Terms of Service
Effective from 12 May 2023
Terms and conditions
1.1. These terms and conditions (the “Agreement”) govern your access to and use of the Services (as defined below).
1.2. If you register for a free trial or evaluation of the Services, the applicable provisions of this Agreement will also govern your access to such Services.
1.3. You agree to the terms of this Agreement by accepting them by means of an Order Form or otherwise or by accessing or using the Services.
1.4. We may update the terms of this Agreement from time to time. Unless stated otherwise, the updated terms of this Agreement will become effective and binding immediately upon publication on www.kolleno.com.
1.5. In this Agreement, “we”, “Kolleno”, “our” and “us” means Kolleno Limited whose registered address is at International House, 24 Holborn Viaduct, London, England, EC1A 2BN under company registration number 12755717.
1.6. This Agreement may apply to you individually, your employer or another legal entity you represent, or both. If you are using the Services on behalf of your employer or another legal entity, you hereby represent and warrant that you have full legal authority to bind your employer or such other legal entity (as applicable) to enter into this Agreement on behalf of such entity. If you do not have such authority, are under 18 years of age, or do not agree to the terms set forth in this Agreement, you must not use the Services. Your use of the Services requires your acceptance of the terms of this Agreement as they may be amended from time to time, including the policies and documents incorporated by reference herein as further described below.
1. 7. By accessing, registering for or using the Services, you:
1. 7. 1. acknowledge that you have read and understand the terms of this Agreement;
1. 7. 2. agree to be bound by them in their entirety; and
1. 7. 3. are entering into a legally binding agreement with us.
1.8. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be (i) the applicable Order Form and (ii) this Agreement.
1.9. To the extent that we act as the data processor of any personal data of which you are the data controller, the Data Processing Addendum (as available on www.kolleno.com) is hereby incorporated into this Agreement.
1.11. Titles and headings of sections of this Agreement are for convenience only and shall not affect the construction of any provision of this Agreement.
2.1. “Added Option” means any optional product, service, feature or functionality which we make available to you subject to the agreement of additional terms;
2.2. “Affiliate” means in relation to any party, means any subsidiary or parent company of that party and any subsidiary of that parent company;
2.3. “Business Day” means a day other than a Saturday, Sunday or public holiday in the United Kingdom, on which banks are open in the United Kingdom for general commercial business;
2.4. “Business Hours” mean 9am to 6pm Monday to Friday on a day that is not a public holiday in the United Kingdom;
2.5. “Confidential Information” means any information supplied by either party, or any of their respective Connected Persons to the other party and/or any of its Connected Persons, whenever and in whatever form, in connection with this Agreement, including any information:
a. relating to either party, that party’s business or any of that party’s respective Connected Persons;
b. contained or reflected in any report, analysis, compilation, study or other material prepared by or for either party or any of their respective Connected Persons; and
c. that would be regarded as confidential by a reasonable business person, and includes written information and information transferred or obtained orally, visually, electronically or by any other means and any information that the receiving party has derived from information in (a) to (c) (inclusive). For the avoidance of doubt, details of the Services, the Service Data and the results of any performance tests of the Services, constitutes Kolleno’s Confidential Information.
2.6. “Connected Person” means, in relation to a party, any Affiliate of that party and any officer, employee, agent, adviser or representative of that party or any of its Affiliates, in each case, from time to time;
2.7. “Fees” means the fees payable by you for Kolleno’s provision of the Services as specified in the Order Form;
2.8. “Intellectual Property Rights” means patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;
2.9. “Order Form” means the document between you and Kolleno specifying the Services to be provided by Kolleno to you under this Agreement;
2.10. “Platform” means the web-based application providing certain tools for monitoring outstanding payments, as well as communicating with the counterparties who owe such outstanding payments;
2.11. “Service Data” means the information and data which Kolleno, at its sole discretion, may make available to you in connection with the Services;
2.12. “Services” means the services and access to the Platform and the Software provided by Kolleno to you under this Agreement as more particularly may be described in the Order Form;
2.13. ““Software” means the software applications provided by Kolleno via the Platform or otherwise as part of the Services;
2.14. “Subscription Allocation” means, as applicable, your maximum number of: (i) Users; (ii) invoices to be processed via the Platform; (iii) SMS messages; and/or (iv) integration requests to Kolleno which you are permitted to utilise during the relevant Term of the Services, as specified in an Order Form;
2.15. “Term” means the Initial Term and the Renewal Term;
2.16. “User” means any authorised user who may access the Platform under your subscription for the Term for the purposes of using the Services or, as the case may be, your free plan, in each case as specified in an Order Form;
2.17. “Virus” means anything or device (including any software, code, file or programme) which may:
2.17.1 prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device;
2.17.2 prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or
2.17.3 adversely affect the user experience, including worms, Trojan horses, viruses and other similar things or devices; and
2.18. “Your Data” means the data inputted by you, or Kolleno on your behalf for the purpose of using the Services or facilitating your use of the Services.
3. Provision of Services and Term
3.1. Subject to your compliance with the terms of this Agreement, we will provide you with access to use the Services during the Term solely for your internal business operations, unless otherwise permitted by an Order Form, and in accordance with your Subscription Allocation.
3.2. We provide the Service to you for an initial term of 24 (twenty four) months commencing on and including the date of the Order Form or any other date as expressly stated in the Order Form (“the Initial Term“). Upon the end of the Initial Term, the term will renew automatically for subsequent periods of 12 (twelve) months (the “Renewal Term”), unless terminated earlier in accordance with clause 13 below. You may terminate this Agreement by providing at least 90 (ninety) calendar days’ prior written notice prior to the expiration of the then current Initial Term or any Renewal Term, as applicable.
3.3. This Agreement will apply to any new services, feature, or functionality which we may introduce from time to time, except to the extent that they are Added Options which may be subject to additional terms to which you will be required to agree and additional fees which you will be required to pay before being permitted to use the Added Options.
4. Your Order and Subscription Allocation
4.1. If you have a paid subscription, your Order Form sets out the Subscription Allocation that you have agreed to purchase.
4.2. You shall ensure that you do not exceed your Subscription Allocation. You may purchase additional Subscription Allocations by notifying us subject to the payment of an additional fee as specified by Kolleno.
4.3. We may track the number of Users and other Subscription Allocation to verify that you are paying for the correct number of subscriptions. Should you exceed your Subscription Allocation, we will invoice you for any additional fees due which you will pay in accordance with the terms of this Agreement and your Order Form.
5.1. In consideration for the provision of Service (except for a free trial), You agree to pay us the applicable Fees as set out in the Order Form via DirectDebit or another payment method authorised by Kolleno. You hereby authorise us, either directly or through a third party payment processing company to charge such Fees via your accepted payment method upon due date as specified in the Order Form until the Services are terminated by you or us in accordance with the terms of this Agreement. The fees are non-cancellable and non-refundable.
5.2. We reserve the right not to provide you with the Services until the relevant Fee has been received in full and cleared funds.
5.3. We reserve the right to change the Fees upon renewal of a Term taking into account, including but not limited to, (i) your previous usage of the Services and (ii) the percentage increase in the Consumer Price Inflation for the preceding 12 (twelve) month-period. For the purposes hereof “Consumer Price Inflation” shall mean United Kingdom Consumer Price Inflation as reported by the Office for National Statistics.
5.4. You will pay fees without any set-off, counterclaim, deduction or withholding of any kind, except as may be required by law. If any withholding or deduction is required by law, you will, when making the payment to which the withholding or deduction relates, pay to us such additional amount as will ensure that we receive the same total amount that it would have received if no such withholding or deduction had been required.
6. Your Use of the Services
6.1. You shall prevent unauthorised access or use of the Services and Service Data and in the event of a breach, you will notify us immediately. You are responsible for all use of our Services with your account details, which includes all user passwords issued to your organisation for each User, and for protecting your account details from unauthorised use. You are also responsible for the security of any computer from which you sign into your account. You shall ensure that all your Kolleno account credentials are kept secure and confidential. You agree to ensure that all use of the Services, the Software, the Service Data and Platform by you or under your Kolleno account are in compliance with the terms and conditions of this Agreement and in compliance with all applicable laws, rules and regulations governing this Agreement. You are responsible for any breach of this Agreement by any person using your Kolleno account credentials.
6.2. You promise not to access, store, distribute or transmit any Viruses, or any material during the course of your use of the Services, the Software, the Platform or Service Data that infringes any Intellectual Property Right of any other person and/or advocates, promotes or assists any unlawful act or illegal activity. Kolleno reserves the right, without liability or prejudice to its other rights to you, to disable your access to any material that breaches the provisions of this clause.
6.3. You may not, except to the extent expressly permitted under this Agreement, (i) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software, Service Data or Platform in any form or media or by any means; (ii) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; (iii) use the Services, Service Data, the Software, or Platform to provide services to third parties unless expressly permitted in the Order Form; (iv) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services, Service Data, the Software or Platform available to any third party; (v) access all or any part of the Services in order to build a product or service which competes with the Services; (vi) access without authority, interfere with, manipulate, damage or disrupt all or any part of the Services or any equipment or network owned or used by any third party, or assist any third party in doing such acts; or (vii) use the Product to develop a competing service or product.
7. Your Data and Privacy
For the purposes of providing the Services, Kolleno may process certain personal data concerning your Users. To the extent that Kolleno processes such personal data on your behalf as data processor when performing its obligations under this Agreement, the Data Processing Addendum shall apply.
8. Our Responsibilities to You
8.1. Kolleno will make commercially reasonable efforts to ensure that the Services will be performed substantially in accordance with good industry standards. However, we will have no obligations to the extent any non-conformance is caused by your use of the Services contrary to our instructions, or modification or alteration of the Services by any party other than Kolleno or Kolleno’s duly authorised contractors or agents. Your sole remedy and our only obligations to you if the Services do not conform with the foregoing is for us to (at our expense), use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide you with an alternative means of accomplishing the desired performance.
8.3. You acknowledge and agree that:
8.3.1. the Services will evolve over time and that functionality may be added and removed from time to time;
8.3.2. Kolleno does not warrant that use of the Services will be uninterrupted or error-free or that the Services and/or the information obtained through the Services will meet your requirements; and
8.3.3.Kolleno is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the Internet, and you acknowledge that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
8.4. We have no obligation to modify the Software to support your use of the Services and you acknowledge that the accuracy and completeness of the Services is dependent on a number of factors outside our control, including design, implementation and use of the Platform.
8.5. From time to time, Kolleno may make Beta services available at no charge (the “Beta Services”). Beta Services are made available “as is” and Kolleno shall have no liability for any harm or damage arising out of or arising out of or in connection with the Beta Services. You may choose to try such Beta Services at your sole discretion. Kolleno may discontinue Beta Services at any time in its sole discretion and may never make them generally available.
8.6. We do not warrant that the Services and/or the information obtained by you through the Services will meet your requirements.
8.7. Use of the Services is not intended to amount to financial or accounting advice on which you should rely. You must obtain professional or specialist advice before taking, or refraining from, any action on the basis of the information obtained by you through the Services and the Platform. Kolleno will not be liable in any manner for any outstanding invoices or debts owed to you by any third party which you have not been able to collect from such third party through the Platform.
8.8. Except as expressly and specifically provided in this Agreement:
8.8.1. you assume sole responsibility for results obtained from the use of the Services and the Platform, and for conclusions drawn from such use. We shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to us by you in connection with the Services, or any actions taken by us at your direction; and
8.8.2. the Services are provided on an “as is” basis.
9. Intellectual Property Rights
Kolleno owns all Intellectual Property Rights in the Services, Service Data, Software, and Platform and except as expressly stated herein, Kolleno does not grant to you any rights to, or in, such Intellectual Property. If you create any derivative works or developments based on Kolleno’s Intellectual Property Rights, you agree to assign to Kolleno all ownership rights and title to such developments.
10.1. Each party shall (and shall procure that each of its Connected Persons shall):
10.1.1. hold Confidential Information in confidence;
10.1.2. not disclose it to any person other than a Connected Person; and
10.1.3. use the Confidential Information only for the purpose of exercising or performing that party’s rights and obligations under this Agreement.
10.2. Clause 10.1 shall not apply to Confidential Information to the extent that:
10.2.1. the Confidential Information is required to be disclosed by law, any court of competent jurisdiction or by any regulatory or administrative body. If the receiving party believes that this clause 10.2.1 applies, it shall, as far as it is practicable and lawful to do so:
10.2.1.1. first consult the disclosing party to give the disclosing party an opportunity to contest the disclosure; and
10.2.1.2. take into account the disclosing party’s reasonable requirements about the proposed form, timing, nature and extent of disclosure;
10.2.2. the Confidential Information was already in the public domain when it was first received by the receiving party;
10.2.3. the Confidential Information subsequently enters the public domain, other than through breach of clause 10.1;
10.2.4. written records show that, when the Confidential Information was first made available to the receiving party, it was already in the lawful possession of the receiving party or any of its Connected Persons; or
10.2.5. after it is first made available to either of them, the receiving party or a Connected Person lawfully receives the Confidential Information from a third party who does not owe the disclosing party, or any of its Connected Persons, an obligation of confidence in relation to it.
10.3. Each party shall disclose Confidential Information as permitted by this clause 10 only if it is reasonably required.
11.1. Kolleno shall defend you and your officers, directors, employees, agents, successors and permitted assignees against any third party claim, suit, action or proceeding (each an “Action”) based on a claim that your use of the Services in accordance with this Agreement infringes any intellectual property right of a third party, and shall pay all settlements entered into and damages awarded against you to the extent based on such an Action; provided, however, that Kolleno shall have no obligations under this clause 11.1 with respect to claims to the extent arising out of:
11.1.1. any instruction, information, designs, specifications or other materials provided by you to Kolleno;
11.1.2. use of the Services in combination with any materials or equipment not supplied to you or specified by Kolleno in writing; or
11.1.3. any modifications or changes made to the Services by or on behalf of any person or entity other than Kolleno.
11.2. If the Services, or any part thereof, become, or in the opinion of Kolleno may become, the subject of a claim of infringement or misappropriation, Kolleno may, at its option:
11.2.1. procure for you the right to use such Services free of any liability;
11.2.2. replace or modify the Services to make them non-infringing; or
11.2.3. terminate this Agreement and refund to you any portion of the Fees prepaid by you for the infringing Services.
11.3. You will defend, indemnify and hold harmless Kolleno against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with your use of the Services, the Platform, the Software and/or the Service Data other than in accordance with this Agreement.
12. Limitation of Liability
12.1. Nothing in this Agreement excludes the liability of either party for:
12.1.1. death or personal injury caused by the relevant party’s negligence;
12.1.2. fraud or fraudulent misrepresentation; or
12.1.3. any other liability that cannot be excluded or limited by law.
12.2. Neither party shall be liable to the other party for:
12.2.1. any loss of profits, loss of business, revenue, use, contracts, business, anticipated savings, pure economic loss, goodwill or reputation, loss of, or damage to, data or any special or consequential loss, in each case whether direct or indirect;
12.2.2. any costs that are not reasonably foreseeable or any loss or damage of any kind that is, in either case, indirect or consequential; or
12.2.3. any costs that are incurred by the other party or its Affiliates as a result of the first party’s breach of its obligations under this Agreement where that breach was, in whole or in part, caused by the act or omission of a third party, in each case whether in contract, tort, or otherwise, that arise under or in connection with this Agreement.
12.3. Except for your liability under the Indemnification section above (which will not be subject to any limit), the total aggregate liability of either party arising in connection with the performance or contemplated performance of this Agreement shall not exceed GBP 100 (one hundred).
12.4. Kolleno will not be liable for any damage caused by errors or omissions in any content or omissions in any information, instructions, or scripts provided by you in connection with the Services or any action taken by us at your direction.
12.5. All other warranties, conditions, representations or other terms implied by statute or common law in relation to the Services, Service Data, the Software and Platform are excluded to the fullest extent permitted by law.
13.1. Either party may terminate this Agreement with immediate effect by written notice to the other party if:
13.1.1. the other party commits a material breach of any obligation under this Agreement, and, if the breach is capable of remedy, fails to remedy it within 30 days after receiving written notice to do so; or
13.1.2. the other party ceases, or threatens to cease, to carry out the whole or any material part of its business.
13.2. For the purposes of this clause 13, a breach shall be considered capable of remedy if the party in breach can comply with the relevant provision in all respects other than as to time of performance.
13.3. Kolleno reserves the right to refuse and to terminate your access to the Platform at any time, without explanation and with no liability to you.
13.4. On termination of this Agreement: (i) the rights granted to you under this Agreement shall immediately terminate; and (ii) you shall pay any and all fees outstanding, delete all copies of the Service Data and cease all use of the same; and immediately uninstall, delete or remove from all computer equipment in your possession or control, and destroy or return to Kolleno all copies of, any software used in the provision of the Services.
13.5. Any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination of this Agreement shall remain in full force and effect.
14.1. You agree that we may use your logo and name on Kolleno’s website and in any other marketing materials (both in print and online) from time to time.
14.2. Upon Kolleno’s request, you will participate in the development of a case study or provide a quote to be used as part of Kolleno’s sales and marketing materials, showcased on Kolleno’s website, a press release or any other marketing material. You will approve such publication of a case study and/or quote in advance of Kolleno publishing any such materials.
No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
If any provision of this Agreement or any Order Form, shall be held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable. If a court of competent jurisdiction finds that any provision of this Agreement or any Order Form is invalid or unenforceable, but that by limiting such provision it would become valid or enforceable, then such provision shall be deemed to be written, construed, and enforced as so limited.
17. Entire Agreement
This Agreement and each respective Order Form contain the entire agreement of the parties with respect to the Services specified in each Order Form, and there are no other promises or conditions in any other agreements, whether oral or written. This Agreement supersedes any prior written or oral agreements between the parties with respect to those Services provided under this Agreement, or specified in each Order Form (if applicable). The parties agree that any term or condition stated in a purchase order provided by you or in any other order documentation provided by you is void.
18.1. You may not assign, transfer, charge or otherwise deal with any of your rights or obligations under this Agreement nor grant, declare, create or dispose of any right or interest in it without our prior written consent.
18.2. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assignees.
19. No Partnership or Agency
The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. Each party will be solely responsible for payment of all compensation owed to its employees, as well as all employment-related taxes.
20. Third Party Rights
A person who is not a party to this Agreement shall have no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any of its terms.
21.1. Any notice to be given by one party to the other party in connection with this Agreement shall be in writing and shall be delivered by email to the email addresses of the parties specified in the Order Form or as notified by a party to the other from time to time.
21.2. A notice shall be effective and shall be deemed to have been received at the time of transmission. Where delivery occurs outside Business Hours, notice shall be deemed to have been received at the start of Business Hours on the following Business Day.
22. Governing law
This Agreement and all disputes or claims (including non-contractual disputes or claims) arising out of or in connection with them or their subject matter or formation shall be governed by and construed in accordance with the laws of England and Wales.
Each party irrevocably agrees that the courts of England shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Agreement or its subject matter or formation.