Merchant Terms

Our merchant terms

THESE MERCHANT TERMS GOVERN CUSTOMER’S PURCHASE AND USE OF YOYO SERVICES. CAPITALIZED TERMS

HAVE THE DEFINITIONS SET OUT IN THESE MERCHANT TERMS.

BY (a) CLICKING A BOX INDICATING ACCEPTANCE; (b) EXECUTING AN ORDER FORM THAT REFERENCES THESE MERCHANT TERMS; OR (c) USING THE SERVICES, CUSTOMER AGREES TO BE BOUND BY THESE MERCHANT TERMS (AND ANY ORDER FORM DULY AGREED BY YOYO). IF THE INDIVIDUAL ACCEPTING THESE MERCHANT TERMS IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, THAT INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND THAT ENTITY AND ITS AFFILIATES TO THESE MERCHANT TERMS AND, IN WHICH CASE, THE TERM “CUSTOMER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF THE INDIVIDUAL ACCEPTING THESE MERCHANT TERMS DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE MERCHANT TERMS, THE INDIVIDUAL MUST NOT ACCEPT THESE MERCHANT TERMS AND MAY NOT USE THE YOYO SERVICES.

THESE MERCHANT TERMS WERE LAST UPDATED ON 1 SEPTEMBER 2020 AND ARE BINDING ON THE CUSTOMER FROM THE DATE OF ACCEPTANCE BY THE CUSTOMER (AS SET OUT ABOVE).

  1. DEFINITIONS AND INTERPRETATION
    1. In this Agreement, unless the context otherwise requires, defined terms shall have the meaning given below:

      Affiliate” any entity that directly or indirectly controls, is controlled by or is under common control with the subject entity, where “control” means having the direct or indirect ownership of, or right to exercise, more than 50% of the voting interests of the subject entity; 

      Applicable Law” all laws, rules and regulations (including codes of practice and any requirements and guidelines as may be issued by regulatory authorities) and any court orders applicable to a party for the time being in force in any jurisdiction and in each case as amended, replaced or superseded from time to time. These include but are not limited to anti-money laundering, anti-bribery, data privacy and consumer protection laws; 

      Campaign” any (a) marketing or advertising campaign; (b) loyalty or rewards scheme; (c) promotion, offer or discount relating to a brand, goods or services; or (d) a prize draw; 

      Confidential Information” all information (whether written, oral or in some other form) disclosed to or obtained by one party (whether directly or indirectly) from the other (whether before or after the signing of this Agreement), including all information relating to that other party’s business, operations, systems, processes, products, trade secrets, know-how, contracts, finances, plans, strategies or current, former or prospective customers, suppliers or partners (together with copies made of any of the foregoing) and which information is marked as being confidential or might reasonably be assumed to be confidential, but excluding information which (a) is available to the public other than because of any breach of this Agreement; (b) is, or becomes, known to the receiving party without restriction; or (c) is developed independently without use of or reference to the other party’s Confidential Information; 

      Content” data, images, documentation, information, text, copy or software and other materials created in the use of the Services or otherwise provided through the Services by or for Yoyo; 

      Customer” in the case of an individual accepting these Merchant Terms on his or her own behalf, that individual, or in the case of an individual accepting these Merchant Terms on behalf of a company or other legal entity, the company or other legal entity for which the individual is accepting these Merchant Terms (including any Affiliates of that company or legal entity that are named in an Order Form (only for so long as they remain Affiliates)); 

      Customer Materials” data, images, documentation, information, text, copy or software and other materials submitted to the Services by or for Customer; 

      Data Protection Laws” means (a) unless and until the same is no longer directly applicable in the General Data Protection Regulations ((EU) 2016/679) and the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2003/2426) and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the United Kingdom including the Data Protection Act 2018; and then (b) any successor legislation;

      Documentation” the documentation and any additional terms relating to the access to, and use of, the Services as published by Yoyo from time to time at https://yoyogo.io/legal (and which includes the Yoyo Acceptable Use Policy);

      Fees” the charges and fees set out in the Order Form, as adjusted in accordance with clause

      Intellectual Property Rights” all intellectual and industrial property rights of any kind (whether created prior to, on or after the date of this Agreement) including, without limitation, patents, rights in any invention, discovery or process, copyright and related rights, moral rights, trade marks, service marks, and domain names, rights in designs, utility models, trade or business names, confidential information, know-how, rights in computer software, database rights, topography rights, passing-off rights, rights in get-up and rights in goodwill (in each case, whether registered or unregistered) and including applications for any of the foregoing and the right to apply therefor and all renewals or extensions of such rights and all similar or equivalent rights or forms of protection which subsist now or in the future, in each case in any part of the world;

      Mobile Application” the applications made available by Yoyo for use by Users on a mobile device (and including RBAs where applicable) and any updates to such applications;

      Non-Yoyo Service” a service, feature or product that is interoperable with a Service and which may be provided by the Customer, a third party (including an Affiliate) or Yoyo (on behalf of a third party, including an Affiliate);

      Order Form” the ordering document or online order specifying the Services and Fees (among other things) and entered into between Customer (including on behalf of its named Affiliates) and Yoyo (or its Affiliates), including any addenda and supplements;

      Outlet” a store (whether online or real) from which the Customer sells goods and/ or services and in respect of which the Customer receives the Services;

      Payment Services” the processing of payment transactions by Yoyo (or its payment service provider) pursuant to the Payment Services addendum available at https://yoyogo.io/legal;

      Personal Data” has the meaning given in the Data Protection Laws;

      RBA” has the meaning given in clause 4.7.1;

      Services” the services listed in the Order Form;

      Transaction” any payment transaction or award/ redemption of a Voucher made through the Services;

      User” a person who holds a Yoyo user account; and

      Voucher” a digital voucher displayed in a Mobile Application and which may be redeemed in respect of the purchase of goods and/ or services at Outlets.
    2. In this Agreement (a) references to statutory provisions include those statutory provisions as amended or re-enacted; (b) references to any gender include all gender; and (c) references to “including”, “includes” and “in particular” are illustrative and none of them shall limit the sense of the words preceding them and each of them shall be deemed to incorporate the expression “without limitation”. “Other” and “otherwise” are also illustrative and shall not limit the sense of the words preceding them. 
  2. COMMENCEMENT, TERM AND RENEWAL 
    1. This Agreement shall come into force on the date the Customer accepts this Agreement and continue for a subscription period of twelve (12) months from that date. At the expiration of each subscription period, this Agreement shall renew automatically for successive subscription periods of twelve (12) months each unless otherwise terminated by either party giving not less than ninety (90) days’ written notice, such termination to become effective at the end of a subscription period.
    2. This Agreement consists of the Order Form, these Merchant Terms and the Documentation.
  3. YOYO’S RESPONSIBILITIES 
    1. In consideration of the Customer paying the Fees (and subject to Customer’s performance of this Agreement in accordance with its terms), Yoyo shall:
      1. use its commercially reasonable endeavours to make available the Services available 24 hours a day, 7 days a week, except for (a) planned maintenance; (b) force majeure events under clause 14.4; and (c) failures or delays caused by the malicious software or attacks on Yoyo’s systems and/ or software, the internet, Non-Yoyo Services; and
      2. make available the Services (a) using reasonable skill and care; (b) in accordance with the terms of this Agreement; and (c) in accordance with Applicable Law. Unless otherwise agreed in the Order Form (and, if applicable, the relevant Order Form) any time specified for performance of the Services is indicative only and time shall not be of the essence in Yoyo’s performance of the Services.
      3. Yoyo shall be free to (but shall be under no obligation to) update the Services and the features and functionality available in them at Yoyo’s sole discretion. Yoyo shall use reasonable endeavours to provide Customer with notice of any such update but failure to do so shall not amount to a breach of this Agreement or limit Yoyo’s rights under this clause.
  4. CUSTOMER’S USE OF THE SERVICES 
    1. Subscription. Unless otherwise provided in the applicable Order Form or Documentation (a) the Services and access to Content are purchased as subscriptions for the term of this Agreement; and (b) the Customer may add subscriptions for additional Services by accepting one or more additional Order Form(s) and each such Order Form shall be entered into subject to, and incorporating, these Merchant Terms and constitute a single agreement together with this Agreement. Customer shall immediately cease all access to, and use of, the Content and Services on any termination or suspension.
    2. Customer Responsibilities. 
      1. Customer shall (a) use the Services only in accordance with this Agreement, the Documentation and the Order Form; (b) comply with all Applicable Laws; (c) be responsible for its (and its Affiliates’) personnel compliance with this Agreement, the Documentation and the Order Form; (d) comply with the terms of service of any Non-Yoyo Service with which Customer uses the Services and Content; (e) be responsible for the accuracy, quality and legality of Customer Materials, the means by which Customer acquires Customer Materials, Customer’s use of Customer Materials with the Services, and the interoperation of any Non-Yoyo Services with which Customer uses the Services and Content; (f) use virus detection and eradication measures in relation to its systems in line with reasonable industry practice; and (g) ensure the Services are used only for lawful purposes by its personnel who reasonably need access to the Services.
      2. Customer alone is responsible for the security and proper use of its user names, passwords, and security check words and other details used in connection with the Service and its Yoyo account and shall ensure that they are kept confidential, used properly and not disclosed to any unauthorised person or used in an unauthorised way. Customer shall be responsible for any access to, or use of, the Services or its Yoyo account. Customer shall notify Yoyo without delay in the event of any unauthorised use of the Service using Customer’s account or where any security feature has or may have been breached or compromised. Furthermore, Customer shall promptly change its passwords and security check words if there is any reason to believe that a password or security check words have or are likely to become known to someone not authorised to use them or are being or are likely to be used in an unauthorised way.
    3. Use Restrictions. Customer shall (a) not knowingly introduce into Yoyo’s systems any computer software routine intended or designed to disable, damage, erase, disrupt or impair the normal operation of, or provide unauthorised access to or modification or monitoring of, any computer system or any software or information stored on any computer system, including viruses, worms, time bombs, time locks, drop-dead devices, access codes, security keys, back doors or trap door devices; (b) not use a Service or Non-Yoyo Service to store or transmit infringing, defamatory or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights; (c) not allow access to the Services or Content by any person (save for Customer’s personnel who have a need to access them in relation to the performance of this Agreement); (d) not sell, resell, leverage, rent, lease, license or otherwise provide a service based on or incorporating the Services or Content; or (e) launch, run or maintain a Campaign on behalf of any third party or include in any Campaign any brand that is not owned or licensed by the Customer. The Services may not be accessed or used for (i) monitoring their availability, performance or functionality; or (ii) any other benchmarking or competitive purposes.
    4. Roles of the Parties. The parties acknowledge and agree that: 
      1. in relation to Mobile Applications, Yoyo will be the app publisher and operator;
      2. Customer will be the merchant and retailer in respect of the sale of goods and services to Users and will be responsible for all Transactions, Vouchers and refunds; 
      3. Users hold their account with Yoyo and not with the Customer;
      4. Customer shall be the promoter and operator of all Campaigns and Customer is responsible for any goods or services that are the subject of the Campaign or that a User purchases in relation to the Campaign. Yoyo will have no role other than to enable the processing of Transactions relating to the Campaign and, where applicable, publish Content and Customer Materials in relation to the Campaign on behalf of Customer;
      5. in relation to User support (a) Yoyo will use its commercially reasonable endeavours to provide User support relating to use of the Mobile Applications; (b) Customer will be responsible for all complaints, questions, claims, disputes and support in relation to the operation of a Campaign, the Customer Materials, the goods and services that are the subject of a Transaction or Campaign and/ or in relation to Outlets; and (c) without prejudice to this clause 4.4.5, Yoyo may address and attempt to settle or resolve User complaints, questions, claims and disputes (regardless of fault) with ad-hoc goodwill gestures (including the issue of Vouchers (which Customer agrees to honour)) to the extent reasonably necessary and proportionate to resolve the complaint, question, claim or dispute.
    5. Payment Services. Where Yoyo provides Payment Services it does so subject to the Payment Services addendum, which addendum is incorporated into this Agreement by reference and the Customer agrees to be bound by and comply with such addendum.
    6. Loyalty Services 
      1. The provision of certain Services is subject to Users consenting (and not withdrawing consent) to receiving direct marketing from or on behalf of Yoyo under Data Protection Laws. Customer alone is responsible for the Customer Materials, messages or information found in any communication made to a User in relation to a Campaign.
      2. Customer shall: 

        (a) provide Yoyo with such details of each Campaign as Yoyo may require and any applicable Customer Materials within a reasonable period (and, in any case, at least two (2) business days) before the commencement of the relevant Campaign (or, if applicable, before the application of new or updated Customer Materials);

        (b) ensure that all Campaigns and Customer Materials (i) comply with all Applicable Laws (including, for the avoidance of doubt, all advertising, consumer protection, product liability, data protection and privacy laws, laws relating to the protection of children or young persons, and all laws relating to lotteries, gambling, betting, gaming or similar activities); (ii) are accurate in all respects and are not misleading, and that the prices clearly specify all applicable taxes, duties and delivery charges (of whatever nature and for whatever jurisdiction); (iii) are consistent with any description appearing on Customer’s website and of satisfactory quality and fit for purpose (and, where the Campaign relates to services, such services are performed with reasonable skill and care and in accordance with good industry practice); (iv) do not include any content which is offensive, unlawful, defamatory or obscene; (v) do not include any third party brands or content without the express written consent of the brand or content owner (including, for the avoidance of doubt, the right to sublicense such rights to Yoyo pursuant to the terms of this Agreement); and (vi) are not aimed at or made available to, anyone under 16 or such higher age limit as required to comply with Applicable Law; and

        (c) ensure that the Customer Materials include clear and lawful terms for participation in any Campaigns (such terms to be applicable as between the Customer and Users) and Customer shall ensure that such terms (i) are set out on Customer’s website in a location that can be reached with a one-click link, which Customer will include in the Customer Materials published in the Mobile Application; (ii) clearly state that Customer is the promoter and operator of the Campaign and that Customer (and not Yoyo) is responsible for any goods or services that are the subject of the Campaign or that a User purchases in relation to the Campaign; and (iii) clearly state that a User may cease to be eligible to participate in the Campaign, and any Vouchers will expire immediately, if (1) the User’s Yoyo account is closed for any reason; (2) Customer ceases to accept Transactions from Users; or (3) Customer discontinues the relevant Campaign for any reason.
    7. Retailer Branded App. 
      1. Yoyo’s retailer branded app (“ RBA ”) Service consists of the provision of a white-label Mobile Application, configured with Customer’s trade marks, logos, branding and other Customer Materials and in relation to which Services may be interoperable.
      2. A User that creates an account using the RBA will create an account with Yoyo and will be required to accept Yoyo’s User Terms (and acknowledge Yoyo’s Privacy Notice) in relation to the creation of the account and the User’s use of the RBA. A User that creates an account via the RBA will be free to use that account in relation to other Mobile Applications as well as the RBA.
      3. Performance of these Services is subject to Customer providing the Customer Materials promptly and, in any case, no less than thirty (30) days before the delivery date specified in the Order Form for launch of the RBA. Where Yoyo launches the RBA using the Customer’s app store account, the Customer Materials shall include a written letter of consent (as required by the Google Play Store) signed by a duly authorised person on behalf of the Customer (or owner of the branding included in the RBA).
      4. From delivery of the RBA, Customer shall have a period of ten (10) business days in which to (a) raise material defaults (acting reasonably) in the use of the Customer Materials incorporated in the RBA; or (b) notify Yoyo that the Customer accepts the RBA. If Customer does identify material defaults (acting reasonably) in the use of the Customer Materials in the RBA, Customer shall provide Yoyo with written details of the material defaults and Yoyo shall have a reasonable period in which to remedy the defaults. If Customer fails to notify Yoyo of material defaults within such period or uses the RBA for any purpose other than for its own internal assessment, Customer will be deemed to have accepted the RBA.
      5. Unless otherwise agreed in writing, Yoyo shall create an app store account specific to the RBA and publish the RBA on the Launch Date (as specified in the Order From). Yoyo will manage the app store account and, unless otherwise agreed in writing, will not provide Customer with access to the app store account.
      6. Yoyo shall be free to (but shall be under no obligation to) update the RBA and the features and functionality available in them at any time at Yoyo’s sole discretion.
    8. Suspension and take down. Any use of the Services in breach of this Agreement (or its personnel) or which in Yoyo’s discretion threatens the security, integrity or availability of the Services or rights of a User, may result in Yoyo suspending the Services immediately without notice. Yoyo will use commercially reasonable endeavours to provide Customer with notice and an opportunity to remedy such violation or threat prior to any such suspension. Yoyo may reject any Campaign and/ or Customer Materials, refuse to publish a Campaign or Customer Materials or withdraw any Campaign or Customer Materials from publication (including by suspending the Services, in whole or in part) at its discretion. Customer acknowledges and agrees that, given the nature of electronic publishing, it is impossible for Yoyo to permanently remove or delete Customer Materials from Users’ devices and/ or the internet.
  5. FEES AND PAYMENT 
    1. Customer shall pay the Fees specified in the Order Form in full and without set off, withholding or deduction and, unless otherwise agreed in the Order Form. Yoyo shall be free to appoint an agent to provide invoicing and collection services on its behalf. Yoyo (or its agent) shall invoice monthly:
      1. in advance in respect of any recurring licence or subscription Fees and Customer shall pay such Fees to Yoyo (or its agent) before the start of each calendar month; and
      2. monthly in arrears in respect of any Transaction or volume related Fees and Customer shall pay the Fees to Yoyo (or its agent) within thirty (30) days of the date of invoice.
    2. Yoyo may at any time and without notice set off any amounts it owes to Customer against amounts owed by Customer to Yoyo (including, for the avoidance of doubt, any Disbursal owed by Yoyo under the Payment Services).
    3. The Fees are exclusive of any taxes and duties (including VAT), which the Customer shall pay in addition at the rate prescribed by law at the time in addition to the Fees. To the extent Customer is obliged by Applicable Law to pay or collect taxes and duties for which Yoyo is responsible, Customer shall add such amount to the amount payable such that Yoyo receives the full amount payable gross of any such taxies or duties.
    4. Any Fees overdue shall bear interest at 4% above the base rate available from the Bank of England from time to time, from the due date until the date of payment, both days inclusive, which interest shall be compounded monthly in arrears.
    5. Yoyo may change the Fees by giving not less than sixty (60) days’ written notice at any time. If Customer does not accept the proposed price increase it may terminate this Agreement by giving not less than fifteen (15) days’ written notice, such notice not to take effect before the effective date of the change in the Fees. If Customer fails to give such notice, Customer will have accepted such change as a variation to this Agreement.
  6. OWNERSHIP AND GRANT OF RIGHTS 
    1. Nothing in this Agreement shall be construed as an assignment or transfer of any Content, Customer Materials or Intellectual Property Rights by either party. Each party owns and shall continue to own their respective rights, title and interests in all such Content, Customer Materials and Intellectual Property Rights. Save as expressly set out in this Agreement, no rights are granted by licence or otherwise in respect of either party’s Content, Customer Materials or Intellectual Property Rights.
    2. Title and any rights in any Content or Intellectual Property Rights created or arising from the performance of the Services shall vest in Yoyo from creation (whether in respect of existing or future rights) save that:
      1. any Intellectual Property Rights created or arising from the use of the Customer Materials shall vest in Customer from creation (whether in respect of existing or future rights); 
      2. any goodwill arising from the use of a party’s trade marks, logos or branding shall vest in the owning party; and
      3. if Customer, its Affiliates or their respective staff provide any feedback, comments or suggestions in relation to the Mobile Application or Services, any Intellectual Property Rights in the feedback, comments or suggestions shall vest in Yoyo. Customer represents and warrants that (a) none of the feedback, comments or suggestions will be subject to any obligation of confidence on the part of Yoyo; and (b) Yoyo will be entitled to unrestricted use and other exploitation of the feedback, comments or suggestions for any purpose whatsoever, commercial or otherwise, by any means, by any media, without compensation to the provider, author, creator or inventor of the feedback, comments or suggestions.
    3. The Customer grants Yoyo a non-exclusive, non-transferable, royalty-free, fully paid right to use the Customer Materials and Intellectual Property Rights during the term of this Agreement to (a) perform the Services; (b) promote the use of the Mobile Applications; and (c) refer to Customer as a customer of Yoyo in Yoyo’s promotional materials. Yoyo may include Customer Materials and Intellectual Property Rights in case studies provided that the publication of any such case study shall be subject to Customer’s approval (such approval not to be conditioned, withheld or delayed unreasonably). Yoyo may sublicense such rights to its Affiliates.
    4. Yoyo grants Customer a non-exclusive, non-transferable, royalty-free, fully paid right during the subscription period to use (a) the Content only to receive the benefit of the Services; and (b) Yoyo’s trade marks, branding and logos provided by Yoyo to promote the use of the Mobile Applications in Outlets. Customer shall not sublicense these rights.
    5. In relation to the other party’s Intellectual Property Rights, neither party shall (and shall not allow a third party to) (a) except to the extent permitted by Applicable Law disassemble, decompile or reverse engineer the same; (b) modify, or create derivative works from, the same; or (c) remove or modify any attestation of ownership. Where a party uses the other’s trade marks, logos or branding, it shall do so only in accordance with the other party’s branding guidelines (as amended from time to time).
    6. The parties acknowledge and agree that Yoyo will not deliver any source or object code to Customer. 
  7. CONFIDENTIAL INFORMATION 
    1. Each party shall (a) keep confidential the other party’s Confidential Information using the same degree of care it uses in respect of its own information of a like nature and, in any case, no less than a reasonable degree of care; (b) not use the other party’s Confidential Information for any purpose other than the proper performance of, or exercise of its rights under, this Agreement; and (c) not disclose the other party’s Confidential Information to any other person save for its (and its Affiliates’) directors, employees, personnel and professional advisors who have a need to know in respect of this Agreement and who are bound by undertakings comparable to those set out in this clause. This clause shall not prevent a party disclosing the other party’s Confidential Information to the extent required to comply with Applicable Law.
    2. On written request (and, in any case, on the termination of this Agreement) each party shall return or permanently destroy or delete all Confidential Information of the other party. 
  8. PRIVACY AND DATA PROTECTION 
    1. Subject to clause 8.5 (and save as expressly stated in an Order Form in respect of certain Services and, in which case, the Data Processing Addendum is incorporated into this Agreement by amendment), in relation to all Personal Data generated through use of the Mobile Application and/ or the Services or otherwise processed in relation to this Agreement, Yoyo will be the controller and will not share any Personal Data about any User with Customer save as necessary to refer a User to the Customer for support from the Customer as set out in clause 4.4.5. Yoyo’s ability to share Personal Data about Users is dependent on Users consenting and is subject to any applicable rights of opt out by the User. To the extent Yoyo does share Personal Data with Customer, Customer shall act as a controller of such Personal Data.
    2. Each party shall comply with all applicable requirements of Data Protection Law and shall be liable for its own acts and/ or omissions under Data Protection Law. This clause 8 is without prejudice to a party’s rights and obligations under Data Protection Law.
    3. Each party shall (a) ensure that it has in place and maintains all necessary consents and permissions to transmit to, and otherwise share, Personal Data with the other party for the purposes of this Agreement; (b) notify the other party promptly if it receives a request or notice from a data subject exercising its right under the Data Protection Law or from a regulator or regulatory body with respect to the processing of Personal Data in relation to this Agreement and, in which case, each party shall provide such information, access, cooperation and assistance as the other party may reasonably request; and (c) provide such information, cooperation and assistance as the other party may require reasonably to assist it to comply with its own obligations under the Data Protection Law (including by completing questionnaires and due diligence exercises promptly, completely and accurately).
    4. In the event of any suspected or actual breach of this clause 8 , or other data protection or privacy breach, each party shall (at its own expense) notify the other promptly (but, in any case, within forty- eight (48) hours) and provide such information, assistance and cooperation and do such things as the other party may request reasonably to (a) investigate and defend any claim or regulatory investigation; and (b) mitigate, remedy and/or rectify such breach.
    5. Personal Data of Customer’s Personnel. Where Yoyo processes the Personal Data of Customer’s personnel in relation to the provision of the Services to the Customer it does so subject to the Yoyo data processing addendum, which addendum is incorporated into this Agreement by reference and the Customer agrees to be bound by and comply with such addendum.
  9. THIRD-PARTY SERVICES 
    1. Any use by Customer of Non-Yoyo Service, and any exchange of data between Customer and the provider of such product or service is solely between Customer and the Non-Yoyo Service provider. Yoyo shall not be responsible for any statements, offers or other information made available from the Non-Yoyo Service and Yoyo cannot guarantee the performance, accuracy, integrity or quality of any Non-Yoyo Service.
    2. The Services may contain features designed to interoperate with Non-Yoyo Services. Yoyo cannot guarantee the continued availability of any Service (and may modify them and/ or cease providing them in whole or in part without entitling Customer to any refund, credit, or other compensation) if, for example and without limitation, Non-Yoyo Service provider ceases to make available, or changes, the Non-Yoyo Service.
    3. Customer shall (a) ensure that Non-Yoyo Service providers and any of its other suppliers provide Yoyo with such co-operation and assistance as reasonably required for Yoyo to perform the Services; (b) ensure its Non-Yoyo Service providers take all necessary steps to integrate, test and make operational the Non-Yoyo Services in the timeframes agreed by Customer and Yoyo and to the standard required by Yoyo from time to time; (c) provide, at its own expense, all necessary functioning equipment, software, systems and telecommunications facilities within its environment as necessary to receive and use the Services; and (d) be responsible for the acts and omissions of the Non-Yoyo Service provider as if they were Customer’s own acts and omissions. 
  10. REPRESENTATIONS AND WARRANTIES 
    1. Each party represents and warrants that (a) this Agreement does not conflict with or result in a breach of any of the terms, conditions or provisions of, or constitute a default or require any consent under, any agreement or other instrument or arrangement to which it or any of its assets are bound; (b) it has the full power and authority (including the necessary corporate and regulatory approvals) to enter into, execute and deliver this Agreement and to perform its obligations under this Agreement; and (c) it holds all necessary Intellectual Property Rights to enter into and to perform this Agreement and no Intellectual Property Rights provided by it (or on its behalf) to the other party will infringe or misappropriate the Intellectual Property Rights of any third party or breach Applicable Law. The Customer further represents and warrants that it holds has the full power and authority (including the necessary corporate and regulatory approvals) to bind its Affiliates named in an Order Form to this Agreement and such Affiliates shall be bound by the terms of this Agreement as if it were an original party to it.
    2. Except for the representations and warranties expressly stated in this Agreement, to the maximum extent permitted by law, Yoyo disclaims all representations and warranties of any kind, express or implied (and whether by statute, law or a course of dealings) including as to merchantability, title and/ or non-infringement. Without limiting the generality of the foregoing, Yoyo specifically does not warrant that a Mobile Application, the Services or Content will meet the requirements of Customer or that they will be fit for a particular purpose, accurate or operate without interruption or error. Customer acknowledges that, in entering into this Agreement, it has not relied on any promise, warranty or representation not expressly set out in or incorporated into this Agreement by express reference.
    3. Customer agrees that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Yoyo regarding future functionality or features. 
  11. DEFENCE AND INDEMNIFICATION
    1. Yoyo shall defend and hold harmless Customer from and against any damages awarded in relation to any third party claim, suit, action or proceedings that Customer’s use of the Services in accordance with this Agreement infringes or misappropriates any Intellectual Property Rights of that third party provided that Customer shall not receive the benefit of this clause in relation to (a) use of an altered or modified Service where such alteration or modification is made by any person other than Yoyo (or a person acting on Yoyo’s behalf); (b) the combination, operation or use of the Service with any service, software, hardware or data not furnished by Yoyo (including any Non-Yoyo Service and/ or the Customer Materials); or (c) third-party software or hardware.
    2. In the case of a claim, suit, action or proceedings (actual or potential) pursuant to clause 11.1 Yoyo, at its own expense, shall be entitled to (a) modify or replace the affected Service so as to eliminate the cause of the claim; or (b) obtain the right for Customer to continue to use the affected Service.
    3. Customer shall indemnify and hold harmless Yoyo from and against all losses, costs, liabilities, demands, claims, judgments, awards, damages, amounts payable in settlement, costs, fines, penalties, charges and expenses (including all legal and other professional fees, expenses and disbursements) which Yoyo sustains or incurs arising from (a) a third party claim, suit, action, assessment or proceedings relating to the use or possession of Customer Materials or Intellectual Property Rights in accordance with this Agreement (a) infringing or misappropriating any Intellectual Property Rights of any third party; or (b) not complying with Applicable Law.
    4. A party seeking to rely on clauses 11.1 or 11.3 in connection with any claim, suit, action, assessment or proceedings shall not admit any liability and provide the other party with (a) written notice, without delay, of such claim, suit or action; and (b) reasonable co-operation and assistance in connection with the defence and settlement of such claim, suit, action or proceedings, at the other party’s expense.
  12. LIMITATIONS AND EXCLUSIONS OF LIABILITY
    1. Nothing in this Agreement shall limit or exclude a party’s liability for (a) death or personal injury caused by its negligence; (b) for fraud or fraudulent misrepresentation; (c) infringement of the other party’s Intellectual Property Rights; (d) for any other liability which cannot be limited or excluded by law; or (e) Customer’s obligation to pay the Fees when due.
    2. Subject to clause 12.1:
      1. neither party shall be liable to the other for (a) any indirect, special or consequential loss; or (b) loss of goodwill or reputation; or (c) loss of profit, business, opportunity or contract, in each case, however arising (whether from breach of contract, tort (including negligence), breach of statutory duty or otherwise) and whether or not foreseeable or the parties knew of or could foresee such loss;
      2. Customer’s aggregate liability under this Agreement (whether in contract, tort or otherwise) shall not exceed the greater of £50,000 or the value of the Fees paid or payable under this Agreement; and
      3. Yoyo’s aggregate liability under this Agreement (whether in contract, tort or otherwise) shall not exceed the lesser of £ 1 0,000 or the value of the Fees paid under this Agreement.
  13. SUSPENSION AND TERMINATION
    1. Yoyo may suspend provision of the Services where (a) it is required to do so by Applicable Law (including the Card Scheme Rules or on the instruction of a Card Scheme or a regulator); (b) acting reasonably, it believes Customer, or the continued performance of the Services, is or may be in breach of this Agreement, Applicable Law or the Documentation (or, in relation to the Payment Services, the Card Scheme Rules or Data Security Standards); (c) it is necessary to prevent fraud, unlawful or unauthorised Transactions or unauthorised use of the Services; or (d) customer fails to pay any Fees within thirty (30) days of the due date for payment.
    2. Either party may terminate this Agreement with immediate effect by giving notice in writing if the other party commits any material or persistent breach of this Agreement and (in the case of a material breach which is capable of being remedied) fails to remedy the same within ten (10) days of receipt of a written request requiring the same.
    3. Customer shall notify Yoyo immediately if it is reasonably likely that Customer (a) will become unable to pay its debts (within the meaning of section 123 of the Insolvency Act 1986); (b) will become bankrupt or insolvent; (c) will become subject to an order or a resolution for its liquidation, administration, winding-up or dissolution (otherwise than for the purposes of a solvent amalgamation or reconstruction); (d) has an administrative or other receiver, manager, trustee, liquidator, administrator or similar officer appointed over all or any substantial part of its assets; (e) will enter into or proposes any composition or arrangement with its creditors generally; or (f) will be subject to any analogous event or proceeding in any applicable jurisdiction and, in which case (i) Customer shall pay all Fees invoiced and not already paid; (ii) all Fees for the remainder of the subscription period not already invoiced shall become due immediately; and (iii) to the extent such events have not already occurred, Yoyo shall be entitled to terminate this Agreement immediately by giving written notice.
    4. Termination of this Agreement (however caused) shall not affect the coming into force or the continuance in force of those provisions intended or expressed to do so, nor shall it affect the rights and liabilities of the parties which have accrued prior to termination. For the avoidance of doubt, clauses 6 to 8 (inclusive) and 10 to 14 (inclusive) shall survive termination of this Agreement.
    5. Upon any termination of this Agreement (a) the Customer shall pay Yoyo for all Services performed through the effective date of termination; and (b) any rights granted under this Agreement shall terminate immediately.
  14. GENERAL
    1. These Merchant Terms (together with the Order Form and Documentation) set out the entire agreement and understanding (and supersedes all previous agreements and understandings) made between the parties in relation to its subject matter and embodies the entire agreement of the parties. In particular, no statement, representation or warranty made by either party (whether before, on or after signing of this Agreement and whether such statement, representation or warranty induced either party to enter into this Agreement or do or omit to do anything) shall be effective or enforceable or give rise to any right or remedy unless it is repeated expressly in this Agreement. Nothing in this clause shall serve to exclude the liability of either party in respect of any fraudulent pre-contractual statement or misrepresentation.
    2. Nothing in this Agreement shall serve to exclude the liability of either party in respect of any fraudulent pre-contractual statement or misrepresentation.
    3. Nothing in this Agreement shall serve to create a partnership or joint venture of any kind between the parties or as constituting either party as the agent or employee of the other party for any purpose whatsoever and neither party shall have the authority or power to bind the other party, or to contract in the name of, or create a liability against, the other party in any way or for any purpose.
    4. If either party is delayed or prevented from carrying out any of its obligations under this Agreement due to an event of force majeure (consisting of factors beyond its reasonable control, pandemic or widespread disease, war, strikes, industrial action, civil unrest, lockouts, fire, flood, acts of terror, acts of any regulatory or governmental body but not, for the avoidance of doubt, as a result of a lack of financial, technological or human resources), that party shall be excused performance of such obligation for as long as and to the extent that the prevention or delay continues. The Customer may not rely on this clause to delay or withhold payment of any amount due under this Agreement. The party seeking to rely on the relief set out in this clause shall be entitled to such relief only where (a) it gives prompt notice in writing describing the circumstance of the force majeure event and the expected duration of the delay; (b) uses reasonable endeavours to remedy its inability to perform; and (c) the circumstances giving rise to that event are not reasonably foreseeable and could not have been avoided by taking reasonable precautions.
    5. oyo shall be free to amend or vary this Agreement by giving not less than (a) two (2) months’ written notice in respect of the Payment Services; or (b) thirty (30) days’ written notice in respect of all other terms and conditions. Customer shall be deemed to have accepted such amendments or variations on the earlier of (i) acceptance of the amended or varied Merchant Terms; or (ii) the expiration of such period (unless the Customer communicates otherwise in writing prior to the amendments or variations taking effect. This Agreement (and any variation to it) may be entered into in any number of counterparts by the parties, each of which (when executed and delivered, which may be by delivering a PDF copy of a signed original) shall be an original but all the counterparts shall together constitute one and the same agreement.
    6. This Agreement may not be assigned by the Customer to any third party. Yoyo may assign its rights (but not its obligations) under this Agreement in whole or in part by giving written notice. Further, Yoyo may assign this Agreement, without consent, to its Affiliates or in connection with a merger, acquisition, corporate reorganisation or sale of all or substantially all of its assets. Yoyo may subcontract this Agreement in whole or in part without the need to give notice.
    7. The provisions of this Agreement shall be severable and if any provision of this Agreement shall be held or declared illegal, void, invalid or unenforceable, it shall not affect any other provision hereof and the remainder of this Agreement disregarding the affected part shall continue in full force and effect as though the affected part had not been included.
    8. No provision or right accrued under this Agreement shall be deemed waived unless such waiver is in writing and signed by the party against which the waiver is sought to be enforced. Any waiver of any breach or right accrued under this Agreement by either party shall not be construed to be either a waiver of any succeeding breach of any such provision or a waiver of the provision itself. No remedy conferred by any provision of this Agreement is intended to be exclusive of any other remedy except as expressly provided for in this Agreement and each and every remedy shall be cumulative and shall be in addition to every other remedy given thereunder or existing at law or in equity by statute or otherwise.
    9. The provisions of the Contracts (Rights of Third Parties) Act 1999 shall not apply to this Agreement. No third party shall have any right under, or in connection to, this Agreement.
    10. This Agreement and any matters arising from or in relation to it (whether or not contractual) shall be governed by English law and the parties irrevocably submit (without regard for conflict of law rules) to the exclusive jurisdiction of the English courts.