Amigo Project Ltd, (trading as Vyou):
1.1 This Agreement shall confirm the agreement between Amigo Project Ltd (The holding Company of Vyou) (the “Company”) and you, (the "Customer") pursuant to which we, the Company, will provide the Customer with services and deliverables (the “Services”) via the Company’s platform, (the “Platform”). By accessing the Services, you agree to comply with these Terms and Conditions.
1.2 The Customer acknowledges that Platform and any data made available by the Company to the Customer through the Platform from time to time, (the “Company Data”) is proprietary to the Company and the Company shall own all rights (including all intellectual property rights) in the Platform and this Company Data.
1.3 The Company grants to the Customer, subject to payment of the fee, a limited, non- exclusive, non-transferable right to use the Platform and the Company Data for the provision of the Services during the term of this Agreement.
There are no fees payable (as mentioned above in 1.3) by you during the MVP. The Company reserves the right to charge fees for future roll outs of the Platform, any product enhancements made to the Platform, and the inclusion of additional user/s onto the Platform.
3. Company Warranties
3.1 The Company warrants that:
(i) it shall use due care and follow highest professional standards while providing the Services to the Customer;
(ii) it has all necessary rights, authorisations and licences to provide the Services;
(iii) it shall provide the Services in accordance with all applicable laws and regulations (including, without limitation, Data Protections Laws);
(iv) neither the use of the Platform nor the Services shall infringe or violate any patents, copyrights, trade secrets, licences or other proprietary rights of any third party.
3.2 The Company shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week except for:
(i) planned maintenance; and
(ii) unscheduled maintenance performed outside normal business hours.
The Company does not warrant that:
(i) the use of the Services by the Customer will be uninterrupted or error free; or that
(ii) the information obtained by the Customer through the Services will meet the Customer’s requirements. The Company will endeavour to advise the Customer of maintenance (scheduled or unscheduled) events within a 24 hour period of maintenance commencement.
4. Customer Warranties
The Customer warrants that it shall
(i) provide the Company with all necessary co-operation and access to all necessary information and may be reasonably required by the Company to provide the Services;
(ii) not be permitted to take copies of any Company Data or store any Company Data outside of the Platform
(iii) not access, store, distribute or transmit any viruses;
(iv) ensure always that its use of the Platform and Services is in accordance with applicable laws and regulations (including, without limitation, Data Protection Laws);
(v) obtain any necessary consents in order to access the Services and the Platform; and
(vi) not attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Platform in any form or media or by any means or attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Platform.
(vii) provide the Company with access to agreed-upon systems, applications and platforms that are required in order for the Company to provide the agreed upon Services.
5. Data Protection
5.1 Data Protection Laws means applicable laws relating to:
(i) data protection; (ii) privacy; and (iii) restrictions on, or requirements in respect to, the processing of personal data of any kind, including the EU General Data Protection Regulation 2016/679, (“GDPR”). “Data Controller”, Data Processor”, “Data Subject”, Personal Data” and “Processing” shall have the same meanings as in the Data Protection Laws and shall be construed accordingly. Neither Party shall do anything that would cause the other Party to be in breach of its obligations under the Data Protection Laws. The Customer is the Controller for the purposes of personal data provided as part of the Services. The Company shall only process any Personal Data for the purposes notified to it by the Customer and shall comply with all instructions to ensure compliance with Data Protections Laws. The Company shall not, without the prior written consent of the Customer, transfer any such data to a country or territory outside the European Economic Area unless adequate contractual or other assurances have first been put in place such as will enable each Party to comply with the requirements of the Data Protection Laws.
5.2 The Company shall:
(i) comply with and meet its obligations under the Data Protection Laws and its obligations with respect to Personal Data under this Agreement and in particular, without limitation, where the Data Protection Laws includes the GDPR, those obligations referenced in Article 28 of the GDPR;
(ii) process the Personal Data only on behalf of the Customer, only for the purposes of performing this Agreement and only in accordance with documented instructions contained in this Agreement or received from the Customer from time to time;
(iii) not otherwise modify, amend or alter the contents of the Personal Data or disclose or permit the disclosure of any of the Personal Data to any third party unless specifically authorised in writing by the Customer;
(iv) implement appropriate technical and organisational measures to protect the Personal Data against unauthorised or unlawful processing and against accidental loss, destruction, damage, alteration or disclosure. If requested by the Customer, the Company shall provide a written description of the technical and organisational methods employed by the Company for processing Personal Data (within the timescales reasonably required by the Customer);
(v) provide reasonable assistance to the Customer in ensuring compliance regarding security of Personal Data and data protection impact assessments and prior consultations. Where the Data Protection Laws includes the GDPR, this shall include all provisions of Articles 32 to 34 (both inclusive) of the GDPR;
(vi) assist the Customer insofar as is possible to fulfil its obligations to data subjects pertaining to rights of such data subjects. Where the Data Protection Laws includes the GDPR, this shall include all data subject access rights in Chapter III of the GDPR;
(vii) not publish, disclose or divulge any of the Personal Data to any third party including, for the avoidance of doubt, the data subject itself unless directed to do so in writing by the Customer;
(viii) take reasonable steps to ensure the reliability of any of the Customer's personnel who have access to the Personal Data;
(ix) ensure that only those of the Customer’s personnel who need to have access to the Personal Data are granted access to such Personal Data and only for the purposes of the performance of this Agreement and all of the Customer’s personnel required to access the Personal Data are informed of the confidential nature of the Personal Data, are under a contractual and/or statutory obligation to keep such Personal Data confidential;
(x) promptly and without delay (but in any event within 24 hours of becoming aware of it) notify the Customer in writing of any unauthorised disclosure, loss, destruction, compromise, damage, alteration, or theft of Personal Data (including unauthorised access to or use of Customer’s systems or data, improper handling or disposal of data, theft of information or technology assets, and/or the inadvertent or intentional disclosure of Personal Data) or, where the Data Protection Laws includes the GDPR, any incident or set of events which may give rise to a personal data breach (as such term is defined under the GDPR);
(xi) promptly (taking into account any obligations upon the data controller specified in the Data Protection Laws, including relevant timelines) refer to the Customer any requests, notices or other communication from data subjects, the regulatory authority in the relevant local jurisdiction or any other law enforcement authority;
(xii) at the election of the Customer, delete or return all Personal Data to the Customer on termination or expiry of the Agreement and delete any existing copies of such Personal Data, unless applicable laws require retention by the Company of any Personal Data, in which case only such Personal Data may be retained strictly for the purposes of compliance with such applicable laws; and
(xiii) Customer Data shall be periodically backed up by the Company, shall be retained by the Company for the duration of the Agreement and will be returned to the Customer upon request. All Customer Data shall be anonymised when stored on the Company’s servers;
(xiv) any Customer Data held by the Company at the date of termination of this Agreement shall, on prior written request, be transferred to the Customer or, at the Customer’s sole request deleted, within 30 days of such termination or as agreed between the Parties.
6. Confidential Information
6.1 Each party acknowledges that it or its employees (including individuals under employment or services contracted to the Customer and Company) may, in the course of performing their responsibilities under this Agreement, be exposed to or acquire information which is proprietary to or confidential to that party or its affiliated companies or their clients or to third parties to whom that party owes a duty of confidentiality. Any and all non-public information of any form obtained by a party or its employees while providing or in receipt of the Services shall be deemed to be confidential and proprietary information. Each party agrees to hold such information in strict confidence and not to copy, record, reproduce (using any medium), sell, assign, license, market, transfer or otherwise dispose of, give or disclose such information to third parties or to use such information for any purposes whatsoever other than the provision of the Services to the Employer and to advise each of its employees who may be exposed to such proprietary and confidential information of their obligations to keep such information confidential.
6.2 The Company may, unless explicitly prohibited by the Customer, use in advertising, publicity, or otherwise the name of the Customer, or any affiliate, partner, employee or agent of the Customer, or any trade name, trade mark, trade device, service mark, symbol or any abbreviation, contraction or simulation thereof owned by the Customer.
7. Intellectual Property
7.1 Nothing in this Agreement shall cause the ownership of any Intellectual Property Rights belonging to one Party to be transferred to the other.
7.2 The Company and/or its licensors shall, as between the Parties, remain the owner of all Intellectual Property Rights in the Company's brands, trademarks and logos, the Platform and Company Data. Except as expressly permitted by this Agreement, the Customer may not use any of the Company's Intellectual Property Rights without the Company's prior written consent.
7.3 The Customer acknowledges that it may create Intellectual Property Rights by improving or suggesting improvements in relation to the Platform to the Company. Any and all improvements shall be owned by the Company. The Customer hereby assigns any and all rights to such Intellectual Property Rights in respect of any improvements to the Company and waives its moral rights in respect thereof.
7.4 Each Party shall promptly bring to the attention of the other any improper or wrongful use of any Intellectual Property Rights of the other Party which comes to their notice.
7.5 The Customer and/or its licensors shall, as between the Parties, shall remain the owner of all Intellectual Property Rights in the Customer's brands, trademarks and logos and shall own all Intellectual Property Rights in the deliverables. The Company waives its moral rights in respect thereof.
8.1 The Company shall indemnify and hold harmless the Customer, its directors or employees, and individuals under binding employment or services contract/s, against any third-party claims that the use of the Platform or Services infringes or violates any proprietary rights, (including intellectual property rights) of any third party. This indemnity is subject to the Customer promptly notifying the Company of such a claim, allowing the Company sole conduct of the defence, negotiation or settlement and providing all reasonable co-operation in relation to any claim.
8.2 The Customer shall indemnify and hold harmless the Company, its directors or employees, and individuals under binding employment or services contract/s, against any and all actions, claims, costs, expenses, damages, fines, penalties and liabilities (including legal fees) arising out of or in connection with the Customer’s use of the Platform or the Services and in respect of the processing of the Company Data under this Agreement.
9. Limitation of Liability
9.1 To the extent permitted by law,
(i) neither the Company nor the Customer shall have any liability to the other in connection with the Agreement (and for the avoidance of doubt including any indemnity liabilities) for any indirect, economic or consequential loss and damage, and;
(ii) the total liability of both the Company and the Customer in connection with the Agreement for direct loss and damage, whether arising in tort (including negligence and strict liability), contract, or otherwise, shall not exceed:
(a) the total of the fees paid or payable for the Services during the period of twelve months immediately preceding the date on which the liability arises; and;
(b) in respect to indemnity liabilities a sum not exceeding £10,000.
9.2 Notwithstanding the aforesaid, no limitation, exclusion or restriction of liability under this Agreement shall apply to any liability arising out of either party’s negligence, fraud, misrepresentation or wilful default.
10. Term and Termination
10.1 The term of the Agreement (“Term”) shall be 12 months.
10.2 Without affecting any other right or remedy available to it, either party may terminate this Agreement on giving not less than one months' written notice to the other party.
10.3 Either party may terminate this Agreement with immediate effect by giving written notice to the other party if:
(i) the other party fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 30 days after being notified in writing to make such payment;
(ii) the other party commits a material breach of any other term of the Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;
(iii) a petition is filed, a notice is given, a resolution is passed, or an order is made for or in connection with the winding up of that party.
11.1 This Agreement does not confer any rights on any person or party (other than the parties to this Agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
11.2 For the avoidance of doubt, the parties agree that any terms and conditions which are now, or may in future, be contained on the Platform, as amended from time to time, which the Customers personnel may access in the course of using the Platform shall be without force and effect, and any purported acceptance of such terms and conditions by any of the Customers personnel by electronic means upon accessing the platform shall be ineffective, and that the Customers use of the Platform shall be subject to this Agreement.
11.3 This Agreement constitutes the entire agreement between the parties in relation to their subject matter and replaces and supersedes all other agreements, written or oral with respect to its subject matter. Each party acknowledges that it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this agreement or not) relating to the subject matter of this Agreement other than as expressly set out in this Agreement.
11.4 No variation of this Agreement shall be effective unless it is in writing and agreed between the parties.
11.5 This Agreement and any non-contractual obligations arising out of or in relation to this Agreement shall be governed in all respects by English law and the parties agree that the English courts shall have exclusive jurisdiction to hear and determine any suit, action or proceedings arising out of or in connection with this Agreement including any non-contractual obligations arising out of or in connection with this Agreement.
Signed as by JON STANNERS, a Director acting for and on behalf of The Company AMIGO PROJECT LIMITED.
DATE: January 8, 2021