Effective date: 1st September 2010 (last updated 14th of June 2019)
Terms and Conditions for The Yotspot 24/7 Account:
DEFINITIONS AND INTERPRETATION
- In these Terms & Conditions the following definitions apply:
"Business Day" means a day other than a Saturday, Sunday or bank or public holiday;
"Confidential Information" means any commercial, financial or technical information, information relating to the Services, plans, know-how or trade secrets, information and/or documentation relating to Crew, Crew CV’s and Crew references, which is obviously confidential or has been identified as such;
"Contract" means the agreement between Yotspot and the Employer for the supply of the Services incorporating these Terms & Conditions and the Order;
"Controller" shall have the meaning given in applicable Data Protection Laws from time to time;
"Crew" means individuals potentially employed or engaged by the Employer as a result of Yotspot’s supply of the Services, and who have uploaded information and/or documentation, CV’s and references to the 24/7 Database on this Website;
"Data Protection Laws" means, as binding on either party or the Services:
(a) The GDPR;
(b) The Data Protection Act 2018;
(c) Any laws which implement any such laws; and
(d) Any laws that replace, extend, re-enact, consolidate or amend any of the foregoing;
"Data Subject" shall have the meaning in applicable Data Protection Laws from time to time;
"Employer" means the person who purchases the Services from Yotspot;
"Employer Profile" means the profile created on the Website by the Employer upon registration;
"Force Majeure" means an event or sequence of events beyond any party's reasonable control (after exercise of reasonable care to put in place robust back-up and disaster recovery arrangements) preventing or delaying it from performing its obligations under the Contract;
"GDPR" means the General Data Protection Regulation, Regulation (EU) 2016/679;
"Intellectual Property Rights" means copyright, patents, know-how, trade secrets, trade marks, trade names, design rights, rights in get-up, rights in goodwill, rights in confidential information, rights to sue for passing off, domain names and all similar rights and, in each case:
(a) Whether registered or not
(b) Including any applications to protect or register such rights
(c) Including all renewals and extensions of such rights or applications
(d) Whether vested, contingent or future
(e) To which the relevant party is or may be entitled, and
(f) In whichever part of the world existing;
"International Organisation" has the meaning given in the applicable Data Protection Laws from time to time;
"Order" means the Employer's order for the supply of the Services as set out on the Website;
"Personal Data" has the meaning given in the applicable Data Protection Laws from time to time;
"Personal Data Breach" has the meaning given in the applicable Data Protection Laws from time to time;
"Placement" means the employment or engagement of Crew by the Employer;
"Price" has the meaning given in clause 3.1;
"processing " has the meaning given to it in applicable Data Protection Laws from time to time (and related expressions, including process, processed, processing, and processes shall be construed accordingly);
"Processor" has the meaning given to it in applicable Data Protection Laws from time to time;
"Protected Data" means Personal Data received from or on behalf of the Employer in connection with the performance of Yotspot’s obligations under the Contract;
"Services" means the services set out on the Website and to be supplied by Yotspot to the Employer, including the facilitation of the Employer’s access to the 24/7 Database;
"Sub-Processor" means any agent, subcontractor or other third party (excluding its employees) engaged by Yotspot for carrying out any processing activities on behalf of the Employer in respect of the Protected Data;
"Subscription" means the subscription allowing the Employer to access subscription features on the Website, including access to the 24/7 Database;
"Subscription Period" means a period of 3 months or a period of 12 months beginning on the date on which the Subscription Price is paid by the Employer;
"Terms & Conditions" means Yotspot’s terms and conditions of sale set out in this document;
"VAT" means value added tax under the Value Added Taxes Act 1994 or any other similar sale or fiscal tax applying to the sale of the Services;
"Vessel" means the vessel or yacht on which the Placement of the Crew is Secured;
"Website" means the website with URL www.yotspot.com;
"Yotspot" means CB Media Group Limited, a company registered in England and Wales (Company Registration Number: 07129363) and whose registered office is situated at Ocean Village Innovation Centre, 4 Ocean Way, Southampton, Hampshire, England, SO14 3 JZ; and
"Yotspot Personnel" all employees, officers, staff, other workers, agents and consultants of Yotspot, and any of its sub-contractors who are engaged in the performance of the Services from time to time.
APPLICATION OF THESE TERMS & CONDITIONS
- These Terms & Conditions apply to and form part of the Contract between Yotspot and the Employer. They supersede any previously issued terms and conditions of purchase or supply.
- No variation of these Terms & Conditions or to the Contract shall be binding until expressly updated by Yotspot and notified to the Employer.
- By the Employer submitting the Order on the Website to Yotspot, the Employer shall be deemed to have made an offer to purchase the Services subject to these Terms & Conditions.
- Yotspot may accept or reject an Order at its discretion. An Order shall not be accepted, and no binding obligation to supply any Services shall arise, until the earlier of:
- Yotspot’s written acceptance of the Order via e-mail; or
- Yotspot supplying the Services to the Employer by the Employer using the Website to create the Employer’s Profile (as the case may be).
- Marketing and other promotional material relating to the Services are illustrative only and do not form part of the Contract.
- The Employer may access the Website in accordance with these Terms & Conditions.
- The Employer may access the 24/7 Database in the event that the Employer has a valid Subscription.
- The Employer agrees to keep the Employer’s login information, including the Employer’s password, in strict confidence. For the avoidance of doubt, Yotspot is not responsible for any unauthorised access to the Employer’s Profile.
- In the event that a third party obtains the Employer’s login information, the Employer must inform Yotspot immediately. For the avoidance of doubt, Yotspot reserves the right to suspend the Employer’s Profile until such time as it is confirmed that the Employer has in place adequate security measures to protect the Employer’s login information.
- The Employer agrees to provide a copy of the Vessel’s Certificate of Registry (“COR”) to Yotspot upon request to verify the Vessel’s size and ensure the applicability of the correct Subscription Price. The Employer’s continued access to the 24/7 Database is subject to the following:
- In the event that the Employer does not provide a valid COR, Yotspot reserves the right to suspend the Employer’s Profile with immediate effect and without refund;
- In the event that the Employer has reason to believe an incorrect Subscription Price has been paid, the Employer must notify Yotspot immediately;
- Yotspot reserves the right to issue a refund where applicable, or request the remaining Price is paid in full immediately. Should the Employer not make payment of any remaining Price immediately, Yotspot reserves the right to suspend the Employer’s Profile with immediate effect and without refund;
- In the event that Yotspot has reason to believe an incorrect Subscription Price was paid deliberately, Yotspot reserves the right to suspend the Employer’s Profile with immediate effect and without refund.
- The price for the Services shall be as set out below (“Price”) and are applicable for Subscriptions. For the avoidance of doubt, some Services may be supplied by Yotspot at its discretion as free of charge. The Price in respect of Subscriptions is as set out below:
a) £695.00 for Vessels below 75m (LOA);
- The Price for a three (3) month Subscription Period to the 24/7 Database is:
- The Price for a twelve (12) month Subscription Period to the 24/7 Database is:
- In respect of Employers which are registered via the Website as a Management Agency or Recruitment Agency: The Price for a three (3) month “unlimited job posts” Subscription Period to the 24/7 Database is £995.00.
- In respect of Employers which are registered via the Website as a Management Agency or Recruitment Agency: The Price for a three (3) month “unlimited job posts” Subscription Period to the 24/7 Database, including “crew search” is £1,245.00.
- In respect of Employers which are registered via the Website as a Management Agency or Recruitment Agency: The Price for a twelve (12) month “unlimited job posts” Subscription Period to the 24/7 Database is £1,995.00.
- In respect of Employers which are registered via the Website as a Management Agency or Recruitment Agency: The Price for a twelve (12) month “unlimited job posts” Subscription Period to the 24/7 Database, including “crew search” is £2,495.00.
b) £995.00 for Vessels 75m (LOA) & over;
c) £1,745.00 for Vessels 95m (LOA) & over;
a) £1,395.00 for Vessels below 75m (LOA);
b) £1,995.00 for Vessels 75m (LOA) & over;
c) £3,495.00 for Vessels 95m (LOA) & over.
- The Prices are exclusive of:
- A 2% administration charge in respect of credit/debit card payments made via the Website, and
- The Employer shall pay any applicable VAT to Yotspot on registration for a Subscription and/or upon receipt of a valid VAT invoice, and provided that the Employer is required to pay VAT in respect of the Employer’s tax obligations in the UK.
- Yotspot may increase the Prices at any time by giving the Employer not less than 20 Business Days’ notice in writing.
- Notwithstanding clause 3.4, Yotspot may increase the Prices with immediate effect by written notice to the Employer where there is an increase in the direct cost to Yotspot of supplying the relevant Services which is due to any factor beyond the control of Yotspot.
- Yotspot shall invoice the Employer for the Services at any time after performance of the Services.
- The Employer shall pay the Subscription Price during the registration process for a Subscription and:
- In full without deduction or set-off and in cleared funds; and
- To the bank account nominated by Yotspot.
- In respect of the renewal of any Subscription Period:
- Subscriptions shall automatically renew at the end of each relevant Subscription Period;
- The Employer agrees that it shall incur a charge equal to the Subscription Price and that Yotspot may use the details of the debit or credit card which was used in connection with the Subscription Price paid upon registration for the Subscription;
- In the event that the Employer’s debit or credit card details have changed since the payment made upon registration for the Subscription, Yotspot will not automatically renew your Subscription and the Employer acknowledges that it will be required to pay the current Subscription Price in order to obtain continued access to the 24/7 Database.
- 5.1 Time is not of the essence in relation to the performance of the Services. Yotspot shall use its reasonable endeavours to meet estimated dates for performance, but any such dates are approximate only.
- 5.2 Yotspot shall not be liable for any delay in or failure of performance caused by:
- The Employer's failure to provide Yotspot with adequate instructions for performance or otherwise relating to the Services;
- Force Majeure.
- Yotspot strongly recommends that the Employer conducts its own investigations before entering into any agreement with Crew in respect of any Placement.
- Any information and/or documentation (including, but not limited to, CVs, contact details, and qualifications) pertaining to any Crew introduced by Yotspot to the Employer is for the sole use of the Employer in making an assessment as to the Crew’s suitability for a particular Placement, and the Employer agrees that such information and/or documentation will not be disclosed to any third party without Yotspot’s express written consent.
- For the avoidance of doubt, Yotspot facilitates the introduction of Crew to the Employer, and the Employer agrees that any agreement entered into between the Employer and the Crew following such an introduction by Yotspot is the sole responsibility of the Employer.
- In respect of Employers which are registered via the Website as a Management Agency or Recruitment Agency:
- Such Employers are permitted to recruit Crew via the use of the 24/7 Database in respect of multiple Vessels by sending prospective Crew information and/or documentation to Vessel captains, Vessel heads of departments, Vessel owners, or their representatives;
- Such Employers are not permitted to share the Employer’s login information, including the Employer’s password, with Vessel captains, Vessel heads of departments, Vessel owners, or their representatives;
- Such Employers agree that Employer’s Profiles which are registered via the Website as a Management Agency or Recruitment Agency are only to be used and accessed by the Management Agency or Recruitment Agency which has paid for the Subscription in accordance with clause 4.2;
- For the avoidance of doubt, such Employers acknowledge and agree that the sharing of the Employer’s login information, including the Employer’s password, with Vessel captains, Vessel heads of departments, Vessel owners, or their representatives is strictly prohibited. In the event that such Employer shares the Employer’s login information in contravention of clause 5.7.2, Yotspot reserves the right to cancel the Employer’s Subscription and terminate the Contract immediately, and the Employer acknowledges and agrees that in such circumstances the Employer shall not be entitled to a refund of the Subscription Price.
- Yotspot reserves the right to deactivate and/or suspend the Employer’s access to the 24/7 Database in the event that the Employer fails to pay any Subscription Price, or in the event that the Employer breaches a provision of these Terms & Conditions.
- The 24/7 Database will only display current Crew registered on the 24/7 Database.
- The 24/7 Database will only display fully complete profiles of Crew who have logged in within the last 30 days and who have opted in to be discovered within Crew search results and/or job applications.
- For the avoidance of doubt, the 24/7 Database will not display incomplete profiles of Crew or Crew who have not logged in within the last 30 days or Crew that have not opted in to be discovered within Crew search results and/or job applications.
- Yotspot warrants that the Services shall:
- Conform in all material respects to their description;
- Be supplied with reasonable care and skill within the meaning of the Supply of Goods and Services Act 1982, Part II, s 13;
- Yotspot warrants that it offers a “30 Day Money Back Guarantee” in respect of the Services, subject to the following:
- In the event that the Employer is unable to organize a Crew Placement via the Employer’s access to the 24/7 Database within the first 30 days from the date of the Subscription, Yotspot shall offer the Employer a full refund of the Subscription Price applicable to the Employer;
- The Employer must submit a request for a refund in writing to Yotspot within the first 30 days from the date of the Subscription. For the avoidance of doubt, the date of the Subscription shall be deemed the first day of the 30 day period;
- The Employer shall only be eligible for a refund in accordance with this clause 6.2 in the event that the Employer posts one advertisement for a Placement via the Website within the first 10 days from the date of the Subscription;
- The refund offered in accordance with this clause 6.2 may only be redeemed once per Employer. For the avoidance of doubt, Employers that have previously received the refund offered in accordance with this clause 6.2 shall not be eligible to receive the refund.
- The Employer warrants that:
- It has provided Yotspot with all relevant, full and accurate information as to the Employer’s business and needs;
- It will use the 24/7 Database via the Employer’s Subscription in connection with one Vessel only, except in circumstances where the Employer has registered via the Website as a Management Agency or Recruitment Agency. The Employer agrees that the Employer is strictly prohibited from using the 24/7 Database via the Employer’s Subscription in connection with more than one Vessel. For the avoidance of doubt, in the event that the Employer uses the 24/7 Database via the Employer’s Subscription in connection with more than one Vessel, Yotspot reserves the right to cancel the Employer’s Subscription and terminate the Contract immediately, and the Employer acknowledges and agrees that in such circumstances the Employer shall not be entitled to a refund of the Subscription Price.
- It complies fully with the Maritime Labour Convention (“MLC”) and to employ or engage any Crew introduced by Yotspot for a Placement in compliance with the MLC;
- Yotspot will not be deemed to employ or engage any Crew. The Employer agrees that any Crew introduced by Yotspot shall be employed or engaged by the Employer or relevant third party;
- It will allow Crew reasonable time to seek independent legal advice in respect of any Seafarer’s Employment Contract (“SEA”) or equivalent, prior to the date of any Placement;
- It will provide Yotspot with the Employer’s standard SEA immediately upon the date on which any Placement is offered to Crew;
- Further to clause 7.2, it has in place contracts of insurance in accordance with the MLC allowing for the repatriation of Crew and to compensate Crew for financial loss that the Crew may incur as a result of the Employer becoming insolvent. The Employer shall supply, so far as is reasonable, evidence of the maintenance of the insurance and all of its terms from time to time as applicable;
- No Crew will be required to pay a fee to the Employer in order to secure a Placement;
- It will pay all fees arising out of or in connection with visas or permits required by Crew in respect of any Placement;
- It will not use this Website to disseminate offensive content. In the event that content relating to a Placement is considered offensive, in Yotspot’s sole discretion, such content shall be removed from the this Website;
- It will use this Website only in respect of genuine Placements. For the avoidance of doubt, any Placement suspected of being fake, spam or non-genuine will be removed, and the Employer acknowledges and agrees that attracting Crew for “future Placements” or “opportunities” is strictly prohibited;
- It will only use this Website to disseminate content owned by the Employer, including in respect of Placements offered by an authorised representative of the Employer and/or Vessel seeking to fill a Placement;
- It will not discriminate against any Crew in connection with any Placement, and that any Placement must be made available to qualified Crew candidates regardless of age, race, nationality, gender or sexual orientation. Any specific exemptions for specific Placements, including cabin arrangements or flag state requirements, must be communicated to the Crew as such;
- It will make payment to Crew reliably and fairly and that any Placement will offer industry standard remuneration. For the avoidance of doubt, Yotspot shall, in its sole discretion, deem the offering of below industry standard remuneration a breach of these Terms & Conditions; and
- It will provide the Crew with accurate and truthful information relating to the Placement, including, but not limited to, the Placement’s location, duties required of the Crew, and whether the Placement is offered via a recruiter or the Employer.
- Except as set out in this clause 6:
- Yotspot gives no warranty and makes no representations in relation to the Services; and
- Shall have no liability for their failure to comply with the warranty in clause 6.1 or clause 6.2, and all warranties and conditions (including the conditions implied by ss 12–16 of the Supply of Goods and Services Act 1982), whether express or implied by statute, common law or otherwise are excluded to the extent permitted.
- For the avoidance of doubt, Yotspot gives no representation or warranty as to the performance, suitability, entitlement or character of any Crew, and does not give a representation or warranty in respect of any Crew holding any specific qualification, visa or permit. The Employer acknowledges and agrees that the Employer shall carry out its own investigation, due diligence, and reference checks in respect of any Crew in order to reach a decision as to the Crew’s suitability for a Placement prior to offering the Crew any Placement.
- For the avoidance of doubt, Yotspot gives no representation or warranty as to the uninterrupted, continuous, secure or error-free operation of the Website or the 24/7 Database.
INDEMNITY AND INSURANCE
- The Employer shall indemnify, and keep indemnified, Yotspot from and against any losses, damages, liability, costs (including legal fees) and expenses incurred by Yotspot as a result of or in connection with the Employer’s breach of any of the Employer’s obligations under the Contract or with the Employer’s misuse or disclosure to any third party of Crew information and/or documentation.
- The Employer shall have in place contracts of insurance with reputable insurers to cover its obligations under the Contract and under any relevant legislation, including the MLC, including any and all obligations in respect of the Placement, and in respect of the Vessel on which the Placement is secured. On request, the Employer shall supply, so far as is reasonable, evidence of the maintenance of the insurance and all of its terms from time to time as applicable.
LIMITATION OF LIABILITY
- The extent of the parties’ liability under or in connection with the Contract (regardless of whether such liability arises in tort, contract or in any other way and whether or not caused by negligence or misrepresentation) shall be as set out in this clause 8.
- Subject to clauses 8.5 and 8.6, Yotspot’s total liability shall not exceed the value of the Contract.
- Subject to clauses 8.5 and 8.6, Yotspot shall not be liable for consequential, indirect or special losses.
- Subject to clauses 8.5 and 8.6, Yotspot shall not be liable for any of the following (whether direct or indirect):
- Loss arising out of or in connection with the Employer engaging any Crew for any Placement;
- Loss of profit;
- Loss or corruption of data;
- Loss of use;
- Loss of production;
- Loss of contract;
- Loss of opportunity;
- Loss of savings, discount or rebate (whether actual or anticipated);
- Harm to reputation or loss of goodwill.
- The limitations of liability set out in clauses 8.2 to 8.4 shall not apply in respect of any indemnities given by either party under the Contract.
- Notwithstanding any other provision of the Contract, the liability of the parties shall not be limited in any way in respect of the following:
- Death or personal injury caused by negligence;
- Fraud or fraudulent misrepresentation;
- Any other losses which cannot be excluded or limited by applicable law;
- Any losses caused by wilful misconduct.
- All Intellectual Property Rights arising out of or in connection with the Services are owned by Yotspot.
- All Intellectual Property Rights arising out of or in connection with the Website and the 24/7 Database are owned by Yotspot.
CONFIDENTIALITY AND ANNOUNCEMENTS
- The Employer shall keep confidential all Confidential Information of Yotspot and shall only use the same as required to perform the Contract. The provisions of this clause shall not apply to:
Except that the provisions of clauses 10.1.1 to 10.1.3 shall not apply to information to which clause 10.5 relates.
- Any information which was in the public domain at the date of the Contract;
- Any information which comes into the public domain subsequently other than as a consequence of any breach of the Contract or any related agreement;
- Any information which is independently developed by the Employer without using information supplied by Yotspot; or
- Any disclosure required by law or a regulatory authority or otherwise by the provisions of the Contract;
- The Employer agrees that any Confidential Information received from Yotspot and stored either electronically or physically will be will be deleted or destroyed within 20 Business Days, unless the Employer notifies Yotspot of a lawful reason for storing such Confidential Information.
- The Employer agrees that under no circumstances shall any Confidential Information (including, but not limited to, information and/or documentation relating to Crew, Crew CVs, and Crew references) received by the Employer via Yotspot be shared with any third party without the permission of the Crew in question.
- This clause shall remain in force in perpetuity.
- To the extent any Confidential Information is Protected Data such Confidential Information may be disclosed or used only to the extent such disclosure or use does not conflict with any provisions of clause 11.
PROCESSING OF PERSONAL DATA
- The parties agree that the Employer is a Controller and that Yotspot is a Processor for the purposes of processing Protected Data pursuant to the Contract. The Employer shall at all times comply with all Data Protection Laws in connection with the processing of Protected Data. The Employer shall ensure all instructions given by it to Yotspot in respect of Protected Data (including the terms of the Contract) shall at all times be in accordance with Data Protection Laws.
- Yotspot shall process Protected Data in compliance with the obligations placed on it under Data Protection Laws and the terms of the Contract.
- The Employer shall indemnify and keep indemnified Yotspot against all losses, claims, damages, liabilities, fines, sanctions, interest, penalties, costs, charges, expenses, compensation paid to Data Subjects, demands and legal and other professional costs (calculated on a full indemnity basis and in each case whether or not arising from any investigation by, or imposed by, a supervisory authority) arising out of or in connection with any breach by the Employer of its obligations under this clause 11.
- Yotspot shall:
- Only process (and shall ensure Yotspot Personnel only process) the Protected Data in accordance with schedule 1 and the Contract (and not otherwise unless alternative processing instructions are agreed between the parties in writing) except where otherwise required by applicable law (and shall inform the Employer of that legal requirement before processing, unless applicable law prevents it doing so on important grounds of public interest); and
- If Yotspot believes that any instruction received by it from the Employer is likely to infringe the Data Protection Laws it shall promptly inform the Employer and be entitled to cease to provide the relevant Services until the parties have agreed appropriate amended instructions which are not infringing.
- Taking into account the state of technical development and the nature of processing, Yotspot shall implement and maintain the technical and organisational measures set out in Part 2 of schedule 1 to protect the Protected Data against accidental, unauthorised or unlawful destruction, loss, alteration, disclosure or access.
- Yotspot shall:
- Not permit any processing of Protected Data by any agent, subcontractor or other third party (except its or its Sub-Processors’ own employees in the course of their employment that are subject to an enforceable obligation of confidence with regards to the Protected Data) without the written authorisation of the Employer;
- Prior to the relevant Sub-Processor carrying out any processing activities in respect of the Protected Data, appoint each Sub-Processor under a written contract containing materially the same obligations as under this clause 11 that is enforceable by Yotspot and ensure each such Sub-Processor complies with all such obligations;
- Remain fully liable to the Employer under the Contract for all the acts and omissions of each Sub-Processor as if they were its own; and
- Ensure that all persons authorised by Yotspot or any Sub-Processor to process Protected Data are subject to a binding written contractual obligation to keep the Protected Data confidential.
- The Employer authorises the appointment of the Sub-Processors as agreed between the parties in writing from time to time.
- Yotspot shall (at the Employer's cost):
- Assist the Employer in ensuring compliance with the Employer’s obligations pursuant to Articles 32 to 36 of the GDPR (and any similar obligations under applicable Data Protection Laws) taking into account the nature of the processing and the information available to Yotspot; and
- Taking into account the nature of the processing, assist the Employer (by appropriate technical and organisational measures), insofar as this is possible, for the fulfilment of the Employer’s obligations to respond to requests for exercising the Data Subjects’ rights under Chapter III of the GDPR (and any similar obligations under applicable Data Protection Laws) in respect of any Protected Data.
- Yotspot shall not process and/or transfer, or otherwise directly or indirectly disclose, any Protected Data in or to countries outside the United Kingdom or to any International Organisation without the prior written consent of the Employer.
- Yotspot shall, in accordance with Data Protection Laws, make available to the Employer such information that is in its possession or control as is necessary to demonstrate Yotspot's compliance with the obligations placed on it under this clause 11 and to demonstrate compliance with the obligations on each party imposed by Article 28 of the GDPR (and under any equivalent Data Protection Laws equivalent to that Article 28), and allow for and contribute to audits, including inspections, by the Employer (or another auditor mandated by the Employer) for this purpose (subject to a maximum of one audit request in any 12 month period under this clause 11.10).
- Yotspot shall notify the Employer without undue delay and in writing on becoming aware of any Personal Data Breach in respect of any Protected Data.
- On the end of the provision of the Services relating to the processing of Protected Data, at the Employer’s cost and the Employer’s option, Yotspot shall either return all of the Protected Data to the Employer or securely dispose of the Protected Data (and thereafter promptly delete all existing copies of it) except to the extent that any applicable law requires Yotspot to store such Protected Data. This clause 11 shall survive termination or expiry of the Contract.
- Promptly notifies the other of the Force Majeure event and its expected duration; and
- Uses best endeavours to minimise the effects of that event.
- Is or shall be unable to perform a material obligation; or
- Is delayed in or prevented from performing its obligations for a continuous period exceeding 10 Business Days;
The other party may, within 20 Business Days, terminate the Contract on immediate notice.
- The Employer may terminate the Subscription at any time by giving written notice to Yotspot via e-mail at least 24 hours before the end of the Subscription Period. For the avoidance of doubt, in the event that the Employer does not provide such notice to Yotspot 24 hours before the end the Subscription Period, the Employer will be liable for the fee in respect of the next Subscription Period in accordance with clause 4.3.
- Yotspot may terminate the Contract or any other contract which it has with the Employer at any time by giving notice in writing to the Employer if:
- The Employer commits a material breach of the Contract and such breach is not remediable;
- The Employer commits a material breach of the Contract which is not remedied within 10 Business Days of receiving written notice of such breach;
- The Employer has failed to pay any amount due under the Contract on the due date and such amount remains unpaid within 10 Business Days after Yotspot has given notification that the payment is overdue; or
- Any consent, licence or authorisation held by the Employer is revoked or modified such that the Employer is no longer able to comply with its obligations under the Contract or receive any benefit to which it is entitled.
- Yotspot may terminate the Contract at any time by giving notice in writing to the Employer if the Employer:
- Stops carrying on all or a significant part of its business, or indicates in any way that it intends to do so;
- Is unable to pay its debts either within the meaning of section 123 of the Insolvency Act 1986 or if Yotspot reasonably believes that to be the case;
- Becomes the subject of a company voluntary arrangement under the Insolvency Act 1986;
- Has a receiver, manager, administrator or administrative receiver appointed over all or any part of its undertaking, assets or income;
- Has a resolution passed for its winding up;
- Has a petition presented to any court for its winding up or an application is made for an administration order, or any winding-up or administration order is made against it;
- Is subject to any procedure for the taking control of its goods that is not withdrawn or discharged within 5 Business Days of that procedure being commenced;
- Has a freezing order made against it;
- Is subject to any recovery or attempted recovery of items supplied to it by a Yotspot retaining title in those items;
- Is subject to any events or circumstances analogous to those in clauses 13.3.1 to 13.3.9 in any jurisdiction;
- Takes any steps in anticipation of, or has no realistic prospect of avoiding, any of the events or procedures described in clauses 13.3.1 to 13.3.10 including for the avoidance of doubt, but not limited to, giving notice for the convening of any meeting of creditors, issuing an application at court or filing any notice at court, receiving any demand for repayment of lending facilities, or passing any board resolution authorising any steps to be taken to enter into an insolvency process.
- Yotspot may terminate the Contract at any time by giving not less than 1 months’ notice in writing to the Employer for any reason, or in the event that Employer undergoes a change of control.
- The right of Yotspot to terminate the Contract pursuant to clause 13.3 shall not apply to the extent that the relevant procedure is entered into for the purpose of amalgamation, reconstruction or merger (where applicable) where the amalgamated, reconstructed or merged party agrees to adhere to the Contract.
- If the Employer becomes aware that any event has occurred, or circumstances exist, which may entitle Yotspot to terminate the Contract under this clause 13, it shall immediately notify Yotspot in writing.
- Termination or expiry of the Contract shall not affect any accrued rights and liabilities of Yotspot at any time up to the date of termination.
- The parties agree that the Contract constitutes the entire agreement between them and supersedes all previous agreements, understandings and arrangements between them, whether in writing or oral in respect of its subject matter.
- Each party acknowledges that it has not entered into the Contract in reliance on, and shall have no remedies in respect of, any representation or warranty that is not expressly set out in the Contract. No party shall have any claim for innocent or negligent misrepresentation on the basis of any statement in the Contract.
- Nothing in these Terms & Conditions purports to limit or exclude any liability for fraud.
- No variation of the Contract shall be valid or effective unless it is in writing, refers to the Contract and these Terms & Conditions and is duly signed or executed by, or on behalf of, Yotspot.
- The Employer may not assign, subcontract or encumber any right or obligation under the Contract, in whole or in part, without Yotspot’s prior written consent.
NO PARTNERSHIP OR AGENCY
- The parties are independent persons and are not partners, principal and agent or employer and employee and the Contract does not establish any joint venture, trust, fiduciary or other relationship between them, other than the contractual relationship expressly provided for in it. None of the parties shall have, nor shall represent that they have, any authority to make any commitments on the other party's behalf.
THIRD PARTY RIGHTS
- A person who is not a party to the Contract shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of the provisions of the Contract.
- The Contract and any dispute or claim arising out of, or in connection with, it, its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of England and Wales.
- The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of, or in connection with, the Contract, its subject matter or formation (including non-contractual disputes or claims).
Data processing details
Processing of the Protected Data by Yotspot under the Contract shall be for the subject-matter, duration, nature and purposes and involve the types of personal data and categories of Data Subjects set out in this Part 1 of schedule 1.
1. SUBJECT-MATTER OF PROCESSING:
Information relating to Placements for the purposes of Yotspot and the Employer carrying out the parties’ respective obligations in accordance with these Terms & Conditions.
2. DURATION OF THE PROCESSING:
The duration of the Contract.
3. NATURE AND PURPOSE OF THE PROCESSING:
The collection, recording, organisation, storage, retrieval, erasure and destruction of Protected Data for the purposes of Yotspot and the Employer carrying out the parties’ respective obligations in accordance with these Terms & Conditions.
4. TYPE OF PERSONAL DATA:
Name, address, telephone number, and information relating to Placements.
5. CATEGORIES OF DATA SUBJECTS:
6. SPECIFIC PROCESSING INSTRUCTIONS:
Technical and organisational security measures
1. Yotspot shall implement and maintain the following technical and organisational security measures to protect the Protected Data:
1.1 In accordance with the Data Protection Laws, taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of the processing of the Protected Data to be carried out under or in connection with the Contract, as well as the risks of varying likelihood and severity for the rights and freedoms of natural persons and the risks that are presented by the processing, especially from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to the Protected Data transmitted, stored or otherwise processed, Yotspot shall implement appropriate technical and organisational security measures appropriate to the risk, including as appropriate those matters mentioned in Articles 32(1)(a) to 32(1)(d) (inclusive) of the GDPR.
1.2 The Employer acknowledges and agrees that Yotspot engages a third party service (Stripe, Xero, Octobat, One Plus One Accountants, Bronco, Amazon Web Services) for the storage of Protected Data, and accordingly, the Protected Data may be stored on servers outside the United Kingdom.