1. Right to Use the Service
Youmanage HR Ltd (“Youmanage”) grants you a non-exclusive, non-transferable, right to permit the Users to use those Service modules specified on the Youmanage Service Order Form and their Content in respect of the permitted number of Active Employees, solely for your own internal business purposes, subject to the terms and conditions of this Agreement. All rights not expressly granted to you are reserved by Youmanage and its licensors.
2. Restrictions on Use
You shall not (i) licence, sublicence, sell, resell, transfer, assign, distribute, display, disclose or otherwise commercially exploit or make available to any third party the Service or the Content in any way; (ii) modify or make derivative works based upon the Service or the Content; (iii) create Internet "links" to the Service or "frame" or "mirror" any Content on any other server or wireless or Internet-based device; or (iv) reverse engineer, decompile, disassemble or access all or any part of the Service in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Service.
You may use the Service only for your internal business purposes and shall not: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, harmful, obscene, threatening, harassing, libellous, discriminatory, racially or ethnically offensive, or otherwise unlawful or tortious material, including material harmful to children or that violates third party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Service or any Content; (v) facilitate illegal activity, (vi) depict sexually explicitly images, (vii) promote unlawful violence, (viii) do anything that causes damage or injury to any person or property or (ix) attempt to gain unauthorised access to the Service or its related systems or networks or the Content. Youmanage reserves the right, without liability to you, to disable your access to any material that breaches this clause.
3. Your Responsibilities
You are responsible for all activity occurring under your User accounts and shall abide by all applicable local, national and foreign laws, treaties and regulations in connection with your use of the Service and the Content, including those related to data privacy, international communications and the transmission of technical or personal data. You shall: (i) notify Youmanage immediately of any unauthorised use of any password or account or any other known or suspected breach of security; (ii) report to Youmanage immediately and use reasonable efforts to stop immediately any unauthorised copying or distribution of Content that is known or suspected by you or your Users; and (iii) not impersonate another Youmanage user or provide false identity information to gain access to or use the Service or any Content.
You shall provide Youmanage with all necessary co-operation in relation to this Agreement and all necessary access to such information as may be required by Youmanage in order to render the Service, including but not limited to Customer Data and configuration services. You shall be solely responsible for procuring and maintaining your network connections and telecommunications links from your systems to Youmanage’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to your network connections or telecommunications links or caused by the internet.
Youmanage shall provide the Service and make available the Content to you on and subject to the terms of this Agreement. Youmanage shall use its reasonable endeavours to make the Service available 24 hours a day, seven days a week, except for (i) planned maintenance carried out during the maintenance window of 10.00p.m. to 2.00 a.m. UK time and (ii) unscheduled maintenance performed outside normal business hours of 9 a.m. to 5 p.m.
5. Customer Information and Data
Youmanage does not own any data, information or material that you submit to the Service in the course of using the Service ("Customer Data"). You shall own all rights, title and interest in and to all of the Customer Data. You, not Youmanage, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data. Youmanage shall back-up Customer Data each day and once a week the latest daily back-up of Customer Data will be taken and held securely off-site. In the event of any loss or damage to Customer Data, your sole and exclusive remedy shall be for Youmanage to use its reasonable endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by Youmanage in accordance with the foregoing archiving procedure. Youmanage 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 Youmanage to perform services related to Customer Data maintenance and back-up).
You acknowledge that if you submit Customer Data to Youmanage, whether by e-mail, disk or other means, for whatever purpose, by submitting the Customer Data you give Youmanage permission to hold and process the Customer Data on your behalf.
If Youmanage processes any personal data on your behalf when performing its obligations under this Agreement, the parties record their intention that you shall be the data controller and Youmanage shall be a data processor and in any such case
(a) you shall ensure that you are entitled to transfer the relevant personal data to Youmanage so that Youmanage may lawfully use, process and transfer the personal data in accordance with this Agreement on your behalf;
(b) you shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation;
(c) Youmanage shall process the personal data only in accordance with the terms of this Agreement and any lawful instructions reasonably given by you from time to time; and
(d) each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage.
Customer Data will not be hosted, transferred or stored by or on behalf of Youmanage outside the European Economic Area without your agreement.
If, at any time, Youmanage suspects or has reason to believe that Customer Data has or may become compromised, lost or corrupted Youmanage shall notify you and inform you of what remedial action it proposes to take at its cost.
7. Changes or Improvements
Youmanage may from time to time at its own discretion amend particular programs, information and facilities that constitute the Service and the Content, provided that any such changes will not substantially diminish the quality of the Service or the Content. Youmanage may also from time to time promote additional modules or facilities as part of the Service and, should you so agree, make them available to you at rates to be published at the time.
8. Intellectual Property Ownership
Youmanage, (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to the Youmanage Technology, the Content and the Service (with the exception of any Customer Data) and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Service and the Content. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Service, the Content, the Youmanage Technology or the Intellectual Property Rights owned by Youmanage. The Youmanage name, the Youmanage logo, and the product names associated with the Service are trade marks of Youmanage or third parties, and no right or licence is granted to use them.
Each party may be given access to information that is proprietary or confidential and is either clearly labelled as such or identified as confidential information (“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 (i) is or becomes publicly known other than through any act or omission of the receiving party; (ii) was in the other party's lawful possession before the disclosure; (iii) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; (iv) is independently developed by the receiving party, which independent development can be shown by written evidence; or (v) is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
Each party shall hold the other's Confidential Information in confidence and, unless required by law, not make the other's Confidential Information available to any unauthorised 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. Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party, other than in the case of Youmanage, which shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by its sub-contractors. The Customer acknowledges that details of the Service, and the results of any performance tests of the Service, constitute Youmanage's Confidential Information. Youmanage acknowledges that the Customer Data is the Confidential Information of the Customer.
10. Third Party Interactions
11. Charges and Payment of Fees
You shall pay all fees or charges to your account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. Implementation charges and Service Fees during the Initial Term will be as specified on the Service Order Form. Service Fees may be made annually, or quarterly, as mutually agreed upon and specified on the Service Order Form. You are responsible for paying for all Service Fees ordered for the entire Term, whether or not accounts for individual Users are actively used. Service Fees will apply from the Service Commencement Date, irrespective of when you actually begin using the Service, provided that on the Service Commencement Date you have been provided with a valid URL to access the Service and an active administrator UserID and password.
12. Billing and Renewal
Youmanage charges and collects in advance for use of the Service. Unless otherwise stated on the Service Order Form, Youmanage will invoice you for the first period’s Service Fees on the Service Commencement Date and then will automatically renew and issue invoices to you a) on each subsequent Quarterly Anniversary of the Service Commencement Date for quarterly-paid Service Fees, or b) on each yearly anniversary of the Service Commencement Date for annually-paid Service Fees. The charge will be equal to the Service Fee as specified on the Service Order Form, unless Youmanage at least 45 days prior to the renewal of the term has given written notice of a fee increase, which shall be effective upon renewal and thereafter. Youmanage may increase the charge for periods subsequent to the first anniversary of the Service Commencement Date by giving not less than 45 days prior written notice but any increase shall not exceed the percentage increase in the Retail Price Index published by the Office for National Statistics for the preceding 12 months (or any replacement or successor index). If the number of Active Employees on any Anniversary of the Service Commencement Date exceeds the maximum number stated on the Service Order Form, Youmanage will be entitled to increase the Service Fees for the subsequent term to reflect the then current Service Fees for that number of Active Employees. The Implementation Charges specified on the Service Order Form will be billed on the Date of Order and are payable either within 14 days or prior to the Service Commencement Date, whichever is the earlier. Fees for any other Service supplied by Youmanage will be charged on an as-quoted basis. Youmanage's fees are exclusive of VAT which will be added to invoices as appropriate at the prevailing rate.
You agree to provide Youmanage with complete and accurate billing and contact information. This information includes your legal company name, address, e-mail address, and name and telephone number of an authorised billing contact and Client Administrator. You agree to update this information within 30 days of any change to it. If the contact information you have provided is false or fraudulent, Youmanage reserves the right to terminate your access to the Service in addition to any other legal remedies. If you believe your bill is incorrect, you must contact us in writing within 14 days of the invoice date of the invoice containing the amount in question to be eligible to receive an adjustment or credit.
13. Non-Payment and Suspension
In addition to any other rights granted to Youmanage by this Agreement, Youmanage reserves the right to suspend or terminate this Agreement and your access to the Service if your account falls into arrears. Accounts in arrears are subject to interest of 2.0% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all reasonable expenses of collection. You will continue to be charged Service Fees during any period of suspension. If you or Youmanage initiates termination of this Agreement, you will be obliged to pay the balance due on your account computed in accordance with the Charges and Payment of Fees section above. You agree that Youmanage may charge and invoice you for such unpaid fees. Youmanage reserves the right to impose a reconnection fee if you are suspended and thereafter request access to the Service. You agree and acknowledge that Youmanage has no obligation to retain Customer Data except as expressly stated in this Agreement and that such Customer Data may be irretrievably deleted if your account is 30 days or more overdue provided that Youmanage will give you 30 days to retrieve your Customer Data using the reporting exporting tools available.
14. Termination/ Reduction upon Expiration
This Agreement commences on the Date of Order. The Initial Term of the Agreement will commence on the Service Commencement Date and will be as specified on the Service Order Form. Upon the expiration of the Initial Term, this Agreement will automatically renew for successive terms of one year from the end of the Initial Term. After the Initial Term either party may terminate this Agreement by notifying the other party in writing at least thirty business days prior to the commencement of the following term, such notice to take effect on the appropriate anniversary of the Service Commencement Date. You may reduce the number of Active Employees or Modules that the Service Fee covers, effective only upon the expiration of the then current term, by notifying Youmanage in writing at least thirty days prior to the commencement of the following term.
15. Termination for Cause
Any breach of your payment obligations or unauthorised use of the Youmanage Technology, Service or Content will be deemed a material breach of this Agreement. Youmanage, in its sole discretion, may terminate any or all of your User accounts immediately if you breach or otherwise fail to comply with this Agreement or become insolvent. Any actual or proposed change in control of you that results or would result in a direct competitor of Youmanage directly or indirectly owning or controlling 50% or more of you shall entitle Youmanage to terminate this Agreement for reasonable cause immediately upon written notice.
You agree and acknowledge that Youmanage has no obligation to retain your Customer Data, and may delete such Customer Data upon written notice to you, if you have materially breached this Agreement, including but not limited to failure to pay outstanding fees, and such breach has not been cured within 30 days of Youmanage giving you notice of such breach.
16. Consequences of termination
Termination of this Agreement, however arising, shall not affect or prejudice the accrued rights of the parties as at termination or the continuation of any provision expressly stated to survive, or implicitly surviving, termination. Without prejudice to the foregoing generality, Clauses 8 (Intellectual Property Ownership), 9 (Confidentiality), 11 (Charges and Payment of Fees), 17 (Consequences of termination), 19 (Indemnification), 20 (Limitation of Liability), 26 (General) and 27 (Definitions) shall survive termination of this Agreement.
On termination of this Agreement all licences granted under this Agreement shall immediately terminate and you shall return and make no further use of any equipment, property, documentation and other items (and all copies of them) belonging to Youmanage. Youmanage may destroy or otherwise dispose of any of the Customer Data in its possession provided that Youmanage will continue to make the Service accessible to you for 30 days after the date of termination to enable you to retrieve your Customer Data using the reporting exporting tools available. You agree and acknowledge that Youmanage has no obligation to retain your Customer Data after such 30 day period, and may delete such Customer Data, 30 days or more after termination of this Agreement.
17. Representations & Warranties
Each party represents and warrants that it has the legal power and authority to enter into this Agreement.
Youmanage undertakes that it will provide the Service with reasonable skill and care and that the Service will perform substantially in accordance with the Youmanage service literature under normal use and circumstances. The foregoing shall not apply to the extent of any non-conformance which is caused by use of the Service contrary to Youmanage's instructions, or modification or alteration of the Service by any party other than Youmanage or Youmanage's duly authorised contractors or agents. If the Service does not conform with the foregoing undertaking, Youmanage will, at its expense, use its reasonable endeavours to correct any such non-conformance promptly. Such correction constitutes the Customer's sole and exclusive remedy for any breach of this undertaking.
Youmanage and its licensors make no representation, warranty, or guarantee as to the suitability, availability, accuracy, completeness or error-free nature of the Service or any Content. Youmanage 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 Service and Content may be subject to limitations, delays and other problems inherent in the use of such communications facilities. The Service and all Content are provided to you strictly on an "as is" basis. You represent and warrant that you have not falsely identified yourself nor provided any false information to gain access to the Service and that your billing information is correct. All conditions, representations and warranties, whether express, implied, statutory or otherwise, including, without limitation, any implied warranty of quality, fitness for a particular purpose, or non-infringement of third party rights, are hereby disclaimed to the maximum extent permitted by applicable law by Youmanage and its licensors.
You shall indemnify and hold Youmanage and its licensors harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including legal fees and costs) arising out of or in connection with: (i) a claim alleging that use of your data (including Customer Data) infringes the rights of, or has caused harm to, a third party; (ii) a claim, which if true, would constitute a violation by you of your representations and warranties; or (iii) a claim arising from the breach by you or your Users of this Agreement. In addition, you shall indemnify Youmanage pursuant to this Agreement for claims arising from any infringement arising from the combination of the Service and/or the Content with any of your products, service, hardware or business process(s).
19. Limitation of Liability
In no event shall Youmanage’s aggregate liability exceed the amounts actually paid by you in the 12 month billing period immediately preceding the event giving rise to such claim. In no event shall Youmanage be liable to anyone for any indirect, punitive, special, exemplary, incidental, consequential or other damages of any type or kind (including loss of data, revenue, profits, depletion of goodwill, use or pure economic loss) arising out of, or in any way connected with the Service, including but not limited to the use of or inability to use the Service, or for any content obtained from or through the Service, any interruption, inaccuracy, error or omission, regardless of cause in the content, even if Youmanage or Youmanage's licensors have been previously advised of the possibility of such damages. Notwithstanding the foregoing, nothing in this Agreement excludes the liability of Youmanage for (i) death or personal injury caused by Youmanage’s negligence; or (ii) fraud or fraudulent misrepresentation; or (iii) any other liability that cannot be excluded by applicable law.
20. Local Laws and Export Control
Youmanage and its licensors make no representation that the Service is appropriate or available for use in any location. You are solely responsible for compliance with all applicable laws when using the Service, including without limitation export and import regulations of other countries. The Service may contain general information about English law. Users of the Service should neither act nor refrain from action, on the basis of such information. Nothing in the Service constitutes legal advice. Users of the Service should always consult a suitably qualified lawyer on any specific legal problem. Youmanage disclaim all responsibility (including in negligence or breach of statutory duty) for all consequences of any person acting on, or refraining from acting in reliance on, information contained within the Service. You acknowledge and agree that the site shall not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to countries to which the United Kingdom or European Union maintains an embargo (collectively, "Embargoed Countries"), or to or by a national or resident thereof. By using the Service, you represent and warrant that you are not located in, under the control of, or a national or resident of an Embargoed Country.
Any notice given under this Agreement shall be in writing and shall be served by delivering it personally or by sending it by prepaid first class post or recorded delivery to the address and for the attention of the relevant party, and in the case of Youmanage to Youmanage HR Ltd, Scion House, Stirling University Innovation Park, Stirling, FK9 4NF and in the case of you to the address specified in the Service Order Form, or in either case such other address as may be notified in writing from time to time. Any such notice shall be deemed to have been received (i) if delivered personally, at the time of delivery; and (ii) in the case of pre-paid first class post or recorded delivery, forty eight (48) hours from the date of posting.
22. Modification to Terms
Subject to Clause 7 (Changes or Improvements), no variation of this Agreement or of any of the documents referred to in it shall be valid unless it is in writing and signed by or on behalf of each party.
23. Force Majeure
Youmanage shall have no liability to you 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 Youmanage 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, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors (where they are themselves affected by acts, events, omissions or accidents beyond their reasonable control), provided that you are notified of such an event and its expected duration.
Neither party may assign this Agreement without the prior written approval of the other party (such approval not to be unreasonably withheld or delayed) provided it may be assigned without your consent by Youmanage to (i) a parent or subsidiary, (ii) an acquirer of its assets, or (iii) a successor by merger. Any purported assignment in violation of this clause shall be void. Youmanage shall have the right to sub-contract any of its rights or obligations under this Agreement.
This Agreement and any disputes or claims arising out of or in connection with its subject matter or formation (including non-contractual disputes or claims) will be governed by English law and the English courts will have exclusive jurisdiction over any such disputes or claims; except that where you conduct business in Scotland, this Agreement and any disputes or claims will be governed by Scots law and the Scottish courts will have exclusive jurisdiction over any such disputes and claims arising under this Agreement.
This Agreement, together with any applicable Service Order Form, supersedes any arrangements or agreements made between the parties prior to the signing of this Agreement and constitutes the entire understanding between the parties. No text or information set forth on any other purchase order, preprinted form or document (other than a Service Order Form, if applicable) shall add to or vary the terms and conditions of this Agreement unless signed on behalf of both parties.
If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.
No joint venture, partnership, employment, or agency relationship exists between you and Youmanage as a result of this Agreement or use of the Service.
The failure of either party to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by that party in writing.
Other than as expressly set out in this Agreement, the parties do not intend to create any rights in favour of third parties.