Terms & Conditions

“Affiliate” means any business entity from time to time Controlling, Controlled by, or under common Control with, either party; 

“Agreement” means the terms set out in the clauses and other provisions of this document (including the applicable Order Form) as updated from time to time; 

“Additional Authorised User Fee” means the fees detailed as such in the Order Form;

“Authorised Users” means the users authorised by the Customer to use the Service in accordance with the terms of this Agreement; 

“Base SaaS Fees” means the fees detailed as such in the Order Form;  

“Business Day” means a day other than a Saturday, Sunday or bank or public holiday in England; 

“Contract Year” shall mean the 12-month period commencing on the Effective Date and each subsequent 12-month period thereafter during the Term of this Agreement;  

“Control” for the purpose of the definition of “Affiliate”, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a company or other business entity, whether through the ownership of shares or voting securities (including without limitation through ownership of more than fifty percent (50%) of the shares or securities of an entity entitled to elect directors), contract or otherwise; and “Controls”, “Controlled” and “Controlling” shall be construed accordingly;   

“Customer Data” means all data, including Personal Data, (in any form) that is provided to Kennek or uploaded or hosted on any part of the Services by the Customer or by any Authorised User (but excluding Feedback); 

“Customer Dependencies” means any obligations, actions, approvals, and deliverables for which the Customer is responsible; 

“Data Processing Agreement” means the Kennek data processing agreement detailed in Schedule 2 of this Agreement; 

“Data Protection Legislation” means (a) any law, statute, declaration, decree, directive, legislative enactment, order, ordinance, regulation, rule or other binding restriction (as amended, consolidated, or re-enacted from time to time) which relates to the protection of individuals with regards to the processing of personal data to which a party is subject, including (i) the UK Data Protection Act 2018, (ii) the General Data Protection Regulation (EU) 2016/679 as transposed into United Kingdom national law by operation of section 3 of the European Union (Withdrawal) Act 2018 (“UK GDPR”), (iii) the Privacy and Electronic Communications (EC Directive) Regulations 2003; and (b) any code of practice or guidance published by the UK Commissioner’s Office (or equivalent regulatory body) from time to time; 

“Documentation” means in respect of the SaaS Services, any relevant instructions as to how to use the SaaS Services or other documentation made available by Kennek from time to time; 

“Dormant Loan” means any loan for which there has been no activity on the SaaS Service for a period of 365 consecutive days; 

“Effective Date” means the date specified on the Order Form on which the Services are intended to commence; 

“Estimated Completion Date” means the estimated date as supplied by Kennek to the Customer in writing by which Kennek is to provide the SaaS Services ready for activation, testing and deemed by Kennek to conform with the Specification;  

“Exit Assistance” has the meaning given to it in Clause 14.4;  

“Exit Period” has the meaning given to it in Clause 14.4;  

“Exit Services” has the meaning given to it in Clause 14.4;  

“Fees” means the fees payable by the Customer in consideration of the Services as set out in an Order Form or otherwise agreed between the parties in writing, including the Base SaaS Fees; Usage Fees; and Onboarding Fees and where applicable, the Additional Authorised User Fee; 

“Force Majeure” means an event or sequence of events beyond a party’s reasonable control preventing or delaying it from performing its obligations under this Agreement (provided that an inability to pay is not Force Majeure), including any matters relating to transfer of data over public communications networks and any delays or problems associated with any such networks or with the internet;

“Further Term” has the meaning given to it in Clause 14.1; 

“Initial Term” has the meaning given to it in the Order Form; 

“Intellectual Property Rights” means any and all copyright, rights in inventions, patents, know-how, trade secrets, trade marks and trade names, service marks, design rights, rights in get-up, database rights and rights in data, topography rights, utility models, domain names and all similar rights and, in each case; 

“Live Loan” means a loan that has not been closed and is not a Dormant Loan;  

“Locations” means the locations listed in the Order Form; 

“Onboarding Fees” means the fees detailed as such in the Order Form; 

“Onboarding Services” means the onboarding and implementation services to be provided by Kennek under the terms of this Agreement; 

“Order Form” means the order details that references these terms;

“Payment” means any faster payment, Bacs, direct credit (inbound), Bacs direct debit (inbound) or SEPA credit transfer; 

“Personal Data” means any information relating to an identified or an identifiable natural person; 

“Quarter” means each three-month period commencing on 1 January, 1 April, 1 July, and 1 October in each calendar year, with the first day of each such period referred to as the start date of the relevant Quarter and the last day of each such period referred to as the end date of the relevant Quarter; 

“SaaS Services” means the services detailed as such in the Order Form;  

“Service Level Agreement” means the service levels set out in Schedule 1 of this Agreement  and any updated versions of the service levels as may be provided by Kennek to the Customer from time to time;  

“Services” means the Saas Services, the Onboarding Services, and the Support Services;  

“Specification” means the description of the functionality of the SaaS Services as exhibited by Kennek to the Customer from time to time;  

“Support Services” shall have the meaning given to it in Clause 3.4;  

“Term” means the Initial Term and each Further Term; 

“Usage Fees” means the fees detailed as such in the Order Form; 

“VAT” means United Kingdom value added tax, any other tax imposed in substitution for it and any equivalent or similar tax imposed outside the United Kingdom; and 

“Website” means the Kennek website at https://app.kennek.ai/ where the SaaS Services can be accessed. 

1.2.1 the background section and the clause, paragraph, schedule or other headings in this Agreement are included for convenience only and shall have no effect on interpretation;

1.2.2 Kennek and the Customer are together the parties and each a party, and a reference to a ‘party’ includes that party’s successors and permitted assigns; words in the singular include the plural and vice versa; any words that follow ‘include’, ‘includes’, ‘including’, ‘in particular’ or any similar words and expressions shall be construed as illustrative only and shall not limit the sense of any word, phrase, term, definition or description preceding those words; and 

1.2.3 a reference to ‘writing’ or ‘written’ includes any method of reproducing words in a legible and non-transitory form (including email). 

2.1 Subject to the payment of the Fees and in consideration of the terms and conditions of this Agreement, Kennek hereby grants the Customer and its Authorised Users a non-exclusive, non-transferable, non-sublicensable right during the Term to access and use the Services and any Documentation in the Locations for the purposes envisaged in this Agreement. 

3.1 During the Term, Kennek shall provide the Services and make available the Documentation to the Customer in accordance with and subject to the terms of this Agreement. 

3.2 Kennek shall use reasonable skill and care when performing the Services under this Agreement. 

3.3 Kennek will use reasonable endeavours to notify the Customer in advance of any scheduled maintenance to the SaaS Services, but the Customer acknowledges that it may receive no advance notification for downtime caused by Force Majeure or for other emergency maintenance. 

3.4 Kennek shall provide certain support services related to using the SaaS Services, as set out in the Service Level Agreement (“Support Services”). 

3.5 The Customer acknowledges and agrees that Kennek is under no obligation to implement or include in the SaaS Services any enhancement requests or customisation requests submitted by the Customer in relation to the SaaS Services. 

4.1 Kennek shall provide the Onboarding Services to the Customer with reasonable diligence and with reasonable skill and expertise.  

4.2 The Customer shall comply with Kennek’s reasonable instructions to ensure timely delivery of the Onboarding Services.  

4.3 The Customer shall carry out all Customer Dependencies in accordance with this agreement.  

4.4 Kennek shall use reasonable endeavours to provide the SaaS Services ready by the Estimated Completion Date.  

4.5 If Kennek’s performance of the Onboarding Services is delayed at the request of the Customer, or because of the Customer’s acts or omissions (including any failure by the Customer to meet the Customer Dependencies), then any estimated delivery dates shall be amended to take account of such delay.  If Kennek can demonstrate that the delay has resulted in an increase in cost to Kennek of carrying out the Onboarding Services, Kennek may, at its sole discretion, increase the Onboarding Fees by an amount not exceeding any such demonstrable cost. 

4.6 In the event that the SaaS Services are not ready at the Estimated Completion Date due to a failure by Customer Dependencies, Kennek shall charge and Customer shall pay the Base SaaS Fees from the date agreed on the Order Form.

5.1 The SaaS Services and Documentation can be accessed through the Website. 

5.2 In order to access or receive the SaaS Services, the Customer and its Authorised Users must create a Kennek account. 

5.3 When registering an account, Kennek requires certain information relating to the Customer and the Authorised User. This information must be accurate, current, and complete. Customer agrees to keep this information up to date. Kennek shall use this information in accordance with its privacy policy currently available at https://kennek.io/privacy-policy. 

5.4 Customer must ensure that any user IDs, passwords, and other access credentials for the Services are kept strictly confidential and not shared with any unauthorised person. If any password has been provided to an individual that is not an Authorised User, the Customer shall notify Kennek immediately. 

6.1 The Customer shall ensure that only Authorised Users use the Services and that such use is at all times in accordance with this Agreement. 

6.2 The Customer shall: 

6.2.1 be liable for the acts and omissions of the Authorised Users as if they were its own; 

6.2.2 only provide Authorised Users with access to the Services via the access method provided by Kennek and shall not provide access to (or permit access by) anyone other than an Authorised User; and 

6.2.3 procure that each Authorised User is aware of, and complies with, the obligations and restrictions imposed on the Customer under this Agreement, including all obligations and restrictions relating to Kennek’s Confidential Information. 

6.3 The Customer warrants and represents that it, and all Authorised Users and all others acting on its or their behalf (including systems administrators), shall keep confidential and not share with any third party (or with other individuals except those with administration rights as necessary for use of the Services) their password or access details for the Services. 

6.4 The Customer shall comply (and shall ensure all Authorised Users comply) with all applicable laws, rules, and regulations governing export that apply to the Services, the Customer Data and the Documentation (or any part). 

6.5 The Customer is solely responsible for conducting ‘know your customer’ (“KYC”), anti-money laundering (“AML”), politically exposed person (“PEPS”), sanctions and other due diligence checks required by applicable law to be carried out in relation to Authorised Users (and where relevant their beneficial owners or persons acting on their behalf). The Customer acknowledges and agrees that it is solely responsible for obtaining all necessary information and permissions from Authorised Users, in order for such parties to use or access the SaaS Service. 

6.6 In the event that the number of Authorised Users exceeds the limit specified in the Order Form, Clause 7.7 shall apply. 

6.7 This Clause 6 shall survive termination or expiry of this Agreement. 

7.1 The Customer shall pay Kennek all Fees in accordance with the terms of this Agreement . Except as otherwise set forth in this Agreement, Fees are non-refundable. 

7.2 The currency of this Agreement is pounds Sterling and all amounts due under this Agreement shall be invoiced in pounds Sterling. 

7.3 To the extent applicable, the Fees are exclusive of VAT which shall be payable by the Customer at the rate and in the manner prescribed by law. All sums payable under this Agreement shall be free and clear of all deductions or withholdings whatsoever including indirect taxes, and any other applicable taxes, save only as may be required by law. If any such deductions or withholdings are required by law the party making the payment shall pay such sum as will, after such deduction or withholding has been made, leave the amount which would have been received in the absence of any such requirement to make a deduction or withholding. 

7.4 Usage Fees shall be payable from the Effective Date until the end of the Term. Kennek shall measure the number of Live Loans running in the SaaS Service at the end of each Quarter, and will calculate the Usage Fees due in accordance with the “Tiered” table set out in relation to Usage Fees in the Order Form. Usage Fees are calculated on an incremental basis. The Customer shall be charged for the highest number of loans during the relevant Quarter. Kennek shall issue an invoice for Usage Fees in arrears at the end of each Quarter.  

7.5 Onboarding Fees shall be invoiced on the date(s) detailed in the Order Form or, if no such milestones dates are detailed in the Order Form, in full on the Effective Date. 

7.6 Base SaaS Fees shall be invoiced quarterly in advance with the first invoice being issued on the Effective Date. 

7.7 In the event that Clause 6.6 applies, the Customer shall be charged an Additional Authorised User Fee as detailed in the Order Form. Kennek shall issue an invoice for the Additional Authorised User Fee in arrears at the end of each Quarter. 

7.8 All Fees shall be paid within 15 days of the date of any invoice. 

7.9 If Kennek has not received payment within ten (10) days after the due date, and without prejudice to any other rights and remedies of Kennek: 

7.9.1 Kennek may, without liability to the Customer, disable the Authorised User’s password, account and access to all or part of the Services and Kennek shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and 

7.9.2 interest shall accrue on a daily basis on such due amounts at an annual rate equal to 4% over the then current base lending rate of the Bank of England from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment. 

7.10 Kennek may increase the Fees on each anniversary of the Effective Date.  Such increase shall not exceed the percentage change in the United Kingdom Retail Price Index – all items (or any replacement index) over the previous 12-month period, plus an additional 5%.  

7.11 During the term of the Agreement and for a period of one year following its termination, the Customer shall maintain and make available to Kennek records sufficient to permit Kennek or its auditor to verify the Customer’s compliance with the terms and requirements of the agreement.  Such audit shall be performed during regular business hours. If such verification process reveals any noncompliance by the Customer with the Agreement, the Customer shall promptly cure any such noncompliance, including without limitation through the payment of any and all fees owed to Kennek provided, however, that the obligations under this Clause do not constitute a waiver of Kennek’s termination rights.  

8.1 The Customer shall (and shall ensure all its Affiliates and Authorised Users shall):  

8.1.1 at all times comply with all applicable laws and regulations with respect to its activities under this Agreement, including use or receipt of the Services; 

8.1.2 comply with Kennek’s Terms of Use, available upon request; 

8.1.3 provide Kennek with all necessary co-operation in relation to this Agreement and access to such information as may be required by Kennek in order to provide the Services; 

8.1.4 ensure that the Authorised Users use the Services and the Documentation in accordance with the terms of this Agreement; 

8.1.5 use all reasonable endeavours to prevent any unauthorised access to or use of the Services, the Documentation and, in the event of any such unauthorised access or use, shall promptly notify Kennek;  

8.1.6 provide such assistance, facilities and services as may reasonably be required by Kennek pursuant to the provision of the SaaS Service; 

8.1.7 ensure that Customer and Authorised Users have the appropriate internet service, hardware, telecommunications services, and software to access the SaaS Service; 

8.1.8 only use the SaaS Service as permitted by this Agreement; and 

8.1.9 comply with all laws, regulations, guidelines and industry codes related to its use of the Service, and other exercise of Customer’s rights and performance of its obligations under this Agreement. 

8.2 During the course of its use of the Services, and except as expressly permitted under this Agreement, the Customer shall not, and shall procure that any Authorised User shall not: 

8.2.1 knowingly access, store, distribute or transmit any viruses or malware, or any material which is unlawful, harmful, threatening, defamatory, discriminatory, explicit, obscene, or offensive; 

8.2.2 infringe any rights of third parties; 

8.2.3 disassemble, de-compile, reverse engineer or create derivative works based on the whole or any part of the Services, nor attempt to do any such things; 

8.2.4 access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation; or 

8.2.5 copy, reproduce, publish, distribute, redistribute, broadcast, transmit, modify, adapt, edit, abstract, store, archive, display publicly or to third parties, sell, licence, lease, rent, assign, transfer, disclose (in each case whether or not for charge) or in any way commercially exploit any part of the Services or otherwise make the Services and/or Documentation available to any third party (or attempt to do the same) other than as provided for under this Agreement. 

9.1 All Intellectual Property Rights in and to the Services (including any source code) and any Documentation belong to and shall remain vested in Kennek or the relevant third-party owner, including where created during the provision of Services to the Customer. To the extent that the Customer, Authorised Users or any person acting on its or their behalf acquires any Intellectual Property Rights in any part of the Services, the Customer shall assign or procure the assignment of such Intellectual Property Rights with full title guarantee (including by way of present assignment of future Intellectual Property Rights) to Kennek or such third party as Kennek may elect. The Customer shall execute all such documents and do such things as Kennek may consider necessary to give effect to this Clause 9.1. 

9.2 Kennek may use any feedback and suggestions for improvement relating to the Services as provided by the Customer, or any Authorised User without charge or limitation (“Feedback”). The Customer hereby assigns (or shall or procure the assignment of) all Intellectual Property Rights in the Feedback with full title guarantee (including by way of present assignment of future Intellectual Property Rights) to Kennek at the time such Feedback is first provided to Kennek. 

9.3 The Customer hereby waives (and shall ensure all relevant third parties have waived) all rights to be identified as the author of any work, to object to derogatory treatment of that work and all other moral rights in the Intellectual Property Rights assigned to Kennek under this Agreement. 

9.4 Except for the rights expressly granted in this Agreement, the Customer or any Authorised User, and their direct and indirect sub-contractors, shall not acquire in any way any title, rights of ownership, or Intellectual Property Rights of whatever nature in the Services and no Intellectual Property Rights of either party are transferred or licensed as a result of this Agreement. 

9.5 This Clause 9 shall survive the termination or expiry of this Agreement. 

10.1 Customer Data shall at all times remain the property of the Customer or its licensors. 

10.2 Except to the extent Kennek has direct obligations under Data Protection Legislation, the Customer acknowledges that Kennek has no control over any Customer Data hosted as part of the provision of the Services. The Customer shall ensure (and is exclusively responsible for) the accuracy, quality, integrity and legality of the Customer Data and that its use (including use in connection with the Services) complies with this Agreement and all applicable laws. 

10.3 If  Kennek becomes aware of any allegation that any Customer Data may not comply with any other part of this Agreement, Kennek shall have the right to permanently delete or otherwise remove or suspend access to any Customer Data which is suspected of being in breach of any part of the Agreement and/or disclose Customer Data to law enforcement authorities (in each case without the need to consult the Customer).  

10.4 Kennek shall have the right to use Customer Data in aggregated and anonymised forms solely for the purposes of: 

10.4.1 developing, improving, and optimising the Services; 

10.4.2 enhancing the functionality, performance, and user experience of the Services; and 

10.4.3 conducting research and analysis.

10.5 To the extent Kennek processes any Personal Data on behalf of the Customer, the terms of the Data Processing Agreement shall apply to such processing.   

11.1 Although Kennek will use reasonable endeavours to ensure that availability of the Services will be uninterrupted and error-free, this cannot be guaranteed. The Services may be subject to delays, interruptions, errors or other problems resulting from use of the internet or public electronic communications networks used by the parties or third parties. The Customer acknowledges that such risks are inherent in cloud services and that Kennek shall have no liability for any such delays, interruptions, errors or other problems. 

11.2 The Customer assumes sole responsibility for results obtained from the use of the Services and the Documentation by the Customer, and for conclusions drawn from such use.  Kennek shall have no liability for any damage caused by errors or omissions in any information provided to Kennek by the Customer in connection with the Services, or any actions taken by Kennek at the Customer’s direction.  

11.3 Other than as set out in this Agreement, all warranties, representations, conditions, terms, undertakings or obligations whether express or implied and including any implied terms relating to quality, fitness for any particular purpose, ability to achieve a particular result or that information is accurate, complete or up to date are excluded to the fullest extent allowed by applicable law. 

11.4 Kennek shall not be liable for consequential, indirect or special losses. 

11.5 Kennek shall not be liable for any of the following (whether direct or indirect): 

11.5.1 loss of profit; 

11.5.2 loss of use; 

11.5.3 loss of production; 

11.5.4 loss of contract; 

11.5.5 loss of opportunity; 

11.5.6 loss of savings, discount or rebate (whether actual or anticipated); and/or 

11.5.7 harm to reputation or loss of goodwill. 

11.6 Kennek’s total aggregate liability in each Contract Year howsoever arising under or in connection with this Agreement shall not exceed an amount equal to the total Fees paid by the Customer to Kennek under this Agreement during the applicable Contract Year in which the event giving rise to the liability occurred. . 

11.7 Notwithstanding any other provision of this Agreement, Kennek’s liability shall not be limited in any way in respect of the following: 

11.7.1 death or personal injury caused by negligence; 

11.7.2 fraud or fraudulent misrepresentation; or 

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

11.8 This Clause 11 shall survive the termination or expiry of this Agreement. 

12.1 The Customer acknowledges that Kennek shall be entitled to modify the features and functionality of the Services without notice to Customer.  Kennek shall use reasonable endeavours to ensure that any such modification does not materially adversely affect the use of the Services by Kennek’s customers generally.  

12.2 Kennek reserves the right to update, modify, or amend the Terms and Conditions at its sole discretion. Any such updates will become effective upon being posted on the Website. 

12.3 If Kennek makes any material changes to the Terms and Conditions, it will provide reasonable notice to the Customer via email or other electronic means before such changes take effect. Continued use of the Services following such notification constitutes acceptance of the updated Terms and Conditions. 

12.4 The Customer is responsible for regularly reviewing the Terms and Conditions on the Website. If the Customer does not agree to any changes, they may terminate their use of the Services in accordance with the termination provisions of this Agreement. 

13.1 Kennek may suspend access to the SaaS Services to all or some of the Authorised Users if: 

13.1.1 Kennek suspects that there has been any misuse of the SaaS Services or breach of this Agreement; or 

13.1.2 the Customer fails to pay any sums due to Kennek in accordance with Clause 7. 

13.2 Fees shall remain payable during any period of suspension notwithstanding that the Customer, or all of the Authorised Users may not have access to the SaaS Services. 

13.3 Kennek will resume the provision of the SaaS Services, and the Customer and the relevant Authorised Users shall be provided with access to the Services once the reason for suspension has been resolved to Kennek’s satisfaction and full payment has been received.  

14.1 This Agreement shall come into force on the Effective Date and shall continue for the Initial Term, after which point its shall automatically renew for twenty-four (24) month periods (each a “Further Term”) unless either Party provides notice to terminate the Agreement to the other Party at least ninety (90) days before the end of the current Initial Term or Further Term (as applicable). 

14.2 Subject to Clause 14.4 on termination or expiry of this Agreement (for any reason), the rights granted by Kennek under this Agreement shall terminate and the Customer shall (and shall procure that each Authorised User shall): 

14.2.1 stop using the Services and any Documentation; and 

14.2.2 make payment of all Fees properly due and payable up to the date of termination. 

14.3 Termination or expiry of this Agreement shall not affect any accrued rights and liabilities of either party at any time up to the date of termination or expiry, and shall not affect any provision of this Agreement that is expressly or by implication intended to continue beyond termination. 

14.4 Upon written request by Customer made either (i) at the time of Customer’s notice of termination or (ii) thirty days prior to the termination date of this Agreement; subject to Customer paying all applicable Fees in advance, Kennek shall continue to provide the SaaS Service and Support Services (“Exit Services”) for a period of up to 12 months after the termination date (“Exit Period”).  During the Exit Period, Kennek will provide cooperation and assistance as requested by Customer to support an efficient and orderly transition to another provider of similar software, services, or to Customer’s internal operations (“Exit Assistance”). Such Exit Assistance will be based on Kennek’s then-current rates for consulting services and Exit Assistance will be charged separately and in addition to the fees detailed in this Agreement. . Notwithstanding the foregoing, in the event of termination of this Agreement by Kennek for breach by Customer, Kennek may withhold the provision of Exit Services and Exit Assistance and condition further performance upon (i) payment of undisputed fees then owed, (ii) prepayment of fees for further services, and (iii) receipt by Kennek of an officer’s certificate from Customer certifying ongoing compliance with the terms of this Agreement during the Exit Period. 

15.1 Provided that it has complied with Clause 15.2, if a party is prevented, hindered or delayed in or from performing any of its obligations under this Agreement by a Force Majeure event (the “Affected Party”), the Affected Party shall not be in breach of this Agreement or otherwise liable for any such failure or delay in the performance of such obligations. 

15.2 The Affected Party shall: 

15.2.1 as soon as reasonably practicable after the start of the Force Majeure event, notify the other party in writing of such Force Majeure event, the date on which it started, its likely or potential duration, and the effect of such Force Majeure event on its ability to perform any of its obligations under this Agreement; and 

15.2.2 use all reasonable endeavours to mitigate the effect of the Force Majeure event on the performance of its obligations. 

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

16.2 The Customer hereby grants to Kennek a non-exclusive, royalty-free and revocable licence to display Customer’s name and logo listing Customer as a client in Kennek’s marketing materials, website and pitch presentations. The parties shall work in good faith to mutually agree a public press release that may be issued by Kennek within 7 days following execution of this Agreement. With Customer’s prior written consent (email being sufficient), Kennek may publish a case study detailing Customer’s adoption of the SaaS Service.    

16.3 Each party acknowledges that it has not entered into this Agreement in reliance on, and shall have no remedies in respect of, any representation or warranty that is not expressly set out in this Agreement. 

16.4 During the Term and for a period of 12 months after this Agreement ends, the Customer shall not, nor shall it attempt to, solicit or entice away, whether directly or indirectly, any of Kennek’s personnel who are working on services related to this Agreement, from the employment or service of Kennek. The preceding sentence shall not prevent Customer from undertaking in good faith a national advertising campaign that is open to all applicants and is not targeted at Kennek’s personnel. 

16.5 This Agreement may be executed in any number of counterparts, each of which when executed and delivered shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement. 

16.6 Any notice given by Kennek or the Customer under this Agreement shall be: 

16.6.1 in writing and in English; and 

16.6.2 sent in writing to the other party using those contact details given in the Order Form. 

16.7 Any notice shall be deemed to have been delivered: 

16.7.1 if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; 

16.7.2 if sent by pre-paid first-class post or other next working day delivery service, at 9.00am on the third Business Day after posting or at the time recorded by the delivery service; or 

16.7.3 if sent by email, at the time of transmission (unless the time of transmission occurs outside of normal business hours, in which case the notice shall be deemed to have been delivered at 8.00am on the following Business Day). 

16.8 Any change to the contact details of a party as set out in the Order Form shall be effective: 

16.8.1 on the date specified in the notice as being the date of such change; or 

16.8.2 if no date is so specified five (5) Business Days after the notice is deemed to be received. 

16.9 No variation of this Agreement shall be valid or effective unless it is made in writing, refers to this Agreement and is duly signed or executed by, or on behalf of, each party. 

16.10 Except as expressly provided in this Agreement, Kennek may at any time assign, sub-contract, sub-licence, transfer, mortgage, charge, declare a trust of or deal in any other manner with any or all of its rights or obligations under this Agreement.  Kennek shall remain liable for the acts and omissions of any sub-contractor as if it were its own.  

16.11 Except as expressly permitted by this Agreement, the Customer shall not assign, transfer, sub-contract, sub-licence, mortgage, charge, declare a trust of or deal in any other manner with any or all of its rights or obligations under this Agreement (including the licence rights granted), in whole or in part, without Kennek’s prior written consent. 

16.12 Kennek and the Customer are independent and are not partners or principal and agent and this Agreement does not establish any joint venture, trust, fiduciary or other relationship between them, other than the contractual relationship expressly provided for in it. Neither party shall have, nor shall represent that it has, any authority to make any commitments on the other party’s behalf. 

16.13 If any provision of this Agreement (or part of any provision) is or becomes illegal, invalid or unenforceable, the legality, validity and enforceability of any other provision of this Agreement shall not be affected. 

16.14 If any provision of this Agreement (or part of any provision) is or becomes illegal, invalid or unenforceable but would be legal, valid and enforceable if some part of it was deleted or modified, the provision or part-provision in question shall apply with such deletions or modifications as may be necessary to make the provision legal, valid and enforceable. In the event of such deletion or modification, the parties shall negotiate in good faith in order to agree the terms of a mutually acceptable alternative provision. 

16.15 No single or partial exercise of any right, power or remedy provided by law or under this Agreement shall prevent any future exercise of it or the exercise of any other right, power or remedy. 

16.16 A waiver of any term, provision, condition or breach of this Agreement shall only be effective if given in writing and signed by the waiving party, and then only in the instance and for the purpose for which it is given. 

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

17.1 This Agreement and any dispute or claim arising out of, or in connection with, it, its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, English law. 

17.2 The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of, or in connection with, this Agreement, its subject matter or formation (including non-contractual disputes or claims).  

Schedule 1: Service Level Agreement 

1.1 In this Schedule 1, the following terms have the following meanings: 

2.1 Kennek will use commercially reasonable efforts to ensure that availability of a Platform Component is equal to or greater than the relevant Availability SLA for such Platform Component set out in paragraph 2.2 below, measured as follows: 

“Platform Component Availability” = (A-B) x 100 
                                A  

Where: 

A is the total Platform Component uptime in Normal Working Hours in the relevant month; 

B is the number of Normal Working Hours during which the Platform Component is unavailable in the relevant month. 

3.1 If any Platform Component fails to meet or exceed its Availability SLA in 3 consecutive months (“Service Failure”), the Customer shall be entitled to the service credit specified in the table below (each a “Service Credit”) on submitting a written claim for such Service Credit:  

1.2 The parties acknowledge that each Service Credit is proportionate when considering the Customer’s legitimate interest to address and resolve availability issues as quickly as possible. 

1.3 The provision of a Service Credit shall be an exclusive remedy for a particular Service Failure and the Service Credits described in the table above are not cumulative so that either 15% or 20% is the applicable percentage payable depending on the number of Service Failures. 

1.4 Service Credits shall be shown as a deduction from the amounts due from the Customer to Kennek in invoices issued in respect of the next Further Term. Service Credits shall be apportioned over the Further Term such that they do not form more than 50% of the original invoice value.  

1.5 Service Credits cannot be “rolled over” or accumulated and have no intrinsic monetary value.  Kennek shall not in any circumstances be obliged to pay any money or make any refund to the Customer. 

1.1 Kennek shall provide qualified personnel during Normal Working Hours to provide advice, consultation and assistance via phone, email or chatbot to Authorised Users in relation to the use of the Platform and the reporting of faults. 

1.2 The Customer shall ensure an appropriate number of employees are trained to deal with the day to day support of the Platform.  Where the Customer trained employees are unable to resolve the problem they shall communicate this to Kennek via email at help@kennek.io. 

5.1 All Faults shall be reported by email, one Fault per email. Kennek shall acknowledge receipt of the Fault report within 1 hour.   

5.2 In the event of a Fault coming to the attention of the Customer it shall: 

5.2.1 make a reasonable preliminary unilateral assessment of the Fault in question; 

5.2.2 report such Fault to Kennek as soon as reasonably practicable; 

5.2.3 ensure that the Fault is reproducible on more than one machine. A Fault will be common to all machines. If it can only be produced on one machine then the problem exists in the configuration of the individual workstation, support for which is not covered by this Agreement; and 

5.2.4 provide full information concerning the Fault in writing, including but not limited to the following: 

(1) full text of any message(s) displayed; 

(2) all the steps required reproducing the Fault; 

(3) computer hardware; 

(4) where possible, any screenshots of the error; 

(5) exact time(s) of Fault manifestation(s); and 

(6) details of any data being accessed at the time of the Fault (for example, any record reference that could identify the data being accessed). 

5.3 In the event of a Fault coming to the attention of Kennek, Kennek shall: 

5.3.1 log the report of such Fault upon discovery of such Fault; 

5.3.2 where possible determine the priority and the nature of any such Fault;  

5.3.3 if Kennek determines it is a P1 – Major Incident or P2 – Urgent Incident, inform the Kennek incident manager who will triage the Fault appropriately; 

5.3.4 provide telephone and/or email assistance to the Customer in relation to such Fault and if appropriate attempt to remedy such Fault in accordance with paragraph 6 below. 

6.1 Upon a Fault being reported to Kennek, Kennek shall determine the priority of the Fault and where possible suggest an immediate remedy for the Fault, failing which Kennek shall assign an internal log number to the Fault and use commercially reasonable endeavours to: 

6.1.1 remedy the Fault if possible; or 

6.1.2 implement a temporary solution for circumventing a Fault until a permanent remedy becomes possible (“Workaround”),  

for P1 – Major Incident, P2 – Urgent Incident and P3 – Limited Incident, within the following target periods calculated from the time when the Fault first came to the attention of Kennek: 

6.2 In the table above, "hours” refer to Normal Working Hours save that for P1 – Major Incidents and P2 – Urgent Incidents reported during Normal Working Hours, Kennek shall continue working on a solution even after Normal Working Hours. 

6.3 Kennek shall have the right (which may be exercised in Kennek’s sole discretion) to charge the Customer an additional support fee for any support provided to the Customer or its Authorised Users in respect of Faults outside of P1 – Major Incidents or P2 – Urgent Incidents, and such charges will be based on a time and materials basis at Kennek’s then current standard charging rates in force. 

6.4 Enhancement requests will be considered but will not necessarily be included in future releases of the Platform. 

7.1 Support for all issues other than a “Fault” (including deployments, supporting customer deployments, supporting configuration, and managing third party integrations) will be charged on a time and materials basis at Kennek’s then current charging rates. 

7.2 The Support Services relate to the Platform and not to any development or configuration of the Platform carried out for the Customer. Any maintenance and support relating to the development or configuration of the Platform carried out for the Customer will be provided on a time and materials basis at Kennek’s then current charging rates. 

7.3 Maintenance and support services are excluded from the Support Services to the extent that they are necessitated by: 

7.3.1. any fault of the Authorised Users; 

7.3.2. a Force Majeure event; 

7.3.3. unauthorised acts of third parties; 

7.3.4. faults in computer hardware belonging to or under the control of the Customer or Authorised Users, operating software or any other software used in conjunction with the Platform; 

7.3.5. failure due to configuration on incorrectly installed workstations; and  

7.3.6. any other cause external to the Platform, except ordinary use. 

Kennek may, at its discretion and the Customer’s request, provide maintenance and support services to the Customer that would otherwise be excluded under this Schedule 1 on a time and materials basis at Kennek’s then current charging rates. 

Schedule 2: Data Processing Addendum

1. Data Processing Terms 

1.1. Kennek shall only process the Personal Data in accordance with this Agreement, except to the extent that alternative processing instructions are agreed between the parties in writing or as otherwise required by applicable law (and Kennek shall inform the Customer of that legal requirement before processing, unless applicable law prevents it doing so). 

1.2. If Kennek believes that any instructions received by it from the Customer is likely to infringe the Data Protection Legislation, it shall inform the Customer and be entitled to cease to provide the relevant Services until the parties have agreed appropriate amended instructions which are not infringing. 

1.3. Taking into account the state of technical development and the nature of processing, Kennek shall implement and maintain the technical and organisational measures set out in the Annex (Part B) of this Schedule 2 to protect the Personal Data against accidental, unauthorised or unlawful destruction, loss, alteration, disclosure or access. 

1.4. Kennek shall: 

1.4.1. not permit any processing of Personal Data by any agent, subcontractor or other third party (except its or its sub-processors’ own employees in the course of their employment that are subject to an enforceable obligation of confidence with regards to the Personal Data) without the prior written authorisation of the Customer; 

1.4.2. prior to the relevant sub-processor carrying out any processing activities in respect of the Personal Data, appoint each sub-processor under a written contract containing materially the same obligations as under this paragraph (including those relating to sufficient guarantees to implement appropriate technical and organisational measures) that is enforceable by Kennek and ensure each such sub-processor complies with all such obligations; 

1.4.3. remain fully liable to the Customer under this Agreement for all the acts and omissions of each sub-processor as if they were its own; and 

1.4.4. ensure that all persons authorised by Kennek or any sub-processor to process Personal Data are subject to a binding written contractual obligation to keep the Personal Data confidential. 

1.5 Kennek shall: 

1.5.1. assist the Customer in ensuring compliance with the Customer’s obligations pursuant to Articles 32 to 36 of the UK GDPR (and any similar obligations under applicable Data Protection Legislation) taking into account the nature of the processing and the information available to Kennek; and 

1.5.2. taking into account the nature of the processing, assist the Customer (by appropriate technical and organisational measures), insofar as this is possible, for the fulfilment of the Customer’s obligations to respond to requests for exercising the data subjects’ rights under Chapter III of the UK GDPR (and any similar obligations under applicable Data Protection Legislation) in respect of any Personal Data. 

1.6 The Customer acknowledges and agrees that Kennek may, in the course of providing the Services, process, access or store (or permit any sub-processor to process, access or store) Personal Data outside the UK or the European Economic Area, provided that such processing takes place in accordance with legally enforceable mechanism(s) for transfers of Personal Data as may be permitted under Data Protection Legislation from time to time. 

1.7 Kennek shall, in accordance with Data Protection Legislation, make available to the Customer such information that is in its possession or control as is necessary to demonstrate Kennek’s compliance with the obligations placed on it under this Schedule 2 and to demonstrate compliance with the obligations on each party imposed by Article 28 of the UK GDPR (and under any equivalent Data Protection Legislation equivalent to that Article 28), and allow for and contribute to audits, including inspections, by the Customer (or another auditor mandated by the Customer) for this purpose (subject to a maximum of one audit request in any 12 month period under this paragraph). 

1.8 Kennek shall notify the Customer without undue delay and in writing on becoming aware of any Personal Data Breach (as defined in the UK GDPR) in respect of any Personal Data. 

1.9 At the end of the provision of the Services relating to the processing of Personal Data, at the Customer’s written request, Kennek shall either return all of the Personal Data to the Customer or securely dispose of the Personal Data (and thereafter promptly delete all existing copies of it) except to the extent that any applicable law requires Kennek to store such Personal Data.  

Schedule 2: Annex  

Part A: Particulars of Personal Data
Processing of the Personal Data by Kennek under this Agreement shall be for the subject-matter, duration, nature and purposes and involve the types of Personal Data and categories of data subjects set out below: 

1          Subject-matter of processing: 
            For the purposes of this Agreement. 

2         Duration of the processing: 
            The Term of this Agreement. 

3         Nature and purpose of the processing: 
            For the purposes of this Agreement.  

4        Type of Personal Data: 
           First name, last name, date of birth, net worth, income. 

5        Categories of Data Subjects: 
           Employees, directors, shareholders and other personnel of the Customer. 

 Part B: Technical and organisational security measures 
In accordance with the Data Protection Legislation, taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of the processing of the Personal Data to be carried out under or in connection with this Agreement, as well as the risks of varying likelihood and severity for the rights and freedoms of natural persons and the risks that are presented by the processing, especially from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to the Personal Data transmitted, stored or otherwise processed, Kennek shall implement appropriate technical and organisational security measures appropriate to the risk, including as appropriate those matters mentioned in Articles 32(1)(a) to 32(1)(d) (inclusive) of the UK GDPR. 

Regulatory Requirement

Modulr Disclaimer

Kennek Solutions Ltd is a distributor of Modulr FS Limited, a company registered in England and Wales with company number 09897919, which is authorised and regulated by the Financial Conduct Authority as an Electronic Money Institution (Firm Reference Number: 900573) for the issuance of electronic money and payment services. Your account and related payment services are provided by Modulr FS Limited. Whilst Electronic Money products are not covered by the Financial Services Compensation Scheme (FSCS) your funds will be held in one or more segregated accounts and safeguarded in line with the Electronic Money Regulations 2011 – for more information please see “UK Safeguarding Explanation”

INTRODUCED CLIENT SCHEDULE

MODULR INTRODUCED CLIENT TERMS OF BUSINESS

BACKGROUND

• Modulr is a provider of Modulr Products (as described to you by Partner Platform), which includes the provision of an electronic money account for businesses and associated payment services. The electronic money account is provided by Modulr FS. These Introduced Client Terms of Business govern the Modulr Products that Modulr agrees to provide to the Introduced Client.
• These Introduced Client Terms of Business ‎(including all the attached Schedules)‎, together with the Modulr Account Terms and Conditions set out the terms on which the Modulr Products are provided and constitute the Agreement between Modulr, Modulr FS and the Introduced Client.

THE PARTIES AGREE AS FOLLOWS

Interpretation

• In these Introduced Client Terms of Business: (a) a reference to a clause is a reference to a clause in these Introduced Client Terms of Business; (b) headings are for reference only and shall not affect the interpretation of these Introduced Client Terms of Business; (c) the singular shall include the plural and vice versa; (d) a reference to a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person's personal representatives, successors and permitted assigns; (e) a reference to a party shall include its personal representatives, successors and permitted assigns; (f) reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.

Modulr Products

• Modulr will make available to the Introduced Client such products that are provided to the Partner Platform and, as described by Partner Platform in the application process.
• The Introduced Client agrees to the Partner Platform providing all such information to Modulr who will check and verify the identity of the Introduced Client, its directors, beneficial owners and Authorised Users as required by law.
• The Introduced Client acknowledges that a search of the electoral register may take place for anti-money laundering purposes on the individuals listed in clause 2.2 above.
• The Introduced Client acknowledges that a “soft footprint” search may be placed on the electronic files of the individuals noted in clause 2.2 above by the Credit Reference Agencies and their personal details may be accessed by third parties for the specific purpose of anti-money laundering and countering the financing of terrorism (AML/CFT), identity verification and fraud prevention.
• The Account and Cards (where applicable) are provided by Modulr FS to the Introduced Client in accordance with the Modulr Account Terms and Conditions. Modulr Products provided to the Introduced Client under this Agreement are for the sole use by the Introduced Client.
• The Introduced Client can use the Account and Cards (where applicable) to make Transactions on the terms and conditions set out in the Modulr Account Terms and Conditions. A record of all Transactions relating to the Account can viewed on the Website or accessed via the Partner Platform (as applicable).
• The Introduced Client shall promptly notify Customer Services as soon as it becomes aware login and security information enabling access to its Modulr Products have been lost, stolen or compromised.
• From time to time Modulr may carry out additional checks on the Introduced Client, including the identity of its directors, beneficial owners and the nature of its business in accordance with its Due Diligence Procedure and as required by law. Modulr may contact the Introduced Client or the Partner Platform (as applicable) for such purposes. The Introduced Client agrees to provide such information as necessary.
• The Introduced Client shall comply with all legislation and regulation as it applies to the Introduced Client. Any failure to comply with relevant legislation or regulation shall be considered a material breach of the Agreement and may result in Modulr discontinuing the provision of the Modulr Products as set out in clause 6.4.
• The Introduced Client shall implement as appropriate Modulr’s reasonable security recommendations it notifies to the Introduced Client from time to time.

Authorised Users

• Access to the Modulr Products is restricted to individuals that have been designated by the Introduced Client as Authorised Users.
• The Introduced Client must notify Modulr of all individuals it wishes to be an Authorised User.
• Each Authorised User is permitted to access and use the Modulr Products in accordance with these Introduced Client Terms of Business.
• The Introduced Client will be responsible for training its Authorised Users in the appropriate use of Modulr Products.
• The Introduced Client shall ensure its Authorised Users; take all reasonable care to ensure Modulr Product access credentials, including login details to the Website, where applicable, are kept confidential to each Authorised User; and do not share any information that would enable another party to access the Introduced Client’s Account.
• The Introduced Client will be responsible for timely notification to Modulr of any revocation of Authorised User access and will be liable for Transactions made, Fees incurred and use of Modulr Products by an Authorised User until Modulr has had one full Business Day to act on any received notice. This clause shall not apply to Introduced Clients accessing Modulr Products via the Partner Platform.
• Where the Introduced Client accesses Modulr Products through a Partner Platform, such Partner Platform will be considered the Authorised User. In this instance if additional Authorised Users are required they must be requested by the Partner Platform. The use of a Partner Platform to access the Modulr Products by the Introduced Client are set out in further detail below.

Accessing Modulr Products through a Partner Platform

• In the event the Introduced Client utilizes a Partner Platform to access Modulr Products, the Introduced Client agrees and authorises the Partner Platform to instruct Modulr to access and use the Modulr Products on behalf of the Introduced Client, which shall include but not be limited to making Transactions, viewing and retrieving Transaction data, initiating refunds and closing the Account.
• The Introduced Client acknowledges and agrees that Modulr shall have no liability whatsoever with respect to the performance, availability or quality of any Partner Platform.

The Introduced Client acknowledges and agrees to the following:

• It must satisfy itself that its Platform Partner Agreement grants the Partner Platform all permission necessary to operate the Account on the Introduced Client’s behalf;
• The Platform Partner will be granted full access to operate the Introduced Client’s Account as an Authorised User of the Introduced Client;
• It is responsible for monitoring Partner Platform activities on its Account. Any queries relating to such activities will be raised with the Partner Platform directly and settled between Partner Platform and the Introduced Client;
• The Introduced Client has no recourse against Modulr for any act or omission of the Partner Platform with respect to its Account;
• The Introduced Client understands it can only access its Account to make Transactions, review Transactions made or otherwise use Modulr Products through the service provided by the Partner Platform; and
• It will only use the Account for the purpose set out in the Partner Platform Agreement.
• If the Introduced Client has any complaint or concern relating to the Account or other Modulr Products, such complaint or concern shall be raised directly to the Partner Platform, who shall deal with it in accordance with Modulr’s Complaints Policy, a copy of which is available on request from the Partner Platform and on the Website.

Customer Services

• The Introduced Client can contact Customer Services if it has any queries about the Modulr Products. Information may be requested from the Introduced Client, including but not limited to, its Authorised Users, Cardholders or Transaction information so that it can verify the identity of an Authorised User, the Cardholder and/or the Modulr Products provided to such Introduced Client.
• Any information shared by the Introduced Client will be kept strictly confidential. Where such information is provided in connection to a service provided by a third party, for example, the Account, then the Introduced Client’s information will only be used in accordance with instructions of such third party and only for the purpose of providing Customer Services to the Introduced Client on behalf of such third party.
• As part of Modulr’s commitment to providing a quality customer service, its managers periodically monitor telephone communications between its employees and Introduced Clients to ensure that Modulr’s high quality service standards are maintained. The Introduced Client consents to such monitoring and recording of telephone communications and agrees to make its Authorised Users aware of such practice.

Term and Termination

• This Agreement shall commence on the date the Introduced Client receives confirmation from Modulr or the Partner Platform (where applicable) of its successful application for Modulr Products and shall continue until terminated by the Introduced Client, Partner Platform (if acting on behalf of the Introduced Client) or Modulr.
• The Introduced Client or the Partner Platform (where applicable) may terminate this Agreement immediately by notifying Customer Services in writing by post or email.
• Modulr may terminate this Agreement and close the Introduced Client’s Account(s) by providing the Introduced Client with at least two months’ notice.
• Modulr may suspend or terminate this Agreement immediately if, for any reason, the Introduced Client (i) is unable to satisfy the Due Diligence Procedures, (ii) for breach of this Agreement, (iii) has provided false, incomplete or misleading information, (iv) has engaged in fraudulent, money laundering, terrorism financing or other illegal activity or we have reasonable suspicions in respect of same or (v) we are required to do so under any applicable law or regulation or at the direction of any regulatory, law enforcement or other competent authority. Modulr shall notify you as soon as possible, unless prohibited by law, of such suspension or termination of the Agreement.
• This Agreement will automatically terminate when all Accounts of the Introduced Client are closed (for any reason).
• Modulr may terminate or suspend this Agreement in whole or in part immediately by giving written ‎notice to the Introduced Client if Modulr ceases to provide Cards pursuant to the provisions of Schedule 
• On termination of this Agreement for any reason, any balance remaining in the Introduced Client’s Account(s) shall be returned to the Introduced Client in accordance with the Modulr Account Terms and Conditions. The Introduced Client shall pay immediately all outstanding Fees due (where applicable) under this Agreement and in the event of a negative balance in an Account, shall reimburse Modulr FS such amount equal to the negative balance.

Intellectual Property

• The Introduced Client acknowledges all Intellectual Property Rights in the Modulr Products are owned by or provided under licence to Modulr. Modulr grants the Introduced Client a non-exclusive, royalty-free licence for the duration of this Agreement to access and use the Modulr Products only for the purpose contemplated by this Agreement.
• Nothing in this Agreement shall operate to create or transfer any Intellectual Property Right to the Introduced Client.

Force Majeure

• Modulr and/or Modulr FS will not be liable for the non-performance or failure to provide any part of the Modulr Products occurring as a result of any events that are beyond the reasonable control of Modulr, for example, but not limited to, fire, telecommunications or internet failure, utility failure, power failure, equipment failure, employment strife, riot, war, terrorist attack, non-performance of third party suppliers, acts of God such as storm or lightening damage, or other causes over which Modulr and/or Modulr FS has no reasonable control.

Assignment Transfer and Subcontracting

• The Modulr Products provided to the Introduced Client are personal to the Introduced Client. The Introduced Client may not novate, assign or otherwise transfer this Agreement, any interest or right under this Agreement (in whole or in part) without the prior written consent of Modulr.
• The Introduced Client agrees Modulr may, in its sole discretion, assign, or transfer some or all of its rights and obligations or delegate any duty of performance set out in the documents forming this Agreement. Modulr may subcontract any of its obligations under this Agreement.
• In the event of any transfer of this Agreement by Modulr to another service provider; if the Introduced Client does not want to transfer to the new provider, the Introduced Client must notify Modulr of its objection in writing to Customer Services. On receipt of such notification, Modulr it will terminate this Agreement. Any balance remaining in the Introduced Client’s Account(s) will be returned to the Introduced Client in accordance with the redemption procedure set out in the Modulr Account Terms and Conditions.
• It is acknowledged by the Introduced Client that Modulr enters into this Agreement on its own behalf and as agent for and on behalf of Modulr FS with respect only to clauses 10 and 14 of these Introduced Client Terms of Business.

Liability

• Nothing in this Agreement will operate to limit either party or its agent’s liability with respect to fraud or for death or personal injury resulting from negligence, in either case whether committed by that party or its employees, agents or subcontractors.

• Modulr and Modulr FS makes no warranty that access to and use of the Modulr Products will be uninterrupted or error free.

• The Introduced Client acknowledges and agrees that Modulr and/or Modulr FS are not liable to the Introduced Client for any loss, liability or damages the Introduced Client suffers which result from, are related to, or in any way are connected with any fraud control, restriction measures or other measures implemented from time to time including as require, unless such loss, liability or damage is a direct result of Modulr and/or Modulr FS’s fraud, gross negligence or willful misconduct in procuring the implementation of fraud control or purchase restriction measures that Modulr has expressly agreed in writing to procure for the Introduced Client.
• Modulr and Modulr FS shall not be liable to the Introduced Client for any loss or damage the Introduced Client may suffer as a result of any act or omission of an Authorised User or Cardholder or an Authorised User’s or Cardholder’s use of or inability to use of the Modulr Products.
• The Introduced Client agrees to indemnify Modulr and Modulr FS against any and all actions, claims, costs, damages, demands, expenses, liabilities, losses and proceedings Modulr and/or Modulr FS directly or indirectly incurs or which are brought against Modulr if the Introduced Client, or an Authorised User, or a Cardholder has acted fraudulently, been negligent or has misused a Modulr Product or any of the services provided under this Agreement.
• Modulr and/or Modulr FS shall not be responsible in any way for any interest or claims of any third parties in respect of the Modulr Products, except as required by law or regulation.

Reports

• Modulr may make available certain management or other reporting or business administration functionality via the Website.
• Modulr may from time to time amend, modify, replace or withdraw in whole or in part such reporting it provides without further notice.

Data Privacy

• Modulr will collect and retain personal information about the Introduced Client and each Authorised User and Cardholder to enable Modulr to deliver the Modulr Products, the services linked to it and deal with any enquiries that the Introduced Client may have about it. Modulr is the data controller of the personal information gathered by Modulr for such purpose. If Modulr uses a third party to provide a part of the Modulr Product then that provider will be the owner and controller of the personal information they require to collect in order to operate the relevant service. The use of personal information by third-party service providers will be set out in their service terms and conditions of use. Modulr will, at such third-party provider’s direction, process personal data on its behalf, for example, to enable Modulr to provide Customer Services to the Introduced Client.
• Modulr processes personal information in accordance with relevant laws on the protection of personal data.
• If Modulr transfers the Introduced Client’s information to a third party in a country outside of the European Economic Area Modulr will ensure that the third party agrees to apply the same levels of protection that Modulr is legally obliged to have in place when Modulr processes personal data.
• Further information about how Modulr uses personal information can be found in Modulr’s Privacy Policy; please contact Customer Services for a copy of this.

Changes to the Agreement

• Modulr may amend or modify this Agreement by giving no less than two (2) months’ notice to the Introduced Client unless Modulr is required to make such a change sooner by law. All proposed changes will be posted on the Website and communicated to the Introduced Client by such other means that Modulr agreed with the Introduced Client, for example by email. If the Introduced Client is accessing Modulr Products via a Partner Platform, all notifications will be communicated via such Partner Platform.
• The Introduced Client has no obligation to accept such amendments proposed by Modulr.
• The Introduced Client will be taken to have accepted any change to this Agreement that Modulr notifies to the Introduced Client unless the Introduced Client tells Modulr otherwise before the relevant change takes effect. In such circumstance, Modulr will treat notice of objection by the Introduced Client as notification that the Introduced Client wishes to terminate this Agreement and the use of all Modulr Products immediately. All Accounts of the Introduced Client will be closed and any balance remaining in the Introduced Client’s Account will be returned to the Introduced Client in accordance with the redemption procedure set out in the Modulr Account Terms and Conditions. In this circumstance the Introduced Client will not be charged a fee for the Account closure and return of any balance.

General

• In these Introduced Client Terms of Business, headings are for convenience only and shall not affect the interpretation of these Introduced Client Terms of Business.
• Any delay or failure by Modulr to exercise any right or remedy under this Agreement shall not be interpreted as a waiver of that right or remedy or stop Modulr from exercising its rights at any subsequent time.
• In the event that any part of this Agreement is held not to be enforceable, this shall not affect the remainder of the Agreement which shall remain in full force and effect.
• The Introduced Client shall remain responsible for complying with this Agreement until its Account(s) are closed (for whatever reason) and all sums due under this Agreement have been paid in full.
• This Agreement is written and available only in English and all correspondence with the Introduced Client shall be in English.
• This Agreement is governed by the laws of England and the Introduced Client agrees to the non-exclusive jurisdiction of the English courts.

Schedule 1 – Card Obligations

NOT USED

Schedule 2 – Direct Debit Collection Service

Introduction

• The terms of this Schedule 2 shall apply where Direct Debit Collections are included within the Modulr Products as set out in the Introduced Client Application Form.

Direct Debit Collection Service

• The Direct Debit service allows the Introduced Client to set up a direct debit to collect funds from a bank account of an individual or business (the “Direct Debit Customer”) that uses the Introduced Client’s services to be paid into an account in the name of Introduced Client for the specific purpose of collection (the “Collection Account”) (the “Direct Debit Collection Service”). The terms and conditions of service, which are set out below apply.
• The Collateral Account shall hold the Collateral Account Amount and the Collateral Account Amount may only be applied by Modulr in accordance with the terms of this Schedule 2.

Interpretation

In this Schedule the following expressions shall bear the following meanings:

• 3.1.1. “Accounting Month’’ shall be calculated by reference to the first day to the last day of each calendar month.
• “BACS” means Bankers Automated Clearing System.
• 3.1.3. "Collateral Account" means an account held by Modulr in the name of the Introduced Client for holding the Collateral Account Amount as notified to Introduced Client from time to time.
• 3.1.4. "Collateral Account Amount" means the amount required to be held in the Collateral Account being the amount specified by Modulr and notified to Introduced Client from time to time.
• “Collection Account” as defined above.
• 3.1.6. “Collection Request” shall mean a request made by the Introduced Client, in the agreed format, to Modulr to effect the collection of any number of individual monetary sums due in any Accounting Month. A Collection Request may effect either single or multiple collections.
• 3.1.7. “Direct Debit Claims Guide” means the direct debit claims guide issued by Modulr (as amended from time to time) in relation to process flow, required documentation and contesting claims.
• 3.1.9. “Direct Debit Indemnity Claim" has the meaning given to it in the Direct Debit scheme rules.
• 3.1.10. “Failure(s)” means any act of default by the Direct Debit Customer in making any payment due directly to Modulr or any other third party, agent or intermediary or failure by the Direct Debit Customer to adequately and timeously complete a Mandate Request incorporating an instruction to its bank or building society to pay direct debits or the Direct Debit Customer becoming bankrupt or insolvent as prescribed by the Insolvency Act 1986 or compounding with its creditors or passing a resolution or having proceedings commenced against it for its administration or liquidation or the appointment of a receiver manager administrator or administrative receiver in respect of all or any part of the Direct Debit Customer's assets or undertaking, or withdrawal of the Direct Debit Customer’s consent to the collection of direct debit transactions.
• 3.1.11. “Indemnity Claim(s)”’ means a claim for reimbursement made in accordance with the BACS rules and submitted by the Direct Debit Customer to the Direct Debit Customer’s bank.
• “Invoice Balance” means the credit incurred by the Direct Debit Customer.
• “Mandate Request” means a request sent by the Introduced Client to Modulr via API or Online Portal (as relevant) from time to time in order to set up collections from a Direct Debit Customer providing such information as is required by BACS to set up a paperless direct debit (including Direct Debit Customer’s name, address, bank account number and sort code).
• 3.1.14. “Service User Number” or “SUN” means the user number allocated to the Introduced Client under which the Introduced Client can submit Collection Requests and direct debit collections will be processed.
• “Terms” means these terms between Modulr and the Introduced Client.

Obligations of Modulr

• 4.1. On receipt of a Mandate Request Modulr will set up a Direct Debit Customer wishing to use the Direct Debit Collection Service. Modulr will apply for payment of the Invoice Balance on receipt of a Collection Request submitted by the Introduced Client. Subject to clauses 4.2, and 4.3., Modulr will submit all Collection Requests and Mandate Requests received prior to 23.59 on a Business Day to BACS no later than the next Business Day.
• 4.2. Modulr may refuse to process a Collection Request or Mandate Request if it suspects there has been unauthorised or fraudulent use of this direct debit service. In such instance, Modulr shall give written notice to the Introduced Client setting out the reasons for the refusal either before the scheduled submission time or, if it is unable to do so, immediately afterwards, unless providing such notification would compromise reasonable security measures or is unlawful.
• 4.3. Modulr shall notify the Introduced Client at the earliest opportunity of any other refusal to initiate or execute a Collection Request and shall include the reasons for the refusal and the procedure for rectifying any factual errors that led to the refusal in such notice, provided that such notification is not unlawful.
• 4.4. Modulr shall monitor the receipt of payments received from a Direct Debit Customer and notify the Introduced Client of any payments that are not made when due.
• 4.5. In the event of Modulr becoming aware of a Failure, Modulr shall notify the Introduced Client. Modulr shall use all reasonable endeavours to provide success and failure information on the Business Day after the collection date, and will provide any additional information on the following Business Day. Modulr will notify Indemnity Claims received prior to 23.59 on a Business Day no later than the next Business Day.

Obligations of the Introduced Client

• 5.1. The Introduced Client shall send Mandate Requests to Modulr via API or Online Portal (as relevant) from time to time in order to set up collections from the Direct Debit Customer.
• 5.2. The Introduced Client shall use its Service User Number in Collection Requests in order for transactions to be executed.
• The Introduced Client shall submit Collection Requests via the interface provided by Modulr prior to
• 23.59 on a Business Day not less than two (2) Business Days prior to the collection date. By submitting the Collection Request via the interface, it is deemed to be authorised by the Introduced Client. Once the Collection Request is submitted, it cannot be revoked.
• 5.4. The Introduced Client warrants that any sum submitted to Modulr for collection from the Direct Debit Customer is due and owing by the Direct Debit Customer to the Introduced Client and that any invoice issued will be made available to Modulr if requested.
• 5.5. The Introduced Client must not include any sums disputed at any time between the Direct Debit Customer and the Introduced Client as a sum to be collected by Modulr until such dispute is resolved to the Direct Debit Customer’s satisfaction.
• 5.6. Where Modulr is advised of any Failures or is required to repay any sum or sums to the Direct Debit Customer under its BACS obligations, these Failures and Indemnity Claims will fall immediately due for reimbursement from the Introduced Client to Modulr and the Introduced Client indemnifies Modulr in respect of any such sums. Modulr reserves the right to deduct any such sums from future payments made to the Introduced Client under clause 4.1 of these Terms.
• 5.7. If requested, the Introduced Client will forward copies of all invoices due between the Direct Debit Customer and the Introduced Client to Modulr.
• 5.8. The Introduced Client shall ensure that its terms and conditions of trading in connection with providing or distributing services to the Direct Debit Customer shall not in any way conflict with or prejudice the timing and methods of Modulr collecting payments from the Direct Debit Customer in accordance with these Terms or any of the other provisions of these Terms and in the event and to the extent that such conflict or prejudice exists the Introduced Client shall forthwith rectify and remedy the conflict or prejudice by amending the said terms and conditions and shall be responsible for all losses, damages, claims, demands proceedings liabilities and costs that are directly incurred by Modulr as a result of the existence of any such conflict or prejudice.
• 5.9. The Introduced Client shall notify Modulr without undue delay on becoming aware of the loss, theft, misappropriation or unauthorised use of the credentials used by it to access the Modulr services for the purposes of initiating Collection Requests.
• 5.10. The Introduced Client shall notify Modulr without undue delay upon becoming aware of any transaction which has been incorrectly processed or settled by Modulr.
• 5.11. Notwithstanding the termination of these Terms for any reason the terms set out in clause 5.8 shall continue to apply in respect of any amounts which Modulr may be obliged to repay in respect of any Failures or under its BACS obligations and whether during the subsistence of these Terms or after its termination.
• 5.12. The Introduced Client will use the Direct Debit Collection Service only for its own, internal business purposes, and will not resell them or otherwise make them available to any third party. The Introduced Client will not permit any third party to access the Direct Debit Collection Service, except its accountants or such other third-party access is expressly agreed to in writing by Modulr.
• 5.13. Introduced Client shall be responsible for handling Direct Debit Customer disputes or requests for refunds and Direct Debit Indemnity Claims with respect to the Direct Debit Collection service from Direct Debit Customers in accordance with the Direct Debit Indemnity Claims Guide.

Collateral Account

• The terms of this clause 6 shall apply where the Introduced Client has its own Service User Number.
• Introduced Client shall prior to the Go Live Date pay the Collateral Account Amount into the Collateral Account. Without prejudice to any other rights of Modulr under this Agreement, Modulr shall be under no obligation to provide the Direct Debit Collection Service unless and until the Collateral Account Amount is received in cleared funds into the Collateral Account.
• Introduced Client shall ensure that from the Go Live Date until this Agreement is terminated, the Collateral Account Amount is maintained in the Collateral Account at all times and in accordance with the terms set out in this Schedule 2 by making further payments into the Collateral Account.
• Introduced Client agrees that Modulr may at any time immediately and without notice, apply any sums held in the Collateral Account in satisfaction of all or any of liabilities or fees payable or incurred by Modulr as a result of providing the Direct Debit Collection Service to Introduced Client including but not limited to any deficit in a Direct Debit Customer’s Account or Introduced Client Account as a result of the payment of a Direct Debit from such Accounts or any liability arising under clause 6.5 of this Schedule 2.
• Introduced Client shall indemnify Modulr for any loss or damage or liability Modulr incurs under this Schedule 2 as a result of Modulr being unable to otherwise apply funds in the Collateral Account due to insufficient funds.
• Upon Modulr exercising its rights under clause 6.4 of this Schedule 2, Introduced Client shall within 2 Business Days pay an amount into the Collateral Account in order to ensure the Collateral Account Amount is maintained.
• Modulr will review the Collateral Account Amount from time to time and, if the Collateral Account Amount is revised, Modulr will notify the Introduced Client of the revised Collateral Account Amount and the amount (if any) to be paid by the Introduced Client in order to ensure that the revised Collateral Account Amount is maintained in the Collateral Account. The Introduced Client shall pay the said amount into the Collateral Account within 2 Business Days of Modulr’s notice. Where Modulr’s review results in a decrease in Collateral Account Amount from the amount then held as such in the Collateral Account, Modulr shall pay to the Introduced Client the amount of the surplus.
• Any failure to make a payment and/or to maintain the Collateral Account Amount by the Introduced Client in accordance with this clause 6 of this Schedule 2 shall be deemed a material breach of the Agreement and in case of such breach Modulr can (notwithstanding any other rights Modulr may have as a result of Introduced Client’s breach) immediately and without notice suspend or withdraw the Direct Debit Collection service in whole or in part.
• Upon termination of this Agreement or the Direct Debit Collection service, Modulr shall return the amounts in the Collateral Account to Introduced Client within 30 days, notwithstanding that Modulr shall be entitled to deduct any amounts to satisfy in full any liabilities of Modulr relating to providing the Direct Debit Collection service. In the event Modulr’s liabilities are greater than the amount in the Collateral Account, Introduced Client shall pay such amount to Modulr on Modulr’s demand.

Termination

• In addition and without prejudice to the termination rights of Modulr in the Agreement, Modulr may terminate or suspend the Direct Debit Collection Service in whole or in part immediately by giving written notice to the Introduced Client if:
  • indemnity claims exceed the 2% threshold for more than one month in any period; and/or
  • Introduced Client fails to discharge its obligations under this Schedule.

Schedule 3 – Direct Debit Mandate Service

Introduction

• The terms of this Schedule 3 shall apply where BACS Direct Debit Mandates are included within the Modulr Products.

Direct Debit Mandate Service

• The Direct Debit Mandate service enables the Introduced Client and / or Account Manager to set up Direct Debit Mandates on an Account via UK BACS Direct Debit scheme (“Direct Debit Mandate Service”). The amounts and payment dates of the Direct Debits may vary.
• ‎The Introduced Clients (or the Partner Platform or the Account Manager acting on the Introduced Client’s behalf) will be able to set up a Direct Debit Mandate on the Account by ‎completing a Direct Debit Mandate form. ‎
• The Introduced Client will be able to view or cancel a Direct Debit Mandate on the Introduced Client’s Account via the user interface provided by Partner Platform.
• Without prejudice to any other rights of Modulr, Modulr may withdraw the Direct Debit Mandate Service by giving the Introduced Client at least 2 months’ notice by e-mail.

Schedule 4 – PIS Terms and Conditions

NOT USED

Schedule 5 – Confirmation of Payee

NOT USED