Terms & Conditions
Interpretation
The definitions and rules of interpretation in this clause apply in this Agreement.
Applicable Data Protection Laws
to the extent the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom which relates to the protection of personal data.
to the extent the EU GDPR applies, the law of the European Union or any member state of the European Union to which we are subject, which relates to the protection of personal data.
Applicable Laws
to the extent the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom.
to the extent EU GDPR applies, the law of the European Union or any member state of the European Union to which we are subject.
Application
the mobile application called “youdo” (available on Apple and Google devices) provided by youdo as part of the Services.
Authorised Users
those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Services and the Application, as further described in clauses 2 and 3.
Business Day
a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Confidential Information
information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 11.5 or clause 11.6.
controller, processor, data subject, personal data, personal data breach and processing
have the meaning given to them in the UK GDPR.
Customer Data
the data inputted by the Customer, Authorised Users, or youdo on the Customer's behalf for the purpose of using the Services or facilitating the Customer's use of the Services.
EU GDPR
the General Data Protection Regulation ((EU) 2016/679).
Initial Subscription Term
the initial term of this Agreement as set out in Part B of this Agreement.
Normal Business Hours
9.00am to 5.00pm local UK time, each Business Day.
Pricing Tier
the pricing tiers set out in the definition of Subscription Fees, as set out in Part B of this Agreement.
Privacy Policy
the youdo privacy policy available at www.youdoplay.org/privacy-policy or on the Application from time to time.
Renewal Period
the period described in clause 14.1.
Services
the subscription services provided by youdo to the Customer under this Agreement via the Application or any other website notified to the Customer by youdo from time to time.
Services Start Date
the date that youdo starts to provide the Services to the Customer under this Agreement, as set out in Part B of this Agreement.
Subscription Fees
the subscription fees payable by the Customer to youdo for the User Subscriptions, as set out in Part B of this Agreement.
Subscription Term
the Initial Subscription Term together with any subsequent Renewal Periods.
UK GDPR
has the meaning given to it in the Data Protection Act 2018.
User Subscriptions
the user subscriptions purchased by the Customer pursuant to clause 9.1 which entitle Authorised Users to access and use the Services and the Application in accordance with this Agreement.
Virus
any thing or device (including any software, code, file or programme) which may: 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; 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 adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
Vulnerability
a weakness in the computational logic (for example, code) found in software and hardware components that when exploited, results in a negative impact to the confidentiality, integrity, or availability, and the term Vulnerabilities shall be construed accordingly.
Clause headings shall not affect the interpretation of this Agreement.
A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person's legal and personal representatives, successors or permitted assigns.
A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
A reference to a statute or statutory provision is a reference to it and all subordinate legislation is a reference to it as amended, re-enacted or re-stated from time to time.
A reference to writing or written includes email but not fax.
References to clauses are to the clauses of this Agreement.
User subscriptions
Subject to the Customer purchasing the User Subscriptions in accordance with clause 3.3 and clause 9.1, the restrictions set out in this clause 2 and the other terms and conditions of this Agreement, youdo hereby grants to the Customer a non-exclusive, non-transferable right, without the right to grant sublicences, to permit the Authorised Users to use the Services and the Application during the Subscription Term solely for the Customer's internal business operations.
In relation to the Authorised Users, the Customer undertakes that:
the maximum number of Authorised Users that it authorises to access and use the Services and the Application shall not exceed the number of User Subscriptions it has purchased from time to time;
it will not allow or suffer any User Subscription to be used by more than 1 (one) individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User shall no longer have any right to access or use the Services and/or the Application;
it shall maintain a written, up to date list of current Authorised Users and provide such list to youdo within 5 (five) Business Days of youdo's written request at any time or times;
it shall permit youdo or youdo's designated auditor to audit the Services and/or the Application in order to establish the name of each Authorised User and the Customer's data processing facilities to audit compliance with this Agreement. Each such audit may be conducted no more than once per quarter, at youdo's expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Customer's normal conduct of business;
if any of the audits referred to in clause 2.2.4 reveal that any access to the Application and/or the Services has been provided to any individual who is not an Authorised User, then without prejudice to youdo's other rights, youdo shall promptly disable such individual’s account; and
if any of the audits referred to in clause 2.2.4 reveal that the Customer has underpaid Subscription Fees to youdo, then without prejudice to youdo's other rights, the Customer shall pay to youdo an amount equal to such underpayment as calculated in accordance with the prices set out in Part B of this Agreement within 10 (ten) Business Days of the date of the relevant audit.
The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services and/or the Application that:
is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
facilitates illegal activity;
depicts sexually explicit images;
promotes unlawful violence;
is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
is otherwise illegal or causes damage or injury to any person or property;
and youdo reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer's access to any material that breaches the provisions of this clause 2.3.
The Customer shall not:
except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under this Agreement:
attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Application (as applicable) in any form or media or by any means; or
attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Application; or
access all or any part of the Services and Application in order to build a product or service which competes with the Services and/or the Application; or
use the Services and/or Application to provide services to third parties; or
subject to clause 21.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Application available to any third party except the Authorised Users, or
attempt to obtain, or assist third parties in obtaining, access to the Services and/or Application, other than as provided under this clause 2; or
introduce or permit the introduction of, any Virus or Vulnerability into youdo's network and information systems.
The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Application and, in the event of any such unauthorised access or use, promptly notify youdo.
The rights provided under this clause 2 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer.
Additional User Subscriptions
Subject to clause 3.2 and clause 3.3, the Customer may, from time to time during any Subscription Term, purchase additional User Subscriptions and youdo shall grant access to the Services and the Application to such additional Authorised Users in accordance with the provisions of this Agreement.
If the Customer wishes to purchase additional User Subscriptions, the Customer shall notify youdo in writing. youdo shall evaluate such request for additional User Subscriptions and consider whether such will cause the Customer to move into a higher Pricing Tier and respond to the Customer with approval or rejection of the request.
If youdo approves the Customer's request to purchase additional User Subscriptions, youdo shall activate the additional User Subscriptions within 5 Business Days of its approval of the Customer's request.
If youdo approves the Customer's request to purchase additional User Subscriptions and where the purchase of additional User Subscriptions has caused the Customer to move into a higher Pricing Tier, the Customer shall, within 30 days of the date of youdo's invoice, pay to youdo the relevant fees for such additional User Subscriptions. If such additional User Subscriptions are purchased by the Customer part way through the Initial Subscription Term or any Renewal Period (as applicable), such fees shall be pro-rated from the date of activation by youdo for the remainder of the Initial Subscription Term or then current Renewal Period (as applicable).
The Customer may not move into a lower Pricing Tier during the course of the Initial Subscription Term.
Services
youdo shall, during the Subscription Term, provide the Services and make available the Application to the Customer and the Authorised Users on and subject to the terms of this Agreement.
youdo shall use commercially reasonable endeavours to make the Application available 24 (twenty four) hours a day, 7 (seven) days a week, except for:
planned maintenance carried out during the maintenance window of 10.00pm to 4.00am UK time; and
unscheduled maintenance performed outside Normal Business Hours, provided that youdo has used reasonable endeavours to give the Customer at least 6 (six) Normal Business Hours' notice in advance.
youdo will, as part of the Services and at no additional cost to the Customer, provide the Customer with youdo's standard customer support services, available by email correspondence to info@youdoplay.org during Normal Business Hours.
youdo aims, but shall not be obligated, to respond to any request for standard customer support services made in accordance with clause 4.3 no more than 45 (forty five) minutes from receiving such request from a Customer.
Data protection
Both parties will comply with all applicable requirements of the Applicable Data Protection Laws. This clause 5.1 is in addition to, and does not relieve, remove or replace, a party's obligations or rights under Applicable Data Protection Laws.
The parties have determined that, for the purposes of Applicable Data Protection Laws:
youdo shall act as controller of the personal data in relation to any personal data uploaded to the Application or provided whilst using the Services by the Customer and/or the Authorised Users. This is in order to manage support for the Services, and to maintain the Application and respond to questions and queries raised by the Customer and/or the Authorised Users; and
youdo shall act as a processor in the period between the transfer of personal data provided by the Customer and/or the Authorised Users in relation to Authorised Users that have agreed to use the Application, which is provided to youdo when signing up for the Services and verification of that Authorised User. youdo shall only use that personal data for the purposes of verification and activation of an Authorised User account on the Application..
By entering into this Agreement, the Customer consents to (and shall procure all required consents, from its personnel, representatives and agents, in respect of) all actions taken by youdo in connection with the processing of personal data, provided these are in compliance with the current version of the Privacy Policy. In the event of any inconsistency or conflict between the terms of the Privacy Policy and this Agreement, the Privacy Policy will take precedence.
Without prejudice to the generality of clause 5.1, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to youdo for the Subscription Term.
Clauses 5.2 and 5.9 set out the scope, nature and purpose of processing by youdo, the duration of the processing and the types of personal data and categories of data subject.
Without prejudice to the generality of clause 5.1, youdo shall, in relation to personal data for which youdo acts as processor:
process that personal data only on the Customer’s documented instructions, which shall be to process the personal data for the purposes set out in clause 5.9 unless youdo is required by Applicable Laws to otherwise process that personal data. Where youdo relies on Applicable Laws as the basis for processing personal data, youdo shall notify the Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit youdo from so notifying the Customer on important grounds of public interest. youdo shall inform the Customer if, in the opinion of youdo, the Customer’s instructions infringe Applicable Data Protection Legislation;
implement the technical and organisational measures to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, which the Customer has reviewed and confirmed are appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures;
ensure that any personnel engaged and authorised by youdo to process personal data have committed themselves to confidentiality or are under an appropriate statutory or common law obligation of confidentiality;
assist you insofar as this is possible (taking into account the nature of the processing and the information available to youdo), and at the Customer’s cost and written request, in responding to any request from a data subject and in ensuring the Customer’s compliance with its obligations under Applicable Data Protection Laws with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
notify the Customer without undue delay on becoming aware of a personal data breach involving the personal data;
at the Customer’s written direction, delete or return personal data and copies thereof to the Customer on termination of this Agreement unless youdo is required by Applicable Law to continue to process that personal data. For the purposes of this clause 5.6.6, personal data shall be considered deleted where it is put beyond further use by youdo; and
maintain records to demonstrate its compliance with this clause 5 and allow for reasonable audits by the Customer or the Customer’s designated auditor, for this purpose, on reasonable written notice.
The Customer hereby provides its prior, general authorisation for youdo to:
appoint processors to process the personal data, provided that youdo:
shall ensure that the terms on which it appoints such processors comply with Applicable Data Protection Laws, and are consistent with the obligations imposed on us in this clause 5;
shall remain responsible for the acts and omission of any such processor as if they were the acts and omissions of its own; and
shall inform the Customer of any intended changes concerning the addition or replacement of the processors, thereby giving the Customer the opportunity to object to such changes.
transfer personal data outside of the UK as required for the purpose (as outlined in clause 5.9), provided that youdo shall ensure that all such transfers are effected in accordance with Applicable Data Protection Laws. For these purposes, the Customer shall promptly comply with any reasonable request by youdo, including any request to enter into standard data protection clauses adopted by the European Union Commission from time to time (where the EU GDPR applies to the transfer) or adopted by the Commissioner from time to time (where the UK GDPR applies to the transfer).
Either party may, at any time on not less than 30 (thirty) days' notice, revise this clause 5 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to this Agreement).
The particulars of processing by youdo under this Agreement are as follows:
Scope: the provision of personal data by the Customer and/or the Authorised Users in relation to their receipt of the Services and/or use of the Application.
Nature and purpose: to provide the Services and Application under this Agreement.
Duration of processing: for the Subscription Term.
Types of personal data: email address, name and contact details.
Categories of data subject: the Authorised Users.
Third party providers
The Customer acknowledges that the Application may enable or assist it and/or the Authorised Users to access the website content of, correspond with, and purchase products and services from, third parties via third-party websites and that it does so solely at its own risk. youdo makes no representation, warranty or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by the Customer, with any such third party. Any contract entered into and any transaction completed via any third-party website is between the Customer and the relevant third party, and not youdo. youdo recommends that the Customer refers to the third party's website terms and conditions and privacy policy prior to using the relevant third-party website. youdo does not endorse or approve any third-party website nor the content of any of the third-party website made available via the Application.
youdo's obligations
youdo undertakes that the Services will be performed with reasonable skill and care.
The undertaking at clause 7.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to youdo's instructions, or modification or alteration of the Services by any party other than youdo or youdo's duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, youdo will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer's sole and exclusive remedy for any breach of the undertaking set out in clause 7.1.
youdo:
does not warrant that:
the Customer's use of the Services and/or the Application will be uninterrupted or error-free; or
that the Services and/or the Application will meet the Customer's requirements; or
the Application will be free from Vulnerabilities or Viruses.
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 the Customer acknowledges that the Services and access to the Application may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
This Agreement shall not prevent youdo from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this Agreement.
youdo warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this Agreement.
youdo shall follow its standard archiving procedures for Customer Data. In the event of any loss or damage to Customer Data, the Customer's sole and exclusive remedy against youdo shall be for youdo to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by youdo in accordance with its standard archiving procedures. youdo shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by youdo to perform services related to Customer Data maintenance and back-up for which it shall remain fully liable.
Customer's obligations
The Customer shall:
provide youdo with:
all necessary co-operation in relation to this Agreement; and
all necessary access to such information as may be required by youdo;
in order to provide the Services, including but not limited to Customer Data, security access information and configuration services;
without affecting its other obligations under this Agreement, comply with all applicable laws and regulations with respect to its activities under this Agreement;
carry out all other Customer responsibilities set out in this Agreement in a timely and efficient manner. In the event of any delays in the Customer's provision of such assistance as agreed by the parties, youdo may adjust any agreed timetable or delivery schedule as reasonably necessary;
ensure that the Authorised Users use the Services and the Application in accordance with the terms and conditions of this Agreement and shall be responsible for any Authorised User's breach of this Agreement;
ensure that the Authorised Users use the latest version of the Application from time to time and shall be responsible for the Authorised User’s download of such latest version from the Apple and Google application stores;
obtain and shall maintain all necessary licences, consents, and permissions necessary for youdo, its contractors and agents to perform their obligations under this Agreement, including without limitation the Services;
ensure that its network and systems comply with the relevant specifications provided by youdo from time to time; and
be, to the extent permitted by law and except as otherwise expressly provided in this Agreement, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to youdo's data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer's network connections or telecommunications links or caused by the internet.
The Customer shall own all right, title and interest in and to all of the Customer Data that is not personal data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Data.
Charges and payment
The Customer shall pay the Subscription Fees to youdo for the User Subscriptions in accordance with this clause 9 and Part B of this Agreement.
The Customer shall, no less than 5 (five) Business Days before the Services Start Date, provide to youdo valid, up-to-date and complete credit card details or approved purchase order information acceptable to youdo and any other relevant valid, up-to-date and complete contact and billing details and, if the Customer provides:
its credit card details to youdo, the Customer hereby authorises youdo to bill such credit card:
on the Services Start Date for the Subscription Fees payable in respect of the Initial Subscription Term; and
subject to clause 14.1, on each 12 month anniversary of the Services Start Date for the Subscription Fees payable in respect of the next Renewal Period;
its approved purchase order information to youdo, youdo shall invoice the Customer:
on the Services Start Date for the Subscription Fees payable in respect of the Initial Subscription Term; and
subject to clause 14.1, at least 30 days prior to each 12 month anniversary of the Services Start Date for the Subscription Fees payable in respect of the next Renewal Period,
and the Customer shall pay each invoice within 30 days after the date of such invoice.
If youdo has not received payment within 30 (thirty) days after the due date, and without prejudice to any other rights and remedies of youdo:
youdo may, without liability to the Customer, disable the Customer's account and access to all or part of the Services and youdo shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
interest shall accrue on a daily basis on such due amounts at an annual rate equal to 3% over the then current base lending rate of youdo's bankers in the UK from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
All amounts and fees stated or referred to in this Agreement:
shall be payable in the currency set out in Part B of this Agreement;
are, subject to clause 13.3.2, non-cancellable and non-refundable;
are exclusive of value added tax, which shall be added to youdo's invoice(s) at the appropriate rate; and
are subject to change at the end of the Initial Subscription Term and each subsequent Renewal Period.
Proprietary rights
The Customer acknowledges and agrees that youdo and/or its licensors own all intellectual property rights in the Services and the Application. Except as expressly stated herein, this Agreement does not grant the Customer any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Services or the Application.
youdo confirms that it has all the rights in relation to the Services and the Application that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this Agreement.
Confidentiality
Each party may be given access to Confidential Information from the other party in order to perform its obligations under this Agreement. A party's Confidential Information shall not be deemed to include information that:
is or becomes publicly known other than through any act or omission of the receiving party;
was in the other party's lawful possession before the disclosure;
is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
is independently developed by the receiving party, which independent development can be shown by written evidence.
Subject to clause 11.4, each party shall hold the other's Confidential Information in confidence and not make the other's Confidential Information available to any third party, or use the other's Confidential Information for any purpose other than the implementation of this Agreement.
Each party shall take all reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement.
A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 11.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
The Customer acknowledges that details of the Services and the Application, and the results of any performance tests of the Services and the Application, constitute youdo's Confidential Information.
youdo acknowledges that the Customer Data is the Confidential Information of the Customer.
No party shall make, or permit any person to make, any public announcement concerning this Agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
The above provisions of this clause 11 shall survive termination of this Agreement, however arising.
Indemnity
The Customer shall defend, indemnify and hold harmless youdo 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 the Customer's use of the Services and/or Application, provided that:
the Customer is given prompt notice of any such claim;
youdo provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer's expense; and
the Customer is given sole authority to defend or settle the claim.
youdo shall defend the Customer, its officers, directors and employees against any claim that the Customer's use of the Services or Application in accordance with this Agreement infringes any United Kingdom patent effective as of the Services Start Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:
youdo is given prompt notice of any such claim;
the Customer does not make any admission, or otherwise attempt to compromise or settle the claim and provides reasonable co-operation to youdo in the defence and settlement of such claim, at youdo's expense; and
youdo is given sole authority to defend or settle the claim.
In the defence or settlement of any claim, youdo may procure the right for the Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate this Agreement on two Business Days' notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.
In no event shall youdo, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:
a modification of the Services or Application by anyone other than youdo; or
the Customer's use of the Services or Application in a manner contrary to the instructions given to the Customer by youdo; or
the Customer's use of the Services or Application after notice of the alleged or actual infringement from youdo or any appropriate authority.
The foregoing and clause 13.2.2 state the Customer's sole and exclusive rights and remedies, and youdo's (including youdo's employees', agents' and sub-contractors') entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
Limitation of liability
Except as expressly and specifically provided in this Agreement:
the Customer assumes sole responsibility for results obtained from the use of the Services and the Application by the Customer, and for conclusions drawn from such use. youdo shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to youdo by the Customer in connection with the Services, or any actions taken by youdo at the Customer's direction;
all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement; and
the Services and the Application are provided to the Customer on an "as is" basis.
Nothing in this Agreement excludes the liability of youdo:
for death or personal injury caused by youdo's negligence; or
for fraud or fraudulent misrepresentation.
Subject to clause 13.1 and clause 13.2, youdo shall not in any circumstances be liable, whether in tort (including without limitation for negligence or breach of statutory duty howsoever arising), contract, misrepresentation (whether innocent or negligent) or otherwise for:
loss of profits (direct or indirect); or
loss of business; or depletion of goodwill or similar losses; or loss of anticipated savings (direct or indirect); or
loss of goods (direct or indirect); or
loss of use (direct or indirect); or
loss or corruption of data or information (direct or indirect);
loss caused by an act or omission of a third party; or
any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
Subject to clause 13.1,13.2 and 13.3, youdo's total aggregate liability in contract (including in respect of the indemnity at clause 12.2), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to the total Subscription Fees paid for the User Subscriptions during the 12 months immediately preceding the date on which the claim arose.
Nothing in this Agreement excludes the liability of the Customer for any breach, infringement or misappropriation of youdo’s intellectual property rights.
Term and termination
This Agreement shall, unless otherwise terminated as provided in this clause 14, commence on the date the last signature is affixed to this Agreement or the Services Start Date (whichever is the earlier).
The Initial Subscription Term shall commence on the Services Start Date and, thereafter, this Agreement shall be automatically renewed for successive periods of 12 (twelve) months (each a Renewal Period), unless:
either party notifies the other party of termination, in writing, by providing not less than 60 (sixty) days’ notice, to expire no earlier than the end of the Initial Subscription Term or any Renewal Period, in which case this Agreement shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period; or
otherwise terminated in accordance with the provisions of this Agreement.
Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice to the other party if:
the other party fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 30 (thirty) days after being notified in writing to make such payment;
the other party commits a material breach of any other term of this Agreement and (if such breach is remediable) fails to remedy that breach within a period of 14 (fourteen) days after being notified in writing to do so;
the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors 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;
the other party applies to court for, or obtains, a moratorium under Part A1 of the Insolvency Act 1986;
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;
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 (being a company, partnership or limited liability partnership);
the holder of a qualifying floating charge over the assets of that other party (being a company or limited liability partnership) has become entitled to appoint or has appointed an administrative receiver;
a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party's assets and such attachment or process is not discharged within 14 (fourteen) days;
any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clauses 14.2.3 to 14.2.10 (inclusive);
the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or
the other party's financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of this Agreement is in jeopardy.
Without affecting any other right or remedy available to it, youdo may terminate this Agreement with immediate effect by giving written notice to the Customer if there is a change of control of the Customer (within the meaning of section 1124 of the Corporation Tax Act 2010).
On termination of this Agreement for any reason:
all licences granted under this Agreement shall immediately terminate and the Customer shall immediately cease all use of the Services and/or the Application;
each party shall return and make no further use of any equipment, property other items (and all copies of them) belonging to the other party;
youdo may destroy or otherwise dispose of any of the Customer Data in its possession unless youdo receives, no later than 10 (ten) days after the effective date of the termination of this Agreement, a written request for the delivery to the Customer of the then most recent back-up of the Customer Data. youdo shall use reasonable commercial endeavours to deliver the back-up to the Customer within 30 (thirty) days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer shall pay all reasonable expenses incurred by youdo in returning or disposing of Customer Data; and
any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced.
Force majeure
youdo shall have no liability to the Customer under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of youdo or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the Customer is notified of such an event and its expected duration.
Variation
No variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
Waiver
No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
Rights and remedies
Except as expressly provided in this Agreement, the rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
Severance
If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Agreement.
If any provision or part-provision of this Agreement is deemed deleted under clause 19.1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
Entire agreement
This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
Each party acknowledges that in entering into this Agreement it does not rely on, and 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.
Nothing in this clause shall limit or exclude any liability for fraud.
Assignment
The Customer shall not, without the prior written consent of youdo, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
youdo may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
10. No partnership or agency
Nothing in this Agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
11. Third party rights
This Agreement does not confer any rights on any person or party (other than the parties to this Agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
Counterparts
This Agreement may be executed in any number of counterparts, each of which shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.
Transmission of the executed signature page of a counterpart of this Agreement by email (in PDF, JPEG or other agreed format) shall take effect as the transmission of an executed "wet-ink" counterpart of this Agreement. If this method of transmission is adopted, without prejudice to the validity of the agreement thus made, each party shall on request provide the other with the "wet ink" hard copy original of their counterpart.
No counterpart shall be effective until each party has provided to the other at least one executed counterpart.
Notices
Any notice required to be given under this Agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in this Agreement, or such other address as may have been notified by that party for such purposes, or sent by email to the other party's email number as set out in this Agreement.
A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in Normal Business Hours, at 9am on the first Business Day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by email shall be deemed to have been received at the time of transmission (as shown by the timed printout obtained by the sender).
12. Governing law
This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England.
13. Jurisdiction
Each party irrevocably agrees that the courts of England shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).