These Yavrio Terms and Conditions (these “Terms”), together with any applicable Order Document(s) and applicable Supplemental Terms (collectively, the “Agreement”), constitute a binding agreement between Yavrio (as defined in Section 1), and Customer (each, a “Party”) under which Yavrio provides Customer access to Yavrio’s Services. Customer accepts and agrees to be bound by the Agreement by executing an Order Document or Licence Purchase or by using Yavrio’s Services.

1. DEFINITIONS

Unless otherwise defined in the Agreement, capitalized terms have the following meaning:

 

“Affiliate” means an entity that has an official connection with another entity by formal agreement.

 

“Applicable Laws” means all applicable national and international laws and regulations.

 

“Yavrio” means Yavrio, Ltd., with the registered office address of 86-90 Paul Street, London, England, EC2A 4NE, except as otherwise indicated with respect to Yavrio services provided by Yavrio’s Affiliates.

 

“Authorized User” means any Representative or other person or entity acting on Customer’s behalf who is authorized by Customer to use the Services and who has been supplied with access to the Services either by Customer or by Yavrio at Customer’s written request.

 

“Yavrio Technology” means the technology and Intellectual Property used in providing the products and services offered by Yavrio, including computer software programs, websites, networks, and equipment. Yavrio Technology does not include Third-Party Applications.

 

“Customer” means the legal entity that executes an Order Document or uses the Services.

 

“Customer Data” means (i) any information, including Personal Information, uploaded, provided, or made accessible to Yavrio’s production or sandbox systems by Customer or Authorized Users (or by Yavrio on behalf of Customer) to use the Services and (ii) the resulting Customer unique output that is returned by the Services to Customer.

 

“Documentation” means Yavrio’s user guides, training manuals, instructions, usage information, and other similar documentation, as updated or revised by Yavrio from time to time, that Yavrio provides to Customer.

 

“Expenses” means any reasonable, preapproved expenses described in an Order Document or otherwise as being reimbursable to Yavrio by Customer, that Yavrio actually incurs while providing Customer with the Services. Yavrio’s reimbursable Expenses include (as applicable) postage fees, wire transfer fees, and other out-of-pocket administrative costs.

 

“Intellectual Property” means all trade secrets, Inventions, patents and patent applications, trademarks and service marks (whether registered or unregistered and including any goodwill acquired in such marks), trade names, trade dress, copyrights, moral rights, rights in Inventions, and all other intellectual property and proprietary rights (whether registered or unregistered, any application for the foregoing, and all rights to enforce the foregoing), and all other equivalent rights that may exist anywhere in the world.

 

“Invention” means any work of authorship, invention, know-how, device, design, algorithm, method, process, improvement, concept, idea, expression, or discovery, whether or not copyrightable or patentable and whether or not reduced to practice.

 

“Order Document” means a Sales Order or other document used to purchase Services or Professional Services from Yavrio.

 

“Personal Information” means any information that relates to an identified or identifiable natural person or that reasonably could be used to identify that person, or other data or information defined as personal information under Applicable Laws.

 

“Professional Services” means services supplemental to the Services, including professional consulting services, to be performed for Customer by Yavrio’s employees or contractors, as specified in the applicable Order Document.

 

“Representative” means a director, officer, employee, consultant, advisor, representative, or agent of the subject party.

 

“Sales Order” means Yavrio’s sales order form that describes the Services, Professional Services, and support plans ordered by Customer and the fees, certain Expenses, and other specified terms.

 

“Service” means the Yavrio offering(s) specified in the applicable Order Document.

 

“Supplemental Terms” has the meaning provided in Section 15 (Supplemental Terms) of these Terms.

 

“Term” has the meaning provided in Section 6 (Term and Termination) of these Terms.

 

“Third-Party Applications” means computer software programs and other technology that are provided or made available to Customer by third parties.

 

“VAT” means value-added and indirect tax.

2. THE SERVICES

Each service may be governed by additional terms that describe pricing, usage, and additional obligations of the Parties with respect to that particular Service. Section 15 (Supplemental Terms) of these Terms contains descriptions of Yavrio’s services and links to their corresponding Supplemental Terms. Supplemental Terms for services that Customer does not purchase or use do not apply to Customer.

 

1. Use of the Services. Yavrio delivers “software as a service” and other services on a subscription basis. Yavrio grants Customer a nonexclusive, nontransferable right to access and use the Service(s) during the Term, solely for Customer’s internal business operations. Yavrio reserves all other rights. Customer shall not use any services that are not set forth in an in-application licence request actioned by Customer and accepted by Yavrio, except as otherwise provided in the Agreement. If Customer has a sandbox Account, Customer shall use it solely for testing non-production data and for internal business purposes only. Payments shall not be made from sandbox or test accounts.
2. Customer’s Account. Yavrio shall enable an account for Customer to access the Service(s) (“Account”). Customer shall designate a specific person or persons authorized by Customer to manage and support the Account, including the creation of usernames and passwords for Authorized Users. Customer is solely responsible for maintaining the status of its Authorized Users. Customer and its Authorized Users shall maintain the confidentiality of all usernames, passwords, keys, tokens, access, and Account information under their control. Except to the extent caused by Yavrio’s breach of the Agreement, including its obligations under Section 8 (Confidential Information), Yavrio is not responsible for unauthorized access to the Account. Customer shall contact Yavrio promptly if (i) Customer reasonably believes that the Account has been compromised, including any loss, theft, or unauthorized access, use, or disclosure of Account information or (ii) Customer becomes aware of any other breach of security in relation to Customer’s Account information or the Services that may have occurred or is reasonably likely to occur.
3. Yavrio’s Responsibilities. Yavrio shall: (i) use commercially reasonable efforts to make the Services available Monday to Friday 9am to 5pm, , except for: (1) planned downtime (scheduled with at least 7 days’ notice and at a time intended to minimize impact to Yavrio customers) and (2) any unavailability caused by circumstances beyond Yavrio’s reasonable control, including internet service provider failures or delays or denial of service attacks against which Yavrio maintains commercially reasonable prevention controls.
4. Customer’s Responsibilities. Customer (i) shall ensure the accuracy and completeness of Customer’s initial and ongoing configuration and setup of the Services; (ii) shall ensure that the Services are compatible with Customer’s business and systems requirements; (iii) shall ensure the accuracy, quality, legality, completeness, and integrity of the Customer Data provided by Customer and the means by which Customer acquired it; (iv) shall ensure the information Customer provides in connection with the Services, such as billing information and purchase orders (excluding Customer unique output that is returned by the Services to Customer), is current, accurate, and complete; and (v) is responsible for the provision, maintenance, and use of Customer’s hardware, network, internet connectivity, and software. Customer shall comply with the Acceptable Use Policy available at https://www.yavr.io/acceptable-use, with all Documentation, and with all Applicable Laws. Customer shall ensure that the Authorized Users and Representatives of Customer (and, if Customer enables its Affiliates to use the Services, its Affiliates, their Authorized Users, and their Representatives) comply with all of Customer’s obligations under the Agreement, and Customer shall be responsible for their acts and omissions relating to the Agreement as though they were those of Customer.
5. Customer Affiliates. Customer may enable its Affiliates to use the Services. Unless Yavrio accepts an Order Document from an Affiliate or otherwise agrees in writing, all use of the Services by Customer’s Affiliates will be under Customer’s Account, Yavrio will invoice Customer and not its Affiliates for the Services, and Customer shall pay all invoices to Yavrio . When an Affiliate of Customer uses the Services, all references to “Customer” in the Agreement relating to access or use of, or restrictions or limitations on access or use of, the Services refer to the Affiliate. Among Customer and its Affiliates, only an entity specified on an Order Document may (i) take any action to enforce such entity’s rights and obligations arising from the Agreement, or (ii) request technical support for such entity with respect to the Services.
6. Yavrio Affiliates. Yavrio may perform the Services itself or through any of its Affiliates. When an Affiliate of Yavrio provides the Services, all applicable references to “Yavrio” in the Agreement relating to provision of the Services refer to such Affiliate. Yavrio is responsible for its Affiliates’ compliance with the terms of the Agreement, and Yavrio shall be responsible for their acts and omissions relating to the Agreement as though they were those of Yavrio. Yavrio or its Affiliate may invoice Customer for the Services, and Customer shall pay all invoices to the Yavrio Affiliate that issued the invoice. Customer and its Affiliates shall bring any claims it or they may have solely against Yavrio and not against any Yavrio Affiliate providing or invoicing for the Service.
7. Subcontractors. Yavrio may use subcontractors to facilitate its obligations under the Agreement, and Yavrio shall be responsible for the acts and omissions of such subcontractors relating to the Agreement as though they were those of Yavrio.
8. Restrictions. Customer shall use the Services only as set forth in the Agreement and the Documentation, and not for the benefit of any third party. Customer shall not (i) reverse assemble, reverse engineer, decompile, or otherwise attempt to derive source code from any of the Yavrio Technology; (ii) reproduce, modify, create, or prepare derivative works of any of the Yavrio Technology or Documentation; (iii) distribute or display any of the Yavrio Technology or Documentation other than to Authorized Users; (iv) share, sell, rent, lease, or otherwise distribute access to the Services (except with respect to Customer’s Affiliates as expressly provided in Section 2(e)) or use the Services to operate any timesharing, service bureau, or similar business; (v) alter, destroy, or otherwise remove any proprietary notices within the Yavrio Technology or Documentation; or (vi) disclose the results of any benchmark tests to any third parties without Yavrio’s prior written consent.
9. Unsupported Third-Party Application Integrations. Yavrio may, in accordance with the notice requirements contained in Section 9(b)(i)(2) (Yavrio’s Warranties) of these Terms, cease supporting functionality with respect to specific Third-Party Applications at the date specified in the Documentation. In such case, the following shall not apply to Customer's continued use of such functionality beyond such date: (i) the support obligations contained in Section 2(c)(iii) (Yavrio’s Responsibilities), (ii) the warranty obligations contained in Section 9(b)(i) (Yavrio’s Warranties), and (iii) any support or warranty obligations or any timeliness or accuracy guarantees set forth in any applicable Supplemental Terms.

 

3. PROPRIETARY RIGHTS

1. Yavrio’s Intellectual Property. Yavrio and Yavrio’s licensors retain and own all right, title, and interest in Yavrio’s services, the Yavrio Technology, the Documentation, Yavrio’s Confidential Information, and all enhancements or improvements to, or derivative works of, the foregoing, including any Intellectual Property rights therein. Nothing in the Agreement transfers or conveys to Customer any ownership interest in Yavrio’s Intellectual Property.
2. Suggestions. If Customer provides Yavrio with any suggested improvements to the Services, that suggestion is provided “as-is,” and Customer grants Yavrio a nonexclusive, perpetual, irrevocable, fully paid-up, royalty-free, worldwide license to, with rights to transfer, sublicense, sell, use, reproduce, display, and make derivative works of, such suggested improvements. Notwithstanding the foregoing, nothing in this Section 3(b) (Suggestions) grants Yavrio a license to use any Inventions covered by a registered patent owned by Customer.
3. Customer’s Intellectual Property. Customer retains all ownership rights in Customer Data and Customer’s Confidential Information, including any Intellectual Property rights therein. Nothing in the Agreement transfers or conveys to Yavrio any ownership interest in or to the Customer Data or Customer’s Confidential Information, provided that Yavrio has the right to create Aggregate Data (as defined in Section 4(b) (Aggregate Data)) and owns all right, title, and interest in Aggregate Data both during and after the term of the Agreement. Customer shall ensure that it has all necessary rights and permissions required by Applicable Laws to use and permit the use of Customer Data in accordance with the Agreement.

 

4. PRIVACY AND SECURITY

1. Use of Customer Data. Yavrio may retain, use, and disclose Customer Data solely (i) to fulfill its obligations to Customer under the Agreement; (ii) to provide customer support; (iii) for internal business purposes to maintain, evaluate, develop, and improve Yavrio’s services; or (iv) to comply with Applicable Laws. Customer Data and Customer’s Confidential Information do not include Personal Information relating to an employee or other authorized Representative of Customer that is collected or received by Yavrio in connection with the procurement or use of, or payment for, the Services (for example, the names and email addresses of Customer’s account representatives and accounting personnel). Yavrio’s use of Personal Information of such an employee or other Representative is governed by the Yavrio Privacy Policy available at https://www.yavr.io/privacy-policy, which describes how to manage individual communication preferences. Each Party shall be responsible for informing its own Representatives of the processing of their Personal Information as provided in the Agreement.
2. Aggregate Data. Yavrio may create, generate, and use Aggregate Data for any lawful purpose. “Aggregate Data” means de-identified and anonymized sets of data derived from the data of multiple Yavrio customers (including Customer Data) for the purpose of expressing that information in summary form. Aggregate Data does not include any Personal Information relating to Customer, Authorized Users, Customer’s clients or customers, or other information that could reasonably identify a natural person or Customer.
3. Protection of Customer Data, Personal Information, and Confidential Information. Each Party is responsible for complying with Applicable Laws, including applicable data protection legal requirements, for the purposes of the Agreement. Yavrio shall implement and maintain commercially reasonable technical, administrative, and physical safeguards and security methods designed to prevent any unauthorized release, access, destruction, modification, or disclosure of Customer Data, Confidential Information, or Personal Information. Yavrio shall facilitate Customer’s compliance with its obligations for data security and response to individual data subject requests with respect to Personal Information in Yavrio’s possession or control, to the extent that Customer is required to comply with the following: (i) the U.K. Data Protection Act 2018 and the United Kingdom General Data Protection Act ("UK GDPR"); and (ii) the General Data Protection Regulation (EU) 2016/679 of the European Parliament and of the Council (“GDPR”) and any applicable laws enacted by an EU member state implementing the requirements of GDPR. The Agreement and the Documentation are Customer’s instructions for processing Customer Data, and Yavrio shall not process Customer Data for any other purpose. Yavrio shall use commercially reasonable measures to ensure that any Yavrio subcontractors implement and comply with reasonable security measures in handling any Customer Data, Personal Information, or Customer’s Confidential Information.
4. Service Provider. If Yavrio processes Customer Data on behalf of Customer for the provision of the Services, the Parties acknowledge and agree that Yavrio is a “Service Provider”, and Customer Data may include personal information. Yavrio does not sell Personal Information. When Yavrio processes Personal Information for or on behalf of Customer, Yavrio collects, retains, uses, and discloses such Personal Information solely for the permitted purposes described in the Agreement, and for no other commercial purpose. Yavrio certifies that it understands and will comply with these restrictions.
5. Data Processing Addendum. Whenever Yavrio processes the Personal Information of individuals in the EEA or the United Kingdom, or where Customer is established in the EEA or the United Kingdom, Customer agrees that Yavrio does so as a processor only.
6. Notices. Yavrio shall notify Customer without undue delay in accordance with Applicable Laws of unauthorized access, use, or disclosure of any Customer Data or Customer’s Confidential Information under Yavrio’s control. Yavrio shall provide Customer with information regarding such incident as required by Applicable Laws or as reasonably requested by Customer to enable Customer to comply with its obligations under Applicable Laws. Yavrio shall use commercially reasonable efforts to: (i) identify the cause of the incident and (ii) remediate the cause of the incident within Yavrio’s systems, to the extent such remediation is within Yavrio’s reasonable control.

 

5. SERVICE SUSPENSION AND DISPUTES

1. Generally. As reasonably practicable under the circumstances, Yavrio shall endeavor to resolve together with Customer any circumstance that may give rise to Yavrio’s suspension rights, which include, for example, the following: (i) a material risk caused by Customer, its Affiliates, or its or their Authorized Users or Representatives to the security or performance of the Services, the network, Customer, or any other Yavrio customer or business partner; (ii) use of the Services in violation of the Agreement; or (iii) Customer is delinquent in its payment obligations for any undisputed amounts. In the case of payment delinquency, Yavrio services will be discontinued until such time as the invoice is satisfied. For any other suspension, other than with respect to sandbox Accounts, Yavrio shall make a good faith effort to contact and provide notice to Customer (including by email to Customer’s business contact) in advance. Payment of undisputed amounts will be considered delinquent if not received within 15 days following the due date set forth on an invoice. Yavrio acknowledges that suspending Customer’s right to access or use the Services is a significant action, and therefore Yavrio shall not exercise this remedy except in good faith and as necessary to resolve the issue giving rise to Yavrio’s right to suspend the Services. Yavrio shall also pursue other less drastic measures it deems appropriate, including collaborating with Customer to isolate the issue and escalating unresolved issues to senior management of Customer and Yavrio. Yavrio shall not destroy or overwrite any Customer Data during the suspension period.
2. Effect of Suspension. If Yavrio suspends Customer’s ability to access the Services, (i) Customer remains responsible for all fees and charges for suspended Services and for other Services to which Customer continues to have access, if any; and (ii) Customer will not be entitled to any compensation or credits for any period of suspension, unless suspension was due to Yavrio’s error or omission.
3. Payment Disputes. Customer must assert any payment dispute in writing to Yavrio according to the instructions in the Documentation within 15 days after the due date of the invoice giving rise to the dispute. Yavrio shall not exercise its suspension or termination rights or apply interest on late payments if Customer disputes the applicable charges reasonably and in good faith and provides reasonable cooperation to resolve the dispute.

 

6. TERM AND TERMINATION

1. Agreement Term. The term of the Agreement (the “Term”) begins on the Effective Date of the Initial Subscription Term for the first Service purchased and ends on the date of termination or expiration of the final Subscription Term.
2. Subscription Terms. Customer may purchase subscriptions to one or more Services during the Term. The effective period (usually one calendar month) of each subscription is a “Subscription Term” and, depending on the timing and agreed terms, those subscriptions may have different Subscription Terms. Each Initial Subscription Term begins on an “Effective Date,” which is either (1) the date Yavrio enters Customer’s Order Document into Yavrio’s billing system or (2) an alternate date mutually agreed by the Parties in writing or (3) the date on which payment is received and access to the system is granted.

   Customer’s subscription will continue until terminated. To use Yavrio’s services, Customer must have submitted Customer’s details to Yavrio and provided payment information by going to the Yavrio Account Page in Business Central. Customer is responsible for keeping payment information updated (including changes to Customer’s address or other changes). Customer may have an account with a third party, in which case it is Customer’s responsibility to keep the applicable third party apprised of its correct payment information.

   Unless Customer cancels Customer’s subscription before Customer’s billing date, Customer authorises us to charge the subscription fee for the next billing cycle (see "Cancellation" below).

3. Billing and Cancellation

   Billing Cycle. The subscription fee for Yavrio’s services will be charged on the last day of the calendar month for that month’s usage in arrears.  Monthly usage is not pro rated. Therefore, licences marked as active on any day of a given month will be billed for that month. If Customer signed up for Yavrio’s services using Customer’s account with a third party, Customer can find the billing information about Customer’s subscription by visiting Customer’s account with the applicable third party.

4. Payment. To use Yavrio’s services Customer must provide details for invoicing and commit to paying Yavrio’s invoices. Invoices must be settled by electronic fund transfer to a bank account specified by Yavrio. Customer remains responsible for any unpaid amounts. If a payment is not successfully settled, due to expiration, insufficient funds, or otherwise, and Customer does not cancel Customer’s account, Yavrio may suspend Customer’s access to the service until Yavrio has received payment.
5. Updating Customer’s Invoicing Information. Customer can update Customer’s Invoicing Information by going to the "Account" page. Yavrio may also update Customer’s Invoicing infrormation using information provided by the payment service providers.
6. Cancellation. Customer can cancel Customer’s subscription at any time, and Customer will continue to have access to the service through the end of Customer’s billing period. Payments are non-refundable and Yavrio does not provide refunds or credits for any partial subscription periods or unused services. To cancel, disconnect all bank accounts in the system or contact Yavrio using the contact details on the Yavrio website. If Customer signed up for Yavrio’s services using Customer’s account with a third party and wishes to cancel Customer’s Yavrio subscription, Customer may need to do so through such third party, for example by visiting Customer’s account with the applicable third party and turning off auto-renew, or unsubscribing from the Yavrio service through that third party.
7. Subscription to Upgraded or Additional Services. If Customer upgrades any of Customer’s Service subscriptions during a Subscription Term, then the Subscription Term for the upgraded Service will be coterminous with the current Subscription Term. In the event of any upgrade, Yavrio will invoice Customer for the then-current applicable upgrade fee plus an amount equal to the difference between the then-current Service fee and the upgraded Service fee. If Customer subscribes to an additional Service, the Subscription Term for that Service will begin on the Effective Date for that Service and Customer will be separately charged for the applicable activation and monthly Service subscription fee for the additional Service. If Customer upgrades the tier of Service purchased, renews a Service, or purchases an additional Service (excluding automatic upgrades), then all Services to which Customer subscribes under these Terms will be subject to the then-current Terms and applicable Supplemental Terms.
8. Deletion of Data.

   At Customer’s Request. Upon Customer’s request at any time during the Subscription Term for a Service or up to 60 days after termination of the Subscription Term, Yavrio shall promptly destroy or overwrite Customer Data for such Service or Customer’s Confidential Information, other than Customer Data or Customer Confidential Information or Personal Information contained in automatic computer backups or historical archives or that must be retained to fulfil obligations under the Agreement for regulatory, legal, or audit purposes, or for compliance with Yavrio’s data retention policies. If Customer requests Yavrio permanently destroy or overwrite Customer Data, Customer releases Yavrio from any claims or liability relating to that Customer Data, including, without limitation, any accuracy guarantee, warranty, or indemnification.

   Upon Termination. If Customer does not request deletion of its Customer Data or Customer’s Confidential Information, Yavrio will destroy or overwrite such data and information in accordance with Yavrio’s document retention policies and standard backup and archival procedures, after the data or information is no longer reasonably necessary to fulfil obligations under the Agreement or for regulatory, legal, or audit compliance.

 

7. FEES AND TAXES

1. Fees. Customer shall pay all fees specified in each Order Document or invoice and applicable Expenses. Customer will be invoiced based on the Order Document, including, if applicable, for usage-based fees. Except as otherwise specified in the Agreement: (i) amounts are quoted and payable in the currency specified on the Order Document; and (ii) payment obligations are non-cancellable and fees and Expenses paid are non-refundable. Unless otherwise agreed in writing, Yavrio will automatically invoice Customer for any renewals, upgrades, and additional Services purchased.
2. Subscription Plans. Customer is not entitled to any refund of fees paid or relief from fees due if the volume of Service Customer actually uses is less than the volume Customer ordered, and Customer may not carry over any unused volume to Customer’s next Subscription Term. If Customer wishes to reduce the volume of a Service subscription plan, then Customer must make the required changes within the application before the start of the next Renewal Subscription Term for the applicable Service, and the reduction will be effective at the start of that next Renewal Subscription Term.

   Yavrio may offer a number of subscription plans, including annual subscription plans offered by third parties in conjunction with the provision of their own products and services. Some subscription plans may have differing conditions and limitations, which will be disclosed at Customer’s sign-up or in other communications made available to Customer. Customer can find specific details regarding Customer’s subscription by visiting the Yavrio website or the website of the applicable third party.

   Promotional Offers. Yavrio may from time to time offer special promotional offers (“Offers”). Offer eligibility is determined by Yavrio at its sole discretion and Yavrio reserves the right to revoke an Offer and put Customer’s account on hold in the event that Yavrio determines Customer is not eligible. Those customers with older subscriptions may not be eligible for certain introductory Offers. Likewise, those customers joining with a new subscription may not receive the same Offer as earlier adopters. Yavrio may use information such as system identifiers, or an account email address to determine Offer eligibility. The eligibility requirements and other limitations and conditions will be disclosed when the Customer sign-ups for the Offer or in other communications made available to the Customer.

3. Taxes. Customer is responsible for any applicable value-added, or similar taxes, levies, or duties payable with respect to Customer’s order of Services assessable by any national or foreign jurisdiction. Unless expressly specified otherwise in any Order Document, all fees, rates, and estimates exclude such taxes, levies, and duties. Yavrio is responsible only for taxes based upon Yavrio’s net income, assets, payroll, property, and employees.
4. Changes to the Price and Subscription Plans. Yavrio may change our subscription plans and the price of our service from time to time; however, any price changes or changes to Customer’s subscription plans will apply no earlier than 30 days following notice to Customer. Such notice may be in the form of an invoice or any other form of notice used by Yavrio to communicate with Customer. Unless otherwise agreed in writing, following the Initial Subscription Term, Service fees are subject to increases to the level of then-current standard pricing, which will become effective beginning upon the first day of each Renewal Subscription Term. If Customer objects to the increase, Customer may elect to not renew its order of Services. Customer acknowledges that the following do not constitute fee increases: (i) additional fees for any upgrade or any additional Service that Customer orders; (ii) overage fees for usage in excess of Customer’s usage tier; and (iii) expiration of any discount or incentive programs to which Customer was previously entitled.

 

8. CONFIDENTIAL INFORMATION

1. Confidential Information. “Confidential Information” means information designated by a Party or a Party’s Affiliate as confidential, or given the circumstances, would reasonably be understood by the Recipient to be confidential, and that is disclosed by a Party, its Affiliates, or their respective Representatives (the “Discloser”) to the other Party, its Affiliates, or their respective Representatives (the “Recipient”), regardless of the form of disclosure. Confidential Information includes, with respect to Yavrio and its Affiliates, the Yavrio Technology and non-public Documentation, and with respect to Customer and its Affiliates, all Customer Data, and with respect to both the Discloser and Recipient, the non-public terms of the Agreement and all non-public information relating to business plans, customers and customer lists, data, designs (whether actual, contemplated, experimental, or planned), financial information, forecasts, Inventions, know-how, methods, market analysis, pricing, products (whether actual, contemplated, experimental, or planned), prerelease offerings, research and development, security policies and processes, source and object code, and strategies of the Discloser.
2. Exclusions. Confidential Information does not include information that the Recipient can establish: (i) (except with respect to Personal Information) is or becomes generally known to the public without the Recipient’s breach of any obligation owed to the Discloser; (ii) has been rightfully received by the Recipient from a third party without confidentiality restrictions; (iii) is known to the Recipient without any restriction as to use or disclosure prior to first receipt by the Recipient from the Discloser; or (iv) has been independently developed by the Recipient without use of or reference to the Discloser’s Confidential Information.
3. Disclosures Required by Law. If any Applicable Laws or judicial or administrative order requires the Recipient to disclose any of the Discloser’s Confidential Information, the Recipient shall (if legally permitted) promptly notify the Discloser in writing prior to making any such disclosure, in order to facilitate the Discloser’s efforts to protect its Confidential Information. Following such notification, the Recipient shall cooperate with the Discloser, at the Discloser’s reasonable expense, in seeking and obtaining protection for the Discloser’s Confidential Information. If, in the absence of a protective order or other remedy or the receipt of a waiver by the Discloser, the Recipient is legally compelled to disclose Confidential Information by any tribunal, regulatory authority, agency, or similar entity, the Recipient may disclose only that portion of the Confidential Information that is legally required to be disclosed, and the Recipient shall exercise its best efforts to preserve the confidentiality of the remaining Confidential Information.
4. Restrictions on Use and Disclosure. The Recipient shall use Confidential Information of the Discloser solely to fulfill its obligations under the Agreement, to comply with Applicable Laws, or as otherwise permitted under the Agreement. Subject to the permitted disclosures set forth in Section 8(c) (Disclosures Required by Law), the Recipient shall hold Confidential Information in strict confidence and shall not disclose or authorize the disclosure of Confidential Information to third parties except as otherwise permitted by the Agreement. The Recipient may disclose Confidential Information to a Representative or service provider on the condition that the Recipient: (i) ensures that such Representative or service provider is bound by a written agreement or other legally binding obligation of confidentiality and restricted use at least as protective as these Terms and (ii) is fully responsible for such Representative’s or service provider’s use and disclosure of the Confidential Information and its compliance with the obligations of the Recipient under this Section 8(d) (Restrictions on Use and Disclosure). The Recipient shall protect Confidential Information of the Discloser from unauthorized access and disclosure using the same degree of care, but in no event less than a reasonable standard of care, that it uses to protect its own Confidential Information of a similar nature and shall not reverse engineer, decompile, or disassemble any such Confidential Information. All rights and obligations regarding Confidential Information (including Customer Data) will survive and remain subject to the confidentiality provisions of this Agreement for as long as the Confidential Information is retained or until it no longer meets the definition of Confidential Information.
5. Return of Confidential Information. Yavrio shall destroy, overwrite, or return Customer’s Confidential Information as provided in Section 6(h) (Return of Customer Data) or Section 6(i) (Deletion of Data), as applicable.

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9. WARRANTIES

1. Mutual Warranties. Each Party represents and warrants to the other Party that (i) it has the authority to enter into and perform its obligations under the Agreement; (ii) the Agreement does not conflict with any other agreement entered into by it; (iii) it does not conduct business for any unlawful purpose; and (iv) it is not a politically exposed person (PEP); on Her Majesty’s Treasury, Asset Freezing Unit’s Consolidated List of Financial Sanctions Targets; the European Union’s consolidated list of persons, groups; the United States Department of Treasury, Office of Foreign Asset Control’s list of Specially Designated National and Blocked Persons; and entities subject to EU financial sanctions; or any similar list of embargoed or blocked persons applicable to persons or entities in the jurisdiction of such Party’s domicile or use of the Services.
2. Yavrio’s Warranties. Yavrio offers the following warranties for the Services:

   i. Yavrio warrants to Customer that: (1) the Yavrio Technology Yavrio provides to Customer will perform in all material respects in accordance with its applicable, then-current Documentation; (2) Yavrio will not materially reduce a Service or its features or functionality during a Subscription Term (provided, however, that Yavrio may deprecate a Service or Service features or functionality upon expiration of a Subscription Term with at least 30 days’ written notice to Customer); and (3) Yavrio will use commercially reasonable efforts, using then-current versions of commercially available antivirus software, to ensure that the Yavrio Technology provided to Customer contains no computer virus, Trojan horse, worm, or other similar malicious code. Yavrio does not warrant that the Yavrio Technology is free from all bugs, errors, or omissions.

   ii. If Yavrio fails to conform to any of the warranties in this Section 9(b) (Yavrio’s Warranties) and Yavrio does not render the Yavrio Technology conforming within 30 days of Customer’s written notice to Yavrio of the nonconformance, then, as Customer’s sole and exclusive remedy for any nonconformance, Customer may immediately terminate its subscription for the affected Service upon notice to Yavrio, and Yavrio shall refund Customer the pro rata amount of any prepaid Service subscription fees applicable to the unused portion of the Subscription Term of the terminated Service (excluding any activation or other one-time fees). The refund will be calculated from the date that Customer notifies Yavrio of the nonconformance.

   iii. The warranties in this Section 9(b) (Yavrio’s Warranties) do not apply to the extent that the Service, systems, or software have been modified by persons other than Yavrio’s employees or persons authorized by Yavrio.

3. Customer is responsible to make best efforts to ensure that data received (AIS) including, but not limited to, account consents, vendor bank detail and bank statement transactions, as well as data sent (PIS) including, but not limited to, payment initiation towards beneficiary accounts, is accurate, as intended, and reconciles with information available to Customer. Yavrio accepts no liability for failures on behalf of Customer to ensure accurate data.  For avoidance of doubt, this extends to Customer, Affiliates, and any other representatives authorized by Customer to access, amend or otherwise impact Customer’s data.
4. Disclaimer of Implied Warranties. Except as expressly provided in the Agreement, the Services are provided on an “as-is” and “as available” basis, and neither Party makes any warranties of any kind, whether express, implied, statutory, or otherwise, and each Party specifically disclaims all implied warranties, including the implied warranties of merchantability and fitness for a particular purpose, to the maximum extent permitted by Applicable Laws.

 

10. INDEMNIFICATION

1. Indemnification by Customer. Customer shall indemnify and defend Yavrio and its Affiliates and their respective directors, officers, and employees against Losses incurred as a result of a third-party claim or action that (1) Customer’s use of the Service in breach of the Agreement infringes the Intellectual Property rights of a third party; (2) results from Customer’s breach of its obligations under the Agreement; or (3) results from Customer’s violation of Applicable Laws.
2. Process. The obligations of a Party (“Indemnitor”) to defend or indemnify the other (“Indemnitee”) under this Section 10 (Indemnification) are subject to the following: (i) the Indemnitee must promptly inform the Indemnitor in writing of any claim or action within the scope of the Indemnitor’s defence or indemnity obligations set forth in the Agreement, provided that Indemnitor shall not be excused from its indemnity obligations for failure to provide prompt notice except to the extent that the Indemnitor is prejudiced by any such failure to provide prompt notice; (ii) the Indemnitor must be given exclusive control of the defence of such claim and all negotiations relating to its settlement, except that the Indemnitor may not, without Indemnitee’s approval, (A) make any admissions on the Indemnitee’s behalf or (B) settle any such claim unless the settlement unconditionally releases the Indemnitee of all liability; and (iii) the Indemnitee must reasonably assist the Indemnitor in all necessary respects in connection with the defence of the claim, at the Indemnitor’s expense. The Indemnitee may participate in the defence of the claim at its sole cost and expense.
3. Exclusive Remedy. This Section 10 (Indemnification) states the Indemnitor’s sole liability and the Indemnitee’s exclusive remedy with respect to Infringement and any other type of third-party claim or action described in this Section. This Section does not apply to any direct claims between the Parties. For the sake of clarity, this Section does not cover any claims based on any error in accuracy or timeliness of any Service. Such claims are governed exclusively by, and limited by, the warranties in the Terms or the warranties or guarantees set forth in the applicable Supplemental Terms, if any.

 

11. MODIFICATIONS

1. Modification Notice. Subject to the restrictions in this Section 11 (Modifications), Yavrio may modify these Terms, the Acceptable Use Policy, the Data Processing Addendum, or any Supplemental Terms. If Yavrio modifies these Terms, the Acceptable Use Policy, or any Supplemental Terms, it shall provide prior written notice (“Modification Notice”) to Customer of such modifications at least 30 days prior to the effectiveness of the modifications. Yavrio is not required to provide prior notice if modifications are necessary to comply with Applicable Laws but in such case shall use commercially reasonable efforts to provide prior notice when practicable. Yavrio may update the list of services in the table in Section 15 (Supplemental Terms) without providing prior notice.
2. Renewal Modification Notice. If the Modification Notice states that the modifications will become effective upon commencement of a Renewal Subscription Term, then the modifications will become effective for each Service affected by the changes upon renewal of such Service. Customer may avoid the applicability of the changes only by cancelling the renewal of Customer’s subscription prior to commencement of the Renewal Subscription Term.
3. Mid-Term Modification Notice. If the Modification Notice states that the modifications will become effective during the then-current Subscription Term, and the modifications materially and adversely affect Customer, then Customer may terminate Customer’s subscription to the affected Service by providing written notice to Yavrio at any time within the 30-day period following the date of the Modification Notice. Customer’s termination will become effective on the later to occur of (i) the date on which Customer delivers a timely termination notice or (ii) the date on which the applicable modifications become effective, provided that, upon written request by Customer, Yavrio shall continue to provide such Service to Customer as needed to manage a reasonable transition to another vendor, not to exceed 60 days, and at Yavrio’s then-current rates for the affected Service. If Customer terminates a Service subscription pursuant to this Section 11(c) (Mid-Term Modification Notice), then Yavrio shall refund Customer the pro rata amount of any prepaid Service subscription fees applicable to the unused portion of the Subscription Term for the terminated Service (excluding any activation or other one-time fees).
4. General. If Customer does not terminate the affected Service subscription as specified in this Section 11 (Modifications), then Customer will be bound by the modified terms beginning upon the effective date set forth in the Modification Notice.

 

12. LIABILITY

1. Nothing in these Terms shall limit or exclude a party’s liability: (i) for death or personal injury caused by its negligence; (ii) for its fraudulent misrepresentations; (iii) for its wilful default; (iv) for its payment obligations expressed in these Terms; (v) under an indemnity expressed in these Terms; and (vi) to the extent that liability cannot be excluded by Applicable Law. The remaining provisions of clause 12 shall be subject to this clause 12a).
2. In no event shall either Party be liable to the other Party or any other party for cost of cover or any consequential, indirect, special, punitive, incidental, exemplary, or lost profits damages of any kind, whether foreseeable or unforeseeable, including damages for loss of data, goodwill or investments, use of money or facilities, interruption in use or availability of data, stoppage of other work, or impairment of other assets, even if advised of the possibility of such damages and even if such damages are reasonably foreseeable. The previous sentence will not apply to instances of gross negligence or wilful misconduct, to a Party’s breach of its privacy, security, and confidentiality obligations set forth in Section 4 (Privacy and Security) and Section 8 (Confidential Information), to a Party’s misappropriation of the other Party’s intellectual property rights, or to a Party’s indemnification obligations set forth in Section 10 (Indemnification).
3. Yavrio will not be liable to the Customer for indirect or consequential loss or for the following types of loss irrespective of whether they are a foreseeable consequence of its breach: (a) loss of profit or revenue; (b) loss of opportunity or anticipated savings; (c) loss of goodwill or reputation; or (d) loss or corruption of data.
4. Except with respect to claims of infringement or misappropriation of Intellectual Property of the other Party, a Party’s breach of its confidentiality obligations set forth in Section 8 (Confidential Information), or Customer’s failure to pay amounts due under the Agreement, neither Party may bring any claim relating to the Agreement more than two years after the events giving rise to the claim occurred.
5. Each party’s total aggregate liability under or in connection with these Terms (whether arising in negligence, contract, tort, breach of statutory duty or otherwise) in any twelve (12) month period shall be limited to the greater of ten thousand pounds sterling (£10,000).
6. Customer agrees that they shall not make a claim against Yavrio for breach of these Terms unless Customer has first notified Yavrio of the breach, allowing Yavrio 30 days from the date of Customer’s notice to remedy the breach (provided the breach is capable of remedy) and Yavrio have not remedied the breach within such remedial period.
7. Yavrio shall not be liable for any delay or failure in the provision of the Services to Customer to the extent that such delay or failure is caused by Customer’s failure to comply with Customer’s obligations under these Terms. Customer agrees to reimburse Yavrio for the direct loss and expenditure which Yavrio incur as a result of such delay or failure provided always that Yavrio have used reasonable efforts to mitigate such loss and expenditure.
8. Yavrio shall not be liable for any error, inaccuracy or omission in the output of the Services based on any inaccurate or incomplete information which Customer has provided to Yavrio.
9. Neither party shall be liable to the other party for its delay or failure to the extent caused by events outside of its reasonable control (a ‘Force Majeure Event’) provided that the party affected by such Force Majeure Event promptly notifies the other party and uses its reasonable endeavours to mitigate the effects of the Force Majeure Event on the performance of its obligations under these Terms.
10. Yavrio are not responsible for any delay to or failure in the delivery of PSP Account Information over third party communications networks (including the Internet).
11. If an End User withdraws its consent for Customer to access and process the PSP Account Information, Yavrio are not responsible to the extent the PSP Account Information cannot be provided to that End User or where it is provided in breach of Data Protection Legislation.
12. Yavrio shall not be liable for unauthorised access to Confidential Information if such unauthorised access did not arise from Yavrio’s breach of these Terms (including applicable Information Security Standards).
13. The parties acknowledge that the pricing and charges have been calculated on the basis that Yavrio will exclude and limit Yavrio’s liability as set out in these Terms.
14. General. These exclusions and limitations apply even if the remedies are insufficient to cover all of the losses or damages of such Party, its Affiliates or, in the case of Customer, Authorized Users. Without these limitations, the fees for the Service(s) would be significantly higher. Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some or all of the above exclusions or limitations may not apply, and the Parties may have additional rights.​

 

13. MISCELLANEOUS

1. Relationship of the Parties; No Professional Opinions or Legal Advice. The Agreement does not create a partnership, joint venture, agency, or fiduciary relationship between the Parties. Distributors (as defined in Section 14 (Purchase Through Distributors) below) and Yavrio’s other business partners are independent of Yavrio and are not Yavrio’s agents. Customer acknowledges and agrees that Yavrio does not provide legal advice, including legal or professional opinions or management advice. Customer is responsible for its own policies and positions taken. Customer is responsible for conducting its own due diligence and seeking the assistance of a qualified professional.
2. Third-Party Applications. Yavrio is not responsible for and does not in any way endorse any Third-Party Applications or websites linked to by Yavrio’s website or the Services.
3. Publicity. Neither Party shall issue any public statement regarding the Agreement without the other Party’s prior written consent. Unless a Party has specifically notified the other Party to the contrary in writing, either Party may include the name or logo of the other Party or its Affiliates in lists of customers or vendors.
4. Other Technology or Services; Customer acknowledges and agrees that Customer has not relied on any future availability of any service offerings, technology, or additional, enhanced or updated features or functionality, and that the Services do not include any further support (unless otherwise specified in an Order Document).
5. Governing Law; Jurisdiction and Venue. This agreement shall be governed by and construed in accordance with the law of England and Wales and each party agrees to submit to the exclusive jurisdiction of the courts of England and Wales.
6. Equitable Relief. Each Party acknowledges that damages may be an inadequate remedy if the other Party or its Affiliates or its or their Representatives (or, in the case of Customer, Authorized Users) violate the obligations under the Agreement, and each Party shall have the right, in addition to any other rights it may have, to seek injunctive relief without any obligation to post any bond or similar security.
7. Force Majeure. Neither Party shall be responsible for failure or delay of performance caused by circumstances beyond its reasonable control, including earthquake, storm, or other act of God; labor disputes; electrical, telecommunications, or other utility failures; breakdown of communication facilities; breakdown of web host; breakdown of internet service provider; epidemic; pandemic (including the Covid-19 pandemic); quarantine; embargoes; riots; acts of government; or acts of terrorism or war. A Party seeking relief from performance under this Section 13(h) (Force Majeure) must (i) provide notice of such circumstances to the other Party as soon as practicable, (ii) use commercially reasonable efforts to avoid or mitigate such circumstances, and (iii) resume performance as soon as practicable upon the cessation of the circumstances. If the failure or delay continues for more than 30 days, either Party may, in its discretion, terminate the affected Service. Such termination will not result in any liability by either Party, except that, if Customer terminates the affected Service for Yavrio’s failure, Yavrio shall refund Customer the pro rata amount of any prepaid Service subscription fees applicable to the unused portion of the Subscription Term of the terminated Service (excluding any activation or other one-time fees). If Customer was unable to use the Service as a result of the force majeure event, the unused portion of the Subscription Term will be measured from the last date on which Customer was able to use the Service.
8. Notices. Yavrio shall communicate announcements of general interest by email or by posting on its website or on Customer’s console. Yavrio shall provide Customer with legal notices in writing by email, mail, or courier to the address provided by Customer. Customer shall immediately notify Yavrio if Customer’s address for notice changes. Except as otherwise specified in the Agreement, all notices to Yavrio must be in writing and sent as follows:

   Account notices (for example, name or address changes)
   Send to Customer Account Manager

   Notices of non-renewal
   Send in accordance with instructions provided in the Documentation (see Section 6(b)(ii) (Term and Termination))

   Legal notices
   Send to legal@yavr.io

9. Successors and Assigns. Either Party may assign the Agreement without the other Party’s consent to an entity that acquires all or substantially all of the assets of or that is an Affiliate of the assigning Party, provided that (i) the assigning Party must provide notice to the other Party of the assignment, (ii) the assignee must agree in writing to be bound by the Agreement, and (iii) the non-assigning Party may prohibit assignment to a competitor of the non-assigning Party or to an entity operating a business in violation of Applicable Laws. Except as provided above, neither Party may assign its rights or obligations under the Agreement without the other Party’s prior written consent, such consent not to be unreasonably withheld or delayed, and any attempt to so assign the Agreement will be null and void. The Agreement will bind and inure to the benefit of each Party’s permitted successors and assigns.
10. Severability. If any provision of the Agreement is determined to be invalid or unenforceable by any court, then to the fullest extent permitted by law, that provision will be deemed modified to the extent necessary to make it enforceable and consistent with the original intent of the Parties and all other provisions of the Agreement will remain in full force and effect.
11. Waiver. No waiver of any provision of the Agreement, nor any consent by a Party to the breach of or departure from any provision of the Agreement, will in any event be binding on or effective against such Party unless it is in writing and signed by such Party, and then the waiver or consent will be effective only in the specific instance and for the purpose for which given.
12. Entire Agreement. The Agreement constitutes the entire agreement and understanding between the Parties with respect to the subject matter hereof and supersedes all prior or contemporaneous written, electronic, or oral communications, representations, agreements, or understandings between the Parties with respect thereto. Except as specified in Section 11 (Modifications), the Agreement may not be modified or amended except by a written instrument executed by both Parties. Customer’s standard terms of purchase or vendor management terms (including purchase order terms or click-through terms), if any, are inapplicable. Except to the extent expressly specified otherwise, if there is any conflict between these Terms and any of the other Agreement documents, then the following order of precedence applies: (i) any addendum between the Parties, (ii) the Order Document, (iii) the Supplemental Terms, as applicable, and (iv) these Terms.

 

14. PURCHASE THROUGH DISTRIBUTORS

This Section 14 (Purchase Through Distributors) only applies to Customers who have purchased a Service through a Distributor. “Distributor” means an entity that Yavrio has authorized as a distributor or reseller of the Services. For the sake of clarity, this Section 14 (Purchase Through Distributors) does not apply if Customer did not purchase a Service through a Distributor.

1. Distributors. “Distributor Agreement” means the order, agreement or other document between Customer and a Distributor for Customer’s purchase or other acquisition of Services. Additional terms that apply to Customer’s use of the Services when obtained from a Distributor are set forth in this Section 14 (Purchase Through Distributors). In the event of any conflict between the provisions of the Agreement and the Distributor Agreement, then the provisions of the Agreement prevail. If a Distributor has granted Customer any rights that Yavrio does not also directly grant to Customer in the Agreement, or that conflict with the Agreement, then Customer’s sole recourse with respect to such rights is against the Distributor.
2. Subscriptions Through a Distributor. If Customer ordered a Service through a Distributor, the Subscription Term will begin on the Effective Date, and it will expire, renew, and terminate in accordance with the terms of the Distributor Agreement.
3. Purchases Through a Distributor. If Customer ordered a Service through a Distributor, then the billing, payment, and termination sections of the Agreement may not apply to Customer, and Customer’s billing and payment rights and obligations are governed by the Distributor Agreement. However, if the Distributor from whom Customer purchased a Service fails to pay Yavrio any amounts due in connection with Customer’s use of the Services, Yavrio may suspend Customer’s Account, with or without notice to Customer, and may demand payment directly from Customer. Customer agrees that Customer’s remedy in the event of such suspension is solely against the Distributor and that Yavrio is not liable to Customer in any manner for such suspension. Yavrio may invoice Customer directly for renewals.
4. Modifications. Yavrio may modify these Terms, the Acceptable Use Policy, or any Supplemental Terms. If Customer ordered a Service through a Distributor, any modification will take effect upon the date of the modification, and Customer may avoid the applicability of the modification only by ceasing its use of a Service.

 

15. ADDITIONAL POLICIES

Links to additional policies or services below are provided for reference.

Acceptable Use Policy (AUP)       https://yavr.io/acceptable-use

Privacy Policy                                https://yavr.io/privacy-policy