Introduction

Please read these Terms of Use carefully as they apply to your use of this application and all related services. If you do not accept the terms and conditions outlined below, please do not continue to use the application

XCel Inc Limited may revise these Terms and conditions at any time by updating this page and without prior notice. It is your responsibility to periodically review these Terms of Use to stay informed such updates and or revisions. You will be subject to, and will be deemed to have been made aware of and to have accepted any changes by your continued use of the application after the date such revised terms are posted.

SCOPE OF THIS AGREEMENT

• You understand and agree that the contents of this application, include all audio, video, graphics, images and textual materials, downloadable files, PDFs, Microsoft Word etc.., all of which are protected by International Copyright Law and are not to be used for any commercial purposes without the prior written consent of the owners, XCel Inc Limited.
• You acknowledge and agree that our services and any necessary software used in connection therewith contain proprietary and/or confidential information, which are protected by the applicable intellectual property and other laws. You further acknowledge and agree that the contents of sponsored and/or third-party advertisements or information presented to you through our channels are also protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws. Except as expressly authorized by us, you agree not to adapt, translate, decompile, disassemble, modify, copy, publish, license, rent, lease, sell, distribute or create derivative works, patents, copyrights, trademarks or service marks based on the services, software and advertisements, in whole or in part.
• You acknowledge that XCel Inc Limited hereby grants you a personal, non-transferable and non-exclusive right and license to use the contents of this app, if you do so within the ambit of our Terms of Service. You therefore undertake not to use this in any manner such as to damage, disable, overburden or impair its smooth operation, or in any manner that could interfere with other parties’ use and enjoyment of the Services
• If it becomes known to you that another user this application or of any of our products has infringed or is infringing the Terms of Service, you undertake to promptly report the fact of such infringement to us at info@xcelapp.com
• You acknowledge and agree that when using particular services on our app, you are subject to any posted guidelines or rules applicable to such services, which may be posted on the application’s site from time to time. All such guidelines and rules are hereby incorporated by reference into the Terms of Service
• In consideration of your using this service, you agree to provide XCel Inc Ltd. with true, accurate, current and complete information about yourself as required or requested in the Form section. If you provide any information that is untrue, inaccurate, outdated or incomplete, or if we have reasonable grounds to suspect that the information supplied by you is untrue, inaccurate nor current or is incomplete, we reserve the right to delete your form data from our server and take any other action necessary to protect ourselves and our services
• You agree to indemnify and hold XCel Inc Ltd., its subsidiaries affiliates, officers, agents, co-branders or other partners and employees, harmless from any claim or demand, including reasonable attorney’s fees, made by any third-party due to or arising out of any matter or information you submit, post, transmit or make available through the service, your use of the service, your connection to the service, your violation of the Terms of Service, or your violation of any rights of another.
• Your Account with us is an e-money account and the electronic money associated with it is issued to you by “Payrnet Limited” means Payrnet Ltd, a business authorised in the United Kingdom with company number 8720992, with its registered address at 5th Floor, 50 Finsbury Square, London, EC2A 1HD and registered with the Financial Conduct Authority (“FCA”) under the Electronic Money Regulations 2011 (FRN 900594) as an electronic money institution for the issuing of electronic money and provision of payment services). Your rights and obligations relating to the use of this Account are subject to these Terms and Conditions between you and us.
• This Agreement is written and available only in English and we undertake to communicate with you in English regarding any aspect of your Account
• You agree that we or the Partner Platform may communicate with you by e-mail or telephone for issuing any notices or information about your Account at our sole discretion and therefore it is important that you ensure you keep your e-mail address and mobile phone number updated.
• You can request a copy of these Terms and Conditions at any time by contacting us at info@xcelapp.com

INTERPRETATION

The definitions set out in this clause apply in this Agreement as follows:

“ Agreement ” means this agreement including the Schedules

“ Business Day ” means a day when the clearing banks in the city of London are open for business, excluding Saturdays, Sundays and public holidays in England.

“ Consumer “ means an individual who, in entering into this Agreement, is acting for a purpose other than a trade, business or profession.

“ Contract ” means any contract entered into pursuant to this Agreement, including a Payment Contract.

“Controller”, “data controller”, “processor”, “data processor”, “data subject”, “personal data”,

“processing” and “appropriate technical and organisational measures ” all have the meanings setout in the Data Protection Laws in force at the time.

“ Data Protection Laws ” means (i) the General Data Protection Regulation (GDPR) (Regulation (EU)2016/679) and any national implementing law, regulations and secondary legislation for so long asthe GDPR is effective in the UK and (ii) any successor legislation to the GDPR, in particular the Data Protection Bill 2017-2019, once it becomes law.

“ Electronic Money ” means electronically stored monetary value as represented by a claim against nus.

“Payment Services” means the services provided by us pursuant to the terms set out the Agreement.

“ Regulations ” means the Payment Services Regulations 2017 (SI 2017 No. 752).

“ Safeguarded Account ” means the bank account(s) belonging to us, which are separate to our own office bank accounts, into which we will receive money from you, or on your behalf, in return for the issuance of Electronic Money.

“ Services ” means the services identified in clause 5. “ Term ” means the term of this Agreement, as set out in clause 4.4.

• Clause, Schedule and paragraph headings shall not affect the interpretation of this Agreement
• The Schedules form part of this Agreement and shall have effect as if set out in full in the body of this Agreement. Any reference to this Agreement includes the Schedules
• References to clauses and Schedules are to the clauses and Schedules of this Agreement and references to paragraphs are to paragraphs of the relevant Schedule
• If there is an inconsistency between any of the provisions in the main body of this Agreement and the Schedules, the provisions in the Schedule shall prevail.
• Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
• Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular
• Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders
• A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
• A reference to a statute or statutory provision shall include all subordinate legislation made from time to time.

OPENING YOUR ACCOUNT

• Your Account will be opened on your behalf by us in partnership us in partnership with Payrnet Limited (“Payrnet”) – an FCA (Financial Conduct Authority) approved financial platform. You may only hold an Account so long as you remain an approved client of ours.
• You will be bound by this Agreement as soon as we notify you that you have become a client or, in the event that we don’t notify you, as soon as we make the Services available to you. In order to become a client and before any Services can be provided by us, the applicant must provide us with all information reasonably required by us to comply with our legal and regulatory obligations and our own internal risk management processes and agree to these terms. You warrant that all information provided to us is true and correct to the best of your knowledge and belief.
• At our absolute discretion we may refuse to open an account for you and may do so without giving any reason.
• This Agreement shall come into force on the date that we confirm to you that you are a client or we otherwise make the Services available to you and shall remain in force until terminated in accordance with this Agreement

USING THE ACCOUNT

• We may in our absolute discretion provide, or continue to provide, the Services set out in Schedule 1 to you:
• As part of the Services, we shall issue you with Electronic Money upon receipt of money from you or a third party on your behalf, store your Electronic Money and redeem Electronic Money both on your express instruction and in accordance with this Agreement.
• Our Services do not include the provision of advice. We do not offer advice under this Agreement on any matter including (without limit) the merits or otherwise of any currency transactions, on taxation, or markets. Although we may provide you with market information from time to time, we do not provide advice. It is entirely for you to decide whether a Particular Contract and your instructions to us, are suitable for you and your circumstances.
  • Your Account can receive bank transfers and other payment types as added and notified to you by us from time to time. Subject to paragraph (iii.), we will credit your Account when we receive the funds which could be up to three Business Days after the payment being instructed, depending on how the payment was sent.
  • Your Account can also receive internal transfers from other Accounts owned or controlled by the us, which apply instantly.
  • An incoming payment will not be credited to your Account if:
    • the Account has reached the Account Maximum Balance or Account Limits; orthe Account has reached the Account Maximum Balance or Account Limits; or
    • the Account is inactive or blocked or terminated; or
    • the sender has provided incorrect/invalid Account Details for your Account; or
    • we suspect the payment to be fraudulent
• If we are unable to credit your Account for any of the reasons in paragraph (vi) then the funds may be sent back to the sender without a prior notification to you.
• Your Account will be configured and operated by the us. You agree that we take instructions from you regarding the operation of your Account, including the creation of beneficiaries and instruction of payments, on your behalf. If you disagree with any actions taken by us these should be discussed with directly with us.
• Your Account can make payments out to external bank accounts via Faster Payments and other methods as added and notified to you by us from time to time.
• A Transaction is deemed to be authorized by you, when you enter the security information in the app to confirm that a Transaction is authorized. Once the Transaction is confirmed, we cannot revoke the Transaction save for in those circumstances set out in paragraph (viii) below
• The following Transactions may be withdrawn:
  • Any Transaction which is agreed to take place on a date later than the date you authorized it, if notice is given no later than close of business on the business day before the Transaction was due to take place; and/or
  • Transactions due to take place on a future date
• If we refuse to execute a payment order to or to initiate a Transaction, we will, without undue delay and provided we are legally permitted to do so, notify you of the refusal. If possible, we will provide the reasons for the refusal and where it is possible to provide reasons for the refusal and those reasons relate to factual matters, the procedure of rectifying any factual errors that led to the refusal.
• The Available Balance on your Account will not earn any interest
• You can check the balance and Transaction history of your Account at any time via the interface provided to you by us or our Online Portal if you have relevant access details.
• You will be provided with a monthly statement by us (using the details we have associated with your Account).

ISSUING ELECTRONIC MONEY TO YOU

• Where we receive money from you or on your behalf, this money will be held by us in the relevant Safeguarded Account in exchange for the issuance by us to you of Electronic Money.
• When we issue you with Electronic Money, us holding the funds corresponding to the Electronic Money is not the same as a Bank holding your money in that:
  • we cannot and will not use the funds to invest or lend to other persons or entities;
  • the Electronic Money will not accrue interest; and
  • the Electronic Money is not covered by the Financial Services Compensation Scheme.
• You may hold Electronic Money and we may hold funds corresponding to your Electronic Money indefinitely. However, if we hold Electronic Money for you for more than two years, we shall use reasonable endeavors to contact you to redeem the Electronic Money and return the corresponding funds to you. If we are unable to contact you, we may redeem the Electronic Money and send the corresponding funds, less any of our costs incurred, to the last known bank account we have on file for you.
• We accept no responsibility in the event that you send money to the incorrect account.
• We do not accept cash or cheques. We accept monies by credit/debit cards and via a variety of methods of electronic funds transfer to our bank account, the details of which we shall provide to you upon request.

ACCOUNT LIMITS

• Limits may apply to the maximum value of an individual payment Transaction, the maximum aggregate value of all payment Transactions made from your Account in a particular time period e.g. during any one Business Day and the maximum number of payment Transactions made from your Account over a particular timeframe.
• The limits that apply to your Account will be communicated to you during the Account set-up process. These limits may also change over time based on your Account usage; any such change will be communicated to you. You can check the limits at any time by checking your profile page within the app. Any payment Transaction request which exceeds such limits will be rejected.
• To manage our risk, particularly with respect to money laundering, fraud or security concerns, we also apply internal controls, including limits, to certain types of payment. We change these as necessary but for security purposes, we do not disclose them.

CLOSING YOUR ACCOUNT

• You may close your Account by contacting Customer Services.
• The Account will be closed if we get the instruction from you to close your Account.
• Any Available Balance remaining on the Account after Account closure will be transferred to your nominated bank account via Faster Payments. If for any reason this is not possible, such Available Balance will remain yours for a period of six years from the date of Account closure. Within this period, you may at any time request a refund by contacting Customer Services. You will not have any access to your Account, and we will not return any funds remaining on the Account after six years from the date of Account closure and this Agreement will terminate.

YOUR LIABILITY AND AUTHORISATIONS

• You are responsible for understanding and complying with the Agreement including these Terms and Conditions
• We may restrict or refuse to authorise any use of your Account if using your Account is causing or could cause a breach of these Terms and Conditions or if we have reasonable grounds for suspecting that you or a third party has committed or is about to commit a crime or other abuse in connection with your Account.
• You or the Account Manager must not:
  • allow another person to use security information related to the Account,
  • write down password(s) or any security information unless this is done in a way that would make it impossible for anyone else to recognise any of that information, or
  • disclose passwords or any security information, or otherwise make them available to any other person, whether verbally or by entering them in a way that allows them to be observed by others
• You will be liable for all Transactions that take place as a result of you or the Account Manager acting fraudulently or failing to comply with these Terms and Conditions with intent or gross negligence. Any such Transactions and any fees and charges relating to such Transactions will be deducted from the Available Balance on your Account.
• You will be liable for all Transactions that the you or any other Account Manager makes on your behalf as per this Agreement, along with those made by a TPP authorised by you to initiate a Transaction.
• You will be liable for all unauthorised Transactions that arise from the use of lost or stolen Account security information such as but not limited to the Online Portal log in details and API security details, if you or your Account Manager fail to keep the security features of the Account safe.
• It is your responsibility to keep us updated of changes to your Information, including e-mail address and mobile numbers. Failure to do so may result in us being unable to contact you regarding your Account or to let you know about changes to these Terms and Conditions.
• If you request to recall a Transaction due to an error or mistake caused other than by us, we reserve the right to charge you:
  • a handling fee per recall
  • any fee payable by us to a third-party bank or institution for handling the recall.
• You agree to indemnify and hold harmless, us, XCel Inc Ltd. and our distributors, partners, agents, sponsors, and service providers and their group companies from and against the costs of any legal action taken to enforce this Agreement, including these Terms and Conditions and/or any breach of these Terms and Conditions by you.

DISPUTES AND INCORRECT TRANSACTIONS

• If you have a reason to believe that a Transaction on your Account was unauthorised or was made incorrectly, you must inform us immediately by contacting Customer Services, but in any event within 13 months of the date of the relevant Transaction
• If you dispute a Transaction:
• (i) subject to (ii) and (iii) we will immediately refund the amount to your Account to the position it would have been in if the unauthorised Transaction had not taken place. We will have no further liability to you. If we subsequently discover that you were not entitled to a refund, we shall treat the refund as a mistake and be entitled to reapply the Transaction.
• if there are reasonable grounds for thinking that you may not be entitled to a refund (based on the evidence available to us at the time you report the unauthorised Transaction), we may investigate before giving you a refund and we will provide you with our supporting evidence if we believe you are not entitled to the refund.
• if the Transaction was initiated through a TPP, it is for the TPP to prove that, the Transaction was authenticated, accurately recorded and not affected by a technical breakdown or other deficiency linked to the TPP’s payment initiation service.
• If an incorrect Transaction is paid into your Account that should not have, we will, where possible, immediately send the funds back to the bank acting for the person from whose account the Transaction was made. In such circumstance you agree to return the funds to us and provide such assistance that we require in recovering the amount from you. If we cannot recover the funds, we are required to provide sufficient details about you and the incorrect payment to the bank or institution that sent the payment to enable them to recover the funds.
• You will be liable for all Transactions made from your Account if you have acted fraudulently.

VARIATION

• We may change these Terms and Conditions by providing you with at least two months’ prior notice by e-mail (provided you have supplied us with an up-to-date e-mail address) but are not obligated to, it is your duty to refer back to this agreement often and decide if the terms are agreeable to you.
• If you do not agree with the changes to the Terms and Conditions, you may at any time within the two months’ notice period notify us and these Terms and Conditions will be terminated, and your Account closed. If you do not notify us to the contrary during this period, then you will be deemed to have accepted the change and it will apply to you when it comes into force.
• If any part of these Terms and Conditions are inconsistent with any legal requirements, then we will not rely on that part but treat it as if it did reflect the relevant legal requirement. If we need to make operational changes before, we can fully comply with the new regulatory requirement, we will make those changes as soon as reasonably practical.

TERMINATION OR SUSPENSION

• We can terminate your Account at any time if we give you two months’ notice and transfer any Available Balance at the time to your nominated bank account without a charge, or
• We can suspend or terminate your Account at any time with immediate effect (and until your default has been remedied or the Agreement terminated) without any prior notice to you if:
  • we discover any of the Information that we hold for you is materially incorrect; or
  • if we have reason to believe that you, the Account Manager or a third party has committed or is about to commit a crime or other abuse (including fraud) in connection with your Account; or
  • if you have reached your Account Limit; or
  • you or the Account Manager have breached these Terms and Conditions
• In the event that we do suspend or terminate your Account then if we are able to do so, we will tell you in advance otherwise we will let you know immediately afterwards (to the extent the we are permitted by law).

OUR LIABILITY

• Our liability in connection with this these Terms and Conditions (whether arising in contract, tort (including negligence), breach of statutory duty or otherwise) shall be subject to the following exclusions and limitations:
  • we shall not be liable for any default resulting directly or indirectly from any cause beyond our control, including but not limited to, a lack of funds;
  • we shall not be liable for any loss of profits, loss of business, or any indirect, consequential, special or punitive losses;
  • where sums are incorrectly deducted from your Available Balance due to our default, our liability shall be limited to payment to you of an equivalent amount to that which was incorrectly deducted from your Available Balance;
  • in all other circumstances of our default, our liability will be limited to transferring any Available Balance to your nominated bank account.
• In circumstances where sums are incorrectly deducted from your Available Balance due to our fault, if we require your support to enable us to recover the incorrect deduction, you agree to provide us with all assistance that we reasonably require
• Nothing in these Terms and Conditions shall exclude or limit our liability for death or personal injury resulting from our negligence or fraud.
• To the extent permitted by law, all conditions or warranties implied by law, statute or otherwise are expressly excluded.
• The above exclusions and limitations set out in this paragraph shall apply to any liability of our affiliates and other suppliers, contractors, agents or distributors and any of their respective affiliates (if any), to you, which may arise in connection with these Terms and Conditions.

YOUR LIABILITY

• You understand and expressly agree that XCel Inc Ltd. shall not be responsible for any direct, indirect, incidental, special, consequential, exemplary or punitive damages, including but not limited to, damages for loss of profit, goodwill, use, data, or other intangible losses (even if XCel Inc Ltd. has been advised of the possibility of such damages and whether such claim is based on warranty, contract, tort, including negligence or otherwise) resulting from:
  • the use or the inability to use the product and service;
  • the cost of procurement of substitute goods and services resulting from any goods, data, information or services purchased or obtained or messages received, or transactions entered through or from the service;
  • unauthorized access to alteration of your transmissions or data;
  • statements or conduct of any third-party on the service; or
  • any other matter relating to the service.
  such limitation of liability shall apply whether the damages arises from use or misuse of and reliance on XCel and third party software made available in conjunction with or through this site, or from the interruption, suspension or termination of XCel Inc Ltd. and third party software made available through the site (including such damages incurred by third parties). Such limitation shall apply notwithstanding a failure of essential purpose of any limited remedy and to the fullest extent permitted by law.

YOUR INFORMATION

• Some personal data will be necessary for us to provide you with the Account and services under this Agreement. XCel Inc Ltd. is a Data Controller and shall only use your personal data for this purpose. Please see the Privacy Policy (please contact Customer Services for details of where to access this) for full details on the personal data that we at XCel Inc Limited hold, how we will use it and how we will keep it safe.
• You must update any changes to your Information either through the app where possible or by contacting Customer Services.
• If we discover that the Information, we hold about you is incorrect, we may have to suspend or cancel your Account until we can establish the correct Information, in order to protect us both.
• If you or the Account Manager allow or give consent to an Authorized Third Party Provider to access your Account to provide their services, you should know that we have no control over how an Authorized Third Party Provider will use your information nor will we be liable for any loss of information after an Authorized Third Party Provider have access to your information.

COMPLAINTS PROCEDURE

• Complaints regarding any element of the service provided by us can be sent to Customer Services.
• All complaints will be subject to our complaint’s procedure. We will provide you with a copy of our complaint’s procedure upon request and, if we receive a complaint from you, a copy of our complaint’s procedure will automatically be posted or emailed to you.
• In most cases we will provide a full response by email to your complaint within fifteen business days after the date we receive your complaint. In exceptional circumstances where we are unable to respond in full to your complaint, we will inform you of this giving our reasons for the delay and the timeframe within which you will receive a full reply, which in any event shall be within thirty-five days of the date we received your complaint.

GENERAL

• Any delay or failure to exercise any right or remedy under these Terms and Conditions by us shall not be construed as a waiver of that right or remedy or preclude its exercise at any subsequent time.
• If any provision of these Terms and Conditions is deemed unenforceable or illegal, the remaining provisions will continue in full force and effect.
• You may not assign or transfer any of your rights and/or benefits under these Terms and Conditions and you shall be the sole party to the contract between us. You will remain liable until the Account issued to you is terminated. We may assign our rights and benefits at any time without prior written notice to you. We may subcontract any of our obligations under these Terms and Conditions.
• No third party who is not a party to these Terms and Conditions has a right to enforce any of the provisions in these Terms and Conditions and the Contracts (Rights of Third Parties) Act 1999 shall not apply
• These Terms and Conditions contain the information set out in Schedule 4 of the Payment Service Regulations 2017 and you can obtain a copy of this Agreement at any time by contacting Customer Services.
• These Terms and Conditions are governed by English law and you agree to the exclusive jurisdiction of the courts of England and Wales.
• The Financial Services Compensation Scheme is not applicable for this Account. No other compensation schemes exist to cover losses claimed in connection with your Account. As a responsible e-money issuer, we will ensure that once we have received your funds they are deposited in a secure account, specifically for the purpose of redeeming Transactions made from your Account. If we become insolvent funds that you have loaded which have arrived with and been deposited by us are protected against the claims made by our creditors.

DISCLAIMER OF WARRANTIES

• The information, services and products posted on this site from time to time are provided “as is” with no warranties whatsoever. XCel Inc Ltd. hereby expressly disclaim to the fullest extent permitted by law, all express, implied and statutory warranties, including without limitation, warranties as to merchantability, fitness for a particular purpose, and non-infringement of proprietary rights. XCel Inc Ltd. and all third parties who make their software available in conjunction with or through this site hereby disclaim any warranties regarding the security, reliability, timeliness and performance of any product or service posted on this site.
• You understand, acknowledge and agree that you download and/or use our services and all third party software made available through this site at your own discretion and risk and that you are solely responsible for any damages to your computer or loss of data or other loss of any description that may result from the download or use of XCel Inc Ltd. or third party software.

TRADEMARK INFORMATION

The name XCel and XCel’s logo are registered trademarks of XCel Inc Limited.

COPYRIGHTS

• XCel Inc Limited respects the intellectual property of others, and we require our customers to do the same. If you have cause to believe that your work or intellectual property has been copied in any way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please provide our webmaster with the following information:
  • An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
  • A description of the copyrighted work or other intellectual property that you feel has been infringed;
  • A description of the location (on the site) of the infringing material;
  • Your regular address, telephone number and e-mail address;
  • A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agents, or the law;
  • A statement by you, made under penalty of perjury, that the information supplied pursuant to the foregoing points is accurate and that you are the copyright or intellectual property owner or person authorized to act on behalf of the copyright or intellectual property owner.
• XCel agent for Notice of Claims of Copyright or other Intellectual Property can be reached through info@xcelapp.com
• The foregoing Terms of Service represents the entire agreement between you and XCel Inc Ltd. It defines and governs your use of the Service, superseding and replacing all prior or contemporaneous understandings or agreements, whether written or oral, between you and XCel Inc Limited. Any waiver of any provision of these Terms of Service will be effective only if it is in writing and signed by XCel Inc Ltd. and/or any third party who makes its software available through this site. However, you agree that you are subject to additional terms and conditions that may apply when you use affiliate services, third-party matters or third-party software.
• The Terms of Service and the relationship between you and XCel Inc Ltd. shall be governed by the laws of the England and Wales without regard to its conflict of law provisions. You and XCel Inc Ltd. agree to submit to the personal and exclusive jurisdiction of the courts located within the United Kingdom.
• The failure of XCel Inc Ltd. to enforce or exercise any right or provision of the Terms of Service shall not constitute a waiver of such right or provision or prevent a subsequent enforcement of that or any other right or provision. If any provision of the Terms of Service is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provisions and that all other provisions of the Terms of Service shall remain in full force and effect.
• You agree that regardless of any provision of any statute or law to the contrary, any claim or cause of action arising out of or related to the use of the Service or the Terms of Service must be filed within one (1) year after such claim or cause of action arose failing which same is without exception, barred and extinguished.