Yango (as defined below), and
the Counterparty (as defined below),
have agreed as follows:
1. DEFINITIONS AND INTERPRETATION
1.1. In this agreement the following capitalised words and expressions shall have the following meanings:
1.1.1. ‘Additional Services’ shall mean services related to the Transfer.
1.1.2. ‘Agreement’ or ‘E-Service Agreement’ shall mean this E-Service Agreement entered into by and between Yango and the Counterparty.
1.1.3. ‘Certificate’ shall have the meaning attached to this term in Clause 9.1.3 of the Agreement.
1.1.4. ‘Counterparty’ shall mean a company or individual who has accepted the terms and conditions of the Contractual Framework Agreement and provided its details to Yango via the E-Platform.
1.1.5. ‘Country’ shall mean the country that is defined pursuant to the Country Terms.
1.1.6. ‘Country Currency’ shall mean the currency that is defined pursuant to the Country Terms.
1.1.7. ‘Country Language’ shall mean the language that is defined pursuant to the Country Terms.
1.1.8. ‘Country Terms’ shall mean a document which bears in its title expression ‘Country Terms’ and the most recent version of which is available on-line at the Counterparty Account. The Country Terms are incorporated into the Agreement by reference and constitute an integral part of the Agreement. The Country Terms may change, supplement, and (or) disapply any provisions of the Agreement and the General Terms.
1.1.9. ‘Currency’ shall mean the currency that is defined pursuant to the Country Terms.
1.1.10. ‘Deductions’ shall have the meaning attached to this term in Clause 9.1.5 of the Agreement.
1.1.11. ‘E-Service’ shall mean various informational services, which, without limitation, include services for collection, generalisation, and transfer of the data, that [services] enable and (or) assist the Counterparty with accessing the Service, receiving relevant information on Requests, performing Requests, and communicating with Yango and (or) Users.
1.1.12. ‘E-Service Fee’ shall mean a fee payable by the Counterparty to Yango for the provision of the E-Service pursuant to the terms of the Agreement.
1.1.13. ‘General Terms’ shall mean a document available on-line at https://yandex.com/legal/yango_general_terms. The General Terms are incorporated into the Agreement by reference and constitute an integral part of the Agreement.
1.1.14. ‘Hold Off’ shall mean delaying the operation of the E-Service with regard to the Counterparty in the circumstances specified in the Agreement.
1.1.15. ‘Invoice’ shall have the meaning attached to this term in Clause 9.1.4(c) of the Agreement.
1.1.16. ‘Maximum Tariffs’ shall mean the maximum values for calculation of the Transfer Fee, including the Additional Services, which values are set in the Agreement.
1.1.17. ‘Official Rate’ shall mean the rate that is defined pursuant to the Country Terms.
1.1.18. ‘Peak Hours Coefficient’ shall mean a multiplier or a fixed amount determined pursuant to the Country Terms that may increase the Maximum Tariffs (but does not increase the price of the Additional Services) by multiplication with every value of the Maximum Tariffs as provided for in the Country Terms.
1.1.19. ‘PIM’ shall mean promotional and informational materials related to the Service placed on the outer surface and (or) inside a Vehicle.
1.1.20. ‘Registration’ shall mean a provision of information and data by the Counterparty to Yango.
1.1.21. ‘Service’ shall mean various services provided via Yango’s technological platform which include without limitation the Service for Drivers, Counterparty Account and other related services, websites and interrelated support service systems, which Yango may update or modify at its own discretion from time to time. Any reference to the Service includes a reference to any and all parts of the Service.
1.1.22. ‘Service for Drivers’ shall mean a part of the Service that (a) enables Drivers to receive Requests in an automatic mode and (b) has various functional capabilities fully described in the Service for Drivers manual.
1.1.23. ‘Statistical Data’ shall mean Yango’s automated systems data, which may contain without limitation data for the calculation of the amount of the E-Service Fee and any other data relating to the performance of the Agreement, that is available at the Counterparty Account.
1.1.24. ‘Transfer Fee’ shall mean the price of the Transfer services rendered to a User as per his or her Request.
1.1.25. ‘Yango’ shall mean the company that is defined pursuant to the Country Terms.
1.2. Capitalised words and expressions that are not defined in the Agreement, shall have meanings attached to them in the Country Terms or the General Terms and in the absence of such meaning the provisions of Clause 1.3 of the General Terms shall apply.
2. SUBJECT MATTER OF THE AGREEMENT
2.1. Yango undertakes, in consideration for the E-Service Fee, (i) to render the E-Service to the benefit of the Counterparty, and (ii) to be bound by other duties stipulated herein during the term of the Agreement.
2.2. Yango may render services similar and (or) identical to the E-Service to the benefit of other persons which will not be considered as a breach of the Agreement.
2.3. The Counterparty accepts and acknowledges that Yango in not incorporated in the territory of the Country and that the E-Service is provided remotely from outside the territory of the Country.
2.4. Upon Yango’s Electronic Notice, the Counterparty shall, within two (2) weeks from the date of such Electronic Notice, deliver to Yango a signed original hard copy of the Agreement (including any annexes, addendums, schedules etc) which shall be identical to the electronic copy of the Agreement delivered by the Counterparty to Yango.
3.1. The Agreement shall be effective from the Effective Date.
3.2. The initial term of the Agreement shall be one (1) calendar year as of the Effective Date.
3.3. Unless a Party notifies the other Party by a Written Notice that it objects any extension of the term of the Agreement at least thirty (30) calendar days prior to the expiration of the relevant term, the relevant term of the Agreement shall be automatically extended for a period of one (1) calendar year. The term of the Agreement is extended annually on a recurrent basis and requires no execution of any supplement to the Agreement by the Parties.
4. THE SERVICE
4.1. General Provisions
4.1.1. The Counterparty’s rights to access and (or) use the Service and (or) any part thereof are always subject to its full compliance with:
(a) the terms and conditions of the Agreement including without limitation a timely payment of the E-Service Fee; and
(b) the Country Law.
4.1.2. The Counterparty accepts and acknowledges that the Service is located and provided from outside the territory of the Country.
4.1.3. The Counterparty shall use the Service only within the limits and in the manner and spirit specified in the Agreement.
4.1.4. The Counterparty agrees and acknowledges that Yango does not and will not exercise and has no intention to exercise any degree of control over the Counterparty and (or) the Drivers, including without limitation over the Counterparty’s way of provision of the Transfer services to the Users, over the operation of the Counterparty’s business generally, acts or omissions of the Drivers, and (or) the operation and maintenance of any Vehicles.
4.1.5. The Counterparty agrees and acknowledges that the Service does not represent a billing system and any information related to payments that may be available in the Service is provided for informational purposes only.
4.1.6. Yango shall provide support services to the Counterparty which includes without limitation advising the Counterparty on various aspects of the Service usage, inspection of Requests performed by the Counterparty’s Drivers.
4.2. The Registration and Access to the Service
4.2.1. The Counterparty who wishes to access the Service shall complete the Registration.
4.2.2. Upon a successful completion of the Registration, the Counterparty will, within a reasonable period, be provided with a login and password to access the Service. Yango may reject the provision of the login and password for any reason.
4.2.3. The Counterparty shall not transfer the login and password to the Service to any person and shall be solely liable for the protection and confidentiality of the login and password.
4.2.4. Subject to Clause 4.4 of the Agreement, the Counterparty will have access to the Service (including without limitation the Counterparty Account) twenty-four (24) hours a day and seven (7) days a week.
4.2.5. Everything done by the Counterparty via the Service using the Counterparty’s login and password shall be deemed to be performed by the Counterparty who shall be solely liable for it.
4.2.6. The Counterparty shall obtain and maintain, and shall ensure that its Drivers obtain and maintain, all technical means (which includes without limitation smartphones and tablets with power supply, access to the Internet by any means etc) required for accessing and usage of the Service, and Yango shall never be required to provide such technical and other means or compensate for obtaining or maintaining any of them.
4.3. Suspension and Termination of the Counterparty’s Access to the Service
4.3.1. Without prejudice to any other provisions of the Agreement (including without limitation Clause 4.4.8 of the Agreement), Yango may suspend or terminate the Counterparty’s or a particular Driver’s access to the Service and (or) activate the Hold Off if Yango becomes aware, regardless of the source of such awareness which may include without limitation any person, mass media, or a word of mouth, of an instance of the Counterparty’s and (or) its Drivers’ non-compliance with the terms of the Agreement. Examples of the Counterparty’s and (or) its Drivers’ non-compliance include without limitation:
(a) charging Users the Transfer Fee that exceeds the limits specified in the Agreement;
(b) provision to Yango out-of-date or false data and (or) information on Drivers and Vehicles, including without limitation GPS data;
(c) demonstrating discrimination in relation to the Service for Drivers or Requests without objective, fair, and reasonable cause;
(d) provision of Transfer services in a way that does not comply with Requests;
(e) provision to Yango false data on the cancelled Requests and false information on the reasons of such cancellations;
(f) non-compliance with the Data Processing Agreement;
(g) creation by a Driver, or causing someone else to have created, of false Requests and (or) performance by a Driver of false Requests. A Request is deemed to be ‘false’ if it has not been generated by a User acting conscionably and in good faith. Yango may determine whether a particular Request is ‘false’ or not;
(h) unconscionable behaviour of a Driver towards the Service. Yango may determine whether a particular action or failure to act constitutes an unconscionable behaviour of a Driver;
(i) rude or impolite behaviour or other misconduct of a Driver towards a User and (or) other passengers of a Vehicle and (or) their property;
(j) putting Users’ and (or) other passengers’ of a Vehicle safety in danger by dangerous driving, improper condition of a Vehicle, or otherwise failing to comply with the traffic safety rules, including without limitation using multiple devices in a Vehicle which devices obstruct the view of the road or distract a Driver’s attention; and
(k) failure to assist Yango with the Supervision or providing incorrect or false information to Yango in a course of the Supervision.
4.3.2. The Counterparty and a Driver are entitled to give reasons justifying the Counterparty’s or Driver’s non-compliance with the terms of the Agreement. Yango may consider these reasons but, following such consideration, is not obliged to restore the access to the Service.
4.4. The Operation, Update, and Maintenance of the Service
4.4.1. Yango shall ensure the operation of the Service on Yango’s equipment.
4.4.2. Yango shall aim to correct errors identified in a course of the Service operation within a reasonable time.
4.4.3. Service malfunctions or errors caused by or related to:
(a) the Counterparty’s and (or) Driver’s, as the case may be:
i. equipment, hardware, or devices malfunction or technical inadequacy, or
ii. lack of skill or knowledge required to access or use the Service; and (or)
(b) any person’s mistake, omission, fault, wrongdoing, negligence etc (including without limitation inadequate Internet services),
shall not be considered as Yango’s breach of the Agreement and shall not give rise to Yango’s duty to correct such malfunctions or errors.
4.4.4. Yango may at any time conduct preventive maintenance of Yango’s equipment which is used for the operation of the Service. The total time of unavailability of the Service associated with preventive maintenance shall not exceed twenty four (24) hours per month. The unavailability of the Service may exceed twenty four (24) hours per month in the circumstances that require immediate action.
4.4.5. Yango shall aim to notify the Counterparty by an Electronic Notice of the preventive maintenance that will materially affect the operation of the Service.
4.4.6. Yango may at its discretion update the Service from time to time without the Counterparty’s consent, which includes without limitation making changes to the content, functionality, and user interface of the Service, and the Service manuals.
4.4.7. Yango does not guarantee and shall not be liable for a failure to ensure a stable and reliable operation and availability of the Service.
4.4.8. Yango may suspend or restrict access to or operation of the Service for any technical, technological, or other reasons for the time period required to eliminate such reasons.
4.5. The Service for Drivers
4.5.1. The Service for Drivers is the only method for receiving Requests from the Service.
4.5.2. The Counterparty and its Drivers may use other services for performing the Transfer services. The Counterparty shall not discriminate against the Service for Drivers by giving other services a particular preference or advantage without objective, fair, and reasonable cause.
4.5.3. The following electronic signals are used by the Service to indicate the status of a Driver:
(a) ‘busy’ signal means that a Driver is unwilling to accept Requests;
(b) ‘driving’ signal means that a Driver is on a way to the pick-up location as specified in a Request;
(c) ‘free’ signal means that a Driver is willing to accept Requests;
(d) ‘transporting’ signal means that a Driver is performing the Transfer services as specified in a Request;
(e) ‘waiting’ signal means that a Driver has arrived to the pick-up location as specified in a Request and expecting a User to board a Vehicle.
4.6. Information, Statistical Data, Personal Details, and Other Information and Data
4.6.1. Yango shall make available to the Counterparty at the Counterparty Account or otherwise the following information, which information, subject to Clause 4.4 of the Agreement, will be available twenty-four (24) hours a day and seven (7) days a week:
(a) information necessary to ensure the proper operation of the Service and timely correction of errors, failures, and malfunctions in the operation of the Service;
(b) the Statistical Data.
4.6.2. The Parties expressly agree and confirm that for all purposes of the Agreement, including without limitation the calculation of the E-Service Fee (Clause 9.1 of the Agreement), they will use data that is the Statistical Data.
4.6.3. Yango may delete all information and data provided by the Counterparty to Yango via the Service within fifteen (15) calendar days after the date of repudiation, termination, or expiration of the Agreement.
4.6.4. All rights and duties of the Parties with regard to Personal Details, including without limitation Personal Details of Users and Drivers, are set forth in the Data Processing Agreement and the Country Law. The Parties undertake to comply with the provisions of the Data Processing Agreement at all times.
4.6.5. The Counterparty shall ensure a timely provision of relevant information and data, including without limitation the Drivers’ Personal Details and Vehicle-related information, to Yango in full compliance with the Agreement, the Data Processing Agreement, and the Country Law which among other things means that the information and data so provided (i) shall not violate rights of any person, (ii) shall be free from rights of any person, and (iii) shall not create for Yango a duty to make any payment to any person.
4.6.6. The Parties agree and acknowledge that the Driver, including without limitation when rendering the Transfer services to a User, shall have an authority to provide the following information to Yango on behalf of the Counterparty:
(a) geographical location data (GPS tracks) of the Driver’s Vehicle;
(b) a Vehicle’s status data (that is ‘available’, ‘waiting’, ‘driving’ and other signal as available in the Service);
(c) a Driver’s Personal Details and a Driver’s driving licence details: as set forth in the Data Processing Agreement;
(d) a Vehicle’s details:
i. licence plate number,
ii. vehicle manufacturer (as stated in a Vehicle’s registration certificate),
iii. manufacturing year (as stated in the Vehicle’s registration certificate),
iv. a Vehicle’s colour,
v. if requested by Yango, scanned copy of the Vehicle’s registration certificate (all pages),
vi. pictures of the interior and exterior of the Vehicle.
4.6.7. If the Counterparty receives, either by a way of an Electronic Notice, a Written Notice, or otherwise, from Yango a request related to an accident involving a User and occurred during the rendering the Transfer services (including without limitation a road traffic accident or any other accident involving a threat to life, health, well-being, and (or) property of a User), the Counterparty shall immediately provide to Yango the information and documents mentioned in the request (including without limitation documents issued by a public authority overseeing traffic safety and any other authorised body involved into the accident investigation). If it is not prohibited by the Country Law, Yango may provide such information and documents to a User affected and (or) otherwise involved in such incident.
5. REQUIREMENTS WITH REGARD THE TRANSFER
5.1. The Counterparty shall ensure that at all times the quality of the Transfer services rendered to the Users satisfies their Requests, the Agreement, and the Country Law.
5.2. The Counterparty shall at all times present itself to any person as a provider of the Transfer services and be responsible towards Users for the Transfer services rendered to them, which includes without limitation full responsibility for the rides, Users’ security and safety, safety of Users’ luggage and personal belongings, etc.
5.3. If the Counterparty has accepted a Request, the Counterparty undertakes that at all times:
5.3.1. a Vehicle is available at the location and time specified in the Request;
5.3.2. the free waiting time (i.e., which is calculated from the moment when a ‘waiting’ signal has been sent via the Service by a Driver) is at least equal to the free waiting time as specified by the Maximum Tariffs;
5.3.3. no phone calls are made to a User who has activated the ‘Do Not Call Me’ option in the Service mobile application unless it is necessary to ascertain the pick-up location or a driving route to the pick-up location and there is no other means to ascertain this information;
5.3.4. the Transfer Fee never exceeds (a) the Maximum Tariffs and (b) the Transfer Fee, which is calculated in accordance with the Country Terms;
5.3.5. Users’ complaints with regard to their Requests and relevant Transfer services are replied and all required measures are taken within twenty-four (24) hours of the complaint receipt by the Counterparty or sooner if the nature of the complaint requires a more immediate response; and
5.3.6. a cancellation of a Request comply with the relevant provisions of the Country Terms.
6. REQUIREMENTS WITH REGARD TO THE COUNTERPARTY, ITS DRIVERS AND VEHICLES
6.1. If an individual ceases, for any reason and regardless the Counterparty’s fault, to satisfy the criteria of a Driver (including without limitation does not have a valid driving licence or does not comply with the Country Law) but continues to render the Transfer services or use the Service, the Counterparty shall be fully responsible for any faults, errors, omissions etc of such individual. This Clause 6.1 of the Agreement applies without limitation to the situation when the Driver is the Counterparty.
6.2. The Counterparty undertakes that and (or) that it will ensure that:
6.2.1. it will at all times comply and ensure that its Drivers and Vehicles will comply with the requirements listed in the Agreement including without limitation this Section 6 of the Agreement;
6.2.2. only those Drivers and Vehicles that fully meet with the requirements listed in Clause 6.3 and Clause 6.4 of the Agreement shall be permitted to perform Requests;
6.2.3. a Driver who does not meet the conditions as listed in Clause 5.5 shall not be allowed to perform the Requests;
6.2.4. a Vehicle which does not meet the conditions as listed in Clause 5.6 shall not be used for performing the Requests;
6.2.5. a Vehicle’s geographical location data (GPS tracks) and other information and data as required by the Agreement is continuously transferred to the Service in real-time;
6.2.6. information and data that is transferred pursuant to the Agreement is relevant and accurate, including without limitation those provided by a Driver acting on behalf of the Counterparty; and
6.2.7. it complies with the Country Law including without limitation consumer protection legislation (for example, if applicable: it informs the consumer of its identity and full particulars of its permit or licence that makes it legal to provide the Transfer services).
6.3. The Counterparty shall ensure that every Driver has:
6.3.1. access to the official version of the Service for Drivers and does not use any modified version of the Service for Drivers; and
6.3.2. complied with other requirements of the Country Law to the extent necessary to render the Transfer services.
6.4. The Counterparty shall ensure that every Vehicle:
6.4.1. as and when required by the Country Law, has been issued with a permit, licence, or another document that makes it lawful to use it for the Transfer services;
6.4.2. as and when required by the Country Law, has passed a procedure for control of the Vehicles’ technical condition and in regard to which a relevant certificate or other evidence confirming that the Vehicle is safe and fit for the usage in the Transfer services; and
6.4.3. has complied with other requirements of the Country Law to the extent necessary to be used for rendering the Transfer services.
7. THE MAXIMUM TARIFFS
7.1. The Parties agree and acknowledge that the purposes of the Maximum Tariffs are:
7.1.1. to improve the Users’ experience of using the Service by providing to them advance information on the Transfer Fee;
7.1.2. to retain the existing Users and attract new Users by availability of attractive Maximum Tariffs and transparency of the Maximum Tariffs calculation;
7.1.3. to ensure transparency and predictable financial outcomes of performance of the Agreement for the Parties;
7.1.4. to increase the number of Requests by providing competitive financial terms of the Transfer services; and
7.1.5. to reflect that the Transfer Fee as calculated pursuant to the Maximum Tariffs may depend on a Vehicle class, weekday, time of a day, and other parameters.
7.2. The Maximum Tariffs are determined pursuant the Country Terms.
7.3. The Peak Hours Coefficient may apply to the Maximum Tariffs as provided by the Country Terms.
7.4. Yango may change the Maximum Tariffs when considers necessary and such changed Maximum Tariffs shall be binding on the Counterparty when they become available pursuant to the Country Terms (published at a dedicated webpage or otherwise). The Counterparty herewith consents to and agrees with such changes in advance.
7.5. The Parties agree and acknowledge that the Maximum Tariffs shall only apply to Requests and shall not apply to any services rendered by the Counterparty without engaging with the Service.
8.1. Yango may provide the Counterparty with PIM, and the Counterparty shall place such PIM. The particular details of the PIM’s placement (including without limitation number of Vehicles with PIM, instruction in regard to PIM placement, commercial terms etc) are communicated to the Counterparty by Yango by an Electronic Notice.
8.2. With regard to PIM, the Counterparty shall:
8.2.1. obtain all necessary permits and (or) approvals required by the Country Law for placing the PIM;
8.2.2. ensure that the PIM are placed in full compliance with the Country Law including all technical regulations;
8.2.3. ensure that the PIM placement does not create a threat to people and traffic safety, including without limitation the PIM do not limit the sight of and do not distract the Drivers and other road users;
8.2.4. provide weekly reports on the number of Vehicles carrying PIM by sending them to Yango as an Electronic Notice;
8.2.5. notify Yango if the PIM are unsafe, unreadable or otherwise unfit and require restoration and (or) replacement;
8.2.6. if the Counterparty has the required capabilities, to restore the unreadable PIM;
8.2.7. if the spare PIM are available with the Counterparty, to replace the unsafe, unreadable, or otherwise unfit PIM.
8.3. Upon receipt of Yango’s Electronic Notice, the Counterparty shall:
8.3.1. within two (2) hours provide pictures of the PIM placed by sending them to Yango as an Electronic Notice;
8.3.2. within twenty-four (24) hours remove and (or) replace the PIM in full compliance with Yango’s Electronic Notice; or
8.3.3. within twelve (12) hours comply with other requirements as contained in Yango’s Electronic Notice.
9.1. The E-Service Fee
9.1.1. The Counterparty shall pay the E-Service Fee to Yango as prescribed in this Clause 9.1 of the Agreement.
9.1.2. The amount of the E-Service Fee is calculated pursuant to the Country Terms.
9.1.3. Subject to Clause 9.1.8 of the Agreement, Yango shall, by the end of the fifth (5th) business day of a Reporting Period, send an Electronic Notice containing an electronic certificate in regard to the E-Service rendered in the immediately preceding Reporting Period (hereinafter referred to as the ‘Certificate’). The deemed date of the Certificate receipt by the Counterparty shall be the business day following the day of the Certificate sending by Yango. The content of the Certificate is determined by Yango.
9.1.4. If, within thirteen (13) calendar days from the date of the Certificate, Yango has not, for any reason, received from the Counterparty a Written Notice with the Counterparty’s objections, relevant justifications, and explanations, then:
(a) the Counterparty shall be deemed to have accepted and agreed with the content of the Certificate and to have confirmed that the E-Service rendered in the relevant Reporting Period in all respects satisfy the Agreement,
(b) the Counterparty shall have no right to raise any objections with regard to the E-Service rendered in the relevant Reporting Period, and
(c) Yango may issue an electronic invoice for the E-Service listed in the Certificate (hereinafter referred to as the ‘Invoice’) and make the Invoice available to the Counterparty at the Counterparty Account.
9.1.5. The Counterparty shall, within five (5) calendar days of the Invoice date, transfer to Yango the full amount of the E-Service Fee denominated in the Country Currency always without deduction of any taxes, charges, and (or) other payments (hereinafter jointly referred to as the ‘Deductions’).
9.1.6. If the Law requires the Counterparty to make any Deductions from the E-Service Fee amount, then:
(a) the total amount of the E-Service Fee shall be automatically increased by the amount of such Deductions, so the E-Service Fee amount actually received by Yango after the relevant Deductions is equal to the amount calculated pursuant to the Agreement; and
(b) upon receipt of Yango’s request, the Counterparty shall provide to Yango:
i. documents confirming the payment of the Deductions outside the Netherlands, and
ii. a certificate of the Counterparty’s tax residency for the relevant calendar year.
9.1.7. The Counterparty shall be deemed to have discharged its obligation to pay the E-Service Fee from the date of receipt by Yango of a bank confirmation of crediting the entire amount of payment to the settlement account of Yango. Instead of the abovementioned bank confirmation Yango may, at its discretion, accept the following documents as a proper evidence of the E-Service Fee payment:
(a) in case of a non-cash payment, a facsimile of the payment order with the bank’s payment stamp,
(b) a facsimile of the payment receipt with the stamp of the bank, with which bank the payment was made, or
(c) any other evidence that Yango may accept.
9.1.8. Notwithstanding anything to the contrary in Clause 9.1 of the Agreement, Yango may request from the Counterparty an advance payment of the E-Service Fee as provided for in the General Terms.
9.1.9. Yango may change the E-Service Fee and any time and shall notify the Counterparty on the change of the E-Service Fee by sending an Electronic Notice to the Counterparty at least forty-eight (48) hours prior to the time and date when such changes take effect.
9.1.10. If the Counterparty does not wish to be bound by a changed E-Service Fee, it may unilaterally terminate the Agreement by giving to Yango a Written Notice thereof at least seven (7) calendar days prior to the date of the intended termination. The Agreement shall be deemed terminated from the later of: the termination date specified in the Counterparty’s Written Notice or the eighth (8th) day from the date of receipt of the Counterparty’s Written Notice by Yango.
9.2. The Transfer Fee
9.2.1. The amount of the Transfer Fee is calculated pursuant to the Country Terms.
9.2.2. The Counterparty agrees and acknowledges that:
(a) availability of non-cash payments functionality is an optional feature of the Service which may or may not be available at the Effective Date and is enabled by Yango at its discretion;
(b) the Transfer Fee (if paid with non-cash only) due from a User to the Counterparty shall be transferred from the User directly to Yango;
(c) the Service is configured to process non-cash payments from the Users as described in Clause 9.2.2(b) of the Agreement, which is an inherent feature of the Service intended to guarantee the interests of Yango that [feature] cannot be changed by the Counterparty; and
(d) a User’s obligation to pay the Transfer Fee (if paid with non-cash only) to the Counterparty shall be deemed fulfilled if a User has made to Yango a non-cash payment in the amount equal to the relevant Transfer Fee.
9.2.3. Yango shall remit the Transfer Fee as provided for in the Country Terms.
9.2.4. The fee of Yango for arranging the collection of the Transfer Fee from Users and its transfer to the Counterparty is paid by the Counterparty pursuant to the Country Terms.
9.3. The Currency
9.3.1. The currency of payments between the Parties shall be determined pursuant to the Country Terms.
10. AMENDMENTS OF AND ADDITIONS TO THE GENREAL TERMS
10.1. This section contains provisions that amend, disapply, and (or) supplement the existing provisions of the General Terms. Unless otherwise expressly provided for in this section, the relevant provision shall be deemed to supplement (for the avoidance of doubt: not to amend or disapply) the General Terms.
10.2. Guarantees and Warranties: Pursuant to Clause 4.3 of the General Terms Yango expressly disclaims without limitation any guarantee, warranty, or provision with regard to the correct, trouble-free, and error-free operation of the Service and compliance of the Service with the Counterparty’s specific goals and expectations.
10.3. Confidentiality: Clause 5.2.1 of the General Terms also does not apply to a disclosure or use of the Confidential Information in the following additional circumstances:
10.3.1. the disclosure by Yango is required to ensure the operation of the Service in full compliance with Yango’s standards, rules, and internal regulations, including without limitation the communication and (or) performance of the Requests; or
10.3.2. the disclosure by Yango is required to provide support to Users or Drivers, reply to Users’ or Drivers’ requests and questions, ensure the quality of the Service, and (or) ensure an efficient communication with Users or Drivers.
10.4. Supervision: the Supervision may include without limitation the evaluation of:
10.4.1. the quality of Transfer services rendered to the Users, and
10.4.2. the accuracy of the data provided by the Counterparty.
10.5. Liability of the Parties:
10.5.1. The Counterparty agrees and acknowledges that Yango shall not be liable or otherwise responsible for any damage, losses, and expenses, which, directly or indirectly, resulted from, related to, or connected with (without limitation):
(a) the use of and (or) inability to use the Service by the Counterparty, Drivers, Users, and (or) any person for whatever reason or cause; and (or)
(b) the Transfer services rendered by the Counterparty and (or) its Drivers to Users.
10.5.2. The Counterparty shall indemnify and hold harmless Yango, its Affiliates, employees, directors, officers, and agents for any liability, damage, losses, and expenses, which, directly or indirectly, resulted from, related to, or connected with (without limitation):
(a) the use of and (or) inability to use the Service by the Counterparty, Drivers, Users, and (or) any person for whatever reason or cause; and (or)
(b) the Transfer services rendered by the Counterparty and (or) its Drivers to Users.
10.5.3. Without prejudice to any other provision of the Agreement, in all circumstances the cumulative liability of Yango in a relevant calendar quarter for all instances of breaches or liability to the Counterparty shall at all times be limited to the total amount of the E-Service Fee actually received by Yango from the Counterparty in a preceding calendar quarter.
10.5.4. If the Counterparty has, whether intentionally, unintentionally, or otherwise, not complied with the provisions of Clause 6.5 of the General Terms in any respects, then the Counterparty shall pay to Yango the penalty as provided for in the Country Terms.
10.5.5. It is agreed and acknowledged by the Parties that for any instance of the Counterparty’s intentional, negligent, or innocent non-performance or improper performance of any of its duties under the Agreement the Counterparty will forfeit a penalty pursuant to the Country Terms.
11.1. Governing law. The Agreement and any non-contractual obligations arising out of or in connection with the Agreement shall be governed by and construed in accordance with law of the Netherlands, without regard to its conflict of law provisions.
11.2. Dispute resolution. The Netherlands Arbitration Institute (hereinafter referred to as the ‘NAI’) shall have the exclusive jurisdiction to finally settle all Disputes between the Parties arising in connection with the Agreement in accordance with the Arbitration Rules of the NAI (hereinafter referred to as the ‘Rules’). Further details on the Dispute resolution are provided in the General Terms.
12. FINAL PROVISIONS
12.1. By accepting the terms and conditions of this Agreement and (or) acting upon such terms and conditions, the Parties:
12.1.1. acknowledge and confirm that they have received, read, and understood all provisions incorporated in the Agreement, including without limitation the General Terms, the Country Terms, the Data Processing Agreement, and the Code of Business Ethics and Conduct in their entirety; and
12.1.2. acknowledge and agree to be bound by the provisions of the Agreement, including without limitation the General Terms, the Country Terms, the Data Processing Agreement, and the Code of Business Ethics and Conduct in their entirety.
Date of publication: June 3, 2019