Background

KYC4U is an outsourced KYC administration business and provides other ad hoc compliance services to its clients.

The Client requires the support of KYC4U to carry out various services for it in respect of its compliance obligations.

The Client appoints KYC4U to perform the Services (as defined in this Agreement) for the Client on the terms of this Agreement.

Definitions and Interpretation

In addition to the definitions included in the Commercial Terms, in this Agreement:

“Billing Party” means any party to the Transaction who is not the Client but makes payment of the Client’s fees under or in respect of the Transaction;

“Commercial Terms” means the details of the commercial terms of this Agreement as detailed in Part A of this Agreement;

“Confidential Information” means any commercial, financial or technical information of either party that is confidential in nature, whether marked as confidential or ought reasonably to have been known to be confidential, including any information regarding a party’s clients, suppliers, employees, agents or representatives;

“Counter Party” means the party to the Transaction who is not the Client and not the Billing Party;

“Force Majeure Event” means an event or sequences of events beyond KYC4U’s reasonable control that prevents or delays KYC4U from performing its obligations under this Agreement;

“Intellectual Property Rights” means copyright, patents, know-how, trade secrets, trade marks, trade names, design rights, rights in get-up, rights in goodwill, rights in software, rights in Confidential Information, rights to invention, rights to sue for passing off, domain names and all other intellectual property rights and similar rights and, in each case: (i) whether registered or not; (ii) including any applications, renewals and extensions to protect or register such rights; (iii) whether vested, contingent or future; and (iv) in whichever part of the world existing;

“Term” means the period this Agreement is in force;

“Transaction” means the actual or proposed deal(s) involving the Client and a Counter Party (and may involve a Billing Party) related to which the Services are carried out; and

“Work Product” means any information, data, documents or other materials to be delivered or made available for downloading by KYC4U to the Client under this Agreement.

A reference to ‘this Agreement’ includes the Commercial Terms. A reference to a ‘clause’ is to a clause of this Agreement.

A reference to a ‘person’ includes a natural person or company. A reference to a ‘company’ includes any company, corporation, or other corporate body, wherever and however incorporated or established.

Words that follow ‘includes’ or ‘including’ or any similar words are illustrative only and will not limit the sense of any word.

A reference to ‘writing’ or ‘written’ includes email.

Commencement and Term

This Agreement will start on the Commencement Date and will continue in force until terminated in accordance with this Agreement.

Appointment and Scope

The Client appoints KYC4U to provide the Services for the Term on the terms of this Agreement.

Nothing in this Agreement will prevent or restrict KYC4U from providing the same or similar Services to any other client during the Term.

Supply of Services

In providing the Services, KYC4U warrants that it will:

perform the Services with reasonable care and skill;

comply with all applicable laws, provided that KYC4U will not be liable under this Agreement if, as a result of such compliance with applicable laws, it is in breach of any of its obligations under this Agreement; and

if relevant, deliver all Work Product in accordance with any specification and timetable as agreed between the parties.

The Client acknowledges that KYC4U provides information obtained from public sources and does not provide investigative or advisory services.

KYC4U warrants that any information provided in any Work Product will be accurate as at the date it is obtained by KYC4U. The Client acknowledges that KYC4U will not provide any updates to the Services or to any Work Product.

Without limiting clause 5.1(c) or clause 5.1(d), if the Client fails to respond to KYC4U in a request for information in respect of the Work Product, co-operation or assistance on 3 occasions in respect of the same or related request, KYC4U will not be responsible for completion of the Work Product thereafter.

Rights and Duties of the Client

The Client will:

review and approve the Work Product and satisfy itself as to the risk, benefit and commercial effectiveness of entering into any business relationship with any person;

not seek or imply that any information provided by KYC4U is advisory in nature;

co-operate with KYC4U in all matters relating to the Services and all Work Product;

provide for KYC4U, in a timely manner and at no charge, all data and information required by KYC4U;

without limiting clause 5.1(d), be responsible for providing the name(s) and all requested details of the other parties to a Transaction, including the Counter Party and any Billing Party, in order for KYC4U to perform the Services. KYC4U will only carry out the Services in respect of the names and details of the persons to a transaction provided by the Client, and KYC4U will not be liable for monitoring if any other person in the transaction has not been included;

ensure that all data and information provided is accurate and complete in all material respects;

without limiting clause 5.1(f), ensure that all required information is provided in time to comply with the requirements of The Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017 and HMRC guidance for estate agents;

generally make itself available to KYC4U in respect of the Services;

act diligently and in good faith towards KYC4U; and

comply with all applicable laws.

If KYC4U’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of the Client, whether directly or indirectly, KYC4U will:

not be liable for any costs, charges or losses suffered or incurred by the Client that arise directly or indirectly from any such prevention or delay;

be entitled to payment of the Fees despite any such prevention or delay; and

be entitled to recover any additional costs, charges or losses KYC4U suffers or incurs that arise directly or indirectly from such prevention or delay.

Fees, Expenses and Payment

KYC4U will submit invoices for the Fee to the Client in monthly or quarterly instalments, as agreed between the parties in advance.

KYC4U will be entitled to reimbursement for all out-of-pocket expenses incurred by KYC4U in the provision of the Services and will include any such expenses on invoices submitted under clause 6.1.

KYC4U will obtain the approval of the Client before incurring any out-of-pocket expenses over the value of £50.

The Client will pay each invoice due and submitted by KYC4U in full within 7 days of the date of invoice to KYC4U’s nominated bank account.

Time of payment is of the essence.

If the Client fails to make payment of any invoice in accordance with this Agreement:

the Client will be liable to pay interest on the overdue sum at 4% a year above the base rate of the Bank of England (but at 4% a year for any period when that base rate is below 0%), such interest accruing daily; and

KYC4U may suspend provision of the Services and delivery of any Work Product until payment has been made in full.

Intellectual Property

KYC4U and its licensors will retain ownership of all Intellectual Property Rights that it owns or has licensed to it at the Commencement Date.

Intellectual Property Rights in all Work Product, including any work in progress and documentation of work, developed by KYC4U or any other third party in connection with the Services will be owned solely by KYC4U.

KYC4U grants the Client a non-exclusive, royalty-free, non-sublicensable licence to use and copy any Work Product for the purpose of receiving and using the Services during the Term.

The Client acknowledges that the Work Product is based on the Client’s specific instructions only and provided for the Client’s sole use and possession. No other person may use or rely on the Work Product. The Client will have no right to share the Work Product with any other person, nor will KYC4U have any liability for any reliance placed on the Work Product by any person other than the Client.

Anti-Bribery

In this clause 8, “adequate procedures”, “associated with” and “bribe” will be interpreted in accordance with the Bribery Act 2010.

The Client will ensure it does not, by any act or omission, place KYC4U in breach of the Bribery Act 2010.

The Client will comply with the Bribery Act 2010, including ensuring it has in place adequate procedures to prevent bribery and ensure that all its personnel, all its direct and indirect sub-contractors and all other persons associated with the Client involved in connection with this Agreement so comply.

Without limiting clause 8.2 or clause 8.3, the Client will not make or receive any bribe or other improper payment or advantage, or allow any such bribe or improper advantage to be made or received on its behalf, and the Client will implement and maintain adequate procedures to ensure that such bribes or improper payments or advantages are not made or received directly or indirectly on its behalf.

The Client will immediately notify KYC4U as soon as it becomes aware of a breach or possible breach of any part of this clause 8.

Any breach of any part of this clause 8 will be deemed a material breach of this Agreement that cannot be remedied and will entitle KYC4U to immediately terminate this Agreement by notice under clause 12.2(a).

Confidentiality

Each party will keep all Confidential Information of the other party confidential and will not use or disclose Confidential Information of the other party to any person, except as permitted under clause 9.2.

Each party may:

use Confidential Information of the other party only to perform its obligations under this Agreement;

disclose Confidential Information of the other party to its employees, agents or representatives who need to know the relevant Confidential Information for the performance of obligations under this Agreement; and

disclose Confidential Information of the other party as may be required by law or any court.

Data Protection

In this clause 10:

“Consent” means a freely given, specific, informed and unambiguous indication (that has not been withdrawn) that the relevant Data Subject has agreed to the Client sharing their Personal Data with KYC4U;

“Controller” has the meaning given to it in Data Protection Laws;

“Data Protection Laws” means the Data Protection Act 2018 and the General Data Protection Regulation, Regulation (EU) 2016/679, as it forms part of domestic law in the United Kingdom by virtue of section 3 of the European Union (Withdrawal) Act 2018;

“Data Subject” has the meaning given to it in Data Protection Laws;

“Data Subject Request” means a request made by a Data Subject to exercise any right(s) of Data Subjects;

“International Data Transfer Agreement” means the agreement to be entered into by KYC4U and a Sub-Processor in respect of processing of Shared Personal Data outside of the UK or European Economic Area, made available by the Information Commissioners Office in the UK;

“Personal Data” has the meaning given to it in Data Protection Laws;

“Personal Data Breach” has the meaning given to it in Data Protection Laws;

“processing” has the meaning given to it in Data Protection Laws, and “process” “processed” will be interpreted accordingly;

“Processor” has the meaning given to it in Data Protection Laws;

“Shared Personal Data” means Personal Data received by KYC4U from or on behalf of the Client, or otherwise made available by the Client, in connection with the Services; and

“Sub-Processor” means any Processor engaged by KYC4U to process the Shared Personal Data on behalf of the Client.

In respect of the Shared Personal Data, the Client is the Controller and KYC4U is the Processor.

Each party will comply with all Data Protection Laws in connection with the exercise and performance of its rights and obligations under this Agreement.

The Client warrants that:

the processing of all Shared Personal Data will comply in all respects with Data Protection Laws, including in terms of its collection, use and storage;

all Shared Personal Data disclosed to KYC4U is accurate, up to date and has been collected, processed and disclosed by and on behalf of the Client in accordance with all Data Protection Laws;

prior to any Shared Personal Data being disclosed to KYC4U, each relevant Data Subject has been provided with sufficient information so as to enable fair, transparent and lawful processing of the Shared Personal Data;

it identifies itself in all information referred to in clause 10.4(c) as the contact point for all Data Subject Requests (and agrees that KYC4U may also identify the Client as the contact point for such purposes in any information or notices);

the Client is entitled to disclose and KYC4U is entitled to process all Shared Personal Data in accordance with all Data Protection Laws, including that Data Subjects have each given Consent to such disclosure and other processing of their respective Shared Personal Data;

it will immediately notify KYC4U if it becomes aware of any change or circumstance which will, may or is alleged to impact the lawfulness of any processing of the Shared Personal Data by KYC4U; and

it will immediately notify KYC4U if it becomes aware of any possible or suspected Personal Data Breach.

KYC4U will implement and maintain technical and organisational measures in relation to the processing of the Shared Personal Data. Any additional technical and organisational measures required will be at the Client’s cost and expense.

KYC4U will ensure any Sub-Processor complies with all obligations of KYC4U under this Agreement as if it were a party to it, and KYC4U will remain liable to the Client for the acts and omissions of each Sub-Processor.

The Client acknowledges that KYC4U may utilise the services of a Sub-Processor that may be based outside of the UK and the European Economic Area.

The Client authorises KYC4U to transfer the Shared Personal Data to a Sub-Processor, provided all such transfers of Shared Personal Data will be effected by way of the International Data Transfer Agreement (unless another method of lawful transfer exists) and in accordance with this Agreement.

The provisions of the International Data Transfer Agreement will prevail over this Agreement to the extent of any conflict or inconsistency.

Nothing in this clause 10 restricts either party’s right to perform any of its obligations under Data Protection Laws itself in the manner it determines.

Each party will promptly co-operate with and provide reasonable assistance, information and records to the other to assist each party with their respective compliance with Data Protection Laws and in relation to Data Subject Requests.

The Client’s obligations under this clause 10 will be performed at the Client’s expense, except to the extent that the circumstances giving rise to such obligation arose out of any breach by KYC4U of its obligations under this Agreement.

The Client will indemnify KYC4U against any losses, damages, liability, costs (including legal fees), payments made to Data Subjects and expenses arising directly or indirectly from any breach by the Client of any part of this clause 10.

Any breach of any part of this clause 10 by the Client will be deemed a material breach of this Agreement that cannot be remedied and will entitle KYC4U to immediately terminate this Agreement by notice under clause 12.2(a).

Liability

Each party’s liability under this Agreement will not be limited in respect of:

fraud or fraudulent misrepresentation;

losses caused by wilful misconduct or wilful breach of this Agreement;

any other losses which cannot be excluded or limited by applicable law; or

any indemnity payment obligations under this Agreement.

Subject to clause 11.1, neither party will be liable for any consequential or indirect losses.

Subject to clause 11.1, KYC4U will not be liable for any of the following (whether direct or indirect):

loss of profit;

loss of revenue;

loss of contract or commercial opportunity;

loss of savings, discount or rebate; or

harm to reputation or goodwill.

KYC4U will not be liable for any errors, inaccuracies or omissions in the Services or any Work Product arising directly or indirectly from any errors, inaccuracies or omissions in the instructions provided to it by the Client or from any failure by the Client to co-operate or provide assistance to KYC4U.

Subject to clause 11.1, KYC4U’s liability will not exceed a sum equal to 100% of the aggregate Fees paid or payable by the Client in the 12-month period immediately preceding the action giving rise to the liability.

Termination

This Agreement may be terminated at any time by either party giving a minimum of 3 months’ written notice to the other party.

Either party may terminate this Agreement immediately on written notice if the other party:

commits a material breach of this Agreement that cannot be remedied; or

does not remedy a material breach of this Agreement within 14 days of receiving notice of such breach from the other party.

KYC4U may terminate this Agreement immediately on written notice to the Client if:

any invoice remains unpaid for a period of 7 days or longer from the due date for payment;

a Force Majeure Event continues for a period of 1 month; or

the Client undergoes a change of control.

On termination of this Agreement, the Client will:

immediately pay to KYC4U all KYC4U’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, KYC4U may submit an invoice which is payable immediately on receipt by the Client; and

return or (at KYC4U’s request) destroy any Confidential Information of KYC4U, all Work Product and other property or materials of KYC4U in the Client’s possession or control, and it will certify in writing to KYC4U that it has done so.

Force Majeure

KYC4U will have no liability under this Agreement, nor will it be in breach of this Agreement, for any delays or failures in performance of its obligations under this Agreement which result from a Force Majeure Event.

General

Entire Agreement: This Agreement constitutes the entire agreement between the parties and supersedes all previous agreements, understandings and arrangements between them, whether in writing or made verbally, in respect of its subject matter.

Variation: No variation of this Agreement will be valid or effective unless it is in writing and signed by or on behalf of each party.

Assignment: The Client may not assign, sub-contract or transfer any right or obligation under this Agreement without KYC4U’s prior written consent.

Severance: If any provision of this Agreement is or becomes unenforceable, the rest of this Agreement will not be affected.

Waiver: No delay or failure by KYC4U to exercise any right or remedy under this Agreement or by law will operate as a waiver of that right or remedy, nor will KYC4U be prevented or restricted from exercising that right or remedy in future.

Conflicts in this Agreement: To the extent of any conflict, the Commercial Terms will prevail over the rest of the terms of this Agreement.

Third-Party Rights: A person who is not a party to this Agreement will not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of its provisions.

Survival: The provisions of the Commercial Terms and clauses 1 (Definitions and Interpretation), 5.1 (Rights and Duties of the Client), 6 (Fees and Payment), 8 (Anti-Bribery), 9 (Confidentiality), 10 (Data Protection), 11 (Liability), 12.4 (Termination), 14.8 (Survival) and 14.9 (Governing Law and Jurisdiction) will survive termination of this Agreement. Termination of this Agreement will not affect any accrued rights and liabilities of either party at any time up to the date of termination.

Governing Law and Jurisdiction: This Agreement and any dispute arising out of or in connection with it will be governed by and construed in accordance with the laws of England and Wales. The parties irrevocably agree that the courts of England and Wales will have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement.