7. Details of processing of personal data

• Subject Matter: The subject-matter of the data processing under this Agreement is the Customer Data.
• Duration: The duration of the data processing is the term of this Agreement and up to 60 days after termination.
• Nature: Computing and storage.
• Purpose: The purpose of the data processing is the set-up and provision of the Service as requested by you.
• Type of personal data: The Customer Data uploaded by you or on your behalf pursuant to this Agreement.
• Categories of data subjects: Users, your officers, employees, representatives, consultants, contractors or agents.

 
Youmanage will collect information relating to both companies and individual Users when they register, or are registered, for the Service. Youmanage uses the information that it collects to set up the Service for individuals and their organisations.  Customer e-mail addresses and any other personal data comprised within the Customer Data will not be passed to third parties other than to Youmanage’s subcontractors and/or as may be required by law or court order.  If you become a paying customer of the Service, you agree that Youmanage can disclose the fact that you are a paying customer and the Service modules that you are using. Youmanage may also collect certain information from visitors to and customers of the Site, such as Internet addresses.  This information is logged to help diagnose technical problems, and to administer our Site in order to constantly improve the quality of the Service.  We may also track and analyse non-identifying and aggregate usage and volume statistical information from our visitors and customers and provide such information to third parties.   You should refer to the Privacy Policy and the Cookie Policy on our Site for details of the cookies used on our Site.

8. Changes or Improvements

Youmanage may from time to time at its own discretion amend particular programs, information and facilities that constitute the Service and the Content, provided that any such changes will not substantially diminish the quality of the Service or the Content.  Youmanage may also from time to time promote additional modules or facilities as part of the Service and, should you so agree, make them available to you at rates to be published at the time.

9. Intellectual Property Ownership

Youmanage, (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to the Youmanage Technology, the Content and the Service (with the exception of any Customer Data) and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Service and the Content.  This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Service, the Content, the Youmanage Technology or the Intellectual Property Rights owned by Youmanage. The Youmanage name, the Youmanage logo, and the product names associated with the Service are trade marks of Youmanage or third parties, and no right or licence is granted to use them.

10. Confidentiality

Each party may be given access to information that is proprietary or confidential and is either clearly labelled as such or identified as confidential information (“Confidential Information“) from the other party in order to perform its obligations under this Agreement.  A party’s Confidential Information shall not be deemed to include information that (i) is or becomes publicly known other than through any act or omission of the receiving party; (ii) was in the other party’s lawful possession before the disclosure; (iii) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; (iv) is independently developed by the receiving party, which independent development can be shown by written evidence; or (v) is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.

Each party shall hold the other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available to any unauthorised third party, or use the other’s Confidential Information for any purpose other than the implementation of this Agreement.  Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement.  Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party, other than in the case of Youmanage, which shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by its sub-contractors.  The Customer acknowledges that details of the Service, and the results of any performance tests of the Service, constitute Youmanage’s Confidential Information.  Youmanage acknowledges that the Customer Data is the Confidential Information of the Customer.

11. Third Party Interactions

Youmanage may from time to time make available to Users of the Service the goods or services of third parties or provide links to third party websites. Should you enter into correspondence with or purchase goods and/or services from those third parties any such activity, and any terms, conditions, warranties or representations associated with such activity, is solely between you and the applicable third-party. Youmanage and its licensors shall have no liability, obligation or responsibility for any such correspondence, purchase or promotion between you and any such third-party. Youmanage does not endorse or approve any third party sites on the Internet not the content of any third-party websites that are linked through the Service. Youmanage provides these links to you only as a matter of convenience, and in no event shall Youmanage or its licensors be responsible for any content, products, or other materials on or available from such sites.  Youmanage recommends that you refer to the third party’s website terms and conditions and privacy policy prior to using the relevant third-party website.

12. Charges and Payment of Fees

You shall pay all fees or charges to your account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. Implementation charges and Service Fees during the Initial Term will be as specified on the Service Order Form.  Service Fees may be made annually, or quarterly, as mutually agreed upon and specified on the Service Order Form.  You are responsible for paying for all Service Fees ordered for the entire Term, whether or not accounts for individual Users are actively used.  Service Fees will apply from the Service Commencement Date, irrespective of when you actually begin using the Service, provided that on the Service Commencement Date you have been provided with a valid URL to access the Service and an active administrator User ID and password.

13. Billing and Renewal

Youmanage charges and collects in advance for use of the Service.  Unless otherwise stated on the Service Order Form, Youmanage will invoice you for the first period’s Service Fees on the Service Commencement Date and then will automatically renew and issue invoices to you a) on each subsequent Quarterly Anniversary of the Service Commencement Date for quarterly-paid Service Fees, or b) on each yearly anniversary of the Service Commencement Date for annually-paid Service Fees.  The charge will be equal to the Service Fee as specified on the Service Order Form, unless Youmanage at least 45 days prior to the renewal of the term has given written notice of a fee increase, which shall be effective upon renewal and thereafter. Youmanage may increase the charge for periods subsequent to the first anniversary of the Service Commencement Date by giving not less than 45 days prior written notice but any increase shall not exceed the percentage increase in the Retail Price Index published by the Office for National Statistics for the preceding 12 months (or any replacement or successor index).  If the number of Active Employees on any Anniversary of the Service Commencement Date exceeds the maximum number stated on the Service Order Form, Youmanage will be entitled to increase the Service Fees for the subsequent term to reflect the then current Service Fees for that number of Active Employees.  The Implementation Charges specified on the Service Order Form will be billed on the Date of Order and are payable either within 14 days or prior to the Service Commencement Date, whichever is the earlier.  Fees for any other Service supplied by Youmanage will be charged on an as-quoted basis. Youmanage’s fees are exclusive of VAT which will be added to invoices as appropriate at the prevailing rate.

You agree to provide Youmanage with complete and accurate billing and contact information. This information includes your legal company name, address, e-mail address, and name and telephone number of an authorised billing contact and Client Administrator. You agree to update this information within 30 days of any change to it.  If the contact information you have provided is false or fraudulent, Youmanage reserves the right to terminate your access to the Service in addition to any other legal remedies.  If you believe your bill is incorrect, you must contact us in writing within 14 days of receipt of the invoice containing the amount in question to be eligible to receive an adjustment or credit.

14. Non-Payment and Suspension

In addition to any other rights granted to Youmanage by this Agreement, Youmanage reserves the right to suspend or terminate this Agreement and your access to the Service if your account falls into arrears.  Accounts in arrears are subject to interest of 2.0% per annum on any outstanding balance, or the maximum permitted by law, whichever is less, plus all reasonable expenses of collection.  You will continue to be charged Service Fees during any period of suspension.  If you or Youmanage initiates termination of this Agreement, you will be obliged to pay the balance due on your account computed in accordance with the Charges and Payment of Fees section above.  You agree that Youmanage may charge and invoice you for such unpaid fees.  Youmanage reserves the right to impose a reconnection fee if you are suspended and thereafter request access to the Service.  You agree and acknowledge that Youmanage has no obligation to retain Customer Data except as expressly stated in this Agreement.  Your Customer Data may be irretrievably deleted in accordance with Clause 17 (Consequences of termination) if this Agreement is terminated because your account is 30 days or more overdue provided that Youmanage will give you 30 days after the date of termination to retrieve your Customer Data using the reporting exporting tools available.

15. Termination/ Reduction upon Expiration

This Agreement commences on the Date of Order. The Initial Term of this Agreement will commence on the Service Commencement Date and will be as specified on the Service Order Form. Upon the expiration of the Initial Term, this Agreement will automatically renew for successive terms of one year from the end of the Initial Term.  After the Initial Term either party may terminate this Agreement by notifying the other party in writing at least thirty business days prior to the commencement of the following term, such notice to take effect on the appropriate anniversary of the Service Commencement Date.  You may reduce the number of Active Employees or Modules that the Service Fee covers, effective only upon the expiration of the then current term, by notifying Youmanage in writing at least thirty days prior to the commencement of the following term and Youmanage will reduce the Service Fees accordingly.

16. Termination for Cause

Any breach of your payment obligations or unauthorised use of the Youmanage Technology, Service or Content will be deemed a material breach of this Agreement.  Youmanage, in its sole discretion, may terminate any or all of your User accounts immediately if you breach or otherwise fail to comply with this Agreement or become insolvent.  Any actual or proposed change in control of you that results or would result in a direct competitor of Youmanage directly or indirectly owning or controlling 50% or more of you shall entitle Youmanage to terminate this Agreement for reasonable cause immediately upon written notice (provided that you shall have ten (10) days in which to retrieve your Customer Data from the Service using the reporting exporting tools available).

You may terminate this Agreement if Youmanage is in material breach of its terms or becomes insolvent.

You agree and acknowledge that Youmanage has no obligation to retain your Customer Data, and may delete such Customer Data upon written notice to you, if you have materially breached this Agreement, including but not limited to failure to pay outstanding fees, and such breach has not been cured within 30 days of Youmanage giving you notice of such breach.

17. Consequences of Termination

Termination of this Agreement, however arising, shall not affect or prejudice the accrued rights of the parties as at termination or the continuation of any provision expressly stated to survive, or implicitly surviving, termination.  Without prejudice to the foregoing generality, Clauses 9 (Intellectual Property Ownership), 10 (Confidentiality), 12 (Charges and Payment of Fees), 17 (Consequences of termination), 19 (Indemnification), 20 (Limitation of Liability), 27 (General) and 28 (Definitions) shall survive termination of this Agreement.

On termination of this Agreement all licences granted under this Agreement shall immediately terminate and you shall return and make no further use of any equipment, property, documentation and other items (and all copies of them) belonging to Youmanage.  On termination of this Agreement, and at your discretion, Youmanage shall provide you with a complete backup of your Customer data in a reusable format or securely destroy or otherwise dispose of any of the Customer Data in its possession in accordance with applicable data protection legislation.  Alternatively, if you prefer Youmanage will make the Service accessible to you for 30 days after the date of termination to enable you to retrieve your Customer Data using the exporting tools available.  You agree and acknowledge that Youmanage has no obligation to retain your Customer Data after such 30 day period, and shall delete such Customer Data, up to 60 days after termination of this Agreement.

Youmanage shall retain copies of the Service Order Form, this Agreement and the associated financial records (including invoices) for seven (7) years following termination of this Agreement.

18. Representations & Warranties

Each party represents and warrants that it has the legal power and authority to enter into this Agreement.  Youmanage warrants that it has the right to grant you the right to receive the Service in accordance with the terms of this Agreement.

Youmanage undertakes that it will provide the Service with reasonable skill and care, that the Service will perform substantially in accordance with the Youmanage service literature under normal use and circumstances and that it will use its reasonable endeavours to ensure that the Service is free from viruses and other malicious code.  The foregoing shall not apply to the extent of any non-conformance which is caused by use of the Service contrary to Youmanage’s instructions, or modification or alteration of the Service by any party other than Youmanage or Youmanage’s duly authorised contractors or agents.  If the Service does not conform with the foregoing undertaking, Youmanage will, at its expense, use its reasonable endeavours to correct any such non-conformance promptly.  Such correction constitutes the Customer’s sole and exclusive remedy for any breach of this undertaking.

Youmanage and its licensors make no representation, warranty, or guarantee as to the suitability, availability, accuracy, completeness or error-free nature of the Service or any Content.  Youmanage is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, outside of its reasonable control, and the Customer acknowledges that the Service and Content may be subject to limitations, delays and other problems inherent in the use of such communications facilities.  The Service and all Content are provided to you strictly on an “as is” basis. You represent and warrant that you have not falsely identified yourself nor provided any false information to gain access to the Service and that your billing information is correct. All conditions, representations and warranties, whether express, implied, statutory or otherwise, including, without limitation, any implied warranty of quality, fitness for a particular purpose, or non-infringement of third party rights, are hereby disclaimed to the maximum extent permitted by applicable law by Youmanage and its licensors.

19. Indemnification

You shall indemnify and hold Youmanage and its licensors harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including legal fees and costs) arising out of or in connection with: (i) a claim alleging that use of your data (including Customer Data) infringes the rights of, or has caused harm to, a third party; (ii) a claim, which if true, would constitute a violation by you of your representations and warranties; or (iii) a claim arising from the breach by you or your Users of this Agreement.  In addition, you shall indemnify Youmanage pursuant to this Agreement for claims arising from any infringement arising from the combination of the Service and/or the Content with any of your products, service, hardware or business process(s).

20. Limitation of Liability

Save in respect of Clauses 5 (Customer Data) and 6 (Data Protection Compliance) in respect of which Youmanage’s aggregate liability shall not exceed £1,000,000 (ONE MILLION POUNDS STERLING), in no event shall Youmanage’s aggregate liability exceed the amounts actually paid by you in the 12 month billing period immediately preceding the event giving rise to such claim.  In no event shall Youmanage be liable to anyone for any indirect, punitive, special, exemplary, incidental, consequential or other damages of any type or kind (including loss of revenue, profits, depletion of goodwill, use or pure economic loss) arising out of, or in any way connected with the Service, including but not limited to the use of or inability to use the Service, or for any content obtained from or through the Service, any interruption, inaccuracy, error or omission, regardless of cause in the content, even if Youmanage or Youmanage’s licensors have been previously advised of the possibility of such damages.  Notwithstanding the foregoing, nothing in this Agreement excludes the liability of Youmanage for (i) death or personal injury caused by Youmanage’s negligence; or (ii) fraud or fraudulent misrepresentation; or (iii) any other liability that cannot be excluded by applicable law.

21. Local Laws and Export Control

Youmanage and its licensors make no representation that the Service is appropriate or available for use in any location. You are solely responsible for compliance with all applicable laws when using the Service, including without limitation export and import regulations of other countries. The Service may contain general information about English law. Users of the Service should neither act nor refrain from action, on the basis of such information. Nothing in the Service constitutes legal advice. Users of the Service should always consult a suitably qualified lawyer on any specific legal problem. Youmanage disclaim all responsibility (including in negligence or breach of statutory duty) for all consequences of any person acting on, or refraining from acting in reliance on, information contained within the Service.  You acknowledge and agree that the site shall not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to countries to which the United Kingdom or European Union maintains an embargo (collectively, “Embargoed Countries“), or to or by a national or resident thereof.  By using the Service, you represent and warrant that you are not located in, under the control of, or a national or resident of an Embargoed Country.

22. Notice

Any notice given under this Agreement shall be in writing and shall be served by delivering it personally or by sending it by prepaid first class post or recorded delivery to the address and for the attention of the relevant party, and in the case of Youmanage to Youmanage HR Ltd, Forrester Lodge, Inglewood, Alloa, FK10 2HU and in the case of you to the address specified in the Service Order Form, or in either case such other address as may be notified in writing from time to time.  Any such notice shall be deemed to have been received (i) if delivered personally, at the time of delivery; and (ii) in the case of pre-paid first class post or recorded delivery, forty eight (48) hours from the date of posting.

23. Modification to Terms

Subject to Clause 8 (Changes or Improvements), no variation of this Agreement or of any of the documents referred to in it shall be valid unless it is in writing and signed by or on behalf of each party.

24. Force Majeure

Youmanage shall have no liability to you under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes involving the workforce of Youmanage, failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors (where they are themselves affected by acts, events, omissions or accidents beyond their reasonable control), provided that you are notified of such an event and its expected duration.

25. Assignment / Assignation

Neither party may assign this Agreement without the prior written approval of the other party (such approval not to be unreasonably withheld or delayed) provided it may be assigned without your consent by Youmanage to (i) a parent or subsidiary, (ii) an acquirer of its assets, or (iii) a successor by merger. Any purported assignment in violation of this clause shall be void.  Youmanage shall have the right to sub-contract any of its rights or obligations under this Agreement.

26. Youmanage API

Youmanage makes available an application programming interface and associated documentation to users of the Service to facilitate and enhance their access to, and use of, the Service. Access to and use of the Youmanage application programming interface and associated documentation are subject to Youmanage’s API Terms of Service (as the same may be updated from time to time) which are available on the Youmanage website. If there is any conflict between this Agreement and the API Terms of Service, this Agreement shall take precedence.

27. General

This Agreement and any disputes or claims arising out of or in connection with its subject matter or formation (including non-contractual disputes or claims) will be governed by English law and the English courts will have exclusive jurisdiction over any such disputes or claims; except that where you conduct business in Scotland, this Agreement and any disputes or claims will be governed by Scots law and the Scottish courts will have exclusive jurisdiction over any such disputes and claims arising under this Agreement.

This Agreement, together with any applicable Service Order Form, supersedes any arrangements or agreements made between the parties prior to the signing of this Agreement and constitutes the entire understanding between the parties.  No text or information set forth on any other purchase order, preprinted form or document (other than a Service Order Form, if applicable) shall add to or vary the terms and conditions of this Agreement unless signed on behalf of both parties.

If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.

No joint venture, partnership, employment, or agency relationship exists between you and Youmanage as a result of this Agreement or use of the Service.

The failure of either party to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by that party in writing.

Other than as expressly set out in this Agreement, the parties do not intend to create any rights in favour of third parties.

28. Definitions

As used in this Agreement and in any current or future Order Forms: “Active Employees” means the number of employee records stored on the Service with the status of current; “Agreement” means these terms of use, together with any applicable Service Order Forms; “Client Administrator(s)” means those Users designated by you who are authorised to activate additional Users on the Service by virtue of being granted Administrator rights to the Service;  “Content” means the information, documents, software, products and services contained or made available to you in the course of using the Service;  “Customer Data” means any data, information or material provided or submitted by you in the course of using the Service;  “Date of Order” means the date upon which you sign the Service Order Form,  “Initial Term” means the initial period during which you are obligated to pay for the Service as specified on the Service Order Form; “Intellectual Property Rights” means unpatented inventions, patent applications, patents, design rights, copyrights, trade marks, service marks, trade names, domain name rights, rights in databases, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world; “personal data” has the meaning specified in Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation); “Service” means Youmanage’s online service for line managers and HR professionals developed, operated, and maintained by Youmanage, accessible via https://www.youmanagehr.com or another designated web site or IP address, to which you are being granted access under this Agreement;  “Service Commencement Date” means the date by which the Service will be made available for use as specified on the Service Order Form;  “Service Fees” are the amounts payable by You to Youmanage for the right for Users to use the Service for a specified number of modules and a specific number of Active Employees;  “Service Order Form(s)” means the form evidencing the initial subscription for the Service and any subsequent order forms submitted in written form, specifying, among other things, the number of licences and other services contracted for, the applicable fees, the billing period, and other charges as agreed to between the parties, each such Service Order Form to be incorporated into and to become a part of this Agreement;  “Users” means employees, representatives, consultants, contractors, directors or agents who are authorised to use the Service and have been supplied user identifications and passwords by you (or by Youmanage at your request);  “Youmanage” means Youmanage HR Ltd, a company incorporated and registered in Scotland having its principal place of business at Forrester Lodge, Inglewood, Alloa, FK10 2HU, Scotland; and  “Youmanage Technology” means all of Youmanage’s proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to you by Youmanage in providing the Service.