YUDU Ltd - Terms and Conditions of Sale U.K.


These terms cover the use by customers ('Customer') of the Yudu Website and Services listed (the 'Services') and are accepted once the Confirmation of Rate/Order Confirmation (the 'Order') is signed or the Service is accessed.


Using the Yudu publishing services ('Publisher' and 'Express')


General

The Yudu publishing services are designed to allow publishers/editors/authors (collectively, 'Publishers') a wider distribution of their work, to the benefit of interested readers ('Readers') by making them available on the Internet. Anyone who accesses the Yudu publishing services, Publisher or Express, whether as a Publisher or a Reader, is regarded as a 'User' and is subject to the following terms of use. The use of Publisher or Express constitutes a binding acceptance of these terms of use which may be modified from time to time by posting revisions on the Yudu Website. It may be the case that individual Publishers impose additional terms upon Readers and these terms are incorporated herewith by reference.

Content

Publishers are solely responsible for all content they make available through Publisher or Express. Such content ('Customer Content') constitutes any documents and/or data information that is uploaded to the Yudu publishing service by Customer. Any Publisher who makes Customer Content available, by doing so, certifies that they own all intellectual Property in the content and grants Yudu a worldwide, irrevocable, royalty-free, non-exclusive, sub-licencable licence to use, reproduce, distribute, transfer, transmit, distribute and publish content for the purposes of (i) displaying content on the Yudu publishing service, (ii) distributing content by any means to Users seeking to access it, and/or (iii) storing content. This applies to the storage and distribution of content in any current or future medium.

Privacy

All of the information that we collect from you, such as registration and credit card information, is subject to our Privacy Policy which can be found at www.yudu.com/about/privacypolicy.

Data Protection

Yudu will comply with the data processing provision set out at www.yudu.com/about/gdpr

Conduct

Yudu will fully co-operate with all law-enforcement requests or requirements relating to prohibited conduct on our Website or Services and we reserve the right to determine what conduct is prohibited. The following (which is not an exhaustive list) are examples of prohibited conduct

  1. violating the legal right of others or otherwise violating the law in any way; this includes illegally downloading files, making false statements including use of false identities and/or affecting use of the publishing services by others
  2. transmitting information that may affect the operation of another person’s system, such as files that contain viruses or corrupted files
  3. interference with the Yudu publishing service including overloading.

All Publisher's editorial content and graphics on the Yudu publishing service are protected by copyright laws and may not be copied without the express permission of the Publisher who reserves all rights. Re-use without the Publisher's permission is strictly prohibited. Any User who believes their intellectual property rights are being infringed are encouraged to resolve their dispute directly with the offending Publisher. Yudu are willing to perform a limited investigation of reasonable complaints of infringements but do not guarantee the removal of the infringing material. If you believe your copyright material is being used without permission please notify the Yudu Development Manager, Tom Stone (tom.stone@yudu.com) with the following information:

  1. A description of the copyrighted work that is claimed to be infringed and where it is located on the Yudu publishing system.
  2. An address, telephone number, and e-mail address where Yudu and the Publisher can contact you.
  3. A statement that you are the copyright or intellectual property owner and have a good-faith belief that the use is not authorised by the copyright or other intellectual property right.

If a dispute cannot be resolved Yudu reserves the right to remove the disputed content pending further resolution. Notice will be given to all parties if such a removal has been actioned.

Fee-based Services

The fees for use of the Services are either shown on the Website or detailed in the Order. These fees are payable according to the payment terms detailed on the site or on the Order. Overdue fees will attract a late payment fee calculated on a monthly basis as a percentage of the overdue fee using the current Bank of England base rate plus 5%.

Licenses

The use of the Yudu Services is granted to Customer under licence ('Licenced Products') which is a worldwide, non-exclusive, non-transferrable, terminable licence. The term of the licence is detailed on the Website or on the Order.

License and Usage Grant: Customer Obligations

Customer agrees that, except and only to the extent that applicable law permits, it will not (and will not allow any third party to) copy, modify, create a derivative work of, reverse engineer, reverse assemble, disassemble, or decompile the Licenced Products or any part thereof or otherwise attempt to discover any source code, modify the Licenced Products in any manner or form, or use unauthorised modified versions of the Licenced Products, including (without limitation) for the purpose of building a similar or competitive product or service or for the purpose of obtaining unauthorised access to the Licenced Products.

The licence is for Customer’s own use and Customer is prohibited from directly or indirectly sublicensing use of the Licenced Products to any third parties.

Customer acknowledges and agrees that Yudu owns all rights, title and interest in and to any and all trade secrets, patents, copyrights, service marks, trademarks, know-how, trade names, rights in trade dress and packaging, moral rights, rights of privacy, publicity and similar rights of any type, including any applications, continuations or other registrations with respect to any of the foregoing, under the laws or regulations of any foreign or domestic governmental, regulatory or judicial authority (collectively, the “Intellectual Property Rights”) in the Licenced Products. The licence granted to Customer does not convey any rights in the Licenced Products other than those oulined above, or any Intellectual Property Rights thereto. Any rights not expressly granted herein are reserved by Yudu.

License and Usage Grant: YUDU Obligations

Customer will grant Yudu, during the licence term, licence to copy, adapt and transmit the Customer Content to the extent necessary to provide the Services to Customer and Yudu may not use it for any purpose other than this. The licence from Customer will be non-exclusive and non-transferrable and will survive the termination of the Yudu licence to Customer for 90 days for the purposes of storing back-ups.

Limited Warranties

Yudu warrants that the Services will be free from material defects under normal use and that the code of the software underlying the Service meets industry standards in all respects.

Disclaimer of Warranties

Yudu does not warrant that our Website or Services will be uninterrupted or error free nor give any warranty as to the Content thereon. The Services are provided on an 'As Is' and 'As Available' basis for commercial use of the Customer who assumes all responsibility for determining whether the Service or the information generated thereby is accurate or sufficient for their purposes. Customer acknowledges that computer and communication systems are not fault-free and occasional downtimes occur and Yudu cannot guarantee that the Services will be uninterrupted, timely, secure or error-free or that Content loss will not occur.

Limitations of Liability

In no event will Yudu be liable for incidental, consequential, punitive, special or exemplary damages, or indirect damages of any type or kind (including loss of data, revenue, profits, use or other economic advantage) arising from the use of the Services. The maximum liability of Yudu arising out of or in connection with any licence, use or other employment of the Licenced Products, will in no case exceed the price paid to Yudu for the Licenced Products.

Indemnification

Yudu will defend, indemnify, and hold harmless Customer and its subsidiaries and their respective directors, officers, employees, and agents from and against all Claims (being all actions, causes of action, liabilities, claims, suits, judgements, liens, awards and damages of any kind) arising out of a bone fide claim of the infringement of any patent or copyright by the Licenced Products or involving the wrongful use of any trade secret or confidential information by Yudu, and shall give Customer notice of all such Claims against YUDU. Notwithstanding this, YUDU will not be liable to Customer for Customer's consequential damages or lost profits as a result of Customer’s inability to use the Licenced Products due to any permanent injunction. Customer will give YUDU prompt notice of all Claims made against Customer or any of its affiliated or subsidiary companies and shall cooperate with YUDU (at YUDU’s expense) in the defence or settlement of such Claims.

If the Licenced Products are, or are likely to be, the subject of an infringement claim, YUDU, at its expense, will: (a) procure the right to allow Customer to continue to use of the Licenced Products, or (b) modify or replace the Licenced Products or infringing portions thereof to become non-infringing, without loss of material functionality. If YUDU is unable to provide one of the remedies in (a) or (b) within forty-five (45) days of notice of the claim, YUDU will have the right to terminate the licence and refund all fees paid hereunder for the use of the Licenced Products. The foregoing remedies are in addition to any other remedies Customer would have at law or equity.

Suspension for ongoing harm

Yudu reserves the right, after immediate notification to Customer, to suspend Customer's access to and/or use of the Licenced Products and/or access to Customer Content without liability to Customer if Yudu reasonably concludes that Customer is using the Licenced Products to engage in denial of service attacks, spamming, or illegal activity. Yudu's decision not to exercise such right will not preclude it from doing so at any time thereafter. Yudu will make all commercially reasonable efforts to immediately notify Customer of such suspensions or access, but will not be liable to Customer if such notification is not received, and will in the first instance attempt to quarantine the offending Customer Content to allow resolution before suspension.

Suspension for overdue account

If a Customer account is still overdue for payment after two overdue account reminders have been sent Yudu reserves the right to suspend Customer's access to and/or use of the Licenced Products and/or de-publish specific undisputed, unpaid but overdue Customer Content without liability to Customer.

Termination

The initial termination date for use of the Licenced Products will be the end of the initial term of the Licence stated on the Order. Licences will automatically renew from this date on an annual basis unless terminated by either Customer or Yudu giving 30 days notice prior to the termination date.

In the event of the breach of any material provisions of these terms and conditions by the other party, either Customer or Yudu may terminate the use of the Licenced Products provided that the terminating party provides written notice to the other party allowing a 30 day period in which to cure the breach and the breaching party fails to cure the breach during this period.

Upon termination of the Licence for the Licenced Products Customer will have no rights to continue use of the Licenced Products. If termination is a result of a breach on Yudu's part, Yudu will refund the pro-rata portion of any unused fees that may have been made by Customer. If termination is a result of a breach on Customer's part then Yudu will retain all fees that may have been paid by Customer.

Upon any termination or expiration of Licence Yudu will return to Customer, or at Customer's option destroy, all Customer Data in Yudu's control or possession. At Customer’s request, Customer Content may be retained for access by Users on the Yudu publishing system and Yudu will provide a quote and an Order for continuing the hosting and support of such Customer Content. The hosting and support costs will be invoiced annually in advance on the terms indicated on the Order and the hosting will continue annually unless Customer gives 30 days prior notice of termination at each anniversary date.

Miscellaneous

These terms and conditions apply to Yudu and Customer and do not create any joint venture, partnership, agency, or employment relationship between the parties. Yudu reserves the right to name Customer as a user of the Licenced Products.

Customer cannot sub-licence the use of the Licenced Products but is permitted to licence users for the purpose of fulfilling Customer's business operations.

Any disputes, actions, claims or causes of action arising out of or in connection with these terms or the Licenced Products will be subject to the exclusive jurisdiction of the English courts. If customer has signed an Order with YUDU MEDIA for use of the Services or Licenced Products in the USA any disputes, actions, claims or causes of action arising out of or in connection with these terms or the Licenced Products will be subject of the exclusive jurisdiction of the courts of Massachusetts, USA.

If any provision in these terms is held by a court of competent jurisdiction to be contrary to law, the provision will be limited or eliminated to the minimum extent necessary so that the remainder of the terms will otherwise remain in force and effect.

Neither Yudu nor Customer will be liable for any loss or delay resulting from any force majeure event, including, but not limited to acts of God, fire, natural disaster, terrorism, labour stoppage, war or military hostilities or criminal acts of third parties. This shall not operate to excuse any failure to pay any amounts when due.

Service-specific terms

These service-specific terms are in addition to the previous general terms

YUDU Express

Yudu's 'Express' publishing system is a web-based publishing platform which is hosted by Yudu and licenced for use by Customer for the subscription fee and term determined by the Customer selection on the Yudu Website sign-up. The term will commence from the date the Customer completes the first payment of the fee. Subsequent monthly or annual subscription fees will be automatically debited to Customer (using the Customer's payment method) on the recurring monthly or annual date.

Customer's access to the Express will cease after the end of the subscription term if not renewed. Yudu has the right to suspend Customer's access and/or use of Express if Customer's payment is not received by Yudu and will not be liable to Customer or other third party as a result of such suspension.

Yudu will not make any refunds of subscriptions (except as expressly required by law), although Customer can cancel subscription fees at any time.

YUDU Publisher

Yudu's on-line digital publishing platform ('Publisher') is a fully hosted system allowing Customers to publish documents for wide Reader access to either the Web or to Customised Applications.

Fees charged to Customer for use of Publisher are by way of either payment for a number of pages ('Advance Page Purchase') or by licence for Publisher access ('Publisher Licence')for a period of time with a capped page usage allowance ('Capped Usage'). The fees, pages and term are detailed on the Order.

Customers making an Advanced Page Purchase will be granted access to Publisher upon signature of the Order and will be allowed use of the system until all purchased pages have been used.

Customers purchasing a Publisher Licence will be granted access to Publisher upon signature of the Order and this will be the commencement date of the term detailed on the Order. If the Capped Usage is reached within the term Customer can continue the use of the system by making an Advance Page Purchase at the page rate detailed on the Order. If the Publisher licence is not renewed at the end of the term, access to Publisher will cease.

The fees charged to Customer include an allowance for the inclusion of embedded video clips within the Customer Content and assumes a 'fair viewing policy' for the viewing of Customer Content. These limits will be detailed on the Order. Insertions of embedded video or viewing of Customer Content above these limits will attract an overage charge at a rate detailed on the Order and these will be billed to Customer on a monthly basis.

Customisable Apps

Yudu's customisable Apps enable Customers to publish content from Publisher to an Application ('Customised App') which can be accessed on mobile and other devices and requires customization by Yudu to Customer specifications and may need approval for use on certain operating platforms (Apple or Android) using Customer's developer account with the relevant operating platform. It will be Customer's responsibility to set up the necessary development account and allow Yudu access to it.

Customer agrees that Yudu will have at all times access to the Customised App, by being provided with the necessary log-in details for access, solely for the purpose of customizing, testing and checking during the customisation and any App submission process, and subsequently for maintenance and software upgrade purposes.

Customer agrees that the Customised App will acknowledge the Yudu copyright of the App within its information fields

Yudu will agree with Customer the specifications for the Customised App and make such App compliant with these. The one-off fee for this customisation will be detailed in the Order and will be payable in accordance with the terms outlined therein.

The Customised App is licenced to the Customer the fee for which will be charged annually in advance from the date of signature to the Order. The fee will continue annually unless prior notice is given 30 days in advance of any anniversary date by either Customer or Yudu.

The fee includes the update of the Customised App with the latest versions of the Yudu Application software together with troubleshooting and technical help and support during each year. It is Yudu's intention (but not obligation) to ensure wherever necessary that the Customised App is compliant with changes made by the operating platform (Apple/Android) wherever possible throughout each year. Yudu may adjust the annual fee after the first year or in subsequent years but not by more than the rate of inflation as determined by the Consumer Prices Index and the provision to Customer of at least 60 days notice of the increase.

The fee includes an allowance for the inclusion of embedded video clips within the Customised Application and assumes a 'fair viewing policy' for the viewing of Customer Content within the Customised Application. These limits will be detailed on the Order. Insertions of embedded video or viewing of Customer Content above these limits will attract an overage charge at a rate detailed on the Order and these will be billed to Customer on a monthly basis.

If the licence or software maintenance and support for the Customised App is discontinued the Customised App will not be further updated and technical help and support will not be available. Yudu will take no further responsibility for ensuring that the Customised App is operational due to changes or upgrades to the operating systems of Apple, Google and Microsoft.

At the Customer’s request the Customised App and its Customer Content may be retained for access and Yudu will provide a quote and an Order for the on-going hosting of the App and content. Such hosting costs will be invoiced annually in advance on the terms indicated on the Order and the hosting will continue annually unless Customer gives 30 days prior notice of termination at each anniversary date.

YUDU Sentinel

Yudu's emergency communications application ('Yudu Sentinel System') facilitates Customer’s communication to specific personnel in the event of incidents and emergencies. It requires customization by Yudu to Customer specifications ('Customer Sentinel System') and may need approval for use on certain operating platforms (Apple or Android) using Customer's developer account with the relevant operating platform. It will be Customer's responsibility to set up the necessary development account and allow Yudu access to it.

The Customer Sentinel System is hosted by Yudu and will be accessible by the Customer through a customer branded Sentinel Web Portal and Customer agrees that Yudu will have at all times access to the Customer Sentinel System, by being provided with the necessary log-in details for access, solely for the purpose of customizing, testing and checking during the customisation and any App submission process, and subsequently for maintenance and software upgrade purposes.

Customer agrees that the Customer Sentinel System will acknowledge the Yudu copyright of the App within its information fields

Yudu will agree with Customer the specifications for the Customer Sentinel System and make it compliant with these. The one-off fee for this customisation will be detailed in the Order and will be payable in accordance with the terms outlined therein.

The Customer Sentinel System is licenced to the Customer over the minimum period outlined in the Order (the 'Initial Term') the fee for which will be charged annually in advance from the date of signature to the Order. After the Initial Term the fee will continue annually unless prior notice is given 30 days in advance of any anniversary date by either Customer or Yudu.

The fee includes the update of the Customer Sentinel System with the latest versions of the Yudu Sentinel System together with troubleshooting and technical help and support during the Initial Term and each subsequent year if continued. It is Yudu's intention (but not obligation) to ensure wherever necessary that the Customer Sentinel System is compliant with changes made by the operating platform (Apple/Android) wherever possible throughout each year. Yudu may adjust the annual fee after the Initial Term or in subsequent years but not by more than the rate of inflation as determined by the Consumer Prices Index and the provision to Customer of at least 60 days notice of the increase.

The fee includes certain usage allowance limits as detailed on the Order and usage above these limits will attract an overage charge at a rate detailed on the Order and these will be billed to Customer on a monthly basis.

Yudu will not process or transfer the Customer Data outside of the United Kingdom or European Economic Area (or permit the Customer Data to be so processed or transferred) unless it has obtained the Customer’s prior written consent with the exception of the following circumstances (provided that all third party service providers shall continue to maintain their membership of the Privacy Shield scheme or equivalent body): the transfer of phone numbers (only) to a third-party service provider (Twilio, US based); the sending out SMS messages and conducting conference calls, and email addresses (only) to a third-party service (Mailgun US based); and also the sending out email notifications first name and last name (only) to a system (Bugsnag US based) which is used for automated error monitoring.

The links to the GDPR statements and assurances of these companies are:

Twilio’s Statements: https://www.twilio.com/gdpr
https://www.twilio.com/blog/2018/05/gdpr-and-eu-data-location-requirements.html
Twilio Privacy Shield entry:
https://www.privacyshield.gov/participant?id=a2zt0000000TNLbAAO&status=Active
Mailgun’s Statement:
https://www.mailgun.com/gdpr
Mailgun Privacy Shield entry:
https://www.privacyshield.gov/participant?id=a2zt0000000PCbmAAG&status=Active
Bugsnag statement:
https://www.bugsnag.com/security/
Bugsnag Privacy Shield entry:
https://www.privacyshield.gov/participant?id=a2zt0000000TSeVAAW&status=Active

Sentinel Hotline (stand-alone)

Yudu's 'Sentinel Hotline' system is usually part of the Yudu Sentinel System and the service specific terms for the Yudu Sentinel System applies.

The Sentinel Hotline system may also be provided to Customer on a stand-alone basis and is then licenced to the Customer over a minimum period (Initial Term) with capped usage as detailed on the Order. The licence fee will be charged annually in advance from the date of signature of the Order. After the Initial Term the fee will continue annually unless prior notice is given 30 days in advance of any anniversary date by either Customer or Yudu. The fee includes certain usage allowance limits as detailed on the Order and usage above these limits will attract an overage charge at a rate detailed on the Order and these will be invoiced to the Customer on a monthly basis.

Customer's access to the Sentinel Hotline system will cease after the end of the subscription term if not renewed and the hotline(s) will be removed, although the Customer may, optionally, download any data on calls made on the hotline(s) before removal.

Sentinel Check-in

YUDU Sentinel Check-in is a web-based platform which is hosted by YUDU and licenced for use by the Customer for the usage fee outlined on the YUDU Sentinel Check-in webpage. Upon registration using the Website registration form, the Customer will be sent a QR code and notified of how to access the Sentinel Check-in system.

The usage fee will be invoiced to Customer at the end of each month for the usage of that month based on the number of check ins done multiplied by the check-in fee. A check in is recorded every time an SMS message is generated after the QR is scanned, or the associated number to the QR is called.

The invoice must be settled within 30 days of the invoice date for the system to remain available to the Customer. In the event of non-settlement within 30 days the Customer’s access will be removed and not re-instated until full payment has been received. For instances of re-instatement, at Yudu’s discretion, a re-instatement fee may be charged.

The Customer may cancel the Sentinel Check-in service at any time by giving written (e-mail) notice to the contact noted on the Yudu Website.

Upon cancellation Customer access to the system will be removed and the QR code made inoperative; an invoice will be raised for the unbilled usage up to the termination date. Such invoice must be settled within 30 days of the invoice date.

The Services

  • Yudu Express
  • Yudu Publisher
  • Customised Application
  • Yudu Sentinel System:
    • Sentinel Hotline
    • Sentinel Alerting
    • Sentinel Conferencing
    • Sentinel Chat
    • Sentinel Check-in

YUDU Media Corp. - Terms Conditions of Sale in the U.S.A.


1. Agreement

This is an Agreement between the Customer and Yudu Media Corp. (‘YUDU’), Riverview Centre, 245 First Street, 18th Floor, Cambridge, MA 02142, a Company Incorporated in Massachusetts, USA 

This Agreement consists of the Confirmation of Rate/Order Confirmation and the Terms and Conditions and constitutes the entire agreement between the Customer and YUDU in relation to the YUDU Service (the 'Service').

By signing the Confirmation of Rate/Order Confirmation, or by accessing or using the Service, the Customer accepts the content of this Agreement.


2. Product

YUDU will provide Customer with the online publishing application described and any new updated features that YUDU releases during the term of an agreement that augment or enhance the current publishing application (the Service). YUDU will host the Service, unless arranged otherwise by way of separate agreement, and may update the content, functionality, and user interface of the Service from time to time at its sole discretion and in accordance with this Agreement.


3. License and Usage Grant

Subject to the terms and conditions of this Agreement, YUDU grants Customer during the Term of this Agreement the unlimited, non-exclusive, non-transferable (except in connection with an assignment under Section 12 below), worldwide and terminable license to use the Service and to display content solely for Customer's internal business operations, and that the rights granted to Customer are provided to Customer on the condition that Customer does not (and does not allow any third party to) copy, modify, create a derivative work of, reverse engineer, reverse assemble, disassemble, or decompile the Service or any part thereof or otherwise attempt to discover any source code, modify the Service in any manner or form, or use unauthorized modified versions of the Service, including (without limitation) for the purpose of building a similar or competitive product or service or for the purpose of obtaining unauthorized access to the Service. Customer is expressly prohibited from sublicensing use of the Service to any third parties. Customer acknowledges and agrees that YUDU shall own all rights, title and interest in and to all intellectual property rights in the Service. Except as provided in this Agreement, the license granted to Customer does not convey any rights in the Service, express or implied, or ownership in the Service or any intellectual property rights thereto. Any rights not expressly granted herein are reserved by YUDU.


4. License from Customer

Subject to the terms and conditions of this Agreement, Customer grants YUDU the non exclusive non-transferable (except in connection with an assignment under Section 13 below) license to copy, store, record, transmit, maintain, display, view, print, or otherwise use Customer Data solely to the extent necessary to provide the Service to Customer. Customer agrees that the license to Customer Data shall survive the termination of this Agreement for 90 days, solely for the purpose of storing backup Customer Data at an offsite storage facility. Customer Data is owned by Customer and YUDU may not use it for any purpose other than as described in this Section.


5. Fees and Payment terms

This Agreement shall be in force from the date inserted on the Confirmation of Rate/Order Confirmation.

In consideration of YUDU providing the Service the Customer agrees to pay the sum specified in the Confirmation of Rate/Order Confirmation and or invoice on the times and dates specified therein.

All payments must be made within 10 days of the invoice date unless otherwise stated in the Confirmation of Rate/Order Confirmation.

If the Customer fails to pay any undisputed invoices pursuant to the Agreement, any undisputed late payments shall be subject to a late payment charge equal to 1.5% of the amount due (calculated on a monthly basis) or the maximum amount allowed by law, whichever is less.

In the event of an overdue payment YUDU may suspend the Service as detailed in Section 11.1.


6. Limited Warranties

YUDU warrants that (1) the Service will be free from material defects under normal use; (2) the code of the software underlying the Service meets industry standards in all respects.


7. Disclaimer Of Warranties

Except as stated in Section 6 or in the Terms of Use located on the YUDU website www.yudu.com, YUDU does not represent that customer's use of the service will be secure, timely, uninterrupted or error-free or that the service will meet customer's requirements or that all errors in the service and/or documentation will be corrected or that the system that makes the service available will be free of viruses or other harmful components. The warranties stated in Section 6 or the Terms of Use are the sole and exclusive warranties offered by YUDU. There are no other warranties or conditions, express or implied, including without limitation, those of merchantability or fitness for a particular purpose. The service is provided to customer on an "as is" and "as available" basis, and is for commercial use only. Customer assumes all responsibility for determining whether the service or the information generated thereby is accurate or sufficient for customer's purposes.


8. Limitations of Liability

Customer acknowledges and agrees that the consideration which YUDU is charging hereunder does not include any consideration for assumption by YUDU of the risk of Customer's incidental or consequential damages. In no event shall either party be liable to anyone for incidental, consequential, punitive, special or exemplary damages, or indirect damages of any type or kind (including loss of data, revenue, profits, use or other economic advantage), arising from breach of warranty or breach of contract, or negligence, or any other legal cause of action arising from or in connection with this agreement. The essential purpose of this provision is to limit the potential liability of the parties arising from this Agreement.


9. Indemnification

YUDU shall defend, indemnify, and hold harmless Customer and its subsidiaries and their respective directors, officers, employees, and agents from and against all actions, causes of action, liabilities, claims, suits, judgments, liens, awards, and damages of any kind and nature whatsoever (hereinafter referred to as "Claims") and expenses, costs of litigation (including without limitation clerk, paralegal, and expert witness costs), and reasonable attorneys' fees related thereto, or incident to establishing the right to indemnification, whether or not specifically awardable under any court rules, to the extent such Claims arise out of a claim of the infringement of any patent or copyright by the Service, or involve the wrongful use of any trade secret or confidential information by YUDU. The foregoing notwithstanding, YUDU shall not be liable to Customer for Customer's consequential damages or lost profits as a result of Customer's inability to use the Service due to any permanent injunction. Customer shall give YUDU prompt notice of all Claims made against Customer or any of its affiliated or subsidiary companies and shall cooperate with YUDU (at YUDU's expense) in the defense or settlement of such Claims. In no event shall YUDU's obligations hereunder be limited to the extent of any insurance available to or provided by YUDU.

If the Service is, or is likely to be, the subject of an infringement claim, YUDU, at its expense, shall: (a) procure the right to allow Customer to continue to use the Service, or (b) modify or replace the Service or infringing portions thereof to become non-infringing, without loss of material functionality. If YUDU is unable to provide one of the remedies in (a) or (b) within forty-five (45) days of notice of the claim, YUDU shall have the right to terminate this Agreement and refund all fees paid hereunder for the Service. The foregoing remedies are in addition to any other remedies Customer would have at law or equity.


10. Terms of Use of Service

Customer acknowledges and agrees it has read, understands and agrees to be bound by the YUDU Terms of Use as posted on the YUDU website www.yudu.com. If there is any conflict between the Terms of Use and this Agreement, the terms of this Agreement will supersede.  Customer agrees that any new features that augment or enhance the Service, and/or any new service(s) subsequently purchased by the Customer, will be subject to this Agreement.


11. Suspension

11.1 Suspension for Overdue Account

YUDU reserves the right to suspend Customer's access to and/or use of the Service and/or de-publish specific undisputed, unpaid publications (and that of any other customer of YUDU that controls, is controlled by, or is under common control with Customer) (a "Customer Affiliate")) for any accounts for which any undisputed payment is due but unpaid. This only after YUDU has provided Customer with two (2) overdue notice reminders. YUDU also reserves the right to suspend Customer's access and/or use of the Service and/or de-publish specific undisputed, unpaid publications in the event that any Customer Affiliate account is overdue for payment. Customer agrees that YUDU shall not be liable to Customer or to any Customer Affiliate or other third party for any suspension of the Service resulting from Customer's nonpayment of fees as described in this Section.

11.2 Suspension for Ongoing Harm

Customer agrees that YUDU may with reasonably contemporaneous telephonic notice to Customer suspend Customer's access to the Service and/or de-publish a specific publication if YUDU reasonably concludes that Customer is using the Service to engage in denial of service attacks, spamming, or using the Service to engage in illegal activity, and/or Customer's use of the Service is causing immediate, material and ongoing harm to YUDU or others. In the extraordinary event that YUDU suspends Customer's access to the Service and/or de-publishes a specific publication, YUDU will use commercially reasonable efforts to resolve the issues causing the suspension of Service. Customer agrees that YUDU shall not be liable to Customer nor to any third party for any suspension of the Service under such circumstances as described in this Section.


12. Definitions

"Customer Data" shall mean any data, information, or other materials of any nature whatsoever, (i) provided to YUDU by customer in the course of using the Service or (ii) obtained by YUDU through use by end users of the Service with respect to customer's Pages.

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