YUDU Ltd - Terms and Conditions of Sale U.K.
This is an Agreement between the Customer and Yudu Ltd ('YUDU'), Primrose Studios, Primrose Road, Clitheroe, Lancs., BB7 1BT, a Company Incorporated in England and Wales under registration number 4452936.
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.
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.</p>
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
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.
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 bona fide 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.</p>
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.
"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.