Terms and Conditions
INTRODUCTION
COMO DL S.A. (“COMO DL”) is a company incorporated under Luxembourg laws, having its registered office at 1 Rue De l'Innovation, L-1896 Kockelscheuer, Luxembourg and is registered with the Luxembourg Trade and Companies Register under number B 208 603.
COMO DL is an authorised Luxembourg payment institution supervised by the competent regulatory authority, i.e., the Commission de Surveillance du Secteur Financier (“CSSF”), having a license number Z00000013.
I. SCOPE
These General Terms and Conditions set out the legal framework of the business relationship between COMO DL and the corporate client (“Client”) in relation to the products and services provided by COMO DL pursuant to any agreement entered into between COMO DL and Client (these General Terms and Conditions together with such agreement and their annexes are hereinafter referred to as the “Agreement”).
Where the terms of these General Terms and Conditions differ from the terms of a contract individually agreed between COMO DL and the Client, the terms of the latter shall prevail over the General Terms and Conditions, unless expressly stated otherwise or it is contrary to any duty under applicable law.
These General Terms and Conditions shall be applicable only to those functions or activities performed directly by the Client and all the Legal Entities, Subsidiaries and any other Delegated Entities performing functions on Client’s behalf.
The headings in these General Terms and Conditions are for reference only and do not limit the scope of each clause. Capitalized terms have specific definitions and are provided in clause 21 or otherwise in the text of these General Terms and Conditions.
II. COMO DL SERVICES
COMO DL has developed and operates a global modular payment platform and offers a range of multi-currency accounts and payment services, including without limitation real IBANs in multiple currencies.
At COMO DL’s discretion, COMO DL through its payment platform may provide Client with one or more of the following services (“Services”), as contractually agreed from time to time between Client and COMO DL:
Execution of direct debits, including one-off direct debits.
Execution of payment transactions through a payment card or a similar device.
Execution of credit transfers, including standing orders (including but not limited to SEPA transfer).
Acquiring payment transactions; Money remittance (including but not limited to Payment / Collection on Behalf).
Access to multi-currency IBAN accounts as well as to facilitate payments through but not limited to SWIFT and to SEPA networks.
Access to different account types, including but not limited to Settlement accounts, Safeguarded and segregated accounts and corporate accounts.
Foreign Exchange Services (“Forex”) related to the provision of operational and closely related payment services.
Forex related to speculative purposes and/or holding balances in currencies are not included in the services delivered by COMO DL.
COMO DL consumer dashboard will allow Client to access the Services online and to perform Transactions electronically. By accepting the Agreement, Client will be able to enter and access the COMO DL Platform.
COMO DL may also render other services, in which case, they will be rendered on separate terms and conditions or via a supplementary agreement.
COMO DL shall not be obliged to provide any of the Services. COMO DL does not provide any investment or investment advisory services and will not carry out any monitoring of the Client’s financial circumstances.
The foreign exchange services (“Forex”) imply transfer of funds from the Client account to the COMO DL foreign exchange services provider which means funds to be exchanged are transferred out of the safeguarded environment of the COMO DL correspondent bank account. The period in which the funds will be out of COMO DL safeguarded accounts may vary from a few minutes to a few hours depending on the Forex provider.
COMO DL may, in its reasonable discretion, withdraw or suspend any or all of the Services to Client if COMO DL becomes aware of or reasonably suspects financial crime activity, unauthorized or fraudulent use of the Services, for reasons relating to the security of such Services and Platform, or where COMO DL considers that rendering the Services would breach any Applicable Laws or Compliance Obligations. COMO DL will not be liable for any Loss that Client may incur from such withdrawal or suspension of the Services, except if COMO DL acted fraudulently, negligently or recklessly in relation thereof, in which case COMO DL’s liability to Client will be as set out in Clause 14.
Client authorizes COMO DL to block Account(s) or to take such other measures as COMO DL may deem appropriate upon extrajudicial opposition notified to COMO DL by third parties regarding Client’s assets, or if COMO DL is informed of any actual or alleged unlawful operations by Client or by the beneficial owner(s) of the Account(s), or if any third party claims exist on the assets held by Client with COMO DL.
If Client becomes subject to an Insolvency Event, then COMO DL may refuse to act on any Instructions from Client or anyone else unless Client has obtained a validation order from the court. Upon receipt by COMO DL of evidence that a liquidator or administrator has been appointed, COMO DL will act on their Instructions. The Client shall inform COMO DL if it knows or suspects that it will become subject to an Insolvency Event.
COMO DL will not be liable for any Losses that the Client might suffer as a result of a rejection or suspension of the execution of an Instruction.
COMO DL shall not be liable for delays, errors or misinterpretations that may arise from incomplete or unclear Instructions.
Subject to an express written agreement between COMO DL, the Client and prospective end-clients or referred merchants, COMO DL may allow the Client to process and execute payment orders on the prospective end-clients or referred merchants account on their behalf.
III. AUTHORISED USERS
By entrusting the powers of representation to the persons responsible for using the Platform in its name and on its behalf (hereinafter the "Authorized Users"), the Client expressly acknowledges - unless otherwise specified by Client in writing prior to their designation - that these Authorized Users have the right to validly engage the Client and to give Instructions and/or requests to COMO DL, namely:
Adding or removing other Authorized Users, including administrators; or
Activating or deactivating services or features available on the Platform.
Only Authorized Users may access and use the Platform. Client may designate Authorized Users in a manner as approved by COMO DL in its discretion. A person shall only become an Authorized User upon COMO DL’s approval. COMO DL’s approval of an Authorized User may be subject to Client providing evidence of his or her identity or other documentation. COMO DL reserves the right to decline at its sole discretion any request for designation of any new Authorized User and may without notice disable Authorized Users’ access to the Platforms, in whole or in part.
Client shall notify COMO DL without undue delay if the information provided relating to an Authorized User is no longer up to date. Client shall inform COMO DL in writing via email or electronic processes such as the Platform and dashboards if an Authorized User should be removed or added or if Client wishes to request any other amendments to roles and privileges assigned to any existing Authorized User.
Authorized Users shall be provided with personalized security credentials to access the Platform and, to the extent applicable, one-time password/code for strong Client authentication through an authentication device or authentication software to authorize Transactions through the Platforms. Client acknowledges and shall endeavor that such personalized security credentials and one-time passwords must be kept safe by each Authorized User and must not be shared with or used by any other person.
Authorized Users are obliged to immediately notify COMO DL upon becoming aware of irregularities, hacking, misuse or unauthorized use of the Platforms, any authentication device or software or any of the Services, including Client Accounts. In such an event, COMO DL will block any such systems and Accounts.
Authorized Users are required to take all necessary measures to ensure that the technical characteristics of any device used to access the Platform, any authentication device or software, internet access and telecommunications means are up to date for obtaining information and for access to the Transactions and Services offered by the Platform. Authorized Users are responsible for keeping such devices and/or software up to date and installing all manufacturer provided updates and security fixes when available. Furthermore, Client is required to manage properly the security of such devices through installing and updating security components (antivirus, firewalls, security patches, etc.). Furthermore, COMO DL reserves the right to decline any and all support to software versions that are not up to date with the latest available version.
Client shall be responsible for training of Authorized Users so that they take all measures necessary to protect the personalized security features of the Accounts and only use the Services and any Accounts in accordance with the Agreement.
COMO DL shall ensure that Instructions from Authorized Users are executed as soon as reasonably possible, but in no particular order. COMO DL shall treat an Instruction as genuine if COMO DL believes in good faith that the Instruction is from an Authorized User (for example, because it appears on the face of it to have been given by an Authorized User) and there are no circumstances that COMO DL is or should reasonably be aware of that cause COMO DL to suspect the authenticity of the Instruction. COMO DL may assume, except in case of manifest error, that the information provided by Client in connection with a Transaction is correct.
If COMO DL deems necessary to contact Client or an Authorized User for the purposes of the verification of an Instruction but is unable establish contact, or if following COMO DL’s request the Client or an Authorized User do not provide appropriate Instructions, the Transaction may be delayed or may not be executed.
COMO DL may reject or delay, in its sole discretion and without liability, any Instruction from Client if:
an Instruction is inaccurate, incomplete or unclear;
the Instruction has not been properly authorized by Client or that any other breach of security has occurred in relation to Client use of the Services;
the Instruction would result in a negative balance on any of the Accounts and/or cause any limit imposed by COMO DL in relation to Accounts to be exceeded;
it is an Instruction that, in the opinion of COMO DL, implies a risk of participating in a scheme that could potentially be money laundering, terrorist financing or any other criminal activities, including however not limited to, tax fraud;
legal or regulatory requirements prevent COMO DL from executing the Instruction or mean that COMO DL needs to carry out further checks;
the Transaction seems unusual in light of the ways the Client ordinarily uses the Account(s);
the Instruction involves a Transaction that is not within the internal acceptable risk scope of COMO DL;
an injunction or order from any competent Authority or court to freeze funds or any other specific measure associated with preventing or investigating crime has been imposed;
any third-party claims exist on the funds held and upon extra-judicial opposition notified to COMO DL by third parties regarding the Client’s assets; or
Client is in breach of its obligations under the Agreement or any other fact or matter persists as a result of which COMO DL is entitled to terminate the business relationship with Client or block access to Client Accounts.
COMO DL reserves the right to reject any order or Instruction due to compliance reasons and/or for not being in accordance with Applicable Law.
In the event that COMO DL rejects any instruction from Client based on section (3. X) such rejection shall be notified to the payment service user, unless prohibited by other relevant Community or national legislation.
COMO DL will not be liable for any Losses the Client suffers as a result of a rejection or suspension of the execution of an Instruction.
COMO DL shall not be liable for delays, errors or misinterpretations that may arise from incomplete or unclear Instructions.
IV. COOPERATION DUTY BY CLIENT
Client hereby declares that the assets deposited now and in the future in any Account are not of criminal origin, nor are they in any way likely to be used in the financing of terrorism or violation of sanctions laws and other Applicable Law.
Client agrees to cooperate with COMO DL on all compliance and operations related matters and to comply with anti-money laundering, counter terrorist financing, and similar legal and regulatory obligations applicable to COMO DL.
Client agrees to respond to COMO DL’s urgent requests as soon as possible and no later than four (4) Business Days from the receipt of the request, for example on information related to specific Transactions and beneficiaries, payers or payees and provide all relevant “Know Your Client” (“KYC”) documentation.
Client agrees to respond to COMO DL’s less urgent requests of information as soon as possible and no later than ten (10) Business Days from the receipt of the request.
V. OTHER CLIENT OBLIGATIONS
Client shall ensure at all times that:
the execution of its obligations under the Agreement, the Transactions and the Services do not contravene any Applicable Law or any order of any Authority or any judgment, order or decree of any court having jurisdiction over Client, nor the provisions of Client’s formation documents;
has and will maintain for the term of the business relationship all consents, authority, licenses, registrations, authorizations, exemptions and memberships necessary for the conduct of Client’s business;
it is in compliance with the Applicable laws;
it has neither suspended the payment of its financial obligations as they fall due, entered into arrangement with its creditors, become subject to liquidation, bankruptcy, restructuring or other bankruptcy proceedings, been party to any enforcement proceedings levied against its assets, nor it has been threatened with any insolvency or enforcement proceedings;
the information provided by Client to COMO DL is complete, accurate and not misleading in any material respect.
Client shall inform COMO DL immediately if Client breaches any of the obligations set out in this Clause 5.
Client shall take all necessary measures to protect the personalized security features of the Accounts and only use the Services and the Accounts in accordance with the Agreement. The Client has no right to (and shall not attempt to) tamper, hack, modify or otherwise corrupt the security or functionality of any Transaction Platforms.
VI. CLIENT IDENTIFICATION REQUIREMENTS AND COMPLIANCE REVIEW
COMO DL is legally required to request information and documentary evidence for the acceptance process and knowledge of its Clients and their Transactions throughout the business relationship.
For the beginning of a commercial relation with COMO DL and in order to comply with COMO DL’s KYC obligations, Client is required to transfer the data and documents requested by COMO DL (hereinafter “KYC Process”), such as for example:
the articles of association or the formation document of the entity, structure chart, any applicable proxies and powers of attorney, list of the directors, managers, representatives, the ultimate beneficiaries, as well as the business and the VAT number;
In relation to the relevant natural persons: full name and surname, date and place of birth, address, domicile, place of residence, a copy of an official identity card, as well as business number and/or VAT registration number.
COMO DL can ask the Client to provide additional information at any time. COMO DL also reserves the right to legally collect such additional information from third parties and other identification services.
The Client shall provide COMO DL with correct, accurate and truthful information and documentation.
COMO DL is liable for the consequences of any alleged fraud or gross negligence in recording the relevant data it has requested. The Client is liable for any damage caused by the failure to transmit the information and/or documents requested by COMO DL or by the communication or production of inaccurate documents or information.
Furthermore, the Client shall notify COMO DL immediately in writing of any changes to the provided data and documents and any changes in circumstances which might cause the information and documentation provided to COMO DL to become incomplete or inaccurate. Changes in circumstances can be, but are not limited to changes of, type of business, type of products or services, any dissolution, liquidation, or Insolvency Event, payment flow, licensing, geographic location, company name(s), residence address/registered office, company registration number, address(es) of residence for tax purposes, tax identification number, VAT registration number, nationality/nationalities, legal entity identifier, legal entity type and any contact details, such as telephone number(s) and e-mail address(es) and/or in respect of any other person(s) involved in the business relationship, such as the beneficial owner(s), any controlling person(s), authorised signatory(ies) and/or person(s) holding a power of attorney. COMO DL will endeavour to consider and process such changes swiftly.
COMO DL has the right to request, at the Client’s expense, a translation of the documents provided in foreign languages as well as the completion of the related administrative formalities.
Before formalizing a contractual relation and in view of the risks of identity theft, COMO DL may require Client to make a first transfer of funds from a bank account opened under its name with a recognized credit institution (European credit institution if Client is an EU based corporation).
The Client acknowledges that it is its sole responsibility to comply with the legal and regulatory obligations applicable to it and shall ensure that any transaction made with COMO DL complies with these applicable laws and regulations.
COMO DL, or a person appointed by COMO DL, may ask Client to allow an on-site examination of the documents confirming compliance with the obligations under the Agreement. The Client shall reasonably cooperate with COMO DL by (a) making applicable records available; (b) providing copies of the relevant records requested; and (c) directing all employees, agents and representatives to reasonably cooperate. If the compliance review shows that Client is not in compliance with the Agreement, Client shall pay COMO DL’s reasonable expenses for conducting the review along with any other claim for breach of the Agreement.
VII. COMMUNICATIONS
Unless otherwise agreed by COMO DL and Client, the communication and correspondence shall be in English.
COMO DL shall communicate with Client through any means appropriate for the relationship with the Client (for instance via regular post, by telephone, by means of a website, a mobile application, by email or by any other technical or electronic process) any information required by virtue of legal, regulatory or contractual obligations. Furthermore, COMO DL shall communicate with the Client, via the Platform, using the e-mail address associated with the Client Accounts or the contact details provided by the Client.
The Client confirms to COMO DL that it has regular access to the internet simply because it provides COMO DL with an e-mail address or subscribes to one of the Services.
COMO DL will assume that all documents and copies (including electronic copies) provided by Client are reliable and in conformity with authentic originals.
COMO DL shall use the last postal and/or e-mail addresses provided by the Client (or, failing that, the last known address). The Client assumes all consequences and any liability in case of delay or omission to inform COMO DL of a change of postal, mailing or e-mail address, as well as in case of delay or omission to read and react to the contents of any correspondence or communication. For these purposes, Client will only communicate with COMO DL via the Platform.
The Client declares to be perfectly aware and informed of the risks related to the transmission of emails in an unsecured public network such as the Internet. The Client is personally responsible for the selection, installation, use and adaptation of appropriate measures to secure its e-mails, such as anti-virus software, a firewall or the creation of a strong password. In particular, the Client takes all reasonable security measures to ensure the confidentiality of its password. By choosing or accepting such a means of communication, except in the event of fraud or gross negligence of the latter, the Client acknowledges that COMO DL is excluded from any liabilities and consequences in the event of interception by third parties of e-mails and/or the personal data and documents contained therein.
The Client and Authorised Users shall communicate with COMO DL via regular post, by telephone, by email or by any other technical or electronic process as allowed by COMO DL. Instructions by Client shall promptly contact COMO DL via email, electronic processes such as the Platform and dashboards. Furthermore, Client agrees to promptly contact COMO DL via email, electronic processes such as the Platform and dashboards, or telephone in the case its password has been lost or stolen or if someone (other than an Authorized User) has used or attempted to use the Client Account without its consent.
Part of the information that COMO DL makes available to the Client is available in the Platform and on the website: www.como-dl.com
COMO DL shall endeavour to promptly consider a change of the language, postal or electronic mailing addresses requested by the Client.
The delivery and the content of the communication with the Client is established by COMO DL by the production of a copy thereof, in accordance with the provisions of Clause 17 of these General Terms and Conditions.
Any notice or communication provided by COMO DL to the Client by e-mail shall be deemed to have been received at the time of sending, as long as this is within Business Hours, otherwise, the relevant notice or communication shall be deemed to have been received when Business Hours resume the following Business Day.
COMO DL reserves the right to record telephone conversations with Client in order to be able to establish the content and context of the conversation.
The Client acknowledges and agrees that COMO DL may validly provide certain information, such as for example information about COMO DL, information on costs, fees and relevant changes, as well as amendments to these General Terms and Conditions exclusively via the COMO DL website. The Client will be notified electronically of the website address and of the place on such website where it can access this information. The Client undertakes to consult the COMO DL website regularly at www.como-dl.com
VIII. CHARGES, RATES AND FEES
COMO DL shall be entitled to charge for the Services rendered and the use of the Platform and the Client shall pay the charges, rates and fees, stated in the relevant agreements, namely the pricing and payment terms schedule, entered into by COMO DL and Client or as notified by COMO DL to Client from time to time.
In addition, the following charges are payable by the Client:
delivery costs of any assets and documents, mailing fees, telephone costs and any other expenses incurred on behalf of or in the interest of the Client;
the costs of any action taken by COMO DL for the retention or recovery of its rights with regard to the Client;
any registration fees, taxes and levies payable in connection with a transaction with COMO DL.
Subject to Applicable Laws, COMO DL reserves the right to charge an administration fee for handling queries and requests from authorities, including local law enforcement agencies, pertaining to any of the Accounts. This administration fee shall be additional to any other applicable fees, charges, expenses and/or liabilities etc., arising from such query or request. Additionally, in the case (i) COMO DL does not properly and timely receive the requested KYC and beneficial owner information, and (ii) there are excess funds that do not move from the Accounts, COMO DL may charge additional fees for the overhead associated with the reporting and escalations that would need to be performed to ensure compliance with the applicable requirements and obligations.
COMO DL reserves the right to charge an administration fee for the performance of the KYC Process. COMO shall have the right to debit this fee directly from the Client’s account and this fee shall not be reimbursable in the event that the KYC process is unsuccessful or the Client is rejected by COMO DL for any reason, as a result of such KYC Process.
All the charges, rates and fees stated above become due and payable at the beginning or end of each month depending on the type of fee, and are charged and deducted from one of the Client's Accounts opened with COMO DL, unless otherwise agreed by COMO DL and the Client, in which case the Client shall ensure that its account always holds sufficient funds to cover all charges, fees and expenses. If there are insufficient funds in the account COMO will notify the Client.
Any amount owed by Client to COMO DL shall be payable when due without set-off or counterclaim.
COMO DL will notify the Client of any unpaid amount. COMO DL reserves the right to charge interest on any overdue and unpaid amounts if Client defaults in paying any such amounts when they are due to COMO DL pursuant to the Agreement. Any interest on an outstanding amount shall accrue and become payable until the outstanding payment is made to COMO DL in its entirety including interest.
COMO DL reserves the right to suspend access to and prohibit the use of the Platform if the charges and fees cannot be collected in accordance with this Clause 8 or if the Client is otherwise in material breach of its obligations under the Agreement.
Unless expressly stated otherwise, COMO DL’s charges, fees and costs are exclusive of VAT and other taxes payable by Client.
If Client does not perform, or delays performance, its obligations under the Agreement and COMO DL incurs additional costs or expenses as a result, COMO DL reserves the right to notify and invoice Client for the COMO DL reasonable additional costs incurred. In that case, COMO DL will provide Client with information to demonstrate such additional costs. Interest will be debited from the relevant Account on the last Business Day of the month.
COMO DL may at any time introduce new charges, fees, margins and costs for Services for which COMO DL has not previously charged subject to one (1) months’ notice given to Client.
COMO DL may change charges, fees, margins, rates and interest set out in the Agreement subject to one (1) months’ notice where such changes are not in favor of Client and without notice where in favor. COMO DL may also without notice introduce and increase fees for one-off services.
The Client may terminate, within the period specified in Clause 13, the relevant Agreement in the event the Client disagrees with a change of charges, rates and fees without additional charge.
COMO DL may change such charges, fees, margins without notice when the change is motivated by external circumstances beyond COMO DL’s control including but not limited to:
Any changes in the relationship with COMO DL’s counterparties which affect COMO DL’s cost structure;
Any changes in commission and charges from clearing houses, information providers or third-party providers that are passed on to Client by COMO DL; and/or
Any changes required by an Authority or Applicable Law.
Client will receive an amended pricing annex if the changes affect Client individual fee terms.
The agreements entered into by COMO DL and the Client may provide additional fees and payment terms.
The Client shall pay or, as the case may be, reimburse to COMO DL all taxes, duties and charges, whether now existing or imposed in the future by Luxembourg or foreign authorities and which are paid by COMO DL or for which COMO DL may be held liable and that relate to Transactions executed by COMO DL by virtue of the contractual relationship with the Client and for which the Client is ultimately liable. COMO DL is authorized to debit any amount so due from one of the Client’s Accounts irrespective of the settlement date of the original transactions.
IX. WARRANTY
THE CLIENT SHALL ENSURE THAT, IN ALL ITS DEALINGS WITH COMO DL, IT COMPLIES WITH ANY LEGAL, REGULATORY OR OTHER OBLIGATIONS INCUMBENT UPON IT (SUCH AS BUT NOT LIMITED TO ITS TAX OBLIGATIONS IN THE COUNTRY(IES) IN WHICH THE CLIENT HAS TO PAY TAXES IN RELATION TO THE TRANSACTIONS AND ASSETS HELD WITH COMO DL). SHOULD THE CLIENT FAIL TO COMPLY WITH SUCH OBLIGATIONS, IT SHALL BE EXCLUSIVELY RESPONSIBLE FOR ALL CONSEQUENCES THEREOF (INCLUDING POSSIBLE FINANCIAL OR CRIMINAL SANCTIONS) AND COMO DL SHALL NOT BEAR ANY RESPONSIBILITY IN THAT RESPECT. THE CLIENT SHALL CONSULT RELEVANT LEGAL OR OTHER ADVISERS IN CASE OF DOUBT AS TO ITS APPLICABLE OBLIGATIONS.
X. AMENDMENTS
COMO DL may in its sole discretion amend the terms of the Agreement at any time where such amendment is required by applicable law or to correct any errors.
Any other amendments to the Agreement shall be agreed by COMO DL and the Client subject to one (1) months’ notice where such amendments are not in favour of Client and otherwise without notice. The new terms of the Agreement shall come into effect one (1) month after the communication initiated by COMO DL, except when legal or regulatory requirements require otherwise.
Notwithstanding the provisions of Clause 13, the Client may terminate the Agreement within the month following the communication of the new terms of the Agreement initiated by COMO DL, in the case of disagreement on the amendments of the Agreement, except where such amendments result from a legal or regulatory obligation or is made to the benefit of the Client. If Client does not provide COMO DL with notice of rejection of any amendment of which COMO DL has notified Client within the period here stipulated (or such other notice period in respect of amendments which may apply under the Agreement), COMO DL will consider the Agreement to have been amended as per the expiry of the notice period. If the Client does provide COMO DL with notice of rejection of any amendment of which COMO DL has notified the Client, COMO DL shall have the right to terminate the business relationship with the Client with effect as from the date on which the relevant amendments were to apply.
XI. CONFIDENTIALITY
COMO DL cannot disclose to third parties any information relating to the Client unless it has received from the Client a written authorization or is required to do so by law or regulatory requirements, or if a legitimate interest motivates the disclosure.
The COMO DL employees, the companies belonging to the group to which COMO DL belongs and their employees who are legitimately involved in the relationship and processes with Client are not considered third parties for the purposes of this Clause 11. This includes particularly employees, agents, commission agents, sales agents, subcontractors and outsourcing service providers.
The Client acknowledges and accepts that COMO DL may communicate information concerning the Client, its representatives and beneficial owners where such communication is required by a domestic, foreign or international laws or regulations, or by a domestic or foreign authority (including courts and tax authorities).
The Client acknowledges that based on Luxembourg legislation or legislation with extraterritorial effect (in particular, under U.S. regulations imposed under the provisions of the HIRE Act of 18 March 2010 commonly referred to as Foreign Account Tax Compliance Act – “FATCA” as implemented in Luxembourg under the intergovernmental agreement concluded between Luxembourg and the United States of America by the Luxembourg law of 24 July 2015, and the OECD Standard for Automatic Exchange of Financial account Information and its Common Reporting Standard (the “CRS”) as implemented in Luxembourg under the law of 18 December 2015 on the Common Reporting Standard (the “CRS Law”)), COMO DL may have to disclose in regular intervals information on the Client, his representatives and beneficial owners and the controlling persons, within the meaning of FATCA or the CRS Laws, of an account held in its books, including their names, addresses, tax identification numbers, dates and places of birth, account numbers, account balances, income generated by its assets and sales of proceeds, to competent domestic or foreign authorities (including to Luxembourg tax authorities), which will then forward such information to the relevant tax administration (including the U.S. Internal Revenue Service).
The Client shall provide to COMO DL the information requested pursuant to this clause 11 and acknowledges that failure to respond or provide the required information may result in incorrect reporting or reporting in multiple jurisdictions for which COMO DL has identified indicia in Client’s files. The Client shall have the right, free of charge, to access the information transferred to the Luxembourg tax authorities and may ask for a rectification thereof if such data is inaccurate or incomplete.
Some national or foreign laws, regulations or payment systems may require the identification of the person placing the order and its beneficiary. The Client acknowledges and accepts that, where funds or other assets are to be transferred, COMO DL may have to disclose information concerning the Client, its representatives and beneficial owners to third parties, including public authorities and correspondent banks of COMO DL.
Data, including data of a personal nature, included in cross-border transfers shall be subject to processing by COMO DL and other specialized intermediaries and in particular SWIFT (Society for Worldwide Interbank Financial Telecommunication). Such processing may take place in centers established in other European States, in the United States of America and other countries pursuant to local regulations. The consequence, inter alia, thereof, is that the authorities of such countries and foreign authorities may request access to such data, in the context of the fight against terrorism or for other purposes. Moreover, when the Client gives an instruction to COMO DL to make a transfer, the Client hereby expressly consents to all items of information required for the proper execution of the transfer to be communicated to the processing center for such transfer, which may be located in Luxembourg or abroad and accepts that such items of information may be subject to processing outside Luxembourg.
The Client confirms that it has informed all of its representatives and beneficial owners of the existence and content of the instructions and authorizations to data transfers set out herein and confirms having obtained their consent and the mandate to consent on their behalf to all data transfers set out herein. The Client hereby consents to all data transfer instructions and authorizations set out in these General Terms and Conditions on behalf of its representatives and beneficial owners. The Client agrees to indemnify and hold COMO DL harmless from and against any and all liabilities arising in relation thereto including with respect to claims by representatives and beneficial owners that they have not consented to transfers of data.
XII. PROCESSING PERSONAL DATA
COMO DL processes the personal data of Client in accordance with applicable law and its Privacy Policy, which is available on its website: www.como-dl.com
All legally required information relating to the personal data collected and processed by COMO DL, the purposes for which this data is processed and the rights of the natural persons whose data is processed, are contained in the COMO DL Privacy Policy.
When Client provides COMO DL with personal data relating to natural persons (e.g., representatives, employees or beneficial owners), the Client must inform such persons of the Privacy Policy.
The Privacy Policy is subject to change in accordance with the rules set out therein.
Upon the signature of this document the Parties accept the provisions of the Privacy Policy, in line with GDPR provisions and declared having it read out and agreed with it.
XIII. TERM AND TERMINATION
These General Terms and Conditions and the Agreement shall apply from the Effective Date and continue thereafter for three (3) years. Thereafter, these General Terms and Conditions will automatically be renewed for an additional 3 (three) years’ period unless either Party terminates in writing no less than one hundred eighty (180) days prior to the expiration of the then-current term.
Both COMO DL and Client are entitled to terminate the business relationship, including the General Terms and Conditions and Agreement, immediately by written notice with acknowledgment of receipt if:
either party is in material breach (or a number of breaches or repeated breaches that taken together constitute a material breach) of its obligations under the General Terms and Conditions or Agreements;
the Client is subject to an Insolvency Event;
any changes to previous information or circumstances the Client has provided to COMO DL conclude that the Client is no longer an acceptable client to COMO DL, specially, in consideration to: a) the applicable Legal Frame applicable to AML/CTF Law changes; and/or b) the Client follows under a sanctioned business or embargoes jurisdiction list by an international organisation such as the United Nations;
there has been or COMO DL reasonably suspects there has been fraud or suspicious activity involving any of the Accounts or any Transactions on any of the Accounts. In this case, the Company reserves the right to refrain from informing the Client about any details regarding the termination reasons;
COMO DL has reasonable grounds for believing that the Client has committed or is about to commit a crime in connection with any of the Client accounts and/or COMO DL reasonably suspects that the Client has taken an action that could constitute a violation of any applicable anti-corruption or anti-bribery law or regulation;
COMO DL reasonably considers that by continuing the Agreement, COMO DL may (i) break any Applicable Law or other duty, or (ii) be exposed to action or censure from any Authority;
if the Client fails to pass the required KYC procedures, provide false information and/or fails to provide the required onboarding information in a timely manner;
if required by a competent regulatory Authority or if a party to the Agreement is no longer in the possession of its required licenses or permits;
Client misuse of COMO DL services for any other purpose/or any undeclared use different to the one declared at the moment of onboarding, in this respect, any change shall be communicated to COMO DL’s Compliance Team within sixty (60) calendar days;
Client misuse of COMO DL services for any Client who seeks to engage in criminal activity including money laundering, or financing terrorism;
the Client has strong ties to a country that is considered forbidden by COMO DL, or any sanction list;
use of pooled client accounts or safe custody of client money or assets or bearer shares, without justification.
COMO DL may at its discretion grant the Client a period of up to thirty (30) days to remedy a material breach.
Termination of the business relationship is without prejudice to any rights which accrued before termination and it shall not affect Client’s responsibilities with regard to outstanding Transactions and any rights, obligations, liability claims, etc., between Client and COMO DL, and any warranties or indemnities given by the Client under the Agreement, which shall survive and which by their nature are deemed to survive the termination.
At any time after the termination of the Agreement, or after COMO DL has reasonably determined that Client has not performed any of its obligations to COMO DL, COMO DL may, upon three (3) Business Days’ notice (oral or written) to Client, close out, replace or reverse any such Transaction or take, or refrain from taking, such other action at such times and in such manner as COMO DL considers necessary or appropriate to avoid, cover, reduce or eliminate any Loss or liability under or in respect of any contracts, positions or commitments.
In the case only one or more services are terminated, but not the Agreement as a whole and to the extent they relate to the same service or services, all related amounts payable by the Client to COMO DL will become immediately due and payable including (but without limitation):
All outstanding charges, costs, and fees;
any costs and expenses incurred for termination; and
any Losses and expenses realized in closing out any transactions or settling or concluding outstanding obligations incurred by COMO DL on for Client.
Following termination of the Agreement, Client agrees that COMO DL will be entitled to retain access to the fee Account or any Client fixed-term deposit before its maturity, if required, until all Client outstanding Transactions have been settled. The Client shall allow COMO DL to deduct from the fee Account or any fixed-term deposit, as applicable, any amounts needed to settle any such Transactions. COMO DL will return to the Client any remaining funds held in the Client Fee Account after all amounts owed have been settled. The fee Account or any fixed-term deposit, as applicable, shall then be closed.
COMO DL will not be liable to the Client for any Loss that Client incurs as a result of COMO DL acting on Instructions that Client authorized prior to termination of any Service.
Upon termination, Client will cooperate with COMO DL in arranging the transfer of the Client’s money and funds to another financial services provider. If the Client fails to cooperate with COMO DL by not providing instructions within a reasonable period of time from COMO DL’s request for Client to do so, COMO DL will have the right to close the Account(s). Pending the transfer of the Client’s money and funds to another provider (where applicable), COMO DL shall continue to hold the relevant money and funds in accordance with the other provisions of the Agreement, and subject to Client paying all applicable charges, fees and costs. However, COMO DL shall not have any other responsibility in respect of the relevant money and funds and the only permitted Transactions on Client Account will be the outgoing transfer of Client’s money and funds to another financial services provider.
XIV. LIABILITIES
COMO DL is liable only for fraud and any gross negligence committed by it or COMO DL staff in the course of its business activities. Moreover, COMO DL can only be held liable for the direct consequences of its gross negligence. Thus, COMO DL is not liable for indirect damages, namely, any commercial, professional, financial or other losses of the Client, such as loss of profit, increase of expenses, disruption of planning, the loss of reputation, clientele or expected savings.
In any event, COMO DL can never be held liable for damages or losses resulting directly or indirectly from a force majeure event or measures taken by the Luxembourg or foreign authorities.
As a result, it does not respond to the harmful consequences, resulting in particular from:
a fire, flood or other natural disaster;
of the strike of its staff;
a decision of a government authority or the central bank of a country;
an embargo or sanction of a financial, economic or commercial nature;
operations ordered by persons with de facto power in case of war, disturbances, riots or occupation of the territory by foreign or illegal forces;
the decommissioning, even temporary and for any reason whatsoever, of its computers, as well as the destruction or erasure of the data they contain;
errors or interruption of activities of Belgian or foreign postal services, companies providing telephone services or any other electronic service, private transport companies.
Without limiting, and in addition to, any other obligation that the Client may owe under this Agreement, the Client is at all times responsible for the acts and omissions of its employees, contractors and agents, to the extent such persons are acting within the scope of their relationship with Client.
The Client agrees to defend COMO DL, their affiliates, and their respective employees, agents, and service providers (“COMO DL Entity”) against any claim, suit, demand, loss, liability, damage, action, or proceeding (each, a “Claim”) brought by a third party against a COMO DL Entity, and Client agrees to fully reimburse the COMO DL Entities for any Claims that result from: (i) a breach of any provision of this Agreement; (ii) any Fees, Fines, Disputes, Refunds, Reversals, Returns, or any other liability COMO DL incurs that results from Client’s use of the Payment Processing Services; and (iii) negligent or willful misconduct of Client employees, contractors, or agents.
XV. EMBARGOES, COMPLIANCE POLICIES, AND DUTY OF CARE
The term "Sanctions" covers all sanctions of a financial, economic or commercial nature or established restrictive measures, administered, imposed or put in place by the European Union, Luxembourg, the United Nations Security Council, the OFAC (Office of Foreign Assets Control) in the United States of America and / or the "US Department of State" or any other competent authority.
The Client declares and warrants to COMO DL:
that neither it, nor any of its subsidiaries, administrators or directors or, to its knowledge, any of the companies related to it, any agent or employee, is engaged in any activity or behavior that may violate any laws, rules or regulations applicable in any competent jurisdiction in matters of fight against money laundering and corruption.
that neither it nor any of its subsidiaries, administrators or directors or, to its knowledge, any of the companies related to it, any agent or employee, is a natural or legal person (a "Person") who is, or is owned or controlled by Persons who are, (i) subject to Sanction measures (a "Person under Sanction(s)"), or (ii) located, established or residing in a country or territory that is, or whose government is, subject to measures of Sanctions generally prohibiting dealing with that government, country or territory ("Sanctioned Country(ies)").
The Client specifically undertakes and warrants not to - directly or indirectly - use the Services offered by COMO DL:
to fund activities or affairs of or with any person, or in any country or territory, likely to be a Person under Sanction(s) or Sanctioned Country(ies), or
any another way that would result in a violation of Sanctions by a person.
COMO DL considers the Sanctions mentioned above in the analysis and processing of the Transactions entrusted to it. The same applies if, in COMO DL’s judgment, the nature, purpose, context, conditions and, more generally, the circumstances of a Transaction do not comply with COMO DL's compliance policies on these sanctions or the fight against money laundering or against the financing of terrorism.
COMO DL reserves the right not to execute or postpone the execution of a transaction (i) that would be or could be in violation of such Sanctions and policies or (ii) that would or could be considered suspicious under the laws and regulations against money laundering and the financing of terrorism; or (iii) when automatic transaction-filtering systems block this transaction. The Client undertakes to provide COMO DL with any document and/or information that COMO DL deems useful in order to determine whether a transaction complies with said Sanctions and policies or is suspicious under the laws and regulations against money laundering and the financing of terrorism. Otherwise, COMO DL will not be able to execute a transaction.
In the event Client has doubts as to the conformity of a planned transaction with the said Sanctions and policies, Client will contact COMO DL before instructing COMO DL regarding this transaction.
XVI. COMPLAINTS
The Client may send a complaint to COMO DL by sending a letter to its registered office at 1 Rue De l'Innovation, L-1896 Kockelscheuer, Luxembourg or by email to the following address: complaints@como-dl.com
XVII. EVIDENCE
Without prejudice to mandatory legal or public policy provisions which lay down specific rules as regards proof COMO DL shall be entitled to rely on a Client's own accounts as evidence. COMO DL may administer proof of a legal act by means of a copy or reproduction of the original document, regardless of the nature or amount of the document. Proof of the act performed by means of a technical process may be administered by means of said technical process. This copy or reproduction has the same force and probative value as the original of the act. The copy or reproduction of the document may have a different form from the original when it results from the use of any technical process.
XVIII. FORCE MAJEURE
Neither COMO DL nor Client will be liable for any delays in processing or other non-performance caused by force majeure events (unforeseeable, external and irresistible events) such as telecommunications, utility failures, or equipment failures; labour strike, riots, war, or terrorist attacks; non-performance of our vendors or suppliers, fires or acts of nature; or any other event over which the respective Party has no reasonable control. However, nothing in this clause will affect or excuse Client’s liabilities or Client’s obligation to pay any fees, charges, interest, fines, disputes, refunds, reversals under the Agreement.
The affected Party shall use its reasonable efforts to minimize the effects of the force majeure event. If COMO DL is the affected Party, it will implement its business continuity plan.
XIX. MISCELLANEOUS
Subject to any applicable notice period set out herein, these General Terms and Conditions are applicable from the date hereof and shall remain effective until a new version is released. The newest and current version of the General Terms and Conditions is always available on COMO DL’s website and Platform. Moreover, COMO DL reserves the right to amend these General Terms and Conditions from time to time.
The Agreement constitutes the entire agreement between COMO DL and Client. Any prior statement or representation by either Party, whether express or implied is hereby excluded from the Agreement insofar as is permissible under Applicable Law.
If any provision of the Agreement is held to be wholly or in part invalid or unenforceable, the invalidity or unenforceability will not affect the other provisions of the Agreement. The invalid or unenforceable provision will be replaced by a valid and enforceable provision which approximates as closely as possible the intent of the invalid or unenforceable provision. This will also apply in cases of contractual gaps.
The Client may not assign or transfer any of its rights or obligations under the Agreement without a prior written consent from COMO DL.
The Client is not entitled to reverse engineer, decompile, or disassemble any of the software used for the Transaction Platforms or Services. Likewise, the Client is not entitled to copy, modify, sell, distribute or transfer any parts of the software used for the Transaction Platforms or Services.
The Parties agree that COMO DL may use the Client’s logo and reference the Client as a business partner in its website and newsletter.
Restrictions: COMO DL asks the Client and the marketplace to confirm that they will not process transactions considered by COMO DL to be out of its risk appetite (e.g. weapons of war, automatic weapons, ammunition or defense equipment: Includes merchants involved in the sales, intermediation or commerce of war or automatic weapons, including but not limited to chemical weapons, cluster bombs, ammunitions, or other defense equipment or similar or physically present adult services – this includes, but is not limited to, escort services, solicitation thereof, sale and/or advertising or suggestion of any physical, sexual services that may imply or suggest prostitution, regardless whether it is legal in the specific country involved).
References to any law, statute, regulation or enactment in these General Terms and Conditions shall include references to any amendment, modification or re-enactment thereof or to any regulation or order made under such law, statute or enactment.
Any references to the terms "include", "includes", "including", or any similar terms are not intended to limit the, or provide an exhaustive, meaning or generality of the related wording.
XX. GOVERNING LAW AND CHOICE OF JURISDICTION
The business relationship between COMO DL and the Client shall be subject to Luxembourg law and as such the latter shall govern the solution of any disputes that may arise between COMO DL and the Client in connection with this relationship.
Only the Luxembourg courts shall be competent to settle any disputes arising between COMO DL and the Client in the context of the business relationship.
XXI. DEFINITIONS
In these General Terms and Conditions, the following terms shall, unless the context otherwise requires, have the following meanings:
“Account” means any account(s) with COMO DL opened in the name of Client.
“Applicable Law” means any law, statute, regulation or legally binding requirement or order as interpreted taking appropriate account of regulatory policy, guidance or industry code, relating to either of the parties to these General Terms and Conditions, including any instructions or requirement imposed by a competent Authority, and any rules and restrictions in relation to trade embargos or other sanctions regulation imposed by the United States of America, the United Nations, the European Union and any of its member states, the United Kingdom, any institution, or agency acting on behalf of any of them, in each case to which (i) COMO DL and/or the Services, and (ii) if the context so requires, Client, are subject to.
“Authorities” includes any judicial, administrative, public, regulatory or law enforcement body; any government, tax authority, securities exchange, court, central bank; and any of their agents or agencies.
“Business Day” means any day on which banks are open for business in Luxembourg.
“Business Hours” means the time between 09:00 and 17:00 (CET / Luxembourg time).
“Compliance Obligation” means under Applicable Law and/or any other obligation of COMO DL to comply with (a) laws or international guidance and internal policies or procedures, (b) any demand from Authorities regarding reporting, disclosure or other obligations under Applicable Laws, and (c) Applicable Law requiring COMO DL to verify the identity of its clients.
“Client(s)”: Legal or natural person to whom the COMO DL is offering certain services based on a contractual relationship versus a consideration.
“Compliance Team” means the employee, who supports the duties and responsibilities of Compliance Function according to the AML/CTF Law.
“Effective Date” means the date the second party to the Agreement signs the Agreement;
“Fee Account” means a single account used for settling fees from activities on the COMO DL Platform;
“Insolvency Event” means that a Party to these General Terms and Conditions:
is unable, or admits inability, to pay its debts, or suspends or threatens to suspend making a payment on any of its debts;
has an order or petition made against it or a resolution passed for its administration, winding-up or dissolution, or any other corporate step or legal proceeding is taken with a view to the same (otherwise than for the purposes of a solvent amalgamation or reconstruction);
has an administrative receiver, manager, liquidator, administrator, trustee or similar officer appointed over all or a significant part of its assets;
enters into or proposes any compromise arrangement with its creditors; or
suffers or carries out anything similar to the above in any applicable jurisdiction.
“Instructions” means any payment or Transaction instruction, where Client instructs COMO DL to perform a Transaction.
“Legal Frame” means Luxembourg Legal framework, including European directives, laws, Luxembourg national risk assessment, FATF recommendations, and any applicable laws and regulations related to AML/CTF, as amended.
“Loss” includes any loss (including loss of profits), costs, damages, taxes, expenses or other liability.
“Party” means each Client and COMO DL, individually, and “Parties” means Client and COMO DL, collectively.
“Partner” means a legal entity, which aims or has entered into a contractual relationship with COMO DL for the purpose of introducing one or more Clients to COMO DL.
“Reseller”: A bank, a financial institution, or a legal entity acting as an introducer for new Partners/Clients. The Reseller is not involved into the account opening, onboarding or any other operation of the Client or Partner.
“Transaction” means the transfer or receipt of funds, or any other action pertaining to the processing or disposal of funds carried out by COMO DL on behalf of Client.
“Platform” means the COMO DL Platform and any other system or application programming interface(s) (API) made available by COMO DL.