Standard Terms and Conditions

1. DEFINITIONS AND INTERPRETATION

1.1 The following definitions and rules of interpretation apply in this Agreement:

"Acceptable Use Policy" means the acceptable use policy of YOPLA, as adopted and amended from time to time and published on the Website.

“Account” means any accounts or instances created by or on behalf of You for access and use of the Services. You may have multiple Subscriptions which may be subject to separate and distinct Plans. For the avoidance of doubt, reference to an Account herein refers to (i) Your trial account where a live account has not been activated; or (ii) Your trial account and live account where the live account has been activated.

"Agreement" has the meaning set out in Clause 2.1 (Agreement).

"Applicable Law" means all laws and regulations that apply to providing or receiving a Service.

"Business Day" a day other than a Saturday, Sunday or public holiday in Scotland when banks in Edinburgh are open for business.

"Commencement Date" means the earlier of (a) the date when YOPLA confirms to the Customer acceptance of an Order Form; and (b) the Services Start Date.

"Customer" has the meaning given in Clause 2.1.1 (Agreement).

"Direct Debit" means any request(s) for any payment or series of payments by bank direct debit payment method.

“End-Customer” means Your customers and/or any person or entity other than You or Users with whom You interact using the Services.

"Extended Term" has the meaning given in Clause 3.1.

"Minimum Term" means the minimum term which YOPLA notifies the Customer in writing will be applicable to the Services (which shall include, for the avoidance of doubt, notification in the Purchase Order), failing which the minimum term shall be 36months starting from the Services Start Date.

"Order Form" means the signed order which the Customer issues to YOPLA (in the form agreed between the Customer and YOPLA) for the provision of Services.

“Personal Data” means data forming part of the Service Data and relating to a living individual who is or can be identified either from the data or from the data in conjunction with other information that is in or is likely to come into the possession of the data controller or such other similar term as defined under Applicable Data Protection Law.

“Privacy Notice” means Our privacy notice at https://www.yopla.co.uk/privacy/ as updated periodically and which is incorporated into these Terms by reference.

“Process/Processing” means any operation or set of operations which is performed upon Personal Data, whether or not by automatic means, such as collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction.

"Services Start Date" means the date when YOPLA first makes a Service available for use by the Customer.

"Services" means the services which YOPLA shall provide to the Customer in accordance with this Agreement which may include (without limitation) cloud-based subscription management software and all related products and services that You subscribe to, and/or any new services or features that We may introduce as a Service to which You may subscribe to, and any Updates to the Services, including individually and collectively, any software, APIs and Documentation as well as any digital consultancy or financial consultancy or related services.

“Service Data” means all electronic data, text, messages or other materials, including Registration Data, Cardholder Data and Personal Data of End-Customers and Users, submitted to the Services through an Account in connection with Your use of the Services.

“Subscription” means Your subscription to the Services through a Plan of Your choice for Your access and use of an Account.

"Term" has the meaning given in Clause 3.1.0

“User” means those individuals You authorise as users within an Account to use the Services by way of designated login credentials.

"Website" means YOPLA’s website at www.yopla.co.uk or such other website as may be operated by YOPLA from time to time.

"YOPLA" means YOPLA Limited, also trading as YOPLA, a limited company incorporated under the Companies Acts in England and Wales (registered number 06826477) and having its registered office at International House, 6 South Molton Street, London, W1K 5QF.

1.2 Clause headings shall not affect the interpretation of the Agreement.

1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

1.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.

1.5 Unless the context otherwise requires, words in the singular shall include the plural and, in the plural, include the singular.

1.6 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.

1.7 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.

1.8 A reference to writing or written includes emails and faxes.

1.9 For the purpose of Clauses 12.2.1 (Suspension of the Services) and 13.1 (Termination), a breach shall be considered capable of remedy if the defaulting party can comply with the provision in question in all respects other than as to the time of performance (provided that time of performance is not of the essence).

2. AGREEMENT

2.1 These terms and conditions apply to the agreement between:

• 2.1.1 you (the "Customer") named on the Order Form; and
• 2.1.2 YOPLA,

for provision of the Services set out in the Order Form and any additional Services as agreed inwriting between the Customer and YOPLA from time to time (the "Agreement").

2.2 The Agreement between the Customer and YOPLA is made up of:

• 2.2.1 the Order Form; and
• 2.2.2 these terms and conditions;

In the event of a conflict between the documents making up the Agreement, the documents will take priority in the order set out in this Clause2.2 (Agreement) unless YOPLA notifies the Customer in writing otherwise.

2.3 The Agreement constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of YOPLA which is not set out in the Agreement. The Customer’s terms and conditions, and all other terms, express or implied by statute or otherwise, are excluded to the fullest extent permitted by law.

3. TERM

3.1 Subject to Clause3.2 (Term) and Clause 13 (Termination), the Agreement will commence on the Commencement Date and continue for the Minimum Term and thereafter for further periods each equivalent to the Minimum Term (each an "Extended Term")until terminated by either party giving to the other not less than 30 days’ written notice, but not greater than 60 days’ written notice, expiring at the end of the Minimum Term or at the end of any Extended Term as appropriate (the "Term").

3.2 YOPLA will only commence providing the Services to the Customer once YOPLA and, where appropriate, any third-party supplier of the Services, have determined, at their sole discretion, that they are satisfied with the results of credit, identity and/or criminal bureau checks undertaken on the Customer. If YOPLA or any third-party supplier of the Services are not satisfied with the results of any credit, identity and/or criminal bureau checks undertaken on the Customer, YOPLA will be entitled to terminate the Agreement immediately by giving written notice to the Customer.

4. SUPPLY OF SERVICES

4.1 YOPLA will:

• 4.1.1 provide the Services with reasonable skill and care; and
• 4.1.2 comply with Applicable Law in the provision of the Services.

4.2 Where YOPLA supplies software to the Customer as part of the Services, the software will be licenced to the Customer solely for use by the Customer in connection with the Services. The licence will automatically terminate on termination of the Agreement. YOPLA does not warrant that the software will be error–free and the Customer hereby agrees to make proper back-ups of all data.

4.3 YOPLA will use reasonable endeavours to supply the Services to the Customer by the date(s)agreed with the Customer and to continue to supply the Services during the Term. However, YOPLA will not be liable for any damage or loss which the Customer may incur should the Services not commence or restart on the agreed date(s).

4.4 YOPLA will provide Services to the Customer through any supplier or 3^rd party provider which YOPLA, at its sole discretion, engages.

5. CUSTOMER OBLIGATIONS

5.1 The Customer undertakes:

• 5.1.1 to comply with, and to protect, keep and use the Services in accordance with, all Applicable Law, the Data Processing Agreement and all instructions and terms and conditions of YOPLA and any third party suppliers of the Services;
• 5.1.2 to comply with the terms of any licence granted in favour of the Customer, whether by YOPLA or other wise, to use any software as part of the Services;
• 5.1.3 to take out adequate cyber-crime insurance with a reputable insurer.

5.2 The Customer will not, and shall procure that its employees, agents and subcontractors will not:

• 5.2.1 use the Services for a purpose other than that for which the Services are provided;
• 5.2.2 use the Services for the transmission or receipt of any material which is defamatory, offensive or of an abusive or menacing character.

5.3 Before the Customer migrates or loads any data onto the provided software as a service the Customer must take all necessary steps to back up its information and data. YOPLA will not be responsible for any loss or damage arising from the Customer’s failure to follow these instructions.

5.4 Controlling unauthorised access to the Customer’s systems is, and shall remain, the responsibility of the Customer.

6. CHARGES AND PAYMENT

6.1 Subject to the rest of this Clause 6 (Charges and Payment), the charges payable by the Customer for the Services will be such charges YOPLA may notify the Customer from time to time by email or by post. Details of the Customer’s current charges may be obtained by emailing YOPLA at team@yopla.co.uk account details. YOPLA shall be entitled to vary the current charges at any time upon giving the Customer seven days’ notice, such notice to be given either on the Customer’s monthly invoice or on the Website and continued use of the Services by the Customer will be deemed to be the Customer’s acceptance of any such changes.

6.2 All charges payable by the Customer under the Agreement are exclusive of amounts in respect of value added tax ("VAT") chargeable from time to time. The Customer shall pay to YOPLA such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.

6.3 The Customer will remain liable for all charges regardless of who uses the Services and whether the Services were used with the Customer’s knowledge and consent or otherwise including any third party who has gained unauthorised access to the Customer’s system.

6.4 Unless otherwise specified in writing by YOPLA, the Customer agrees to pay YOPLA’s charges monthly by Direct Debit, the first payment to be made at the discretion of YOPLA. Unless otherwise specified in writing by YOPLA, all other charges due by the Customer to YOPLA shall be upon receipt of invoice. The Customer shall not cancel a Direct Debit mandate for the payment of YOPLA charges and/or payments without the prior written consent of YOPLA.

6.5 If the Customer fails to make any payment on the due date for any reason (including, without limitation, the cancellation or return of payment by the Customer’s bank or the cancellation of a Direct Debit mandate) then, without limiting any other rights or remedies available to it, YOPLA may:-

• 6.5.1 charge the Customer an administration fee of £25 plus VAT;
• 6.5.2 charge the Customer interest (both before and after any judgment) on the amount unpaid(including any accrued interest) at the rate of 3 per cent per month, until payment in full (including any accrued interest on the unpaid amount) is made.

For the purposes of this Clause 6.5 (Charges and Payment), a part of a month shall be treated as a full month for the purpose of calculating interest.

6.6 The Customer agrees to pay YOPLA, in full and without any set-off, all sums due to YOPLA under the Agreement.

6.7 The Customer authorises YOPLA to vary the amount, frequency and time of any recurring payment or Direct Debit to such level as YOPLA deem reasonably appropriate:

• 6.7.1 to take account of either an increase or decrease in the usage of the Services and/or the charges;
• 6.7.2 to reduce any indebtedness of the Customer to YOPLA;
• 6.7.3 to include payments to account for any Services or charges; and/or
• 6.7.4 to such other operational matter affecting the Services as YOPLA shall in its discretion deem reasonable.

6.8 The time of payment is of the essence of the Agreement and a failure to pay on time shall be deemed to be a material breach of this Agreement.

6.9 If the Customer has any dispute with regard to its charges, the Customer shall give written notice to YOPLA of the amount in dispute and the reason for the dispute. Any rectification or amendment of such disputed charges will be at YOPLA’s discretion and will be limited to the six months prior to the written notification being received by YOPLA and remains at YOPLA’s sole discretion. Such notice must be received by YOPLA before the due date for payment of the relevant invoice by the Customer, failing which the Customer shall be deemed to be in material breach of the Agreement and Clause 10 (Termination) shall apply together with Clause 6.5 (Charges and Payment) in respect of the entire balance. The Customer shall remain liable to pay all amounts not in dispute in accordance with the terms of the Agreement.

6.10 The Customer agrees to notify YOPLA in writing if they are in the process of, or intend to undergo, a sale, merger, acquisition, or any other form of ownership transfer. YOPLA will treat this information with strict confidentiality.

• 6.10.1 Upon notification of such a sale, merger, acquisition, or ownership transfer, YOPLA will transition the Customer to an annual payment plan.
• 6.10.2 If the Customer has less than 12 months remaining on their Minimum Term at the time of the ownership transfer, YOPLA will require the Customer to make a single payment covering the remaining term of the Agreement.
• 6.10.3 The transition to an annual payment plan or the requirement for a single payment will not alter the Minimum Term or any Extended Term applicable to the Agreement. The Customer will remain bound by the original terms as set out in Clause 3 (Term).
• 6.10.4 YOPLA will endeavour to provide the Customer with at least 7 days’ written notice of any required payment adjustments due to the sale, merger, acquisition, or other ownership transfer. The Customer must ensure that the necessary arrangements are made to comply with the updated payment structure within the notice period.‍
• 6.10.5 In the event that the Customer fails to notify YOPLA of a sale, merger, acquisition, or any other ownership transfer, or if the Customer acts in bad faith in relation to these events, YOPLA reserves the right to terminate the Agreement immediately. In such a case, all outstanding fees for the remainder of the Minimum Term or Extended Term will become immediately due and payable by the Customer or jointly by the Customer and the acquiring entity or entities. YOPLA will hold the new entity or entities jointly and severally liable for all such fees.
  

‍7. INDEMNITY FOR BREACH

The Customer shall indemnify YOPLA against any liabilities, costs, expenses, damages and losses suffered or incurred by YOPLA as a result of, or in connection with, a breach by the Customer of this Agreement or any third party agreement which the Customer enters into in respect of the Services, including (without limitation)the claw-back of any payment which has been made by a supplier to YOPLA in connection with an agreement between the supplier and the Customer.

8. LIMITATION OF LIABILITY

8.1 Nothing in the Agreement shall exclude or restrict the liability of either party for:

• 8.1.1 death or personal injury resulting from its negligence;
• 8.1.2 fraud or fraudulent misrepresentation; or
• 8.1.3 matters which cannot be restricted or excluded by law.

8.2 Neither party shall be liable to the other for any liabilities, costs, expenses, damages and losses suffered or incurred by the other party due to any cause beyond the first party’s reasonable control including without limitation any act of God failure or shortage of power supplies, trade dispute, any act or omission of Government, highways, regulatory bodies, other public communication operators or other competent authority or supply of services by third parties.

8.3 If any of the Services fail to operate, and the Customer diverts traffic to another carrier, YOPLA will not be responsible for that carrier’s charges.

8.4 YOPLA shall not be responsible to the Customer in contract, tort or otherwise for any:

• 8.4.1 loss of business;
• 8.4.2 loss of data;
• 8.4.3 loss of contracts, anticipated savings or profits; and
• 8.4.4 any other indirect or consequential loss whatsoever.

8.5 YOPLA shall not be responsible to the Customer in contract, tort or otherwise for any liabilities, costs, expenses, damages and losses suffered or incurred by the Customer as a result of:

• 8.5.1 the Customer’s systems being the subject of a hack, intrusion, zero-day vulnerability or virus; or
• 8.5.2 a defect in any software or services provided and/or used by the Customer.

8.6 YOPLA will have no liability whatsoever for any access, or for the bills resulting from Customer’s failure to control access, to the Customer’s systems (which shall remain the Customer’s obligation as set out in Clause 5.10).

8.7 YOPLA’s liability in tort, contract or otherwise arising out of, or in connection with, the performance of YOPLA’s obligations under the Agreement in any 12 month period shall be limited to the charges paid by the Customer to YOPLA during the relevant 12 month period.

9. SUSPENSION OF THE SERVICES

9.1 YOPLA shall be entitled, for business, operational or technical reasons or in order to comply with any obligation imposed on YOPLA by its licence or by any other competent authority, to withdraw or change any Services whether on a temporary or permanent basis provided that YOPLA gives the Customer the maximum period of notice in writing thereof practicable in the circumstances.

9.2 Without prejudice to any other rights or remedies which may be available to YOPLA:

• 9.2.1 if the Customer is in material breach of the Agreement, YOPLA may, at its sole discretion and upon giving the Customer written notice, elect to suspend, without compensation becoming due by YOPLA, the provision of Services for a period not exceeding 7days. If the breach is capable of remedy and is remedied by the Customer within the 7-day period, then YOPLA shall recommence the provision of Services. If the breach is not capable of remedy, or if so capable is not remedied within the period of 7 days, then YOPLA shall have the option of either terminating the Agreement under Clause 10 (Termination) or of continuing the Services;
• 9.2.2 if the Customer cancels a Direct Debit mandate in respect of the payment of YOPLA’s charges without the prior written consent of YOPLA, YOPLA may, at its sole discretion and without compensation becoming due by YOPLA, the provision of Services for a period not exceeding 7 days. If the Customer reinstates the Direct Debit mandate to the satisfaction of YOPLA within the 7 day period then YOPLA shall recommence the provision of Services. If the Customer does not reinstate the Direct Debit mandate within the period of 7 days then YOPLA shall be entitled to terminate the Agreement immediately by giving written notice to the Customer;
• 9.2.3 YOPLA reserves the right to withdraw all or any of the Services at any time if the monthly charges to the Customer are not, in the opinion of YOPLA, sufficient to make provision of the Services viable for YOPLA.
  

10. TERMINATION

10.1 Without prejudice to any other rights or remedies which may be available to either party, either party shall be entitled forthwith to immediately terminate the Agreement by giving written notice to the other if:

• 10.1.1 the other commits a continuing or material breach of the Agreement and, if the breach is capable of remedy, fails to remedy it within 7 days after receipt of a written notice giving full particulars of the breach and requiring it to be remedied;
• 10.1.2 an administrator takes possession or a receiver is appointed over any of the property or assets of the other party, the other party makes any voluntary arrangement with its creditors or becomes subject to an administration order, the other party becomes bankrupt or goes into liquidation (except for the purposes of an amalgamation, reconstruction or other reorganisation and so that the company resulting from the reorganisation effectively agrees to be bound by or to assume the obligations imposed on the other party under this agreement); or
• 10.1.3 the other party ceases, or threatens to cease, to carry on business.

10.2 YOPLA may terminate the Agreement immediately by giving written notice to the Customer if:

• 10.2.1 the Customer is suspected, in the reasonable opinion of YOPLA, of involvement with fraud or attempted fraud in connection with use of the Equipment and/or Services or this Agreement; or
• 10.2.2 YOPLA reasonably suspects that the Customer is unable to pay, or is refusing to pay, YOPLA charges and/or plan payments.

10.3 YOPLA may terminate this Agreement by giving not less than one months’ written notice to the Customer.

10.4 A waiver by either party of a breach of a provision of the Agreement shall not be considered as a waiver of a subsequent breach of the same or another provision.

10.5 The Customer shall indemnify YOPLA for any liabilities, costs, expenses, damages and losses which YOPLA suffered or incurred by YOPLA as a result of the Customer:

• 10.5.1 giving less than the specified amount of written notice to terminate the Agreement set out under Clause 3.1 (Term);
• 10.5.2 terminating the Agreement prior to the expiry of the Term;
• 10.5.3 cancelling or ceasing to use any of the Services during the Term; and

Where the Customer has given less than the specified amount of written notice to terminate the Agreement, YOPLA’s losses will include loss of revenue for the balance of the Minimum Term or Extended Term based upon an average of six calendar months bills of the Customer in which periods the Customer has made full use of the Services (or such lesser period as is available).

10.6 Without prejudice to YOPLA’s rights under Clause 10.5 (Termination), where the Customer cancels or ceases to use any of the Services, YOPLA reserves the right to increase its charges for the remaining Services.

10.7 Upon termination of the Agreement for any reason, YOPLA will be entitled to invoice the Customer for all costs and expenses incurred by YOPLA as a result of, or in connection with termination including (without limitation) any charges which have been levied on YOPLA by third party suppliers.

10.8 YOPLA will have the right to charge the Customer for any continued use of the Services following termination of the Agreement. The charges will be based upon YOPLA’s standard published usage charges and payment will be due by the Customer immediately upon demand.

10.9 Clauses which expressly, or by implication, survive termination of the Agreement shall continue in full force and effect.

11. CONFIDENTIALITY

11.1 The Customer shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Customer by YOPLA and its employees, agents and subcontractors, and any other confidential information concerning YOPLA’s business or its products or services which the Customer may obtain. The Customer shall restrict disclosure of such confidential material to such of its employees, agents or sub-contractors as need to know it for the purpose of discharging the Customer’s obligations to YOPLA under this Agreement, and shall ensure that such employees, agents or sub-contractors are subject to obligations of confidentiality corresponding to those which bind the Customer.

11.2 Clause 11.1(Confidentiality) shall survive termination of the Agreement, however arising.

11.3 It is acknowledged and agreed that YOPLA will monitor and record information relating to a Customer’s trade performance and such records will be made available to credit reference agencies, who may share that information with other businesses in assessing applications for credit and fraud prevention.

12. NOTICES

12.1 Unless otherwise expressly provided for in this Agreement, any notice or other communication given to a party under or in connection with the Agreement shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this Clause 12 (Notices), and shall be delivered personally or sent by prepaid first-class post or other next working day delivery service, or by commercial courier, fax or e-mail.

12.2 A notice or other communication shall be deemed to have been received:

• 12.2.1 if delivered personally, when left at the address referred to in Clause 15.1 (Notices);
• 12.2.2 if sent by pre-paid first class post or other next working day delivery service, at 9.00am on the second Business Day after posting;
• 12.2.3 if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or
• 12.2.4 if sent bye-mail, one Business Day after transmission.

13. VARIATION

13.1 Subject to Clauses 13.2 and 13.3 (Variation), and except where expressly provided for elsewhere in this Agreement, no changes to the terms of the Agreement will be effective unless it is agreed in writing by YOPLA and the Customer.

13.2 YOPLA reserves the right to change the layout and content of the Services at any time.

13.3 YOPLA reserves the right to change the terms of the Agreement at its sole discretion by giving the Customer not less than 7 days’ written notice (which, for the purposes of this Clause 13.3 (Variation), may be given on the front page of the monthly invoice and/or on the Website) and continued use of the Services thereafter will be deemed acceptance of such changes.