Terms of Service
Your Agreement With: ClearYolk
Company number 13237131, whose registered office is: 5-9 Eden Street, Kingston-Upon-Thames, Surrey, KT1 1BQ
In this Agreement the expressions with the initial capital letters listed below shall have the following meanings: “Agreement” these terms and conditions, together with the relevant Specification Document;
“Charges” means the charges to be calculated by ClearYolk in accordance with the provisions of clause 3.
“Christmas Holiday Period” means the School Academic Christmas holiday period;
“Contract Information” means all Information generated in the course of the Services or arising from the performance of the Agreement, excluding residual information such as new skills, know-how and knowledge.
“Customer” a purchaser or licensee of the Goods or Services;
“Data Protection Legislation” means unless and until the General Data Protection Regulation ((EU) 2016/679) (GDPR) is no longer directly applicable in the UK, the GDPR and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK; and then any successor legislation to the GDPR.
“Information” means information whether written or oral or in any form, including but not limited to documentation, specifications, reports, data, notes, drawings, samples, computer outputs and inventions whether patentable or not.
“Initial Term” & “Initial Service Cycle” means in relation to a Service, 12/36 or 60 months from the Service(s) Commencement Date, or such other period as set out in the Order Form or Schedule;
“Office Hours” means between 08h00 and 17h30 Monday to Friday excluding public holidays and Christmas Holiday Period; “Parties” means ClearYolk and Customer;
“Goods” any Hardware or Software sold or licensed by ClearYolk or any Subscription Service provided by ClearYolk;
“Remote” Where work is carried out offsite through means of technology enabling a ClearYolk computer to securely control a customer’s PC or Server.
“Renewal Term” & “Renewal Service Cycle” means the period of 12 months commencing on the expiry of the Initial Term, and each successive period of 12 months thereafter (or such other period as is set out in the Order Form) (each being a “Renewal Term”);
“Replacement Term” or “Upgrade Terms” & “Replacement Service Cycle” or “Upgrade Service Cycle” means any replacement Services the parties may agree following termination or cancellation of the package of Services provided for under this Agreement;
“Service(s)” means the Initial Service, Renewal Service, Replacement or Upgrade Service;
“Site” the Customer’s premises where the Products will be delivered and/or installed;
“Software” the software to be purchased and related materials, updates and enhancements developed by ClearYolk or third parties and supplied by ClearYolk;
“Subscription Service” access to a website or service over a period of time determined by ClearYolk;
“Specification Document” means a quotation, invoice, statement of work, scope of works, project form, order confirmation or other similar document describing the services (and any specific terms) provided by ClearYolk to the Customer which form part of is Agreement;
2.1. Upon execution of the Specification Document, the Customer agreeing to pay the Charges, ClearYolk undertakes to provide the Goods and/or Services during Office Hours from the date hereof subject to these terms and conditions.
2.2 ClearYolk shall use all reasonable endeavours to meet any performance timescales specified, but any such timescales shall be estimates only and time shall not be of the essence for performance of the Services.
3.1 ClearYolk will invoice the Customer the amount stated in the Agreement. Payment must be made within 30 days of issue of the relevant invoice.
3.2 ClearYolk will review the Charges periodically and reserves the right to increase these by giving not less than [120 days] notice of change to the Customer in writing. If the Customer does not agree to this increase, the Customer may object in writing to ClearYolk within fourteen (14) days of receipt of the notice from ClearYolk. The Parties will then meet to discuss whether agreement can be reached. If the Parties are unable to come to an agreement then the proposed increase will apply unless the Customer gives notice of termination in accordance with 8.1.4. If the Customer gives such notice (being for a period of no longer than the minimum provided in 8.1.4) within six (6) weeks of receipt of notification of the proposed increase from ClearYolk, the proposed increase will not apply for any part of the notice period.
3.3 Where ClearYolk agrees at the request of Customer to perform the Services outside of or in addition to Office Hours, ClearYolk may impose such higher Charges in accordance with its then current practice which ClearYolk shall notify to Customer prior to commencement of such services.
3.4 The Customer also agrees to pay all reasonable travel, accommodation and subsistence expenses incurred by ClearYolk in the performance of any services outside of this Agreement and to reimburse ClearYolk with the cost of providing any computer facilities, storage media, data preparation, document photocopying, report printing, telephone charges or the like as required in the performance of any additional services which are not covered by this Agreement. Where reasonably practicable, any work undertaken outside of this Agreement will be discussed and agreed upon in advance of the work being carried out and all associated costs will be agreed upon in advance by both parties prior to any additional services being carried out.
3.5 ClearYolk reserves the right to charge the Customer interest in respect of the late payment of any sums due under this Agreement (as well after as before judgement) at 8% above the Bank of England base rate as varied from time to time, from the due date thereof until payment.
3.6 Should the Customer have any query over the contents of any invoice issued by ClearYolk, it shall so notify ClearYolk within seven (7) days of the date of receipt of the relevant invoice, failing which the Customer shall be deemed to accept such invoice as conclusive evidence of the satisfactory performance of the Services as specified therein.
3.7 ClearYolk remains to owner of the Goods until these have been paid for in full.
3.8 Indexation – In addition to any other increases (including for increases in third party costs), ClearYolk have the right, each contract year, to increase the price of an Order to reflect indexation, on 30 days’ notice to the Customer, to the higher of: (i) the price indexed to the Retail Prices Index; (ii) the price indexed to the Consumer Prices Index; or (iii)3%.
4. The Customer’s Obligations
4.1 To assist ClearYolk in the provision of the Goods and/or Services, the Customer shall at its own expense make available:
4.1.1 Access to Customer’s site and computer equipment including any software and licence key information required;
4.1.2 Reasonable working space and facilities if required;
4.1.3 If requested by ClearYolk, a nominated individual, responsible for the IT Operations be available;
4.1.4 If requested by ClearYolk, network access to the computer equipment upon which any software is running;
4.1.5 Such information relating to the Customer’s business as ClearYolk shall reasonably require to fulfil ClearYolk’s obligations hereunder.
4.2 Failure by the Customer to provide any such assistance may prohibit effective action by ClearYolk and render ClearYolk unable to perform the Services and in such circumstances ClearYolk shall have no liability to perform its obligations under this Agreement to the extent that performance is prohibited by such failure of the Customer.
4.3 It is the Customer’s responsibility to ensure that the Services provided under this Agreement meet its requirements.
4.5 The customer agrees that any change in status, forming or becoming a new organisation (such as an Academy) or joining an existing organisation (such as a Trust) will not affect this Agreement. The customer agrees that this Agreement and the Services will remain until the end of the Service Term or until paid for in full as detailed in this Agreement.
4.6 The customer acknowledges that this agreement does not affect any other service provided by ClearYolk. All other services outside of this agreement are subject to separate Agreements and/or Terms and Conditions.
5. Intellectual Property Rights
All Contract Information prepared by or worked on by ClearYolk’s employees shall belong exclusively to the Customer and the Customer shall have the right to obtain from ClearYolk and/or ClearYolk’s employees, and to hold in the Customer’s name all copyrights, trademark registrations, patents or whatever protection the Customer may deem appropriate to the subject matter. ClearYolk agrees to give the Customer reasonable assistance required to protect the rights defined in this paragraph.
ClearYolk warrants that it shall exercise reasonable skill and care in the performance of its obligations hereunder and subject to the foregoing, all conditions, warranties, terms and undertakings, express or implied, statutory or otherwise in respect of the performance by ClearYolk of its obligations hereunder are hereby excluded to the fullest extent permitted by law.
7. Limitation of Liabilities and Insurance
7.1 Except for claims for personal injury or death to the extent caused by the negligence of ClearYolk, its employees, agents or sub-contractors, or claims for fraud, fraudulent misrepresentation or breach of section 2 of the Supply of Goods and Services Act 1982, the total liability of ClearYolk under this Agreement and other associated services shall, regardless of the form of action, not exceed the sum of one million pounds (£1,000,000). In no event shall ClearYolk be liable for lost profits, lost data, business interruptions, special or consequential damages, or indirect or incidental damages, however caused, or for any claim against the Customer by any third party.
7.2 ClearYolk undertakes to take out and maintain public liability cover in a sum of not less than £5 million with a reputable insurance company. 7.3 ClearYolk shall exhibit forthwith upon demand satisfactory evidence of such insurance, the premium receipt and insurance certificate.
7.4, In respect of damaged ICT Equipment / 3rd Party Involvement:
- ClearYolk cannot be held responsible for work carried out by third party organisations acting on behalf of the school.
- ClearYolk can carry out remedial action to rectify problems caused by inappropriate use or third parties. Such work will only be carried out at
the request of the Customer and will be chargeable.
8. Term and Termination
8.1 This Agreement shall become effective on the date as detailed on the Specification Document and shall continue until terminated in accordance with this clause. Subject to this Clause 8, each of the Services will commence on its individual Services Commencement Date and shall continue for the Initial Term. If the Services are Replacement Services, then a new Initial Term shall apply for the Replacement Services. At the end of the Initial Term, each Service will renew for the Renewal Term, and thereafter for consecutive Renewal Terms, unless or until otherwise terminated.
This Agreement may be terminated:
8.1.1 forthwith by ClearYolk if the Customer fails to pay any sum due within thirty (30) days of written notice by ClearYolk to Customer of Customer’s failure to pay in accordance with the Agreement; or
8.1.2 forthwith by either party if the other commits any breach of any term of this Agreement (other than falling within 8.1.1 above) and which (in the case of a breach capable of being remedied) shall not have been remedied within thirty (30) days of a written request to remedy the same; or
8.1.3 forthwith by either party if the other:
(i) enters into liquidation whether compulsory or voluntarily otherwise than for the purpose of amalgamation or reconstruction without insolvency; or
(ii) compounds or make any arrangement with creditors; or
(iii) has a receiver or manager appointed in respect of any or any part of its assets; or
(iv) is the subject of any application for an administration order; or
(v) repudiates this Agreement or refuses to undertake or gives advance notice of refusal to undertake their reasonable obligations under this Agreement.
8.1.4 by either party upon giving the other One Hundred and Twenty (120) days’ written notice prior to the end of the Service Cycle provided the Service Cycle has been paid in full in advance.
8.2 ClearYolk shall have the right to terminate this Agreement forthwith on becoming aware of any change of control of the Customer, meaning the sale, transfer or change of the majority ownership or sale of all or substantially all of the assets of the Customer.
8.3 In the event ClearYolk has provided software and/or related products under this Agreement on a rental or licence basis, the Customer shall certify in writing to ClearYolk, within fifteen (15) days after termination of this Agreement, that all copies and parts thereof of the products and documentation, have been destroyed or returned to ClearYolk.
8.4 If the Agreement is terminated within any period, all sums related to the relevant Service Cycle must be paid in full beforehand.
9. Customer data
9.1 The Customer shall own all right, title and interest in and to all of the Customer Data that is not personal data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Data.
9.3 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 9 is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation.
9.4 The parties acknowledge that:
9.4.1 if ClearYolk processes any personal data on the Customer’s behalf when performing its obligations under this agreement, the Customer is the data controller and ClearYolk is the data processor for the purposes of the Data Protection Legislation (where Data Controller and Data Processor have the meanings as defined in the Data Protection Legislation).
9.4.2 the personal data may be transferred or stored outside the EEA or the country where the Customer and the Authorised Users are located in order to carry out the Services and ClearYolk’s other obligations under this agreement.
9.5 The Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to ClearYolk for the duration and purposes of this agreement so that ClearYolk may lawfully use, process and transfer the Personal Data in accordance with this agreement on the Customer’s behalf.
9.6 ClearYolk shall, in relation to any Personal Data processed in connection with the performance by ClearYolk of its obligations under this agreement:
9.6.1. process that Personal Data only on the written instructions of the Customer unless ClearYolk is required by the laws of any member of the European Union or by the laws of the European Union applicable to ClearYolk to process Personal Data (Applicable Laws). Where ClearYolk is relying on laws of a member of the European Union or European Union law as the basis for processing Personal Data, ClearYolk shall promptly notify the Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit ClearYolk from so notifying the Customer;
9.6.2. not transfer any Personal Data outside of the European Economic Area and the United Kingdom unless the following conditions are fulfilled:
(i) the Customer or ClearYolk has provided appropriate safeguards in relation to the transfer;
(ii) the data subject has enforceable rights and effective legal remedies;
(iii) ClearYolk complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
(iii) ClearYolk complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the Personal Data;
9.6.3. assist the Customer, at the Customer’s cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
9.6.4. notify the Customer without undue delay on becoming aware of a Personal Data breach;
9.6.5. at the written direction of the Customer, delete or return Personal Data and copies thereof to the Customer on termination of the agreement unless required by Applicable Law to store the Personal Data; and
9.6.6. maintain complete and accurate records and information to demonstrate its compliance with this clause 9.
9.7. Each party shall ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the other party, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it).
9.8. The Customer consents to ClearYolk appointing software providers necessary to deliver the services as a third-party processor of Personal Data under this agreement. ClearYolk confirms that it has entered or (as the case may be) will enter with the third-party processor into a written agreement substantially on that third party’s standard terms of business. As between the Customer and ClearYolk, ClearYolk shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause 9.
10. Confidential Information
10.1 Each party hereto agrees that it will keep secret and will not without the prior written consent of the other use or disclose to any third party any confidential information relating to the business or affairs of the other or the other’s customers learned by such party or disclosed to such party by the other pursuant to or otherwise in connection with this Agreement except insofar as any such information as aforesaid shall (otherwise than by breach of this Agreement) be trivial or obvious or in the public domain. In the event this Agreement is terminated for any reason, each party shall remain responsible for safeguarding the trade secrets and proprietary rights of the other party, and the Customer shall remain responsible for payments due to ClearYolk, or payment for Services supplied by ClearYolk, prior to such termination.
10.2 Each party shall treat as confidential this Agreement and all the Information obtained from the other pursuant to this Agreement and shall not divulge such Information (including the terms of this Agreement) other than in accordance with this Agreement or with the other party’s prior written consent. The parties shall not be liable for disclosure of Information where:
(i) the Information is or becomes publicly available other than through breach of this paragraph;
(ii) either party subsequently and lawfully obtained the Information from a third party or parties without breach of this paragraph as shown by documentation sufficient to establish that the third parties are a lawful source of the Information;
(iii) the parties had the Information prior to this Agreement as shown by the documentation sufficient to establish such knowledge;
(iv) the parties are required by court order, government regulation or other national authority to disclose such Information to a third party.
The parties may disclose Information to its employees, agents and subcontractors and then strictly on a ‘need to know’ basis.
This obligation will survive the termination of this Agreement for a period of five years or until such earlier time as the Information concerned reaches the public domain other than in breach of this Agreement.
11. Call Recording
We may monitor, record, store and use any telephone, email or other communication with you in order to check any instructions given to us, for training purposes and to improve the quality of our customer service.
12.1 Each of the Parties hereby undertake to the other that during the currency of this Agreement and for the period of twelve (12) months following upon its termination (howsoever and by whomsoever occasioned) and/or expiry, not directly or by its agent or otherwise and whether for itself or for the benefit of any other person, induce or endeavour to induce any officer or employee of the other who has been in any way connected with this Agreement during the previous twelve months to leave that other’s employment.
12.2 The Parties accept that breach of clause 12.1 may cause substantial loss and damage to the party not in default. Accordingly the Parties agree that in the event of either party being in default of this clause the party in default shall on demand pay the party not in default such sum as shall equal one (1) years gross salary of the officer or employee concerned.
In the event that any part of this Agreement is declared invalid or unenforceable by the judgement or decree by consent or otherwise of a court or other tribunal of competent jurisdiction from whose decision no appeal is or can be taken, the parties hereto shall endeavour to agree such amendment as will as far as possible validly give effect to their intentions as expressed herein.
14. Force Majeure
Neither party shall be liable for any delay in performing any of its obligations or for failure to perform its obligations (other than the payment of ClearYolk’s charges) under this Agreement if such delay or failure is caused by or results from circumstances beyond the reasonable control of the party, including, without limitation, acts of God, strikes, governmental act, fire, war, explosion, accident, industrial dispute, impossibility of obtaining materials, computer breakdown or bankruptcy of any supplier so delaying or any other such circumstances beyond the party’s reasonable control and such party shall be entitled (subject to giving the other party full particulars of the circumstances in question and to using its best endeavours to resume full performance without avoidable delay) to a reasonable extension of time for the performance of such obligations.
15. Clause Headings etc
15.1 Clause headings are inserted in this Agreement for ease of reference only and do not form part of this Agreement for the purposes of interpretation. 15.2 The singular shall include the plural and the plural the singular except where the context otherwise requires.
15.3 Any notice or other document given by either party to the other under this Agreement shall be in writing. Such notice will be deemed served if delivered personally or sent by registered mail or recorded delivery to the other at the last known address of the other party and shall be deemed to have been given two working days after the date of positing or in the case of personal delivery on the date of delivery.
15.4 No amendment or other variation to this Agreement shall be effective unless it is in writing, is dated, and is signed by or on behalf of each of the Parties.
No relaxation, forbearance delay or indulgence by either party in enforcing any of the terms and conditions of this Agreement or the granting of time by either party to the other shall prejudice affect or restrict the rights and powers of that said party hereunder nor shall any waiver by either party of any breach hereof operate as a waiver of any subsequent or any continuing breach hereof.
A notice given to a party under this Agreement shall be in writing. ClearYolk’s address for delivery of any notice shall be its trading office address, as notified to the Customer from time to time. Notices may be given to the other party in person, via email, fax or post.
18. Facsimile Signatures
This Agreement may be effectively executed by facsimile signature; in such event, each party shall promptly thereafter deliver the original signed version of this Agreement to the other party.
19. Entire Agreement
This Agreement constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of ClearYolk which is not set out in the Agreement.
20. Governing Law
This Agreement will be governed by the laws of England and the parties agree to submit disputes that cannot be settled amicably, to the jurisdiction of a court in England.
21. WEEE Regulations
The Customer is responsible under Regulation 9 of the Waste Electrical and Electronic Equipment Regulations 2006 (the “WEEE Regulations”) for the costs of collection, treatment, recovery, recycling and environmentally sound disposal of any equipment supplied under the Agreement that has become waste electrical and electronic equipment(“WEEE”).
22. Order Amendments
The Agreement cannot be varied without the written agreement of the parties, except that ClearYolk may make minor changes to the specification of the Products and/or Services at any time and without notice which do not materially affect the performance of the Products.
The Customer may request an amendment to an order prior to despatch of the Product and/or Service. Amendments requested by the Customer may incur an additional charge to be calculated by ClearYolk at its sole discretion and may result in delayed delivery of the Product and/or Service. A Customer may only request an amendment to an order in writing (including via email). The request must state clearly the Customer name, order number, the requested amendment and the reason for the amendment. No change to the order will be effective until ClearYolk has confirmed in writing (which for these purposes shall include e-mail) its acceptance to a Customer requested amendment.
ClearYolk may request an amendment to an order prior to delivery of the Product and/or Service. Amendments requested by ClearYolk may incur an additional charge and may result in delayed delivery of the Product and/or Service. ClearYolk will only request an amendment to an order in writing (which for these purposes shall include e-mail) setting out the reason for the amendment. The Customer has five (5) Working Days to reject the order amendment, otherwise the revised order will be valid for the purposes of the Agreement.
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