Vendor Master Terms and Conditions - EMEA
These Vendor Master Terms and Conditions (“Vendor Master Terms and Conditions” or “Vendor MTC”) are entered into by and between Yahoo (legal entity is specified in the SOW) (“Yahoo”) and Vendor as of the Start Date. Except for terms defined in the body hereof, capitalized terms used herein are defined in Section 19 of these Vendor Master Terms and Conditions.
- SCOPE OF AGREEMENT. The Agreement sets forth the terms and conditions under which Vendor will provide Services. All SOWs, Change Orders, SLAs, PLSSs, and POs will be governed by the Vendor MTC. Any Yahoo Company will be entitled to purchase Services under the Agreement by submitting a PO and/or executing an SOW, as applicable. Notwithstanding any independent references to “Yahoo” herein, Affiliates will have the rights of Yahoo under the Agreement to order or purchase Services and to enforce all rights and obligations with respect to any such order or purchase; provided, however, that Yahoo and Affiliates will be independently responsible for their respective purchase and/or use of Services.
- Ordering. Yahoo will issue a PO for Services. Vendor agrees not to provide any Services unless and until Yahoo issues a PO for such Services. Yahoo makes no representations to Vendor as to the frequency of POs or the scope of Services that may be ordered. Any modifications to a PO must be in writing and pre-approved by Yahoo in writing.
- Price Listed Services. If Vendor offers any Price Listed Services, Vendor will provide Yahoo written notice of such Price Listed Services, and Vendor and Yahoo may enter into a PLSS. The prices indicated on a PLSS will remain fixed throughout the Term and will not be subject to increase, unless the Parties execute an updated PLSS. For Services ordered pursuant to a PLSS, Vendor will deliver the ordered Services on or before the delivery date set forth in the applicable PO, or if no delivery date is set forth in the PO, then within ten (10) days of the PO date.
- Statements of Work. Upon Yahoo’s request for Services that are not Price Listed, Yahoo will issue a PO or the Parties will sign an SOW, as applicable.
- Service Level Agreement. The Parties may adopt an SLA as specified in an SOW, PO or at any time by written agreement. Once an SLA is adopted, the SLA cannot be amended, terminated or revoked except by a written amendment to the Agreement signed by the Parties. Unless otherwise stated in the SLA, Vendor will inform Yahoo, within one (1) business day, of any failure to meet any SLA. Vendor will issue Yahoo service level credits, if any, set forth in the applicable SLA (“SLA Credits”). Yahoo may apply any SLA Credits to any charges otherwise payable to Vendor by Yahoo.
- Personnel. The Vendor agrees to (i) use only personnel qualified to perform the Services; (ii) provide sufficient personnel to ensure that the Services are provided within the dates specified in the Agreement and in compliance with the requirements of the SLAs and (iii) adequately supervise the staff.
- Sub-contractor. Full or partial subcontracting requires the prior written consent of Yahoo. The Vendor agrees to (i) impose upon the Sub-contractor the same obligations as the Vendor has assumed under the Agreement and (ii) to ensure that the Sub-contractor complies with these obligations. Yahoo claims against the vendor remain unaffected by the assignment of a Sub-contractor. The Vendor is liable for the Sub-contractor as a vicarious agent. Debtor of the Sub-contractor's remuneration is solely the Vendors.
- Rejection. Yahoo may require that personnel or Sub-contractors be replaced by other personnel or other Sub-contractors who are reasonably acceptable to Yahoo. The Vendor's obligations under the Agreement remain unaffected.
- Inspections. Upon notification, Vendor will, within ten (10) business days or any less time required by Law, allow Yahoo, its auditors (including internal audit staff and external auditors), inspectors, regulators and other representatives, to visit Vendor’s facilities and (i) inspect the facilities; and (ii) all records of Vendor (as well as Vendor’s affiliates and Subcontractors) that are held or maintained in connection with the Agreement and that will be or are used in the course of Vendor’s performance of the Agreement. Vendor is required to maintain Records in accordance with Law, but in any event for no less than the term of each PO. Each Party will bear its respective costs associated with such inspection, unless the inspections show overcharges or negative variances by the Vendor, in which case Vendor shall bear all costs. To the extent any audit report identifies overcharges or negative variances relating to Vendor's performance under this Purchase Order, Vendor shall promptly refund the amount of any such overcharge to Yahoo and otherwise promptly take any actions necessary to correct any negative variance. Vendor shall provide to Yahoo’s auditors, inspectors, regulators and other representatives such assistance as they require, including installing and operating audit software.
- Financial Information. Vendor represents, warrants, and covenants that Vendor has the financial viability to fulfill its obligations under the Agreement. In addition, Vendor will provide prompt written notice to Yahoo of any event or condition that results in, or is reasonably likely to result in, a material adverse change to Vendor’s financial condition, reputation or operation.
- Equipment and Services. Vendor, at its sole cost and expense, will provide all Information Systems, equipment, materials and/or facilities, as well as any support and maintenance of any of the foregoing, as necessary for its performance of the Agreement.
- Hazardous Materials. If applicable, Vendor will: (a) provide notification to Yahoo if the Services include any material that is or can be hazardous to a person’s health or physical safety, even such hazard or injury that may result due to mishandling; (b) identify each such hazardous or injurious material; and (c) supply warning labels or instructional material appropriate to warn persons coming in contact with any such hazardous material of the hazard and its effect.
- Vendor Code. Vendor will comply with the Vendor Code at all times while performing the Services under this Purchase Order. https://legal.yahoo.com/us/en/yahoo/terms/vendor/supplier-code-conduct/index.html
- DELIVERY AND ACCEPTANCE
- Delivery. Time is of the essence with respect to the delivery of all Services. Vendor will package and label all Deliverables in accordance with good industry practice. Unless otherwise agreed by Yahoo in writing, all Deliverables will be delivered FOB (as defined in Incoterms 2010) to the destination in the applicable PO or SOW. Unless expressly agreed to in writing by Yahoo, Vendor will pay all costs associated with shipping Deliverables, if any, including shipping, customs duties, and clearance. Risk of loss will pass to Yahoo upon Yahoo's receipt, inspection, and acceptance of Deliverables, as set forth in Section 3.2.
- Inspection, Testing, and Acceptance. Yahoo has thirty (30) days from the receipt of a Deliverable (“Acceptance Period”) to inspect, test, and accept or reject such Deliverable in writing. Vendor will provide (at no additional cost to Yahoo) such assistance as Yahoo may reasonably require while inspecting and testing any Deliverable. Yahoo may reject any Deliverable that Yahoo determines: (a) does not conform to the PO and/or the SOW (as applicable), and/or any Documentation; or (b) contains defects in materials or workmanship (collectively “Acceptance Criteria”). If Vendor is unable to correct a non-conforming Deliverable, at no additional cost to Yahoo, within ten (10) days of notification of non-conformance to the Acceptance Criteria, Yahoo will, at its option: (i) be entitled to a refund of all fees, costs and expenses incurred in connection with such non-conforming Deliverable(s); or (ii) be entitled to offset or adjust payments for such non-conforming Deliverable(s) against current or future payments to Vendor in accordance with clause 4.1(f). If Yahoo requires an extension to evaluate any Deliverable, Yahoo and Vendor will work in good faith to agree upon a reasonable extension. If Yahoo does not request an extension and/or does not provide written notice of acceptance or rejection by the end of the Acceptance Period, then the Deliverables subject to that Acceptance Period will be deemed rejected. For purposes of this Section 3.2, Yahoo may provide notice via email or fax. Neither Yahoo’s acceptance nor rejection of any Deliverable will relieve, waive, or diminish any obligation Vendor may have under this Agreement in respect of such Deliverable. The Charges for any Deliverables will not become payable until the relevant Deliverable has been accepted by Yahoo in accordance with this clause 3.2.
- Change Order. Either Party may request, in writing, amendments to a PO or an SOW (“Change Order”). Vendor will not commence and/or furnish any Services pursuant to a Change Order until Yahoo has signed the Change Order and/or Yahoo has issued a revised PO or SOW for such Change Order. Yahoo will not be responsible for any fees or costs incurred by Vendor or any permissible Subcontractor under a Change Order not signed by Yahoo.
- COMPENSATION AND PAYMENT TERMS
- Compensation. Subject to Vendor’s compliance with the Agreement, Yahoo will pay Vendor for Services that have been accepted pursuant to Section 3.2, above, based upon: (i) the prices and terms set forth in the applicable: (1) SOW, or (2) PO; and (ii) the terms of this Section 4. Vendor will promptly invoice Yahoo upon completion of Services or a project milestone as outlined in the Agreement, but in no event later than ninety (90) days following Yahoo’s acceptance of the Services or project milestone, as outlined in Section 3.2, above. Payment for any accepted Services will be made ninety (90) days after Yahoo’s receipt and approval of an undisputed invoice referencing the applicable PO number, if any, and itemizing all of Vendor’s fees and charges for such accepted Services; provided, however, that Yahoo reserves the right to apply an early payment discount of two percent (2%) of the invoiced amount, if Yahoo pays the undisputed portion of the invoice within ten (10) days after invoice receipt and approval.
- Purchase Orders. All invoices must be submitted as set forth in the applicable Purchase Order. In certain cases, Vendor may elect, or Yahoo may require, payment through automated payment processing, in which event Vendor will promptly complete and deliver the proper ACH form to Yahoo.
- Payment Disputes. If following receipt of any invoice Yahoo notifies Vendor in writing of a bona fide dispute concerning the Charges payable under such invoice (indicating in such notice the basis for its dispute), Yahoo shall pay any undisputed amount but shall be entitled to withhold the amount in dispute pending resolution in accordance with this Agreement. For the avoidance of doubt, Vendor's obligations to provide the Services shall in no way be affected by any dispute in relation to the Charges or payment of them.
- Payment Errors. If Vendor incorrectly applies Yahoo’s payment (in whole or in part) to a PO or SOW number other than to the PO or SOW number referenced by Yahoo for the applicable Services, Vendor will promptly apply such payment to the correct PO or SOW and issue a written confirmation of such correction to Yahoo.
- Late Delivery. If Vendor fails to provide any Services by the applicable delivery date or to the applicable performance schedule, Yahoo will be entitled to a five percent (5%) discount off the total fees for the applicable late delivery/performance. Such discount will be refunded to Yahoo or, at Yahoo’s option, credited against future amounts owed, if any.
- Offsets. Yahoo may, at any time and without notice to Vendor, set off any liability of Vendor to Yahoo under or in relation to this Agreement against any liability of Yahoo to Vendor under or in relation to this Agreement (in either case however arising and whether any such liability is present or future, liquidated or unliquidated and irrespective of the currency of such liability) and may for such purpose convert or exchange any currency at a market rate of exchange. Any exercise by Yahoo of its rights under this clause shall be without prejudice to any other rights or remedies available to Yahoo under this Agreement or otherwise.
- Interest. If Yahoo fails to make payment in accordance with this clause 4, Vendor shall be entitled to charge interest on the overdue amount at a rate of 2% above the base rate of Barclays Bank plc from time to time in force from the date on which such amount fell due until payment, whether before or after judgment.
- Costs and Expenses. Vendor will not be entitled to reimbursement for any cost or expense that it incurs in, or in connection with, its provisions of the Services unless the cost or expense: (a) is specified in the applicable PO or SOW; (b) is for travel or accommodation and was incurred in accordance with the Travel Policy; (c) is detailed on the corresponding invoice and accompanied by supporting documentation; (d) is billed at cost; and (e) was previously approved by Yahoo in writing. All cost and expense items that meet the foregoing criteria will be paid by Yahoo in accordance with Section 4.1, above. Any cost or expense item that does not satisfy the foregoing criteria will not be reimbursed.
- Taxes. Amounts payable for Services will not include any taxes, and Vendor will be solely responsible for all taxes, unless Yahoo expressly agrees otherwise in writing; provided however, in no event will Yahoo be liable for any income taxes imposed on Vendor or any other taxes or charges assessed against Vendor or associated with the operation of Vendor’s business. Vendor shall accept any tax exemption certificates supplied by Yahoo. In addition, Vendor acknowledges that pursuant to the Finance Act 2019, Yahoo reserves the right to claim research and development tax credits in respect of all payments to be made under this Vendor MTC, or any Statement of Work, as applicable.
“Yahoo Confidential Information” means any information disclosed by any Yahoo Company to Vendor, either directly or indirectly, in writing, orally, or by inspection of tangible objects that are designated as “Confidential,” “Proprietary,” or some similar designation or that a reasonable person would recognize as confidential. Notwithstanding the foregoing, Yahoo Confidential Information includes the terms of the Agreement and Yahoo Data, and may also include information disclosed to Yahoo or an Affiliate by third parties. “Vendor Confidential Information” means any information disclosed by Vendor, either directly or indirectly, in writing or by inspection of tangible objects that are designated as “Confidential,” “Proprietary,” or some similar designation or that a reasonable person would recognize as confidential. “Confidential Information” means Yahoo Confidential Information and/or Vendor Confidential Information in context as applicable to the receiving or disclosing Party. Confidential Information will not, however, include any information which: (a) was publicly known and generally available lawfully in the public domain prior to the time of disclosure by the disclosing Party; (b) becomes publicly known and made generally available after lawful disclosure by the disclosing Party through no action or inaction of the receiving Party; (c) is already in the possession of the receiving Party at the time of disclosure by the disclosing Party as shown by the receiving Party’s files, records, and/or other competent evidence immediately prior to the time of disclosure and free of any confidentiality restrictions; (d) is obtained by the receiving party from a third party without a breach of such third party’s obligations of confidentiality; or (e) is independently developed by the receiving Party without use of or reference to the disclosing Party’s Confidential Information, as shown by documents and other competent evidence in the receiving Party’s possession. The receiving Party will not at any time (i) disclose, sell, license, transfer, or otherwise make available to any person or entity any Confidential Information of the disclosing Party (except to disclose or make available, in Vendor’s case, to Personnel and Subcontractors, who have a legitimate need to know such Confidential Information, and in Yahoo’s case, the Yahoo Entities), or (ii) use, reproduce, or copy any Confidential Information of the disclosing Party, except as necessary in connection with or as set forth in the Agreement. All Confidential Information will remain the disclosing Party’s property and all documents, electronic media, and other tangible items or portions thereof, which contain Confidential Information of the disclosing Party will be delivered to the disclosing Party promptly upon the disclosing Party’s written request. Notwithstanding the foregoing, Yahoo will not be required to remove copies of Vendor’s Confidential Information from any backup media or servers. Nothing contained in the Agreement will prevent Vendor or a Yahoo Company from complying with applicable privacy and/or data protection Laws. The receiving Party may disclose Confidential Information of the disclosing Party in connection with subpoenas, court orders, other legal processes, or as otherwise required by Law, provided that the receiving Party gives the disclosing Party prompt written notice of such requirement (unless expressly prohibited in writing in such subpoena, court order, or other legal process) prior to such disclosure and takes reasonable steps to protect the Confidential Information from public disclosure, and provided further that any such disclosure is limited to the minimum extent necessary to comply with the legal requirement. Neither Party will issue or make, directly or indirectly, any press releases or other public announcements relating to the Agreement or the underlying transaction(s) between Yahoo and Vendor without the prior written approval of the other Party. Each Party reserves the right to withhold approval in its sole discretion.
- SITE ACCESS AND DATA SECURITY
- Site Access. If Services are to be performed at a Site, Yahoo will permit Vendor reasonable access to the applicable Site(s) subject to the terms of this Section 6 and the Site Access Policies. Vendor will provide Yahoo a list of all Personnel and Subcontractors (including all Subcontractor personnel) that require access to the Site(s) and will maintain a current list, which will be available to Yahoo at all times. Any Personnel or Subcontractor failing a background investigation, as required under Section 6.5, below, will be denied access to any Site. In the event Vendor is granted Site access, Vendor represents, warrants, and covenants that Vendor will perform its obligations and shall ensure that its Personnel and Subcontractors without interfering with Users or Yahoo’s operations in or around the Site(s).
- Identification Badges. Vendor shall procure that all Personnel and Subcontractors working at a Site will wear a visible Yahoo issued identification badge. Immediately upon the termination of any Personnel and/or Subcontractors working at a Site, or the removal of such Personnel and/or Subcontractors from the provision of Services at a Site, Vendor will promptly provide written notice to the Yahoo Security Office, and return to Yahoo all security badges and access cards issued to Vendor for such Personnel and/or Subcontractors. Vendor will pay Yahoo a fee of seventy five euros (€75) for each non-returned or lost security badge or access card.
- Network and Data Security.
- If any Network-Data Communication is required by Vendor in order to perform the Services or occurs in connection with Vendor's provision of the Services: (i) Vendor shall ensure that such Network-Data Communication is limited solely to what is required in order for Vendor to perform its obligations; and (ii) Vendor represents, warrants, and undertakes that it shall (and shall ensure that its Subcontractors shall) comply with the Network Security Terms. "Network-Data Communication(s)" means: (1) any Vendor-hosted interface which Yahoo or Users access; (2) any access to Yahoo’s Information Systems; (3) any access, communication, contact, or interconnection/between the Information Systems of Yahoo and Vendor; (4) any access/exposure to or communication of Yahoo Data, including any software code or Intellectual Property; or (5) any Vendor access to any Site. "Network Security Terms" means Yahoo's network security terms located at: www.legal.yahoo.com/ie/en/yahoo/terms/vendor/networksecurity/index.html, as updated from time to time and which are incorporated herein by this reference.
- As between Yahoo and Vendor, Yahoo Data, collected, used, or stored by Vendor will be the sole and exclusive property of Yahoo. If Yahoo requests that Vendor complete and sign an updated Vendor data security disclosure form, Vendor will provide such disclosure form in the form and substance requested by Yahoo within five (5) days of Yahoo’s request, and any such Vendor data security disclosure form will be treated as Confidential Information.
- Privacy and User Data.
- In relation to the activities contemplated by the Vendor MTC: (i) Yahoo will comply with all applicable Irish Privacy Laws; (ii) you will comply with all applicable Privacy Laws, where “Privacy Laws” means data protection, data security and privacy laws, statutes, directives, regulations, ordinances or treaties (including without limitation all Applicable Data Protection Law), and any Yahoo policies or guidelines that Yahoo provides or makes clearly available to you; and (iii) Yahoo and Vendor each agrees on behalf of itself and its respective Affiliates to be bound by the applicable terms and conditions, including all Annexes, Schedules and Exhibits thereto, located at www.legal.yahoo.com/ie/en/yahoo/terms/vendordpa/index.html (the “Yahoo Data Processing Addendum”) which are incorporated into the Vendor MTC by reference. If there is a conflict between the Yahoo Data Processing Addendum and any other part of this Vendor MTC, the Yahoo Data Processing Addendum shall prevail. Unless otherwise defined in the Master Terms and Conditions, capitalised terms used in this Section 6 have the meanings given to them in the Yahoo Data Processing Addendum. You will provide a valid generic email alias, which will be monitored and used for data protection enquiries and Data Subject requests. The Yahoo generic email address is as follows: firstname.lastname@example.org.
- Vendor represents, warrants and covenants that: (i) Vendor will not collect, use, or disclose in connection with the Agreement any Personal Data without Yahoo’s prior express written instructions; (ii) any collection, use, or disclosure of Personal Data will comply with the Agreement and all Laws; (iii) any collection, use, storage or transference of Personal Data, expressly authorised under the Agreement, will be solely for and/or on behalf of Yahoo and not for or on behalf of Vendor (or its agents, subcontractors, or suppliers), and Vendor will not, at any time for any reason, collect, use or disclose any Personal Data except as necessary for the purpose of carrying out its duties as specified in the applicable PO or SOW; (iv) Vendor will not knowingly collect or accept information from children under the age of thirteen (13); (v) Vendor will not, without the prior written consent of Yahoo, transmit or provide access to Personal Data to any facility outside the United States; and (iv) to the extent that the PO or SOW relates to any Personal Data from Users located in the European Economic Area, Vendor will provide at least the level of privacy protection as is required by the applicable Laws.
- If Vendor receives any inquiry or complaint relating to Personal Data, Vendor will immediately notify Yahoo in such form and manner, and with such particulars, as Yahoo may require. If Yahoo notifies Vendor that it requires assistance in investigating or responding to the inquiry or complaint, Vendor will fully cooperate with Yahoo by furnishing it with complete information concerning its collection, use and disclosure of the Personal Data, including responding, if requested to do so, to any inquiry by a regulatory authority and/or to any complaint. If any inquiry or complaint gives rise to regulatory or court proceedings, Vendor will cooperate in the conduct of such proceedings, including attending hearings and assisting in securing and giving evidence and obtaining the attendance of witnesses.
- If a User requests or if Yahoo requests on behalf of any User that Vendor remove any Personal Data from Vendor’s databases and/or records, Vendor will promptly remove all such Personal Data from its databases and records and confirm such removal in writing.
- In the event of any termination of the Agreement, Vendor will immediately return to Yahoo, as directed by Yahoo, all Personal Data held by Vendor pursuant to the Agreement.
- Background Checks. Vendor will conduct (and Yahoo may elect to conduct) a background check on all Personnel and Subcontractors (including, criminal records checks and employment and education checks,) prior to such Personnel or Subcontractor undertaking any action in connection with this Agreement.
- Anti-Spam Policy. To the extent Vendor uses email in connection with the Services, Vendor will comply with Yahoo’s Anti-Spam Policy.
- Vendor Property.
- Disclosure of Vendor Property. Vendor and/or Vendor’s licensor(s) retain all rights, title and interests they possessed in any Vendor Property that may be used by Vendor in connection with the Agreement. “Vendor Property” means Intellectual Property that Vendor can provide reasonable documentary evidence that Vendor owned, controlled or validly licensed. Vendor represents, warrants and covenants that all Vendor Property: (i) was independently developed by Vendor without benefit, use, or inclusion of any Yahoo Property, (ii) was owned by Vendor and/or owned by and validly licensed from a third party and (iii) is not protected under a duty of confidentiality to a third party. If Yahoo requests that Vendor complete and sign a Vendor Property disclosure form, Vendor will provide such disclosure form in the form and substance requested by Yahoo within five (5) days of Yahoo’s request.
- License to Vendor Property. For Vendor Property incorporated into, required for use of, or provided with any Deliverables, Vendor grants to the Yahoo Entities, on behalf of itself and its licensors, a worldwide, perpetual, irrevocable, royalty-free, fully paid up license under all Intellectual Property Rights to use, modify, reproduce, sell, license, sublicense, display, disclose, publish, produce derivative works of or otherwise disseminate, distribute or transfer the Vendor Property for any Yahoo Entities’ businesspurposes.
- Deliverables. Yahoo shall be the sole and exclusive owner of all right, title and interest in and to the Deliverables, including all Intellectual Property Rights therein, regardless of whether such Deliverables are specified in any SOW or PO.
- Assignment. The Vendor shall not assign, sublicense or otherwise transfer the Agreement or any individual right or obligation under the Agreement without the prior written consent of Yahoo. However, the parties have the right, after giving thirty (30) days' prior written notice, to transfer the Agreement to a thirdparty as part of a merger, reorganization, intra-group restructuring, liquidation or sale of all or all of the principal assets of the Vendor. Yahoo also has the right to transfer, assign, or sublicense the Agreement, or any of its rights or obligations under this Agreement, to any Affiliate.
- Yahoo Trademark. Vendor is not authorised to use, and shall not use, any Yahoo Company trademark(s), logo(s), service mark(s), trade name(s), and/or legal notice(s) (collectively, "Yahoo Marks"), provided, however, in the event that use of any Yahoo Mark is required to perform the Services, the Parties agree as follows: subject to Vendor's strict compliance with this Agreement and Yahoo's trademark licence terms at www.legal.yahoo.com/ie/en/yahoo/terms/vendor/trademarklicense/index.html, as updated from time to time and which are incorporated herein by this reference, Yahoo grants Vendor a revocable, non-exclusive, non-assignable, non-transferable, non-sublicensable, royalty-free licence, for the SOW Term (if applicable) or until completion of the relevant Services ordered in connection with a PO, to use the designated Yahoo Marks in the form specified by Yahoo, only in the territory in which the Services will be delivered, and only as essential and necessary to perform the Services. All rights, title, and interest in and to the Yahoo Marks and the goodwill in such Yahoo Marks are and shall remain the exclusive property of the applicable Yahoo Company.
- Acknowledgement of Rights. The applicable Yahoo Company retains exclusive ownership of all right, title and interest in and to the Yahoo Property. Vendor will not, at any time during or after the Term, dispute or contest, directly or indirectly, the applicable Yahoo Company’s exclusive rights and title in the Yahoo Property.
- Vendor Property.
- REPRESENTATIONS AND WARRANTIES
- Warranties. The Vendor ensures that: (i) he and his agents have all the necessary licenses and permissions to operate their business; (ii) he and his agents perform all rights, licenses, permissions, qualifications and approvals required to perform their obligations under the Agreement (iii) he and his vicarious agents comply with all legal provisions, (iv) the execution of the Agreement does not violate any obligations of the Vendor or its vicarious agents arising from an agreement with a third party, (v) he and his vicarious agents do not comply with the obligations are in default of any other agreement and there are no proceedings pending or threatened with courts or authorities that could jeopardize the implementation of the agreement.
- Remedies. In case of a breach of the assurances according to para. 8.1 the Vendor is obliged, at its own expense, in the following order, to: (a) give Yahoo the right to use the Services as agreed, (b) replace the Services concerned with services that are in accordance with the representations pursuant to para. 8.1, (c) modify the Services in question in such a way that they comply with the assurances given in para. 8.1, without limitation of their functions or performance, or (d) if the above alternatives are not commercially reasonable, to reimburse Yahoo for the full compensation paid to the Vendor for the services concerned within fifteen (15) days. Further claims of Yahoo remain unaffected.
Vendor will indemnify, defend and hold harmless the Yahoo Entities from all costs and claims asserted by a third party, whether actual or alleged, that arise out of or in connection with the Services, including: (a) personal injury, death, or property damage; (b) theft; (c) negligent or intentional misconduct; (d) Vendor’s breach of the Agreement or a violation of applicable Law; and (e) payments to any Personnel and/or Subcontractor(s) (collectively “Claim(s)”). Yahoo will (at Vendor’s sole expense) reasonably cooperate to facilitate the settlement or defense of such Claim. Vendor is solely responsible for defending any Claim against a Yahoo Entity, subject to such Yahoo Entity’s right to participate with counsel of its own choosing at its own expense, and for payment of all judgments, settlements, damages, losses, liabilities, costs, and expenses, including reasonable attorneys’ fees, resulting from all Claims against a Yahoo Entity; provided however, that Vendor will not agree to any settlement that imposes any obligation or liability on a Yahoo Entity without such Yahoo Entity’s prior express written consent.
- Coverage. The Vendor shall, at its own expense, enter into and maintain liability insurance with an insurance undertaking authorized to conduct business domestically which covers, as far as is foreseeable, any damage for which the Vendor is liable pursuant to this Agreement. Unless agreed otherwise between the parties, the following applies: To be concluded is a customary public liability insurance to cover personal injury and property damage with a lump sum of at least €750,000.00 per event of damage and at least €1,500,000.- for all damage events of one Insurance year, of professional members of a professional liability insurance with a minimum coverage of €1,500,000 per insurance year. In the case of the use of motor vehicles in connection with the Services under this Agreement, an additional motor vehicle liability insurance to cover personal injury and property damage with a minimum sum insured of €750,000 per claim must be concluded. In all cases, an agreed deductible may not exceed €75,000. If required by the nature or scope of the Vendor's services, Yahoo may require the vendor to provide additional coverage.
- Certificates and Policies of Insurance. Vendor will supply to Yahoo a certificate of insurance evidencing the required coverage within ten (10) days of execution of this Agreement, and if the Term of this Agreement has a duration of twelve (12) months or more, will provide updated certificate(s) not less frequently than annually on the anniversary of the Term of this Agreement. Vendor shall provide Yahoo with not less than thirty (30) days written notice of any cancellation or changes in any above-mentioned insurance. Certificates of insurance will be mailed to the entity specified in the SOW.
- Continuation of Insurance. Vendor will keep all liability insurance coverage required by the Agreement in effect for at least four (4) years after the expiration or termination of the Agreement.
- Obligations. In no event will the insurance coverage, deductible, self-insured retention or limits of any insurance maintained by Vendor under the Agreement, or the lack or unavailability of any other insurance, limit or diminish in any way Vendor’s obligations or liability to Yahoo under the Agreement.
- LIMITATION OF LIABILITY
EXCEPT FOR A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS IN CLAUSE 5, ABOVE, VENDOR’S BREACH OF CLAUSES 6, 7 AND/OR 8.1 (vii) ABOVE, AND VENDOR’S INDEMNIFICATION OBLIGATIONS IN CLAUSE 9, ABOVE, IN NO EVENT WILL VENDOR AND/OR ANY Yahoo ENTITY BE LIABLE FOR ANY INDIRECT OR CONSEQUENTIAL LOSS OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. NOTHING IN THIS CLAUSE 11 LIMITS OR EXCLUDES EITHER PARTY'S LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY NEGLIGENCE OR FOR ANY OTHER LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED BY LAW.
- TERM AND TERMINATION
- Term. This Agreement will commence on the Start Date and will continue in full force and effect for a period of twelve (12) months, unless terminated earlier pursuant to clause 12.2, below, ("Initial Term"). Thereafter, this Agreement will automatically renew for successive twelve (12) month periods upon the same terms and conditions (each a "Renewal Term"), unless either Party gives written notice of its election not to renew at least ninety (90) days prior to the end of the then current Term or this Agreement is terminated earlier pursuant to clause 12.2, below. The Initial Term and any and all Renewal Terms are referred to collectively as the "Term". Notwithstanding the expiry of this Agreement, this Agreement, will remain in full force and effect for all outstanding SOWs, Change Orders and POs until such time as all of such agreements have expired, have been completed or terminated pursuant to the respective SOW, Change Order, PO, or this Agreement.
- Termination. Either Party may terminate the Agreement by written notice to the other Party if the other Party commits a material breach of the Agreement and, where capable of remedy, such breach is not remedied within thirty (30) days of receipt of a written notice from the first Party requiring it do to so. Notwithstanding the foregoing, if Vendor fails to meet the SLA requirements more than three (3) times in a calendar month, Yahoo may terminate this Agreement, in whole or in part, with immediate effect on written . notice to Vendor. In addition, Yahoo reserves the right to terminate this Agreement or any portion thereof with or without cause, upon thirty (30) days' prior written notice to Vendor.
- Termination on Insolvency. Either Party may terminate this Agreement if: (i) the other Party becomes unable to pay its debts, admits its inability to pay its debts or becomes insolvent; (ii) a petition is presented, an order made or a resolution passed for the liquidation (otherwise than for the purposes of a solvent amalgamation or reconstruction), administration, bankruptcy or dissolution of the other Party; (iii) an administrative or other receiver, manager, trustee, liquidator, administrator or similar person or officer is appointed to the other Party and/or over all or any part of the assets of the other Party; (iv) the other Party enters into or proposes any composition or arrangement concerning its debts with its creditors (or any class of its creditors) generally; or (v) anything equivalent to any of the events or circumstances stated in (i) to (iv) inclusive occurs in any applicable jurisdiction.
- Effect of Termination. Upon termination of the Agreement or the applicable SOW, PLSS, Change Order, or PO, in whole or in part, Yahoo, as its sole liability, will pay Vendor for: (a) Services completed and accepted; and (b) costs incurred and approved in writing by Yahoo, prior to the termination date. The termination of any SOW, PLSS, Change Order or PO, in whole or in part, will not automatically result in the termination of the Agreement. If Vendor performs any Services after the termination date of an SOW, PLSS, Change Order, or PO, in whole or in part, Yahoo will not be liable for any fees, costs, taxes or charges. Upon termination of the Agreement or any portion thereof, Vendor will: (i) provide the Services until the effective date of such termination (except as otherwise instructed in writing by Yahoo), terminate the Services in an efficient, workmanlike and cost-effective manner, and cooperate with Yahoo in the transition as requested by Yahoo; (ii) return to Yahoo all Yahoo Property; (iii) return to the Yahoo Security Office any security badges and access cards issued to Vendor; and (iv) within thirty (30) days of such termination, deliver to Yahoo, without any offset, a prorated refund of any prepaid fees, including any service or maintenance fees, together with a payment of any accrued SLA credits. Termination of the Agreement, in whole or in part, will not result in a termination of the applicable Vendor Property Disclosure or Yahoo’s rights under Section 7.1(b), above. Yahoo will not be responsible for any penalties, re-stocking fees, or similar charges resulting from its termination of any PO, SOW, PLSS, or Change Order.
- Survival. Termination of this Agreement, any PO, SOW or Change Order shall be without prejudice to any rights or remedies that may have accrued to either Party prior to the date of termination. The expiry or termination of this Agreement will not affect the continued operation of any Vendor Property Disclosures, this clause 12.5 and clauses 4.1(a) (until any outstanding payment obligations are satisfied), 4.1(c), (f) and (g), 5 through 11, 12.4 and 13 - 20 (inclusive).
- GENERAL PROVISIONS
Yahoo Notice Addresses: All notices will be in writing, and delivered by overnight courier or mailed, postage prepaid, or sent by facsimile with confirmation of transmission, to the recipients as set forth on the applicable VMDT, PO, SOW, or PLSS.
Vendor Notice Address: at the address set forth on the applicable VMDT, PO, SOW, or PLSS.
Except as provided in clause 12.2, above, all notices will be deemed received as follows: (a) at the time of delivery if delivered personally; (b) 48 hours after posting in the case of an address in Germany and 96 hours after posting for any other address; and (c) two hours after transmission if delivered by fax during the normal business hours of the recipient, and at the opening of the next business day if not sent during normal business hours. Either Party may update its notice address by sending written notice of such change to the other Party in accordance with this clause 13.
- Assignment. By operation of law or otherwise, Vendor may not assign, novate, sublicense, transfer or otherwise deal with, this Agreement or any right or duty under this Agreement, without Yahoo’s prior written consent; provided, however, that Vendor may assign this Agreement, in whole, to any third party in connection with any merger, consolidation, reorganisation, liquidation, or sale of all or substantially all of the business or assets of Vendor upon thirty (30) days' prior written notice to Yahoo. Notwithstanding the foregoing, is any such merger, consolidation, reorganization, liquidation, or sale of Vendor’s business or assets involves a competitor of Yahoo, Yahoo shall be entitled to terminate the Agreement with no further liability to Vendor. Any purported assignment, dealing or transfer of this Agreement in violation of this clause 13.2 will be null and void. Yahoo may sublicense, assign, delegate, novate, otherwise transfer and otherwise deal with this Agreement, including the rights and obligations herein, in whole or in part, to any third party in connection with any merger, consolidation, reorganization, liquidation, or sale of all or substantially all of its business assets or its Affiliates.
- Non-Restrictive Relationship. Each Yahoo Company shall be entitled to enforce the rights and benefits conferred on it by this Agreement. The consent of the other Yahoo Companies shall not be necessary for any variation (including any release or compromise in whole or in part of any liability) or termination of this Agreement or any one or more clauses of it.
- Relationship of the Parties. The relationship of the Parties is not exclusive. Nothing in this Agreement will be construed as preventing any Yahoo Company from independently developing or providing services which may be the same or similar to the Services.
- Independent Contractors. The Parties are independent contractors. Nothing herein will be construed as creating any agency, partnership, or other form of joint enterprise between the Parties, and neither Party may create or enter into any obligations or responsibilities on behalf of the other Party.
- Waiver. The failure to exercise, or delay in exercising, a right, power or remedy provided by this Agreement or by law shall not constitute a waiver of that right, power or remedy. If a Party waives a breach of any provision of this Agreement, this shall not operate as a waiver of a subsequent breach of that provision, or as a waiver of a breach of any other provision.
- Severability. If any provision(s), or part provision, of this Agreement is held to be invalid, illegal or unenforceable, that provision or part-provision shall be deemed not to form part of this Agreement, and the validity, legality and enforceability of the remainder of the provisions of this Agreement shall not be affected, unless otherwise required by operation of applicable Law.
- Cumulative Remedies. The rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided in law or equity.
- Counterparts. Any SOW, PO and/or Change Order requiring signatures may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. Vendor`s online acceptance of any or all portions of this Agreement will be deemed an execution for the purposes of the preceding sentence.
- No Gratuity. Vendor represents, warrants, and covenants that no officer, director, or employee of Yahoo, or any of their immediate family members: (a) has received or will receive anything of value of any kind from Vendor; or (b) has a business relationship of any kind with Vendor.
- ANTI-CORRUPTION COMPLIANCE
Vendor shall comply with all applicable anti-corruption laws including, without limitation, and will not pay or give, offer or promise to pay or give, or authorise the promise, payment or giving directly or indirectly of any monies or anything of value to any person or firm employed by or acting for or on behalf of any third party for the purpose of inducing or rewarding any favourable action in any matter related to the subject of this Agreement or the business of Yahoo. Vendor shall not will not engage in any activity, practice or conduct which would constitute an offence under the anti-corruption laws. Vendor further agrees that any payments that Vendor makes to third parties in connection with this Agreement shall be supported by written, complete and accurate invoices that shall be maintained by Vendor for the duration of this Agreement and made available to Yahoo for inspection upon Yahoo’s request, and Vendor agrees to promptly report to Yahoo any potential or actual violations of any anti-corruption laws relating to this Agreement or the business of Yahoo of which it obtains knowledge, and cooperate in good faith with Yahoo in investigating any such violation.
- EXPORT CONTROL COMPLIANCE
The Parties acknowledge and agree that: (a) the goods, software and technical information (including technical assistance and training) ("Products") provided by Vendor under this Agreement may be subject to the export laws and regulations of one or more countries ("Export Regulations"); and (b) performance of this Agreement and/or delivery of the Products may be delayed by competent authorities enforcing the Export Regulations. The Parties shall not use, distribute or transfer any Products except in compliance with all applicable Export Regulations. Vendor shall, as soon as practicable and in any event before the supply of Products takes place, indicate to Yahoo whether the Products are subject to any Export Regulations. At the request of the other Party, each Party shall provide all information, sign all documents, and take any other steps that may be reasonably required in order to comply with the applicable Export Regulations.
- FORCE MAJEURE
A Party will be excused from a delay in performing, or a failure to perform, its obligations under this Agreement to the extent that such delay or failure is caused by the occurrence of any circumstances beyond the reasonable control, and without any fault, of such Party, which circumstances include acts of God, war, riot, power failures, fires, and floods (each referred to as a "Force Majeure Event"). In such event, the performance times will be extended for a period of time equivalent to the time lost due to the Force Majeure Event. In order to avail itself of the relief provided in this clause 16, the affected Party must act with due diligence to remedy the cause of, or to mitigate or overcome, such delay or failure, and Vendor shall maintain a contingency and disaster recovery plan for the continuation of business so that despite any disruption in Vendor’s ability to fulfill its Services obligations from any particular location or through the efforts of any particular individuals, Vendor will be able to fulfill its Services obligations from an alternative/backup location.
- GOVERNING LAW; JURISDICTION; AND VENUE
This Agreement and any dispute or claim arising out of or in connection with it (including any dispute or claim relating to non-contractual obligations) shall be governed by and construed in accordance with the laws of Ireland. The courts of Ireland shall have exclusive jurisdiction to settle any dispute or matter arising out of or in connection with this Agreement (including any non-contractual disputes or claims).
- ENTIRE AGREEMENT AND AMENDMENTS
This Agreement sets out the entire agreement and understanding between the Parties in relation to its subject matter and replaces, supersedes and cancels all prior agreements, draft agreements, arrangements, undertakings or collateral contracts of any nature made by the Parties, whether oral or written, in relation to that subject matter. Each Party acknowledges and agrees that in entering into this Agreement it has not relied upon any oral or written statements, collateral or other warranties, assurances, undertakings or representations that were made by or on behalf of the other Party in relation to the subject-matter of this Agreement at any time before its signature (together, “Pre-Contractual Statements”), other than those which are set out expressly in this Agreement. Each Party hereby waives all rights and remedies that might otherwise be available to it in relation to such Pre-Contractual Statements but for this clause 18. Nothing in this Agreement shall exclude or restrict the liability of either Party arising out of its pre-contract fraudulent misrepresentation or fraudulent concealment. In the event of any conflict or inconsistency between the provisions of the Vendor MTC, and any PO, SOW, SLA, PO or Change Order, the Vendor MTC will take precedence. Notwithstanding the foregoing, a SOW, PO or Change Order may amend Sections 3, 4, or 10.1 of the Vendor MTC only if the amended terms contained in such a SOW, PO or Change Order: (a) apply only to the individual SOW, PO or Change Order and not to any other SOW, PO or Change Order; and (b) specifically identify the provision(s) of the Vendor MTC they amend. Any terms and conditions on Vendor’s invoice, quotation or other document will not be binding and will not supersede, supplement, or modify this Agreement. Yahoo may change the Vendor MTC at any time by posting the updated version on and notifying Vendor of such changes by email, and such revised Vendor MTC will supersede and replace the earlier Vendor MTC. If Vendor provides any Services after such revision, Vendor will be deemed to have accepted the revised Vendor MTC.
- All definitions will apply both to their singular and plural forms, as the context may require. In addition to those definitions set forth elsewhere in the Agreement, the following capitalized terms have the meanings set forth below:
"Acceptance Criteria" has the meaning given to it in clause 3.2.
"Affiliate" means an entity that directly or indirectly controls, is controlled by, or is under common control with Yahoo.
"Agreement" means collectively: (a) these Vendor MTC; (b) the Vendor Master Data Template; (c) SOW(s) (if any); (d) Price Listed Schedules (if any); (e) Change Order(s), if any; (f) PO(s); and (g) any SLA(s).
"Anti-Spam Policy" means Yahoo’s anti-spam policy terms located at: www.legal.yahoo.com/ie/en/yahoo/terms/vendor/antispam/index.html, which are incorporated herein by this reference and may be updated from time to time.
"Defect" means any failure of the Services, in whole or in part, to comply with the Acceptance Criteria or perform as contemplated by this Agreement.
"Deliverables" mean all developments, discoveries, inventions, products, product formulae, software, drawings, procedures, processes, Specifications, reports, notes, documents, information, plans, reports, compilations of data, and other materials made, conceived, reduced to practice or developed by Vendor alone or with others, and Improvements to any of the foregoing and which: (a) are identified as Deliverables in an SOW or PO; (b) are created using Yahoo Property; or (c) incorporate Yahoo Property.
"Documentation" means any written or electronic support materials/documents relating to the use or operation of the Services that Vendor generally makes available with the Services, including user manuals, software support materials, guides, how-to information, data sheets, promotional materials, and/or any other information regarding how to enable or use the Services.
"Improvements" means collectively, all enhancements, additions, modifications, extensions, updates, new versions, translations, improvements, and derivative works.
"Information System" means: (a) any information or communications system, including net-services, computer systems, data networks, software applications, broadband/satellite/wireless communications systems, and voicemail; and (b) the means of access to such systems, including all authentication methods.
"Intellectual Property" or "Intellectual Property Rights" means all: (a)patents, inventions, designs, copyright and related rights, database rights, trade marks and related goodwill, trade names (whether registered or unregistered), and rights to apply for registration; (b) proprietary rights in domain names; (c) know how and confidential information; (d) applications, extensions and renewals in relation to any of these rights; and (e) all other rights of a similar nature or having an equivalent effect anywhere in the world.
"Laws" means all applicable laws, statutes, directives, ordinances, treaties or regulations, and Yahoo Company policies or guidelines provided to or made clearly available to Vendor.
"Yahoo Company" means Yahoo or an Affiliate, and "Yahoo Companies" means Yahoo and Affiliates. An Yahoo Company also includes any business operations or Affiliate sold by Yahoo for a term not to exceed twelve (12) months from the date of such sale.
"Yahoo Company Website(s)" means all web pages owned, operated, authorised, or hosted by or for an Yahoo Company.
"Yahoo Data" means all data and information provided by, relating to, of or concerning any Yahoo Company and/or its Users, that is/was obtained by, disclosed to or otherwise made available to Vendor, including Personal Data, systems procedures, processes, employment practices, sales costs, profits, pricing methods, organisation/employee lists, finances, product information, inventions, designs, methodologies, Information Systems, Intellectual Property, all Deliverables and interim work product created by or on behalf of Vendor, all survey responses, feedback and reports, and all data and information of such a nature that a reasonable person would believe to be confidential or proprietary.
"Yahoo Entities" means the Yahoo Companies and their officers, directors, consultants, contractors, agents and employees.
"Yahoo Property" means, collectively, any and all Yahoo Confidential Information, Yahoo Data, Yahoo Marks, Deliverables, Yahoo's Information Systems and all property, equipment, and proprietary information and materials provided by an Yahoo Company to, or otherwise obtained by, Vendor, or existing at any Site(s), as well as all derivatives of the foregoing.
"Party" means either Yahoo or Vendor, as applicable, and "Parties" means Yahoo and Vendor. For any SOW or PO between Vendor and an Yahoo Company other than Yahoo, references to Yahoo through this Agreement will mean the applicable Yahoo Company.
“Personal Data” means information that is considered under EU Privacy Laws to be “personal data”.
"Personnel" means all workers employed, contracted, or used by Vendor in connection with this Agreement, including employees, agents, independent contractors, temporary personnel and other individuals/entities.
“Privacy Laws” mean all applicable data protection, data security and privacy laws, statutes, directives, regulations, ordinances or treaties, and Yahoo Company policies or guidelines provided to or made clearly available to Vendor.
"Project Manager" means the Yahoo employee or consultant who is the primary contact person for the applicable SOW or PO (as identified therein).
"Purchase Order" or "PO" means a document issued by Yahoo authorising the purchase of Services.
"Service Level Agreement(s)" or "SLA(s)" means the performance metrics including technical requirements, measurement periods, SLA Credits, and such other performance criteria that govern the Services.
"Services" means the services and Deliverables, if any, to be provided by Vendor as described in this Agreement. Notwithstanding any independent reference to Deliverables herein, Deliverables are included within the meaning of Services.
"Site" means the buildings and related premises owned, operated, used, or leased by any Yahoo Company, including those designated in the applicable SOW or PO as a location at which Services will be performed.
"Site Access Policies" mean the policies that Vendor must follow when on a Site, including security, facility, equipment, conduct, and safety policies, as updated from time to time and notified by Yahoo to Vendor.
"Specifications" means any criteria, including plans, drawings, data, or performance requirements, that must be satisfied for the acceptance of Services under an applicable SOW or PO.
"Start Date" means the earlier of the first delivery of any Services, Vendor’s signature on a VMDT, the Effective Date of an SOW or the date of the PO issued by Yahoo.
"Statement(s) of Work" or "SOW(s)" means a fully executed document referencing these Vendor Master Terms and Conditions and outlining the nature and scope of Services, which may include: the project plan, Specifications, delivery dates, performance milestones, Deliverables, fees, payment schedule, Project Managers, Vendor Property Disclosure, if applicable, and such other pertinent information to the Services and/or this Agreement.
"Subcontractor" means a third party to which Vendor delegates any portion of its obligations, subject to clause 2.3 (b), above.
"Travel Policy" means Yahoo’s travel policy terms, which will be provided to Vendor and are incorporated herein by this reference.
"User" means any actual or prospective user (including advertisers and content providers) of an Yahoo Company’s products and/or services, and any officer, director, employee, agent, contractor, and representative of an Yahoo Company.
"Vendor" means the vendor executing the VMDT, SOW, PO, SLA or PLSS.
"Vendor Master Data Template" or "VMDT" means the Vendor signed document that identifies the Vendor’s information, including: address, telephone, facsimile and such other information as set forth therein.
"Vendor Property Disclosure" means the Vendor signed document that identifies any Vendor Property that will be used to provide the Services.
- The headings in this Agreement are for convenience only and will not affect the interpretation or construction of this Agreement. As used in this Agreement: (i) "days" mean calendar days unless otherwise stated; (ii) "include" and "including" mean "including, without limitation,"; and (iii) "will", "shall" and "must" are deemed to be equivalent and denote a mandatory obligation or prohibition, as applicable.
- All definitions will apply both to their singular and plural forms, as the context may require. In addition to those definitions set forth elsewhere in the Agreement, the following capitalized terms have the meanings set forth below:
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These Vendor Master Terms and Conditions were last updated on 1 September 2021.