the Data Protection Laws.
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10.3 The Client expressly consents to the “processing” of its and/or its clients’ personal data by Clarency or any other agents thereof, in accordance with the Data Protection Laws.
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10.4 The Client shall promptly inform Clarency without undue delay of any actual or suspected breach of the Data Protection Laws.
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10.5 All communications containing personal data shall only be conducted through the communication channels designated in writing by the Parties for this purpose.
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10.6 All communications, information, and other materials in relation to this Contract shall be considered confidential information (“Confidential Information”) and shall be kept confidential by the recipient unless compelled or required to be disclosed by judicial or administrative procedures or by other requirements of law.
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10.7 The Client shall use and reproduce Clarency’s Confidential Information only for purposes of this Contract and only to the extent necessary for such purpose and will restrict disclosure of Clarency’s Confidential Information to its employees, consultants or independent contractors with a need to know (the “Representatives”) and will not disclose Clarency’s Confidential Information to any third party without the prior written approval of Clarency and as may be allowed by any applicable laws and/or regulations. The Client will be liable for any misuse of the Confidential Information or other breach of this Contract by any of its Representatives. The Client will apply the same security measures as it accords its own confidential information and use the same degree of care that it uses to protect its own confidential information of like kind (but not less than reasonable care).
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10.8 Notwithstanding the foregoing, it will not be a breach of this Contract for either Party to disclose Confidential Information of the other Party if required to do so under law or in a judicial or governmental investigation or proceeding, provided that, to the extent legally permitting and reasonably practicable, such Party will (i) promptly notify the other Party in writing prior to any such compelled disclosure; and (ii) provide reasonable assistance to the other Party, at such other Party’s cost, if such Party wishes to contest the disclosure.
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10.9 The confidentiality obligations in this Clause 10 shall not apply to information that (i) is or becomes public knowledge through no action or fault of the other Party; (ii) is known to either Party without restriction, prior to receipt from the other Party under this Contract, from its own independent sources as evidenced by such Party's written records, and which was not acquired, directly or indirectly, from the other Party; (iii) either Party receives from any third party reasonably known by such receiving party to have a legal right to transmit such information, and not under any obligation to keep such information confidential; or (iv) information independently developed by either Party's employees or agents provided that either Party can show that those same employees or agents had no access to the Confidential Information received hereunder.
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10.10 Where personal data provided by the Client is transferred out of the jurisdiction where Client’s personal data is obtained to another jurisdiction, such cross-border transfer will be carried out in accordance with the applicable requirements.
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10.11 Subject to our confidentiality obligations, we may refer to the Client and the nature of our Services we provided to the Client when marketing our Services, using such media as we deem appropriate.
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11. Amendments
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11.1 From time to time, we may amend the terms of this GT&C, in which case we will notify the Client of the proposed changes in writing or on our website. If the Client does not agree to the amendments, the Client may give written notice of termination of this Contract to Clarency within 21 days from the date of our notification. Termination by the Client will not be effected until Clarency’s acceptance of the Client’s written notice of termination.
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11.2 If we do not receive the written notice of termination from the Client within the specified period in Clause 11.1 or the Client’s continued use of our Services, the Client will be deemed to have accepted the amendments and will continue to be bound by this Contract.
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12. Governing Law and Dispute Resolution
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12.1 This Contract shall be governed by the laws of Singapore.
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12.2 All disputes, controversies or differences arising under, out of, or in connection with this Contract, or the Service provided by us to the Client, including any question regarding the existence, validity or termination of this Contract (the “Dispute”), shall be referred to and finally resolved by arbitration administered by the Singapore International Arbitration Centre (“SIAC”) in accordance with the Arbitration Rules of the Singapore International Arbitration Centre (“SIAC Rules”) for the time being in force, which rules are deemed to be incorporated by reference in this Clause 12.2 . The seat of the arbitration shall be Singapore. The tribunal shall consist of one arbitrator to be appointed in accordance with the SIAC Rules. The language of the arbitration shall be English. The law governing this arbitration agreement shall be the laws of the Republic of Singapore.
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12.3 The Parties further agree that following the commencement of arbitration as contemplated in Clause 12.2 , the Parties will attempt in good faith to resolve the Dispute through mediation at the Singapore International Mediation Centre (“SIMC”), in accordance with the SIAC-SIMC Arb-Med-Arb Protocol for the time being in force. Any settlement reached in the course of the mediation shall be referred to the arbitral tribunal appointed by SIAC and may be made a consent award on agreed terms.
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13. Third Party Rights
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13.1 A person who is not a party to this Contract has no right (whether under the Contracts (Rights of Third Parties) Act 2001 of Singapore or otherwise) to enforce this Contract.
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14. Severability
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14.1 If any provision of this Contract shall be deemed illegal or unenforceable, such illegality or unenforceability shall not affect the validity and enforceability of any other legal and enforceable provisions hereof, which shall be construed as if such illegal or unenforceable provision or provisions had not been inserted herein, unless the severance of such illegal or unenforceable provisions would or shall destroy the underlying business purposes of this Contract.
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15. No Waiver
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15.1 The failure by us to exercise or enforce in any instance any of the terms or conditions of this Contract or to insist upon strict performance by the Client of any of the provisions of this Contract shall not constitute or be deemed a waiver of that Party's rights thereafter to enforce each and every term and condition of this Contract and shall not relinquish any rights under this Contract as to any subsequent failure of performance.
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16. Assignment
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16.1 The Client shall not assign or transfer any of its rights and/or obligations under this Contract, except with our prior written approval.
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16.2 We reserve the right to assign or transfer any of its rights and/or obligations under this Contract to a third party without the prior written consent of the Client.
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17. Further Assurance
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17.1 The Client shall use best endeavours to procure that any necessary third party shall execute such documents and do such acts and things as Clarency may reasonably require for the purpose of giving to the Client the full benefit of all the provisions of this Contract.
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18. No Agency
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18.1 Nothing in this Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the Client and ourselves, constitute either Party the agent of the other, nor authorise a Party to make or enter into any commitments for or on behalf of the other Party.