Introduction
Welcome to the Pento Payroll Terms of Service (Terms). These Terms explain the Services provided by us and what our obligations are.
Whilst this is a legal agreement, we have tried to write it in simple, straightforward language and we are always happy to answer any questions you may have. It is important to read all of these Terms carefully, as they will govern our relationship.
Parties
Whenever the words Pento, We, Us, or Our are used in these Terms they refer to the Pento entity with whom you are contracting (which entity will depend on where your business is located, as set out in the table below). Similarly, whenever we mention ‘You’ or ‘Your’ we mean both you, as our customer, your Affiliates (where relevant), and anyone you register on the Pento Platform as users of our Services, such as your employees or consultants (we call them Authorised Users).
The definition of Pento shall also include HiBob subsidiaries, as detailed here – HiBob Group Subsidiaries.
| If Your location is: | Your Pento contracting entity is: | Your default PSP is: |
The United Kingdom | Pento Services Limited, which is a limited company registered in England and Wales under company number 12311368 and our registered office is at 1 Chapel Street, Warwick, CV34 4HL, United Kingdom | Modulr Finance Limited a company registered in England and Wales with company number 09897957 with its regulated payment activities carried on through Modulr FS Limited a company registered in England and Wales with company number 09897919 and which is authorised and regulated by the Financial Conduct Authority under firm reference number 900573. In this arrangement, Pento is a registered EMD Agent of Modulr FS Limited. |
The Republic of Ireland | Pento Payroll Services Limited, which is a limited company registered in Ireland under company number 693348 and our registered address is at Penthouse Floor, 5 Lapps Quay, Cork, Ireland. | Modulr FS Europe Limited, a company registered in Ireland with company number 638001. |
Denmark | Pento Aps, which is a limited liability company registered in Denmark under company number 37959383 and our registered office address is at Bregade 6, 1260 Copenhagen K. |
Service Description
Pento provides an online platform which simplifies the payroll process for You. You input information about which individuals You wish to pay and other key details (e.g. their salary, their pension contribution, sick days taken) and our platform calculates how much You must pay and to who (e.g. to Your employee, to their pension provider, to the tax authority). You can authorise Us to connect Our platform with Your existing third-party suppliers (e.g. HR software) so Authorised Users do not have to manually input the information. You can also use Our platform to automatically report figures (e.g. as an annual submission to a tax authority). You use Our platform to authorise the payroll payments to be made – We’ll instruct the Payment Service Provider (PSP) on Your behalf to send funds to the various payees.
1.1 In addition to those words defined above, the following definitions apply in these Terms:
Account: an account set up by You, or by Us on Your behalf, to access the Pento Platform.
Admin User: a user of the Pento Platform nominated by You who is able to access the Pento Platform for administrative reasons on Your behalf.
Affiliate: in relation to a party, any business entity from time to time directly or indirectly controlling, controlled by, or under common control with that party, where control means the beneficial ownership of more than 50% of the issued share capital of a company or the legal power to direct or cause the direction of the general management of the company and controlling and controlled will be interpreted accordingly.
Agreement: the Agreement between us is contained in these Terms, our most recent Order Form, the Data Processing Agreement and any amendments from time to time.
Authorised Users: an Admin User or a staff member of Yours who has been entered onto the Pento Platform as an Admin User or otherwise notified to Pento as having the authority to use the Pento Platform on behalf of You.
Billing Period: each period for which Fees are due, which will be every 12-months starting on the Service Effective Date and each successive 12-month period during the term of this Agreement unless otherwise set out in the Order Form.
Business Day: all days except Saturdays, Sundays, public holidays and bank holidays when banks in England are closed for general business.
Confidential Information: is defined in Clause 10.
Contract Date: the date when You accept these Terms in accordance with Clause 2.1.
Data: all data (including meta and personal data) inputted by You (and anyone authorised by You) on the Pento Platform and any other information and materials provided by You for use in conjunction with the Services, including employee personal data, payroll information, reports and employee contracts, but excluding any Services Data.
Data Processing Agreement: is defined in Clause 12.1.
Employee Seats: the minimum number of Your employees specified in the Order Form for the Billing Period plus any additional employees above this number who have payroll processed by Us during the Billing Period.
Fees: the fees for the Services set out in the Order Form, or as may otherwise become due and payable under this Agreement.
Initial Term: the period defined in Clause 2.3.
Intellectual Property Rights: patents, copyright, trade marks, domain names, designs, database rights, confidential information (including know-how), and all other intellectual property rights, in each case whether registered registerable or not and including all applications and rights to apply for and be granted such rights and all similar or equivalent rights or forms of protection which exist in any part of the world.
Invoice: the invoice for the Services We provide to You, issued to You in accordance with this Agreement.
Modulr: the default PSP We recommend, as defined in the Parties section above (the relevant entity will depend on Your location).
Modulr Products: the products and services provided by Modulr to You in connection with the Pento Service.
Order Form: the Order Form signed by Pento setting out Your details and the pricing plan agreed for the provision of the Services. In the event that You agree to the provision of Services via the Pento Platform (We call this Self Sign Up) and no Order Form is therefore used, the relevant information will be captured on the Pento Platform and, where this Agreement requires, any references to the Order Form will be deemed as references to the Pento Platform.
Payment Due Date: the date on which the payment of Fees under an Invoice is due, which is 14 days from the date of the relevant Invoice (or other such period agreed in the Order Form).
PSP(s): Payment Service Providers, third party companies regulated by the relevant financial services regulator (the relevant regulator will depend on Your location), which Pento requires to facilitate the regulated activities that form part of the payroll process (e.g. transfer of funds).
Pento Platform: Pento’s online software applications and tools provided by Us to You via pento.io for use by You and Your Authorised Users to enable Pento to provide the Pento Service, which provides access to Your Data and includes various payroll tools.
Pento Service: the payroll simplification service provided by Us to You via the Pento Platform under this Agreement (as set out in the Service Description section above) and related Support. For the avoidance of doubt, the Pento Service does not include management of Your payroll.
Public Website: Our publicly available website at pento.io
Renewal Term: defined in Clause 2.4.
Service Effective Date: the date set out in the Order Form and when the Pento Service commences.
Services: the Pento Service and the Set-up Services.
Services Data: aggregated data and other information that is collected, derived, extracted, or created from the Data and/or generated by Your use of the Services, but which does not contain personal data, other than the login credentials of Your Admin Users.
Set-up Services: the optional set up and implementation of the Pento Services. If We agree to Provide You with Set-up Services, Your Order Form will specify this and will set out full details of the relevant Set-up Services.
Support: Pento’s customer support services relating to Your use of the Pento Platform and basic queries regarding payroll and how the Pento Platform functions in this respect, as detailed in the Order Form.
You or Your: the customer of Pento who is party to the Order Form. Where the context requires, You or Your includes Authorised Users.
1.2 Any phrase introduced by the terms “including”, “include”, “in particular” or any similar expression are examples and are not meant to be exhaustive.
1.3 A reference to writing or written includes e-mail.
1.4 If there is any ambiguity or inconsistency between any of the provisions in these Terms, the Data Processing Agreement or any Order Form, the provisions in the Data Processing Agreement or any Order Form shall prevail over these Terms to the extent of such ambiguity or inconsistency only.
2.1 These Terms become legally enforceable when you click ‘Accept’ or provide an electronic signature (the “Contract Date”) in relation to an Order Form, even if the Services start at a later date. These Terms will continue in full force and effect for the duration of the Services.
2.2 If We are providing Set-Up Services, You are eligible to receive these from the Contract Date.
2.3 The Pento Service will start on the Service Effective Date and, depending on which option you select, will continue for:
2.3.1 12-months; or
2.3.2 the period agreed in the Order Form,
each known as an “Initial Term”
2.4 When the Initial Term expires, it will automatically renew for the same period (with each additional period being a “Renewal Term”) unless this Agreement is ended earlier in accordance with Clause 14.
3.1 You may allow Your Affiliates to access the Pento Platform and use the Services provided that:
3.1.1 You will only allow access to those Affiliates who have clearly been identified in the Order Form as being allowed access by Us;
3.1.2 where the context requires, references to “You” and “Your” in this Agreement shall be construed as referring to You and Your Affiliates;
3.1.3 You ensure that Your Affiliates (to the extent that they access the Pento Platform or use the Services) comply with the terms and conditions of this Agreement as if such Affiliate were a party to the Agreement;
3.1.4 You remain responsible to Us for the acts and omissions of Your Affiliates as if they were Your acts and omissions;
3.1.5 any claims in respect of losses suffered by Your Affiliates will be brought against Us by You on behalf of Your Affiliates; and
3.1.6 You warrant and represent that you have the authority to accept these Terms on behalf of Your Affiliates and to take all actions required by these Terms on behalf of Your Affiliates.
3.2 When a corporation, company or entity ceases to be an Affiliate of Yours, all rights of that corporation, company or entity to access the Pento Platform and use the Services immediately terminate.
4.1 In performing the Services, We will:
4.1.1 provide the Services to You using reasonable skill and care;
4.1.2 comply with all applicable law;
4.1.3 use Our reasonable efforts to ensure that the Pento Service is available 24/7, although we do not guarantee that the Pento Service will be uninterrupted or error free;
4.1.4 use Our reasonable efforts to ensure that Support is available between the hours of 9am and 5pm on Business Days; and
4.1.5 provide the Set-up Services to You with reasonable diligence and dispatch, and with reasonable skill and expertise. In performing the Set-up Services, We shall comply with Your reasonable instructions, and You shall provide Us with all updated Data and information as We may require under Clause 5.1.1 below in order to provide the Set-up Services. We shall inform You upon completion of the Set-up Services, and You shall confirm to Us the completion and acceptance of the Set-up Services. You agree that We shall not be responsible for a delay or failure to provide, or any errors or omissions in or arising from, the Set-up Services in cases where You do not comply with Your obligations under Clause 5.1.1 or You or a third party do not provide the requested Data and information within the time agreed with a Pento onboarding representative.
5.1 You agree to:
5.1.1 if We are providing Set-Up Services, provide Us, within a reasonable time period after the Contract Date, with all the necessary information and access (as far as You are able to under any third-party agreements) to Your current payroll information and systems, to enable Us to set up the Pento Service for You;
5.1.2 provide Us with any alterations to Your payroll by the agreed deadlines;
5.1.3 ensure that the relevant Data is entered into the Pento Platform by the date communicated by Us to You in advance (”Cut-Off Date”). If You fail to provide and submit the relevant Data by the Cut-Off Date, Pento shall have no liability to You;
5.1.4 ensure that Your IT systems are up-to-date. You remain responsible at all times for the proper functioning of Your IT equipment and operating system;
5.1.5 be solely responsible and liable for all payroll runs You make through the Pento Platform and for all Data entered into the Pento Platform;
5.1.6 provide correct and accurate information and Data and to update any information and Data in the event of any changes;
5.1.7 ensure that Support requests are made by You or one of Your Authorised Users; We do not provide Support directly to your employees; and
5.1.8 by accepting these Terms, You authorise us to access Your account on the Pento Platform from time to time so We can provide the Services.
The Pento Service is accessed through the Pento Platform. You must ensure that all passwords and access credentials issued by Us or generated by You for Authorised Users are kept confidential and not transferred to or shared with any third-party without Our written consent. You acknowledge that You will remain responsible for keeping passwords used to access the Pento Platform safe and secure.
7.1 Pento uses third party Payment Service Providers (PSPs) to hold a virtual account which contains your account balance and to transfer Your funds to relevant recipients for payroll and administrative purposes. We cannot perform the Pento Services in a fully automated manner without the involvement of a regulated PSP. Pento only partners with and uses PSPs which are authorised by the relevant financial regulator (the relevant regulator will vary depending on the location of Your PSP), as the services that the PSPs provide includes the carrying on of regulated activities. Further information about the relationship between You, Pento and PSPs is provided at Clause 12 (Data Protection).
7.2 Our default payment service provider is Modulr. If You:
7.2.1 accept Modulr as the default PSP, Pento will arrange for Your Modulr account to be created; or
7.2.2 reject Modulr as the default PSP:
7.3 We have been appointed as an electronic money distribution agent of Modulr, which means that We can distribute e-money issued by Modulr but do not have permission to issue any electronic money either for Ourselves or on behalf of Modulr. Where payment services are provided as a result of Your appointment of Modulr as a PSP for the issuance of any electronic money is carried on by Modulr and We do not at any time issue, or purport to issue, electronic money.
8.1 Details of Our Fees are set out in the Order Form. Any fees for Set-up Services shall also be noted on the Order Form and included in Our first Invoice to You.
8.2 The Fees for the Pento Service will be invoiced in advance of the relevant Billing Period and will be included in the Invoice issued to You. You will pay such Fees by the Payment Due Date.
8.3 You acknowledge that Fees are likely to increase if You increase the number of Employee Seats in each Billing Period, if you sign up for a different plan, new or additional features or upgrades, or add an Affiliate into the scope of the Agreement.
8.4 Additional Fees due to the addition of Employee Seats during a Billing Period will be billed monthly in arrears. Where additional Employee Seats have been added during a previous Billing Period, at the point of renewal, the minimum Employee Seats for the forthcoming Renewal Term will be increased to the number of Employee Seats in use immediately before renewal.
8.5 Any new or additional plans, features or upgrades, or Affiliates and associated Fee increases will be agreed in a new Order Form, which will also cover any existing Services and Fees. The Service Effective Date and Initial Term will not change and will remain as set out in the original Order Form (unless otherwise expressly stated in a new Order Form), but in all other respects the most recent Order Form will take precedence over all other Order Forms. Fees for new or additional plans, features or upgrades, or Affiliates will be billed as agreed in a new Order Form. We also reserve the right to charge additional fees for Set-up Services where you add an Affiliate into the scope of the Agreement.
8.6 From time to time We may need to increase the Fees for the Pento Service, but Our Fees will not change during the Initial Term or a Renewal Term (as appropriate), or during such other period as may be agreed in the Order Form. You accept that the Fees invoiced to You for the next Billing Period will take into account, if applicable, these Fee changes in respect of the Pento Service to be provided to You.
8.7 You are entitled to end this Agreement without penalty if any proposed increase in the Fees for the Pento Service is not acceptable to You. You must give us notice in writing of at least 30 days to terminate this Agreement, such notice to be sent by You within 30 days of the Fee increase being notified to you.
8.8 By accepting these Terms, You accept that Pento will automatically deduct the agreed Fees in connection with Your use of the Services if You have agreed that payment of Fees will be made via direct debit or credit card. Otherwise, payment of Fees will be made by You in accordance with the instructions on Our Invoice. You will have access to the original receipt for payments made to Pento. Use of vendor portals or similar platforms on Your behalf is not permitted in relation to invoice or payment related activities. We will not interact with any vendor portals or similar platforms specified or requested by you for any invoice or payment related activities.
8.9 If We have not received payment in full by the Payment Due Date, and without prejudice to any other rights and remedies available to Us, We will issue a notice to You setting out details of the outstanding payment and You must make payment within 14 days from the date of that notice If We have not received payment following such notice, We may suspend Your access to the Pento Platform and the Pento Service and charge interest on any outstanding amounts which shall accrue on a daily basis at the rate of 4% above the Bank of England base rate, commencing on the due date and continuing until fully paid, whether before or after judgment. If Your Account is suspended, this will not relieve You of Your obligation to pay such invoices or any other fees payable to Us.
9.1 We (and Our licensors) own all Intellectual Property Rights in the Pento Platform the Pento Service, the Services Data and all associated documents. You may only use this Intellectual Property under the terms of this Agreement, and no Intellectual Property Rights are given to You by this Agreement unless specifically stated.
9.2 You (and Your licensors) own all Intellectual Property Rights in the Data.
9.3 You are granted a limited, non-transferable, non-sublicensable, non-exclusive royalty-free licence to use the Pento Platform during the period of the Initial Term and/or any and all Renewal Terms for your internal business purposes in accordance with the terms of this Agreement and Your Order Form. Except in relation to Data, You shall not: attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Pento Platform; access all or any part of the Pento Platform in order to build a product or service which competes with Pento.
9.4 You grant to Us a limited, non-transferable, non-sublicensable, non-exclusive royalty-free licence to access, process and use the Data for the purpose of providing the Services.
9.5 You grant to Us a limited, non-transferable, non-sublicensable, non-exclusive royalty-free licence to use Your name and/or logo on Our website and marketing materials provided that We comply with any branding guidelines that You provide to Us. Subject to Your prior approval, We may prepare and publish a case study about You and Your use of the Services.
9.6 If You provide any feedback to Us (including comments, ideas, improvements or suggestions), You assign all right, title and interest in and to such feedback to Us and acknowledge that We will be entitled to use, implement and exploit any such feedback for any purposes whatsoever without any obligation of confidentiality (except to the extent such feedback comprises Your Confidential Information), attribution, accounting or compensation.
10.1 Each party shall maintain the confidentiality of any Confidential Information disclosed by one party (the “Disclosing Party“) to the other party (the “Receiving Party“) and shall not, without the Disclosing Party’s prior written consent, disclose, copy or modify the Disclosing Party’s Confidential Information (or permit others to do so) other than as necessary for the performance of its rights and obligations under this agreement. We both agree that either of us may be given the other’s Confidential Information under this Agreement. This will happen when material is disclosed by either of us which is:
10.1.1 labelled Confidential Information; or
10.1.2 reasonably considered confidential because of its nature and the manner of disclosure.
10.2 Your Confidential Information includes the Data.
10.3 Our Confidential Information includes all aspects of the Pento Platform, the Services, the Services Data and the Fees.
10.4 Confidential Information does NOT include information that:
10.4.1 is or becomes publicly known except if it is because of any act or omission of the receiving party;
10.4.2 was in the other party’s lawful possession before the disclosure;
10.4.3 is lawfully disclosed to the receiving party by a third party without restriction on that disclosure;
10.4.4 is independently developed by the receiving party, and they can prove that with written evidence; or
10.4.5 is required to be disclosed by law, by any court or regulatory or administrative body.
10.5 We both agree to:
10.5.1 hold the other’s Confidential Information in confidence; and
10.5.2 promptly notify the other of any unauthorised use, disclosure, theft of loss of the Disclosing Party’s Confidential Information immediately upon becoming aware of the same.
10.6 We both agree NOT to:
10.6.1 make the other’s Confidential Information available to any third party; or
10.6.2 use the other’s Confidential Information for any purpose other than under this Agreement.
10.7 You agree that We may disclose Your Confidential Information to those of Our employees and contractors who are involved in providing the Services, but only when necessary under this Agreement and provided that We will be responsible for ensuring they comply with Clause 10.11 below.
10.8 Either of us may disclose Confidential Information to the extent required by law, by any governmental or other regulatory authority, or by a court or other authority of competent jurisdiction provided that, as far as it is legally permitted to do so, one party gives the other party as much notice of the disclosure as possible.
10.9 We both reserve all our rights in our own Confidential Information. No rights or obligations in respect of the Confidential Information of either of us, other than those expressly stated in this Agreement, are granted to the other party, or are to be implied from this Agreement.
10.10 We shall keep confidential any information You provide to Us for the purpose of providing Support. However, You agree We may publish any anonymised query and related answer in the same way as any other know-how.
10.11 We will both ensure that all persons authorised by Us or You to process Data have committed themselves to keeping the Data and any other Confidential Information confidential.
10.12 The provisions in this Clause 10 shall survive for 3 years following termination or expiry of this Agreement, howsoever caused or implemented.
The details of what We can do for You as part of the Pento Service are set out in the Services Description above. Our liability is limited in accordance with this Clause 11 and We are not responsible for the following:
11.1 We don’t provide tax advice and will not be liable for any income tax, National Insurance or any other liability to pay tax or social security contributions as a result of any reliance placed on any advice or guidance provided by Us. We provide Support to our customers for general information purposes only and You acknowledge and agree that You shall not rely on any information, advice or assistance provided through such Support without taking Your own professional advice first. We shall in no way be liable for any action or omission taken by You based on that Support.
11.2 We are not responsible for any issues arising in relation to Your payroll, which are due to the failure by HMRC, any pension providers, or the integration with the PSP, or any arrangements You have with Your suppliers or business partners, as any such failure is outside of Our control.
11.3 We are not responsible for any payroll errors or errors in the Services caused by You providing any incomplete or inaccurate Data or information to Us.
11.4 Nothing in this Agreement excludes or limits either party’s liability for death or personal injury caused by its negligence, or for fraud or fraudulent misrepresentation or any other liability which cannot be excluded by applicable law, or for Your obligation to pay undisputed amounts owed to Us under the Agreement.
11.5 Under no circumstances will either party be liable for:
11.5.1 operating losses;
11.5.2 loss of profits;
11.5.3 loss of business;
11.5.4 loss of interest;
11.5.5 destruction, loss of use or corruption of data (except, in the case of Pento, any loss of use or corruption of personal data subject to the terms of the Data Processing Agreement);
11.5.6 loss or corruption of software or systems;
11.5.7 loss of savings, discount or rebate (whether actual or anticipated);
11.5.8 harm to reputation or loss of goodwill; and
11.5.9 indirect, special or consequential losses.
11.6 Subject to Clause 11.4, each party’s total liability under this Agreement in contract, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or any other claims of any nature arising under or in connection with the Agreement shall in all circumstances be limited to an amount equal to the Fees paid by the You to Pento in respect of the 12 months prior to the event giving rise to the claim.
11.7 This Clause 11 sets out the entire financial liability of each party (including any liability for the acts or omissions of its Affiliates, employees, agents and sub-contractors) to the other party and its Affiliates.
12.1 Pento must receive and use personal data from You to provide Our Services. The data protection obligations of the parties are set out in the Pento Data Processing Agreement (“Data Processing Agreement”), the terms of which form part of this Agreement.
12.2 Pento is not authorised by a financial regulator to make financial transactions therefore in order for Us to arrange for payments to be made on Your behalf, You must open an account with a PSP.
12.3 As a regulated organisation, the PSP has a legal obligation to conduct anti-money laundering checks on all its new customers. Where You choose Modulr as Your PSP, Pento assists the anti-money laundering check procedure by obtaining the necessary information from You and providing it to Modulr. Whenever an anti-money laundering check is conducted:
12.3.1 Modulr must verify the identity of You and Your beneficial owners and directors;
12.3.2 Modulr will carry out a full electoral search and credit check on those individuals, which will leave a “soft footprint” on their credit file; and
12.3.3 third parties used by Modulr for the purposes of identity checks, anti-money laundering compliance and fraud prevention will have access to the personal data of those individuals.
12.4 Where You elect to use an alternative PSP (and not Modulr), Pento does not directly transfer any information, including personal data, to that PSP. Pento will instead prepare a file export for You. You must download the export and send the information to the PSP Yourself. It is Your responsibility alone to ensure that the information You forward to Your PSP has appropriate security measures in place (e.g. that any attachment is password protected, that the information has been sent to the correct recipient).
12.5 It is Your responsibility as the Controller (as defined in the Data Processing Agreement) to identify and comply with the related obligations under Data Protection Laws (as defined in the Data Processing Agreement), including ensuring there is a relevant lawful basis to carry out, and that individuals are informed of, the anti-money laundering checks as set out in Clause 12.3. We recommend that You also refer those individuals to the privacy information of Your chosen PSP. We are not responsible for any complaint You receive where an individual alleges they were not informed that their information would be used for anti-money laundering checks.
12.6 At the end of the Agreement Your Data will be deleted in accordance with the Data Processing Agreement. It is Your responsibility to ensure that you retain all documents and records related to the Services, your employees, and payroll as necessary under any applicable laws.
12.7 You agree that, as part of the Services, We may create and retain the Services Data. Services Data does not contain personal data, other than the login credentials of Your Admin Users. We will own all rights to the Services Data and may use the Services Data (a) to identify and analyse payroll trends; (b) to provide insights and reports to Our customers based on such trends; (c) to enhance, improve and develop the Services; and (d) for our legitimate business interests.
13.1 You agree that We can make any changes to the Pento Service which become required in order to comply with any law or safety requirement, or which do not materially affect the nature or quality of the Pento Service, and We will always notify You as set out in Clauses 13.3 and 13.4 below if this happens. (Examples might be new data protection requirements or small improvements to the Pento Platform.)
13.2 We will otherwise keep these Terms under review and may need to make changes from time to time.
13.3 We will always notify You of any proposed material changes and, if possible, We will give You at least 7 days’ notice of the changes so that You can have a chance to consider them before they come into effect. The only exception to this will be where it is necessary for Us to make a quicker change in order to maintain the security and integrity of the Pento Platform or the Pento Service.
13.4 If You object to any changes We propose, other than those described in Clause 13.1 above, You may end this Agreement by following the process set out in Clause 14.2.1 below.
14.1 You are committed to the Initial Term from the Contract Date and this Agreement cannot be terminated during the Initial Term and each Renewal Term, but either party can terminate the Agreement by giving the other party not less than 60 days’ (or other such period as set out in the Order Form) written notice prior to the commencement of each Renewal Term, in which case the Agreement will terminate at the end of the current Initial Term or Renewal Term.
14.2 There are some situations where ending the Agreement will happen differently:
14.2.1 If You object to any changes We propose making to this Agreement, other than those described in Clause 13.1 above, You can give Us notice and this Agreement will end either on the last day of Your Billing Period, or when the changes We are making take effect, if that is sooner;
14.2.2 Either of us may terminate this Agreement immediately by giving notice in writing to the other (without affecting any other rights or remedies they may have) if any of the following situations arise:
a. one of us fails to pay any amount due under this Agreement on the due date for payment, and remains in default not less than 14 days after being notified in writing to make such payment;
b. one of us commits a material breach of any term of this Agreement and that breach either can’t be remedied or, if the breach is remediable, the party at fault fails to remedy that breach within a period of 30 days after being notified in writing by the other to do so;
c. one of us suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of our business;
d. a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party (other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party); or
e. an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party.
14.2.3 If You have not used the Services for 60 days or more, We can give written notice that the Agreement will end in 30 days, unless you contact us during this time to confirm You wish to continue with the Services.
14.2.4 We can also terminate this Agreement in accordance with Clause 14.2.2 if any of the situations described in that Clause arise in relation to Your Affiliates.
14.3 At the end of this Agreement:
14.3.1 You will immediately pay to Us all of Our outstanding unpaid invoices and interest and, in respect of any Service supplied but for which no Invoice has been submitted, We may submit an invoice for the Services provided up until termination, which shall be payable immediately on receipt;
14.3.2 All licences granted under this Agreement shall immediately end;
14.3.3 You, Your Affiliates and Your Authorised Users will no longer have access to the Pento Platform and the Pento Service; and
14.3.4 Your Data will be deleted by Us in accordance with the Data Processing Agreement.
14.4 Ending this Agreement does not affect the accrued rights of either of us, or the continuation afterwards of any provision expressly stated to survive or implicitly surviving the ending of the Agreement including: Clause 9 (Intellectual Property Rights), Clause 10 (Confidentiality), or Clause 11 (Limitation of Liability).
This Clause 15 only applies where Modulr is Your PSP. If You elect to use an alternative PSP to facilitate payments (as per Clause 7), this Clause shall not apply.
Capitalised terms used in this Clause that are not defined elsewhere in the Agreement shall have the meaning assigned to them in Your Modulr Agreement (as defined in Clause 15.3.5).
15.1 Modulr Products
15.1.1 Modulr Products refers to Your Modulr Account and related payment services which enable funds to be sent to Your Modulr Account and paid out from the Modulr Account.
15.1.2 These payment services include receipts via Bacs, plus receipts and outgoing payments via Faster Payments and inter-Account transfers, and other payment services in and out of Your Modulr Account which may be enabled from time to time.
15.1.3 Your Modulr Account allows operation including the making of Transactions in accordance with the Modulr Account Terms and Conditions.
15.1.4 The Modulr Products also consist of the Application Programming Interface (API) used by Pento on Your behalf to create and administer Your Modulr Account plus the beneficiaries and payment rules applied to them.
15.1.5 The Modulr Products also consist of the Online Portal which can be used for the management of Your Modulr Account. Pento will provide access to this if appropriate based on your relationship with Us.
15.2 Fees
All charges relating to the use of the Modulr Products shall be paid by Pento. No further fees will be payable by You for the use of the Modulr Products.
15.3 Acknowledgment
15.3.1 You agree to Pento providing all such information to Modulr (for checking and verifying the identity of You, Your directors, and beneficial owners as required by law.
15.3.2 You acknowledge that a Full Electoral Roll search may take place on the individuals noted in Clause 15.3.1 above for anti-money laundering purposes.
15.3.3 You acknowledge that a “soft footprint” search may be placed on the electronic files of the individuals noted in Clause 15.3.1 above by the Credit Reference Agencies and their personal details may be accessed by third parties for the specific purpose of anti-money laundering, identity verification and fraud prevention.
15.3.4 You and (where relevant) each of Your Affiliates will open and maintain a Modulr Account and You, on behalf of You and Your Affiliates, grant permission for Pento to access and operate each of the Modulr Accounts on Yours and Your Affiliates’ behalf in order to deliver the Pento Service, such operation to include the making of Transactions on Yours and Your Affiliates’ behalf.
15.3.5 You confirm that You have read, understood and accept the terms set out in the documents that form the agreement between You and Modulr, which are Modulr’s Introduced Client Terms of Business and Modulr’s Account Terms and Conditions (the Modulr Agreement).
By agreeing to these Terms, You and Your Affiliates agree to be bound by the terms comprising the Modulr Agreement.
16.1 We will not be liable or responsible for any failure to perform, or delay in performance of, any of Our obligations under this Agreement that is caused by an event outside our reasonable control (for example, without limitation, natural disasters, epidemics or failure of private or public telecommunications networks) (an “Event Outside Our Control”).
16.2 If an Event Outside Our Control takes place that affects the performance of Our obligations under this Agreement:
16.2.1 We will contact You as soon as reasonably possible to notify You; and
16.2.2 Our obligations under this Agreement will be suspended and the time for performance of Our obligations will be extended for the duration of the Event Outside Our Control.
17.1 Assignment: The rights granted under this Agreement are granted to You only. Subject to Clause 3, You may not, without Our prior written consent, assign, transfer, charge, sub-contract or deal in any other manner with all or any of Your rights or obligations under this Agreement.
No one other than You or Us has any rights to enforce any of the terms in this Agreement unless they are successors or permitted assignees. This applies to Your Affiliates, as you will enforce any terms on their behalf in accordance with Clause 3.1.5.
17.2 Waiver: No failure, omission or delay by a party to exercise any right, power or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right, power or remedy, nor shall it prevent or restrict the further exercise of that or any other right, power or remedy. No single or partial exercise of such right, power or remedy shall prevent or restrict the further exercise of that or any other right, power or remedy.
Unless stated otherwise, the rights, powers and remedies provided under this Agreement to You and Us are in addition to, and do not exclude, any rights, powers or remedies provided by law.
17.3 Severance: If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this Clause shall not affect the validity and enforceability of the rest of this Agreement.
17.4 Entire Agreement: Except for any changes agreed under Clause 13 above, this Agreement constitutes the entire agreement between us and supersedes any previous agreement between us relating to the Pento Platform and the Services. Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.
17.5 Notices: Any notice given to a party under or in connection with this Agreement shall be in writing and shall be delivered by email. Such notice shall be deemed to have been received within 1 working day of the sending of that email.
The notice provisions in this Clause 17.5 do not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
17.6 Governing Law: This Agreement and any related disputes or claims shall be governed by and construed in accordance with the law of the country in which the Pento contracting entity is located.
17.7 Jurisdiction: We both agree that the courts of the country in which the Pento contracting entity is located shall have exclusive jurisdiction to settle any such dispute or claim.