The information provided below is for Yondur subscribers who have questions about our terms and policies.
For further information please contact:
+44 (0) 1225 318 576
10 Argyle Street, Bath, UK, BA2 4BQ
Yondur is a brand owned by Cognisess Ltd, and has its registered office at 10 Argyle Street, Bath, BA2 4BQ. We aim to democratize human capital and empower every person to understand and enhance their talent and potential. We are doing this by building an intelligent platform, reinventing people-focused. In all of this, we will uphold the timeless value of privacy and preserve the ability for you to control your data.
- You provide this data voluntarily – it is entirely your choice.
- We use the data to create your digital profile, match you to a profiler, and handle job applications.
- We give you the option to show yourself to others via recorded videos.
- We don’t trade or sell data – it is and will always remain yours.
- Your profile is yours for life – you are in control of what we know about you, every step of the way.
- You can choose to be anonymous and only share what you want with others.
INFORMATION WE COLLECT
Yondur collects data to operate effectively and provide you the best experiences with our products. You provide some of this data directly, such as when you create a Yondur account, upload a document, record a video profile or contact us for support. We get some of it by recording how you interact with our products, for example, using technologies like cookies, and receiving error reports or usage data from your device.
You have choices about the data we collect. When you are asked to provide personal data, you may decline. But if you choose not to provide data that is necessary to provide a product or feature, you may not be able to use that product or feature. Broadly, the data we collect can include the following categories:
As an individual:
- Name and contact data: We may collect your first and last name, email address, postal address, phone number and other similar contact data.
- Credentials: We collect passwords, password hints and similar security information used for authentication and account access.
- Demographic data: We collect data about you such as your age, gender, country and preferred language.
- Employment details: We collect data about current and previous employment.
- Education data: We collect your education data such as university, year of study as well as grade you achieved.
- Sensitive data: We collect sensitive personal data which includes details of your health condition. This is for the purposes of fairer assessment. Providing this information is entirely optional and it will not affect the scores or how your profile is presented.
- Biographical information: We collect data about you, your interests and hobbies, work experience, education and other elements to help build a digital profile.
- Video information: We may collect video data which includes your responses to specific questions.
- Assessment scores: We collect the scores of the assessments that you play on our platform.
- Other: We collect data when you fill out a form, respond to a survey, or submit a resume to apply for jobs.
- Device and Usage data: We collect data about your device and how you and your device interact with Yondur products.
- Performance data: We collect data about the performance of the products and any problems you experience in Yondur products. This data helps us to diagnose problems in the products you use, and to improve our products and provide solutions.
To create an account, you provide data including your name, email address and/or mobile number, and a password. When you create a personal Yondur account, you will be asked for certain personal data and we will assign a unique ID number to identify your account and associated information.
You have choices about the information on your profile, such as your education, work experience, skills, photo and city or area. Complete the baseline assessments. Profile information helps you to get more from our Services, including helping recruiters and business opportunities find you. It’s your choice whether to include sensitive information on your profile. Please do not add any personal data to your profile that you would not want to be available.
When you sign into your Yondur account, we create a record of your sign-in, which includes the date and time, information about the product you signed into, your sign-in name, the unique number assigned to your account, a unique identifier assigned to your device, your IP address and your operating system and browser version.
Other information from Service use
In addition to the information you provide, Yondur may also collect data during your visit to a Yondur website through Automated Tools, which include cookies, embedded Web links, and other commonly used information-gathering tools. These tools collect certain standard information that your browser sends to our website such as your browser type and language, access times, and the address of the website from which you arrived at a Yondur website. Using these tools, Yondur is also able to confirm receipt of e-mails that the recipient consented to receive and can understand other information such as pages visited on the Yondur site and certain other aggregate data that is not related to a particular individual.
We use IP addresses to establish the country from which a user is using our websites and services to administer our website, and to gather demographic information. We may also use IP addresses or other information, you have shared on this website or at any earlier occasion, to determine which pages on our sites you visit, and which topics may be of interest to you, so we can provide you with information about relevant products and services.
Yondur is, in particular, currently using the following Automated Tools for the purposes set out below.
Embedded Web Links
Emails from Yondur often use links designed to lead you to a relevant area on the Web, after redirection through 3rd-party servers. This redirection method allows Yondur to change the destination URL of these links, if necessary, and to determine the effectiveness. In emails, such links may also permit Yondur to decide if you have clicked on a link in the email, and the data about this communication may be connected to your personal identity. If you do not want Yondur to collect information about the links you clicked, you can simply choose not to click on the links in an e-mail that Yondur sends you.
HOW WE COLLECT YOUR DATA
To serve you better and understand your needs and interests, Yondur collects, exports, and uses Personal Data with adequate notice and, where legally required, consent, along with required filings with data protection authorities, when applicable. The following are the main ways in which we collect the data:
Information you provide to us directly
As a job seeker or individual, by using our products you are consent to the collection and use of your Personal Data as described. If you do not agree with the terms & conditions, please do not use this website & services.
As we are required by applicable law, we may also seek your explicit consent to process certain Personal Data collected on our services by you. Kindly note that any consent will be entirely voluntarily. In case you do not grant the requested consent to the processing of your Personal Data or later inform Yondur that you do not want Yondur to further process your Personal Data (Data Retention), the further use of certain offerings or services of Yondur may be either not possible or limited in scope.
Information we collect automatically
When you use our website or products, we automatically collect your data such as IP address and device details through automated tools. We also collect the data about your usage in our platform and services which includes what pages you looked at and what hyperlinks you clicked on. This information provides us useful insights to better understand of how you’re using our platform and services. Thereby we can continually improve our service and serve you better experience in our platform.
Information we collect from third parties
Most of the times, we collect the data directly from you. Occasionally, we might collect the data from other source such as from our trusted research partners. We use this information to supplement the personal data we already hold about you, in order to better inform, customise and improve our services, and to validate the personal data you provide.
Where we collect personal data, we’ll only process it:
- to perform a contract with you, or
- where we have legitimate interests to process the personal data and they’re not overridden by your rights, or
- in accordance with a legal obligation, or
- where we have your consent.
If you don’t want us to collect your personal data, we may be unable to provide you with all our services, and some functions and features on our websites may not be available to you.
WHY ARE WE COLLECTING THIS DATA?
The reasons why people use our platform differ, but below are the most common use cases, from our perspective:
- The one such purpose for processing your personal data is to manage your application and to match your data with the requirements of available jobs via the Yondur Platform. We want to give you the opportunity to share scores on assessments with employers or educators to show what makes you good at what you do, and why you would be a good candidate to consider. Also, this can help you find a career or job that you might not have considered before.
- For individuals, we are providing a platform for personal development based on existing skills.
- We collect video data to gain a better understanding of how you present yourself and respond to particular questions that employers might want to ask individuals. Yondur has developed algorithms to analyse videos including human expression and language based on universal scientific paradigms. To remove any bias Yondur never uses age, gender, ethnicity or culture in its algorithms.
- We collect your age, gender and similar information and this is for global research and norming purposes only. All biographical data is non-mandatory. In no way does this information impact on your application and cannot be part of a profiler. Equality is very important to us.
As an Organisations:
- To provide marketing or promotional activities on the www.Yondur.com. Personal Data such as name and email address may be collected to administer those programs.
- To conduct questionnaires and surveys in order to provide better products and services to our customers and end users. Your completion of any questionnaires is voluntary.
- To support recruitment inquiries.
- To prepare anonymized data regarding the use of Yondur websites and offerings. Yondur will use such anonymized data only for the improvement of such websites and offerings.
- To process your orders and deliver the services as well as to provide access to our services that you have ordered.
- To keep you up to date on the latest platform features, platform service updates and other information regarding Yondur’s platform and services.
- To meet contractual obligations.
- To comply with applicable regulatory requirements, in particular resulting from export laws. Yondur, technologies and services are subject to the export laws of various countries, including without limitation, to those of the European Union and its member states, and the United States of America.
- Yondur is required to take measures to prevent entities, organizations and parties listed in government issued sanctioned party lists from accessing certain products, technologies and services through Yondur’s websites. You therefore understand and agree that Yondur may (i) automatically check any user registration data and other information you provide about your identity against applicable sanctioned party lists; (ii) regularly repeat such checks whenever a sanctioned party list is updated or when you update your information; (iii) block your access to Yondur’s services and systems in case of a potential match; and (iv) in case of a potential match contact you in order to confirm your identity.
WHO IS HANDLING YOUR DATA?
Yondur is a brand owned by Cognisess Ltd., and have our registered office at 10 Argyle St, Bath BA2 4BQ, UK. We are legally considered as data processor for the personal data contained in any job application and consider as data controller for the personal data in your Yondur account. We store our data on Cognisess servers that are continuously monitored to make sure your data is safe, protected and served in the right location.
Your data always stays yours, and you can always access and modify it. Any personal information that you provide us with may be transferred to other Yondur entities in other European jurisdictions. We never sell, rent, trade or otherwise disclose the personal information you provide to anyone outside of Yondur without your expressed permission. If used for a game-based assessment or as an employee or educator, please be aware that the employer or educator handling the accounts to process applications and staff profiles may be able to see some of the information that you provide. Your data is encrypted with industry standard encryption technology whilst stored.
WHERE WE STORE AND PROCESS PERSONAL DATA
HOW WE SHARE YOUR INFORMATION
Any personal data and information that you give to us is confidential. We may disclose your personal information to another entity only in certain following circumstances:
- We may share such data with service vendors, business partners, authorized third party agents, contractors to provide a requested service or transaction, including processing credit card transactions, hosting websites, providing customer support, and providing you with information on products and services.
- We may share your name and email address with our marketing partners, only if you opted in for our newsletters and marketing materials.
- We only provide these third parties with the minimum amount of Personal Data necessary to provide the services on our behalf, and the third parties are (where legally required) bound by appropriate data processing agreements and/or comprehensive confidentiality undertakings and therefore not permitted to use your Personal Data except for the limited purpose of completing the requested service or transaction.
- We may respond to subpoenas, court orders, or legal process by disclosing your Personal Data and other related information, if necessary. We also may choose to establish or exercise our legal rights or defend against legal claims.
- Circumstances may arise where, whether for strategic or other business reasons, Yondur decides to sell, buy, merge or otherwise reorganize businesses in some countries. Such a transaction may involve, in accordance with applicable law, the disclosure of Personal Data to prospective or actual purchasers, or the receipt of it from sellers. It is Yondur’s practice to seek appropriate protection for information in these types of transactions.
- Yondur may use the information in connection with processing your inquiries and activities, in order to provide services to you, to help improve our products and services to keep you up to date about the latest product announcements, newsletters, platform enhancements, for processing as well as storage and for all other purposes set out in the section “WHY ARE WE COLLECTING THIS DATA?” above.
- Finally, we do not sell or rent your Personal Data to third parties for marketing purposes unless you have granted us permission to do so.
YOUR CHOICES & OBLIGATIONS
As far as we are concerned, the data is yours and we want to make sure you are happy with what is on your profile. You have the right to correct or modify your data at any time. You also have the right to withdraw your profile at any time by contacting Yondur directly at support@Yondur.com. Your data will then be deleted.
Data Retention & Account Closure
Cognisess Ltd will not retain your Personal Data longer than is necessary to fulfil the purposes for which it was collected or as required by applicable laws or regulations. In particular, and if no such contradicting statutory obligation exists, Yondur will delete your Personal Data once you inform Yondur or by withdrawing your consent with Yondur that you do not want Yondur to further process your Personal Data.
Please direct any such request to support@Yondur.com. Kindly note that in this case the use of certain services or offerings may either be limited or not possible any longer. In case there is a contradicting statutory obligation for Yondur to retain your Personal Data, Yondur will block it against further processing and then delete the relevant Personal Data when the requirement to retain it has ceased.
We refresh your consent over the period of time and also update you about the changes in this policy. We therefore wanted you to review the changes and seek your consent with updated changes in order to effectively use our platform and services.
Rights to Access and Control Your Personal Data
Yondur adheres to applicable data protection law (UK data protection law and General Data Protection Regulation (GDPR)).
As the processing of personal data is based on your consent, the following rights are applicate to you:
- You have a right to delete your personal data from us by withdrawing consent at any time.
- You have a right to access to and rectification of your personal data
- You have a right to object to the processing of your personal data
- You have a right to lodge a complaint with a data protection authority
- You have a right to data portability which allows you to obtain and reuse your personal data for your own purposes across different services.
- You have the right to restrict the further processing of your personal data.
- You have the right in relation with the profiling we provide.
- As applicable under French law, you can also send us specific instructions regarding the use of your personal data after your death.
When we process personal data about you, we do so with your consent and/or as necessary to provide the products you use, operate our business, meet our contractual and legal obligations, protect the security of our platform and services as well as our customers.
Yondur needs your help in keeping the Personal Data you have shared with us accurate and up to date. If you are a registered user, you may make these updates yourself online via app.Yondur.com. You may also make these updates or other changes by sending an email to support@Yondur.com. To exercise your rights, you can always contact us by sending an email to email@example.com.
INTERNATIONAL DATA TRANSFERS
When we share your personal data, it may be transferred to, and processed in countries other than you reside. For instance, our data hosting’s servers are mainly located within European Economic Area. Countries outside the EEA may under different data protection law, which you are not used to. When we share your personal data to a third party reside in another country, we ensure that your personal data is protected by keeping safeguards in place.
This means that the personal data of individuals in European Economic Area (EEA) may be transferred outside the EEA. In that case, we only transfer to countries that have been identified as providing acceptable protection to EEA data or to a third party where we have approved transfer mechanisms in place to protect your personal data. We ensure the data is protected by third parties by having European Commission’s Standard Contractual Clauses in Data Processing Agreement or by confirming the entity is Privacy Shield certified. For more information, please contact us by sending an email to firstname.lastname@example.org.
OTHER IMPORTANT INFORMATION
Security of Your Personal Data
Yondur is committed to protecting the Personal Data you share with us. Yondur uses a combination of industry-standard security technologies, procedures, and organizational measures to help protect your Personal Data from unauthorized access, use or disclosure. Yondur supports online security using secure server technology because we want your data to be safe. There are state-of-the-art security arrangements and facilities on Yondur sites to prevent security issues. We bind our employees and data processors to observe your privacy and confidentiality rights.
We monitor for and try to prevent security breaches. We implement security safeguards designed to protect your data, such as HTTPS. We regularly monitor our systems for possible vulnerabilities and attacks. For example, we store the personal data you provide on computer systems that have limited access and are in controlled facilities. When we transmit highly confidential data (such as a credit card number or password) over the Internet, we protect it through the use of encryption.
Links to Other Sites
This website may contain links to foreign (i.e. non Yondur group of companies) sites. Yondur is not responsible for the privacy practices or the content of other websites outside the Cognisess Group of companies. Therefore, we recommend that you carefully read the privacy statements of such foreign sites.
We communicate with you by phone or via email to resolve customer complaints or investigate suspicious transactions. We may use your email address to confirm your opening of an account, to send you notice of transactions, to send you information about changes to our products and services, and to send notices and other disclosures as required by law.
For marketing purposes, we communicate with subscribers who consent our services for marketing purposes on a regular basis via email and subscribers can opt out at any time from these communications.
If you choose to give us your e-mail address, we will communicate with you via e-mail. We do not share your e-mail address with others outside the Cognisess group of companies unless this is required for the business relationship between you and Yondur or if you register for third party services. You can choose not to receive any more e-mails at any time. However, such choice will not affect the sending of emails that are strictly required to perform the business relationship between you and Yondur.
The below applies to users residing in the Russian Federation: The services hereunder are not intended for use by the citizens of the Russian Federation, who reside in Russia. If you are a Russian citizen residing in Russia, you are hereby notified, that any Personal Data that you input into the services will be solely at your own risk and responsibility, you consent that Yondur may accumulate your Personal Data and will process this data in the EU and in other countries and that you will not hold Yondur accountable for any potential non-observance of the Russian Federation legislation.
All rights reserved. © Cognisess 2018.
Published by Cognisess, May 16 2018.
Terms and Conditions
Master Subscription Agreement | End User Terms
IMPORTANT — READ CAREFULLY: BY CREATING AN ACCOUNT OR BY UTILISING THE YONDUR PLATFORM YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS.
Please read the following Subscription Agreement and Terms and Conditions, which relate to information regarding general use of our software platform and services. By using our software platform, you are agreeing to these Terms and Conditions whether as a guest or user.
MASTER SUBSCRIPTION AGREEMENT
THIS AGREEMENT GOVERNS YOUR ACQUISITION AND USE OF OUR SERVICES. IF YOU REGISTER WITH OUR SERVICES, THE APPLICABLE PROVISIONS OF THIS AGREEMENT WILL ALSO GOVERN ANY SERVICES.
BY ACCEPTING THIS AGREEMENT, BY CLICKING A BOX INDICATING YOUR ACCEPTANCE; BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT; BY USING SUCH SERVICES, YOU AGREE TO THE TERMS OF THIS AGREEMENT.
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
You may not access the Services if You are Our direct competitor, except with Our prior written consent. In addition, you may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
This Agreement was last updated on November 27, 2017. It is effective between You and Us as of the date of Your accepting this Agreement.
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Agreement” means this Master Subscription Agreement.
“Beta Services” means YONDUR services or functionality that may be made available to You to try at Your option at no additional charge which is clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation, or by a similar description.
“Content” means information obtained by Yondur which is a brand owned by Cognisess Ltd from publicly available sources or third party content providers and made available to You through the Services, Beta Services or pursuant to an Order Form, as more fully described in the Documentation.
“Documentation” means the applicable Service’s Terms and Privacy documentation, and its usage guides and policies, as updated from time to time, accessible via www.yondur.com or login to the applicable Service.
“Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
“Marketplace” means an online directory, catalog or marketplace of applications that interoperate with the Services, including, for example, the yondur located at http://www.yondur.com/
“Non-yondur Application” means a Web-based, mobile, offline or other software process or functionality that is provided by You or a third party and interoperates with a Service, including, for example, an application that is developed by or for You, is listed on a Marketplace, or is identified as Yondur Labs or by a similar designation.
“Order Form” means an ordering document or online order specifying the Services to be provided hereunder that is entered into between You and Us or any of Our Affiliates, including any addenda and supplements thereto. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.
“Free Services” means Services that Yondur makes available to You free of charge. Free Services exclude Services offered as a free trial and Purchased Services.
“Purchased Services” means Services that You or Your Affiliate purchase under an Order Form, as distinguished from Free Services or those provided pursuant to a free trial.
“Services” means the products and services that are ordered by You under an Order Form or provided to You free of charge (as applicable) or under a free trial, and made available online by Us, including associated Yondur offline or mobile components, as described in the Documentation. “Services” exclude Content and Non-Yondur Applications.
“User” means, in the case of an individual accepting these terms on his or her own behalf, such individual, or, in the case of an individual accepting this Agreement on behalf of a company or other legal entity, an individual who is authorized by You to use a Service, for whom You have purchased a subscription (or in the case of any Services provided by Us without charge, for whom a Service has been provisioned), and to whom You (or, when applicable, We at Your request) have supplied a user identification and password (for Services utilizing authentication). Users may include, for example, employees, candidates, consultants, contractors and agents, and third parties with which You transact business.
“We,” “Us” or “Our” means the Yondur.com company described in Section 13 (Whom You Are Contracting With, Notices, Governing Law and Jurisdiction).
“You” or “Your” means, in the case of an individual accepting this Agreement on his or her own behalf, such individual, or in the case of an individual accepting this Agreement on behalf of a company or other legal entity, the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity which have entered into Order Forms.
“Your Data” means electronic data and information submitted by or for You to the Services, excluding Content and Non Yondur Applications.
FREE TRIAL AND FREE SERVICES
2.1 Free Trial. If You register on Our website for a free trial, We will make one or more Services available to You on a trial basis free of charge until the earlier of (a) the end of the free trial period for which You registered to use the applicable Service(s), or (b) the start date of any Purchased Service subscriptions ordered by You for such Service(s), or
(c) termination by Us in our sole discretion. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
ANY DATA YOU ENTER INTO THE SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR YOU, DURING YOUR FREE TRIAL WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE TRIAL, PURCHASE APPLICABLE UPGRADED SERVICES, OR EXPORT SUCH DATA, BEFORE THE END OF THE TRIAL PERIOD. YOU CANNOT TRANSFER DATA ENTERED OR CUSTOMIZATIONS MADE DURING THE FREE TRIAL TO A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL (E.G., FROM ENTERPRISE EDITION TO PROFESSIONAL EDITION);
THEREFORE, IF YOU PURCHASE A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL, YOU MUST EXPORT YOUR DATA BEFORE THE END OF THE TRIAL PERIODOR YOUR DATA WILL BE PERMANENTLY LOST.
NOTWITHSTANDING SECTIONS 9 (REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS) AND 10.1 (INDEMNIFICATION BY US), DURING THE FREE TRIAL THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND YONDUR SHALL HAVE NO INDEMNIFICATION OBLIGATIONS WITH RESPECT TO THE SERVICES FOR THE FREE TRIAL PERIOD. WITHOUT LIMITING THE FOREGOING, YONDUR AND ITS AFFILIATES AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO YOU THAT: (A) YOUR USE OF THE SERVICES DURING THE FREE TRIAL PERIOD WILL MEET YOUR REQUIREMENTS, (B) YOUR USE OF THE SERVICES DURING THE FREE TRIAL PERIOD WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND (C) USAGE DATA PROVIDED DURING THE FREE TRIAL PERIOD WILL BE ACCURATE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN SECTION 11.1 (LIMITATION OF LIABILITY), YOU SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO COGNISESS AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF YOUR USE OF THE SERVICES DURING THE FREE TRIAL PERIOD, ANY BREACH BY YOU OF THIS AGREEMENT AND ANY OF YOUR INDEMNIFICATION OBLIGATIONS HEREUNDER.
Please review the applicable Service’s Documentation during the trial period so that You become familiar with the features and functions of the Services before You make Your purchase.
2.2 Free Services. COGNISESS may make Free Services available to You. Use of Free Services is subject to the terms and conditions of this Agreement. In the event of a conflict between this Section 2.2 (Free Services) and any other portion of this Agreement, this section shall control. Please note that Free Services are provided to you without charge up to certain limits as described in the Documentation. Usage over these limits requires your purchase of additional resources or services. You agree that YONDUR, in its sole discretion and for any or no reason, may terminate your access to the Free Services or any part thereof. You agree that any termination of your access to the Free Services may be without prior notice, and you agree that YONDUR will not be liable to you or any third party for such termination.
You are solely responsible for exporting Your Data from the Free Services prior to termination of Your access to the Free Services for any reason, provided that if We terminate your account, except as required by law We will provide you a reasonable opportunity to retrieve Your Data.
NOT WITH STANDING SECTIONS 9 (REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS) AND 10.1 (INDEMNIFICATION BY US), THE FREE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND YONDUR SHALL HAVE NO INDEMNIFICATION OBLIGATIONS WITH RESPECT TO THE FREE SERVICES. WITHOUT LIMITING THE FOREGOING, YONDUR AND ITS AFFILIATES AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO YOU THAT: (A) YOUR USE OF THE FREE SERVICES WILL MEET YOUR REQUIREMENTS, (B) YOUR USE OF THE FREE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND (C) USAGE DATA PROVIDED THROUGH THE FREE SERVICES WILL BE ACCURATE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN SECTION 11.1 (LIMITATION OF LIABILITY), YOU SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO YONDUR AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF YOUR USE OF THE FREE SERVICES, ANY BREACH BY YOU OF THIS AGREEMENT AND ANY OF YOUR INDEMNIFICATION OBLIGATIONS HEREUNDER.
3.1 Provision of Purchased Services. We will (a) make the Services and Content available to You pursuant to this Agreement and any applicable Order Forms, (b) provide applicable YONDUR standard support for the Purchased Services to You at no additional charge, and/or upgraded support if purchased, (c) use commercially reasonable efforts to make the online Purchased Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which We shall give advance electronic notice), and (ii) any unavailability caused by circumstances beyond Our reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving Our employees), Internet service provider failure or delay, Non-YONDUR Application, or denial of service attack.
3.3 Our Personnel. We will be responsible for the performance of Our personnel (including Our employees and contractors) and their compliance with Our obligations under this Agreement, except as otherwise specified herein.
3.4 Beta Services. From time to time, We may make Beta Services available to You at no charge. You may choose to try such Beta Services or not in Your sole discretion. Beta Services are intended for evaluation purposes and not for production use, are not supported, and may be subject to additional terms. Beta Services are not considered “Services” under this Agreement, however, all restrictions, Our reservation of rights and Your obligations concerning the Services, and use of any related Non-YONDUR Applications and Content, shall apply equally to Your use of Beta Services. Unless otherwise stated, any Beta Services trial period will expire upon the earlier of one year from the trial start date or the date that a version of the Beta Services becomes generally available without the applicable Beta Services designation. We may discontinue Beta Services at any time in Our sole discretion and may never make them generally available. We will have no liability for any harm or damage arising out of or in connection with a Beta Service.
USE OF SERVICES AND CONTENT
4.1 Subscriptions. Unless otherwise provided in the applicable Order Form or Documentation, (a) Purchased Services and access to Content are purchased as subscriptions, (b) subscriptions for Purchased Services may be added during a subscription term at the same pricing as the underlying subscription pricing, prorated for the portion of that subscription term remaining at the time the subscriptions are added, and (c) any added subscriptions will terminate on the same date as the underlying subscriptions.
4.2 Usage Limits. Services and Content are subject to usage limits, including, for example, the quantities specified in Order Forms and Documentation. Unless otherwise specified, (a) a quantity in an Order Form refers to Users, and the Service or Content may not be accessed by more than that number of Users, (b) a User’s password may not be shared with any other individual, and (c) except as set forth in an Order Form, a User identification may only be reassigned to a new individual replacing one who will no longer use the Service or Content. If You exceed a contractual usage limit, We may work with You to seek to reduce Your usage so that it conforms to that limit. If, notwithstanding Our efforts, You are unable or unwilling to abide by a contractual usage limit, You will execute an Order Form for additional quantities of the applicable Services or Content promptly upon Our request, and/or pay any invoice for excess usage in accordance with Section 6.2 (Invoicing and Payment).
4.3 Your Responsibilities. You will (a) be responsible for Users’ compliance with this Agreement, Documentation and Order Forms, (b) be responsible for the accuracy, quality and legality of Your Data, the means by which You acquired Your Data and Your use of Your Data with our Services, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services and Content, and notify Us promptly of any such unauthorized access or use, (d) use Services and Content only in accordance with this Agreement, Documentation, Order Forms and applicable laws and government regulations, and (e) comply with terms of service of any Non-YONDUR Applications with which You use Services or Content.
4.4 Usage Restrictions. You will not (a) make any Service or Content available to anyone other than Users, or use any Service or Content for the benefit of, anyone other than You, unless expressly stated otherwise in an Order Form or the Documentation, (b) sell, resell, license, sublicense, distribute, make available, rent or lease any Service or Content, or
include any Service or Content in a service bureau or outsourcing offering, (c) use a Service or Non-YONDUR Application to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use a Service or Non-YONDUR Application to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of any Service or third-party data contained therein, (f) attempt to gain unauthorized access to any Service or Content or its related systems or networks, (g) permit direct or indirect access to or use of any Service or Content in a way that circumvents a contractual usage limit, or use of any of Our Services in a manner that violates Our Acceptable Use and External Facing Services Policy , or to access or use any of Our intellectual property except as permitted under this Agreement, an Order Form, or the Documentation, (h) modify, copy, or create derivative works based on a Service or any part, feature, function or user interface thereof, (i) copy Content except as permitted herein or in an Order Form or the Documentation, (j) frame or mirror any part of any Service or Content, other than framing on Your own intranets or otherwise for Your own internal business purposes or as permitted in the Documentation, or (k) disassemble, reverse engineer, or decompile a Service or Content, or access it to (1) build a competitive product or service, (2) build a product or service using similar ideas, features, functions or graphics of the Service, (3) copy any ideas, features, functions or graphics of the Service or (4) determine whether the Services are within the scope of any patent. Any use of the Services in breach of this Agreement, Documentation or Order Forms, by You or Users that in Our judgment threatens the security, integrity or availability of Our services, may result in Our immediate suspension of the Services, however We will use commercially reasonable efforts under the circumstances to provide You with notice and an opportunity to remedy such violation or threat prior to such suspension.
4.5 Removal of Content and Non-YONDUR Applications. If We are required by a licensor to remove Content, or receive information that Content provided to You may violate applicable law or third-party rights, We may so notify You and in such event You will promptly remove such Content from Your systems. If We receive information that a Non-YONDUR Application hosted on a Service by You may violate Our Acceptable Use and External-Facing Services Policy or applicable law or third-party rights, We may so notify You and in such event You will promptly disable such Non-YONDUR Application or modify the Non-YONDUR Application to resolve the potential violation. If You do not take required action in accordance with the above, We may disable the applicable Content, Service and/or Non-YONDUR Application until the potential violation is resolved.
5.1 We or third parties may make available (for example, through a Marketplace or otherwise) third-party products or services, including, for example, Non-YONDUR Applications and implementation and other consulting services. Any acquisition by You of such products or services, and any exchange of data between You and any Non-YONDUR provider, product or service is solely between You and the applicable Non-YONDUR provider. We do not warrant or support Non-YONDUR Applications or other Non-YONDUR products or services, whether or not they are designated by Us as “certified” or otherwise, unless expressly provided otherwise in an Order Form.
5.2 Non-yondur.com Applications and Your Data. If You choose to use a Non-YONDUR Application with a Service, You grant Us permission to allow the Non-YONDUR Application and its provider to access Your Data as required for the interoperation of that Non-YONDUR Application with the Service. We are not responsible for any disclosure, modification or deletion of Your Data resulting from access by such Non-YONDUR Application or its provider.
5.3 Interoperation with Non-YONDUR Applications. The Services may contain features designed to interoperate with Non-YONDUR Applications. To use such features, You may be required to obtain access to such Non-COGNISESS Applications from their providers, and may be required to grant Us access to Your account(s) on such Non-YONDUR Applications. We cannot guarantee the continued availability of such Service features and may cease providing them without entitling You to any refund, credit, or other compensation, if for example and without limitation, the provider of a Non-YONDUR Application ceases to make the Non-YONDUR Application available for interoperation with the corresponding Service features in a manner acceptable to Us.
FEES & PAYMENT FOR PURCHASED SERVICES
6.1 Fees. You will pay all fees specified in Order Forms. Except as otherwise specified herein or in an Order Form,(i) fees are based on Services and Content subscriptions purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant subscription term.
6.2 Invoicing and Payment. You will provide Us with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Us. If You provide credit card information to Us, You authorize Us to charge such credit card for all Purchased Services listed in the Order Form for the initial subscription term
and any renewal subscription term(s) as set forth in Section 12.2 (Term of Purchased Subscriptions). Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, We will invoice You in
advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due net 30 days from the invoice date. You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information.
6.3 Overdue Charges. If any invoiced amount is not received by Us by the due date, then without limiting Our rights or remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) We may condition future subscription renewals and
Order Forms on payment terms shorter than those specified in Section 6.2 (Invoicing and Payment).
6.4 Suspension of Service and Acceleration. If any amount owing by You under this or any other agreement for Our services is 60 or more days overdue (or 10 or more days overdue in the case of amounts You have authorized Us to charge to Your credit card), We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations
under such agreements so that all such obligations become immediately due and payable, and suspend Our services to You until such amounts are paid in full. Other than for customers paying by credit card or direct debit whose payment has been declined, We will give You at least 10 days’ prior
notice that Your account is overdue, in accordance with Section 13.2 (Manner of Giving Notice) for billing notices, before suspending services to You.
6.5 Payment Disputes. We will not exercise Our rights under Section 6.3 (Overdue Charges) or 6.4 (Suspension of Service and Acceleration) above if You are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.
6.6 Taxes. Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this Section 6.6, We will invoice You and You will pay that amount unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, We are solely responsible for taxes assessable against Us based on Our income, property and employees.
6.7 Future Functionality. You agree that Your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Us regarding future functionality or features.
PROPRIETARY RIGHTS AND LICENSES
7.1 Reservation of Rights. Subject to the limited rights expressly granted hereunder, We and Our Affiliates, Our licensors and Content Providers reserve all of Our/their right, title and interest in and to the Services and Content, including all of Our/their related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.
7.2 Access to and Use of Content. You have the right to access and use applicable Content subject to the terms of applicable Order Forms, this Agreement and the Documentation.
7.3 License to Host Your Data and Applications. You grant Us, Our Affiliates and applicable contractors a worldwide, limited-term license to host, copy, display and use any Non-YONDUR Applications and program code created by or for You using a Service or for use by You with the Services, and Your Data, each as reasonably necessary for Us to provide, and ensure proper operation of, our Services and associated systems in accordance with this Agreement. Subject to the limited licenses granted herein, We acquire no right, title or interest from You or Your licensors under this Agreement in or to any of Your Data, Non-YONDUR Application or such program code.
7.4 License to Use Feedback. You grant to Us and Our Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into Our and/or Our Affiliates’ services any suggestion, enhancement request, recommendation, correction or other feedback provided by You or Users relating to the operation of Our or Our Affiliates’ services.
8.1 Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information includes Your Data; Our Confidential Information includes the Services and Content; and Confidential Information of each party includes the terms and conditions of this Agreement and all Order Forms (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
8.2 The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential
Information than those herein. Neither party will disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such
Affiliate’s, legal counsel’s or accountant’s compliance with this “Confidentiality” section. Notwithstanding the foregoing, We may disclose the terms of this Agreement and any applicable Order Form to a subcontractor or Non-YONDUR Application Provider to the extent necessary to perform Our obligations to You under this Agreement, under terms of confidentiality materially as protective as set forth herein.
8.3 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS
9.1 Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.
9.2 Our Warranties. We warrant that during an applicable subscription term (a) this Agreement, the Order Forms and the Documentation will accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data, (b) We will not materially decrease the overall security of the Services, (c) the Services will perform materially in accordance with the applicable Documentation, and (d) subject to the “Integration with Non-YONDUR Applications” section above, We will not materially decrease the overall functionality of the Services. For any breach of a warranty above, Your exclusive remedies are those described in the “Termination” and “Refund or Payment upon Termination” sections below.
9.3 Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. CONTENT AND BETA SERVICES ARE PROVIDED “AS IS,” EXCLUSIVE OF ANY WARRANTY WHATSOEVER. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.
10.1 Indemnification by Us. We will defend You against any claim, demand, suit or proceeding made or brought against You by a third party alleging that any Purchased Service infringes or misappropriates such third party’s intellectual property rights (a “Claim Against You”), and will indemnify You from any damages, attorney fees and costs finally awarded against You as a result of, or for amounts paid by You under a settlement approved by Us in writing of, a Claim Against You, provided You (a) promptly give Us written notice of the Claim Against You, (b) give Us sole control of the defense and settlement of the Claim Against You (except that We may not settle any Claim Against You unless it unconditionally releases You of all liability), and (c) give Us all reasonable assistance, at Our expense. If We receive information about an infringement or misappropriation claim related to a Service, We may in Our discretion and at no cost to You (i) modify the Services so that they are no longer claimed to infringe or misappropriate, without breaching Our warranties under “YONDUR Warranties” above, (ii) obtain a license for Your continued use of that Service in accordance with this Agreement, or (iii) terminate Your subscriptions for that Service upon 30 days’ written notice and refund You any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply if (1) the allegation does not state with specificity that our Services are the basis of the Claim Against You; (2) a Claim Against You arises from the use or combination of our Services or any part thereof with software, hardware, data, or processes not provided by Us, if our Services or use thereof would not infringe without such combination; (3) a Claim Against You arises from Services under an Order Form for which there is no charge; (4) a Claim against You is based on traditional online storefront commerce functionality that is or was in general use in the industry; or (5) a Claim Against You arises from Content, a Non-YONDUR Application or Your use of the Services in violation of this Agreement, the Documentation or applicable Order Forms.
10.2 Indemnification by You. You will defend Us and Our Affiliates against any claim, demand, suit or proceeding made or brought against Us by a third party alleging that (a) any of Your Data or Your use of Your Data with our Services, (b) a Non-YONDUR Application provided by You, or (c) the combination of a Non-YONDUR Application provided by You and used with Our Services, infringes or misappropriates such third party’s intellectual property rights, or arising from Your use of the Services or Content in an unlawful manner or in violation of the Agreement, the Documentation, or Order Form (each a “Claim Against Us”), and You will indemnify Us from any damages, attorney fees and costs finally awarded against Us as a result of, or for any amounts paid by Us under a settlement approved by You in writing of, a Claim Against Us, provided We (a) promptly give You written notice of the Claim Against Us, (b) give You sole control of the defense and settlement of the Claim Against Us (except that You may not settle any Claim Against Us unless it unconditionally releases Us of all liability), and (c) give You all reasonable assistance, at Your expense.
10.3 Exclusive Remedy. This Section 10 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section 10.
LIMITATION OF LIABILITY
11.1 Limitation of Liability. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EACH PARTY TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY YOU AND YOUR AFFILIATES HEREUNDER FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE MONTHS PRECEDING
THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT YOUR AND YOUR AFFILIATES’ PAYMENT OBLIGATIONS UNDER THE “FEES AND PAYMENT” SECTION ABOVE.
11.2 Exclusion of Consequential and Related Damages.
IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE
FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
TERM AND TERMINATION
12.1 Term of Agreement. This Agreement commences on the date You first accept it and continues until all subscriptions hereunder have expired or have been terminated.
12.2 Term of Purchased Subscriptions. The term of each subscription shall be as specified in the applicable Order Form. Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term. The per-unit pricing during any renewal term will increase by up to 7% above the applicable pricing in the prior term, unless We provide You notice of different pricing at least 60 days prior to the applicable renewal term. Except as expressly provided in the applicable Order Form, renewal of promotional or one-time priced subscriptions will be at Our applicable list price in effect at the time of the applicable renewal. Notwithstanding anything to the contrary, any renewal in which subscription volume for any Services has decreased from the prior term will result in re-pricing at renewal without regard to the prior term’s per-unit pricing.
12.3 Termination. A party may terminate this Agreement for cause (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
12.4 Refund or Payment upon Termination. If this Agreement is terminated by You in accordance with Section 12.3 (Termination), We will refund You any prepaid fees covering the remainder of the term of all Order Forms after the effective date of termination. If this Agreement is terminated by Us in accordance with Section 12.3, You will pay any unpaid fees covering the remainder of the term of all Order Forms. In no event will termination relieve You of Your obligation to pay any fees payable to Us for the period prior to the effective date of termination.
12.5 Your Data Portability and Deletion. Upon request by You made within 30 days after the effective date of termination or expiration of this Agreement, We will make Your Data available to You for export or download as provided in the Documentation. After such 30-day period, We will have no obligation to maintain or provide any Your Data, and as provided in the Documentation will thereafter delete or destroy all copies of Your Data in Our systems or otherwise in Our possession or control, unless legally prohibited.
12.6 Surviving Provisions. The sections titled “Free Services,” “Fees and Payment,” “Proprietary Rights and Licenses,” “Confidentiality,” “Disclaimers,” “Mutual Indemnification,” “Limitation of Liability,” “Refund or Payment upon Termination,” “Your Data Portability and Deletion,” “Removal of Content and Non-YONDUR Applications,” “Surviving Provisions” and “General Provisions” will survive any termination or expiration of this Agreement.
WHOM YOU ARE CONTRACTING WITH, NOTICES, GOVERNING LAW AND JURISDICTION
13.1 This Agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by and construed in accordance with the laws of England and Wales. The parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any disputes or claims arising out of or in connection with this Agreement, its subject matter or its formation (including non-contractual disputes or claims).
13.2 Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices related to this Agreement will be in writing and will be effective upon (a) personal delivery, (b) the second business day after mailing, or (c), except for notices of termination or an indemnifiable claim (“Legal Notices”), which shall clearly be identifiable as Legal Notices, the day of sending by email. Billing-related notices to You will be addressed to the relevant billing contact designated by You. All other notices to You will be addressed to the relevant Services system administrator designated by You.
13.3 No Agency. For the avoidance of doubt, We are entering into this Agreement as principal and not as agent for any other Yondur.com company. Subject to any permitted Assignment under Section 14.4, the obligations owed by Us under this Agreement shall be owed to You solely by Us and the obligations owed by You under this Agreement shall be owed solely to Us.
14.1 Export Compliance. The Services, Content, other technology We make available, and derivatives there of may be subject to export laws and regulations of the United Kingdom and other jurisdictions. Each party represents that it is not named on any U.K. government denied-party list. You shall not permit Users to access or use any Service or Content in a U.K. embargoed country or in violation of any U.K. export law or regulation.
14.2 Anti-Corruption. You agree that You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Our employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If You learn of any violation of the above restriction, You will use reasonable efforts to promptly notify Our Legal Department at email@example.com.
14.3 Entire Agreement and Order of Precedence. This Agreement is the entire agreement between You and Us regarding Your use of Services and Content and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Except as otherwise provided herein, no modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. The parties agree that any term or condition stated in Your purchase order or in any other of Your order documentation (excluding Order Forms) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form, (2) this Agreement, and (3) the Documentation.
14.4 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (together with all Order Forms), without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favour of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice. In the event of such a termination, We will refund to You any prepaid fees allocable to the remainder of the term of all subscriptions for the period after the effective date of such termination. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
14.5 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
14.6 Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement.
14.7 Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
14.8 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
This Agreement was last updated on November 27, 2017. It is effective between You and Us as of the date of Your accepting this Agreement.
The “Services” means, collectively, the computer applications, interfaces, software, programs, products, services and websites provided or made available by yondur and its affiliates, which you may use for, among other things, uploading, completing profiles, doing assessments, storing and sharing Content (as defined below).
POSTING CONTENT & USER CONDUCT
You acknowledge and agree that all information, CV, bio, profile, data, text, photographs, images, files, software, sounds, recordings, graphics, video, messages, tags and other materials, in whatever form and technical structure, whether publicly posted or privately transmitted or stored using the Services (“Content”), are the sole responsibility of the person(s) originating such Content and introducing such Content into the Services. We reserve the right, but shall have no obligation, to pre-screen, reject, review, quarantine, delete or move any Content posted or submitted to the Services, without obligation to any person.
You further agree to NOT:
(a) use our products or the Services for illegal purposes or for promotion of dangerous activities;
(b) impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with yondur or any other person or entity;
(c) upload, post or otherwise transmit any Content that you do not have a right to transmit under any law or under contractual duties (such as insider trading regulations, internal corporate policies or nondisclosure agreements);
(d) upload, post or otherwise transmit any Content that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party;
(e) upload, post or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
(f) interfere with or disrupt the Services or servers or networks connected to the Services, or disobey any requirements, procedures, policies or regulations of networks connected or applicable to the Services;
(g) violate through use of the Services any applicable local, state, national or international law;
(h) “stalk” or otherwise harass another person or user of the Services, or take any action invasive to another’s privacy (by posting, for example, another’s photograph, address, email, phone number or any other contact information) without permission from such other person;
(i) promote or provide instructional information about illegal activities, promote physical harm or injury against any government, legal entity, group or individual;
(j) solicit passwords or personal identifying information from other users for unintended, commercial or unlawful purposes;
(k) exceed the scope of the Services you (or your employer or principal pursuant to a Subscriber Agreement) have signed up for, for example, accessing and using non-public portions of the website, groups or features that you do not have a right to use, or deleting, adding to or otherwise changing another person’s entries or other Content when you have not been granted the right to do so;
(l) access (or attempt to access) any of the Services by any means other than through the interface(s) provided by Yondur, or access (or attempt to access) any of the Services through any automated means (including use of scripts, web crawlers or the like) or otherwise engage the Services in a manner reasonably likely to be harmful to the systems operating the Services or the access or use of the Services by others;
(m) reproduce, duplicate, copy, sell, trade, resell or exploit for any commercial purposes, any portion or use of, or access to, the Services; and
(n) you further agree NOT to upload or display publicly Content that:
(i) contains nudity, sexually graphic material, or material that is otherwise deemed explicit by Cognisess; or
(ii) contains threatening, abusive, harassing, defamatory, libellous, invasive, hateful, or racially, ethnically or otherwise objectionable.
If you encounter any of these prohibited uses, we encourage you to report them to us immediately.
Without limiting the generality of the foregoing, you agree not to access, use, copy, reverse engineer, create derivative works from, share or assist any third party to use the Services or any component thereof to design, create, program, market or promote any product, software or service in competition with Yondur (including but not limited to independent or internal networks).
Copyright notices in the United States
We will not knowingly publish content in violation of applicable copyright law. If you believe content has been displayed, reproduced, printed or otherwise distributed by us through this website in violation of any third party copyright, please notify us in writing. Send your notice to Yondur FAO Legal Officer to firstname.lastname@example.org, and include the following:
electronic or physical signature of a person authorized to act for the copyright owner
description of the copyrighted work
description of where the infringing content is located on this website
your office or home address, telephone number and email address
a statement of good faith belief that the use of the work is not permitted by the copyright owner, and
a statement under penalty of perjury that the above is true and you are authorized to act for the owner.
We may include the use of third party resources and/or links to third party websites as part of the Services. We have no control over such sites and resources and, accordingly, you acknowledge and agree that (a) we are not responsible for the availability of such external sites or resources; (b) we do not endorse and are not responsible or liable for any content or other materials available from such sites or resources and (c) we shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content or materials available on or through any such site or resource.
“Data Controller” means a person/entity who determines the purposes for which and the manner in which any Personal Data are, or are to be, processed (collected, used, amended, retained, destroyed etc.);
“Data Processor” means a person/entity (other than an employee of the Data Controller) that processes Personal Data on behalf of the Data Controller;
“Personal Data” means data which relates to a living individual who can be identified from that data, (or from that data and other information which is in the possession of the Data Controller); and
“Third Party” any person or entity other than Company, End User, the Data Controller or the Data Processor or other person authorised to process data for the Data Controller or person, excluding Cognisess.
Both parties will comply with all applicable laws and regulations in relation to the collection, processing and storage of Personal Data relating to end users.
Company or end user provides Yondur with Personal Data via the Cognisess platform, including information to contact end user, scores, results and other bio data (“end user Data”). Yondur will then contact the end user for the purpose of completing an assessment or profiler. (“Assessment Data”). Personal Data, which is used to produce the Output, is either input by the end user or provided by Company. End user or Company may provide optional information for the purposes of research (“Research Data”). Yondur processes the answers provided by the end user and will generate results of the assessment (“Results Data”) to provide Company or End User the Output.
(a) Company agrees that Yondur may transfer Personal Data outside the EEA to the facilities of other members of Yondur in order to provide Company with the Products and/or Services under this Agreement. This may include processing End User Data, Assessment Data and Results Data in countries in which data protection laws do not provide the same level of protection as those within the EEA. In such cases, the Yondur will take appropriate steps to ensure Company’s information is adequately protected in accordance with EU data protection laws.
(b) Subject to clause (c) below, Yondur may disclose Personal Data to Third Parties in the following limited circumstances: if Yondur (i) buys or sells any affected business assets, (ii contracts with Third Parties to perform or provide certain services on behalf of a member of Yondur, or (iii) is under a duty to disclose or share Personal Data to comply with any legal obligation.
(c) Yondur will contractually require any buyer of Yondur assets that include Personal Data or any Third Party performing services on Yondur’ behalf to provide the same level of protection for Personal Data required in these terms and under any applicable data protection laws.
(a) Company is the Data Controller of all End user Data, Assessment Data and any Output. Yondur acts as the Data Processor in respect of the End user Data, Assessment Data and in producing the Output. Yondur will co-operate with any Company request for Personal Data provided by or through Company, provided that such requests, other than those required under law, may be subject to reasonable charges for such assistance.
(b) Where Yondur acts as Company’s Data Processor, Yondur will:
(i) process Personal Data in accordance with Company’s reasonable instructions or otherwise as may be required to provide the Product and/or Services under this Agreement, and to support Company in its use of the Products and/or Services; and
(ii) take appropriate steps to protect Personal Data, whether electronic or otherwise, including by implementing reasonable administrative, technical and physical security controls to protect Personal Data from unauthorised access, improper use or disclosure, unauthorised modification or unlawful destruction or accidental loss. Yondur and any Third Party Yondur engages to process Personal Data will be required to protect and process Personal Data in accordance with this Agreement and applicable data protection laws.
(a) Cognisess collects Research Data in the form of optional demographic questions displayed at the beginning or during am end user assessment, and in the form of further information on assessment objectives or End user success information provided by Company. Yondur will be the Data Controller of all Research Data if the End user elects to provide such information.
(b) End user’s ability to complete an assessment will not be affected by the End user’s choice not to provide Research Data, nor will such choice affect End user’s assessment results. Research Data is not disclosed to the Company.
Assessment Validation and Benchmarking
Company authorises Yondur to use Assessment Data and Results Data in an anonymised format for assessment validation and benchmarking purposes. Yondur uses such Assessment Data and Results Data, along with Research Data, to ensure that the Yondur assessment instruments remain fair and objective to prevent unfair discrimination, and to benchmark tests against industry recognised differences for particular groups.
Yondur and its psychologists are bound by ethical guidelines and data protection law in the use of all data. Access to any data used for validation, benchmarking, or research will be restricted to Yondur employees directly involved in research supporting Yondur products and services.
AVAILABILITY OF SERVICE
The Services are normally available over the Internet around the clock. Yondur shall be entitled to take measures that affect the aforementioned accessibility when Yondur deem such to be necessary for technical, maintenance, operational, or security reasons. C Yondur guarantee at least 99% total uptime of the Service, as measured over a rolling 3-month (90 day) period by a reputable external monitoring service of our choice from time to time. This excludes any planned maintenance periods as described below. Availability is currently measured as continuous availability of the Yondur login page.
Yondur will notify Subscriber at least 1 week in advance of any planned maintenance periods that exceed 30 minutes in length. Yondur will endeavour to carry out any such planned maintenance outside of normal UK office hours. There will be a maximum of one (1) planned maintenance period in any three (3) week period. Yondur will backup Subscriber’s data stored on Our system, including files stored in Subscriber workspaces and associated User data such as notifications, permissions and comments. Backups of the Yondur file store are carried out continuously. Full backups of the Yondur databases are carried out weekly, with incremental backups carried out every 10 minutes. All backups are held for a 35-day period. In the event of a disaster at our primary data centre, failover to DR can be effected within 24 hours of approval.
Any problems experienced by Subscriber in accessing the Service should be reported to Yondur online support system at http://cognisess.zendesk.com or
email@example.com. A support ticket can be raised via Our system which Subscriber can use to track progress of the reported problem and resolution against it.
Yondur assume no responsibility for technical support or problems arising from or relating to third party systems, browsers, equipment owned or maintained by Subscriber or any Users, or the administration of email addresses or the email account of any User.
Yondur agree to take commercially reasonable steps to maintain the Services in a secure manner. If a security flaw is detected with respect to which Yondur has reason to believe the security or integrity of Content or account information of Subscriber’s Users may be affected, Yondur shall use reasonable efforts to notify Subscriber promptly of such defect and any related remedial steps Yondur propose to take.
Services may be performed by Our affiliates or subcontractors in Our discretion, provided that Yondur shall be responsible for compliance with and performance of this Agreement by any such persons and such persons will be under the same confidentiality provisions as set forth in this Agreement.
All rights reserved. © Cognisess 2018
Published by Cognisess, November 27th 2017.