Master Services Agreement
Background(A) The Supplier has developed and will provide the Services (each as defined below).(B) The Client (as defined below) wishes to use the Supplier’s Services in its business operations.(C) The Supplier has agreed to provide, and the Client has agreed to take and pay for, the Services, subject to the terms and conditions of this Agreement.
1.1. The definitions and rules of interpretation in this Clause apply in this Agreement.
Agreement: means the terms and conditions in this Agreement (including the Managed Services Terms, the NCE Managed Services Terms, the Professional Services Terms and the Supply of Goods Terms) along with the Statement of Work(s) and any other documents agreed between the Parties in writing.
Applicable Data Protection Legislation means:
Applicable Laws: all applicable laws, statutes, regulations from time to time in force which relate to the business of the applicable Party.
Authorised User: means any individual who is entitled to use of the Third Party Services and/or Subscription Services under this Agreement.
Background Materials: means all Intellectual Property Rights, know-how, information, methodologies, techniques, tools, schemata, diagrams, ways of doing business, trade secrets, instructions manuals and procedures (including, but not limited, to software, documentation, and data of whatever nature and in whatever media) owned, developed or controlled by the Supplier which may have been created outside the scope, or independently of, the Services and/or this Agreement, and including all updates, modifications, derivatives or future developments thereof.
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Business Systems: the information technology and communication systems, including networks, hardware, software and interfaces owned by, or licensed to, the Client or any of its agents or contractors.
Change Request: means any request to alter the Services pursuant to this Agreement as set out in Clause 13
Commencement Date: means the date of this Agreement unless otherwise specified in the relevant Statement of Work.
Commissioner: the Information Commissioner (see section 114, DPA 2018).
Confidential Information: all confidential information (however recorded or preserved) disclosed by a Party or its employees, officers, representatives, advisers or subcontractors involved in the provision or receipt of the Services (together, its “Representatives”) to the other Party and that Party’s Representatives in connection with this Agreement which information is either labelled as such or should reasonably be considered as confidential because of its nature and the manner of its disclosure.
Consumption: refers to the subscription licences that are billed based on actual usage.
Client: the client as identified in the Statement of Work.
Client Data: any information that is provided by the Client to the Supplier as part of the Client’s use of the Services, including any information derived from such information.
Client Personal Data: any personal data which the Supplier processes in connection with this Agreement, in the capacity of a processor on behalf of the Client.
Client Site: means the locations where the Services are provided as identified in the Statement of Work.
Client’s Operating Environment: the Client’s computing environment (consisting of hardware and software) that is to be used by the Client in connection with its use of the Managed Services and which interfaces with the Supplier’s System in order for the Client to receive the Managed Services, but excluding the Client-side Equipment.
Client-side Equipment: any equipment located or to be located on a Client Site but controlled or to be controlled exclusively by the Supplier as part of the Services.
Customer Agreement: the customer agreement, which is a direct agreement between the Client and Microsoft and is a condition of Cloud Solution Provider Program that the Client enters into this agreement, the terms of which are found at https://www.microsoft.com/licensing/docs/customeragreement and which may be updated from time to time.
Deliverable: means all Documents, products and materials developed by the Supplier or its agents, subcontractors, consultants and employees in relation to the Services in any form, including computer programs, data, reports and specifications (including drafts).
Document: means, in addition to any document in writing, any drawing, map, plan, diagram, design, picture or other image, tape, disk or other device or record embodying information in any form.
Dispute Resolution Procedure: the procedure described in Clause 27.
EU GDPR: the General Data Protection Regulation ((EU) 2016/679).
Fair Use Policy: means any fair usage policy set out in the applicable Statement of Work.
Fees: the fees payable to the Supplier, as described in the Statement of Work or as otherwise agreed in writing as may be varied from time to time pursuant to the terms of this Agreement.
Force Majeure: any cause preventing either party from performing any or all of its obligations which arises from or is attributable to acts, events, omissions or accidents beyond the reasonable control of the party so prevented including, without limitation, an act of God, war, riot, computer viruses and malware, future epidemics and pandemics, civil commotion, compliance with any law or governmental order, rule, regulation or direction, flood or storm, save that strike or lock out of the Party’s own staff shall not entitle them to claim that to be a force majeure event.
Goods: the goods or hardware to be provided as part of the Services (or any part of them), as set out in the Statement of Work in the relevant section or as otherwise agreed in writing between the Parties.
Good Industry Practice: the standards that fall within the upper quartile of a skilled and experienced provider of business-critical managed services similar or identical to the Services, having regard to factors such as the nature and size of the Parties, the Service Level Arrangements, the term, the pricing structure and any other relevant factors.
Hardware: all physical telecommunications, networking and computer equipment (including switches, routers, cables, servers, racks, cabinets and peripheral accessories) provided and used by the Supplier to deliver the Managed Services to the Client.
Initial Term: means the period commencing on the Commencement Date or the Services Commencement Date (as the case may be) and ending on the date thirty six (36) months thereafter unless otherwise specified in the Statement of Work. For the avoidance of doubt, each Statement of Work will have their own Term, which will extend the Initial Term of the Agreement if the term of the Statement of Work is longer than the Initial Term of the Agreement.
Intellectual Property Rights or IPR: any and all intellectual property rights of any nature, whether registered, registerable or otherwise, including any patents, utility models, trademarks, registered designs and domain names, applications for any of the foregoing, trade or business names, goodwill, copyright and rights in the nature of copyright, design rights, rights in databases, moral rights, know-how and any other intellectual property rights that subsist in computer software, computer programs, websites, documents, information, techniques, business methods, drawings, logos, instruction manuals, lists and procedures and particulars of customers, marketing methods and procedures and advertising literature, including the “look and feel” of any websites, and in each case all rights and forms of protection of a similar nature or having equivalent or similar effect to any of these that may subsist anywhere in the world now or in the future, in each case for their full term, together with any future rights and renewals or extensions.
IPR Claim: means a claim arising from the infringement of IPR belonging to third parties.
Licence Agreement: means all licence agreements that may have to be entered into by the Supplier and/or the Client in respect of Third Party Services used. Such Licence Agreement terms shall be set out in the relevant Statement of Work.
Links: means the Managed Services Terms, the Professional Services Terms, the NCE Managed Services Terms and the Supply of Goods Terms referred to and linked in this Agreement.
Losses: means costs, fines, damages, losses and liabilities suffered by a Party.
Managed Services: the hosting, cloud and support service described in a Statement of Work to be performed by the Supplier in accordance with this Agreement.
Managed Services Terms: means the terms and conditions relating to the provision of the Managed Services found here.
Minimum Users: means the minimum number of Authorised Users as provisioned from time to time.
NCE: New Commerce Experience.
NCE Managed Services: the services and use related to NCE licences.
NCE Managed Services Terms: the terms and conditions relating to the provision of the NCE Managed Services found here.
Normal Business Hours: 9 am to 5.30 pm local UK time on Business Days or as otherwise set out in the Statement of Work.
Out of Scope: means those out of scope services specified as such in the Statement of Work together with any other services which are not detailed in the Statement of Work.
Party: a party to this Agreement or parties.
Product(s): means the Microsoft or other Third Party online services, tools, software, hardware, or professional support or consulting services provided under the terms of the Customer Agreement or Licence Agreement.
Professional Services: the service described in the Statement of Work to be performed by the Supplier in accordance with this Agreement.
Professional Services Terms: the terms and conditions relating to the provision of Professional Services found here.
Purpose: the purposes for which the Client Personal Data is processed, as set out in the applicable Statement of Work.
Rates: the Supplier’s standard hourly or daily fee rates as set out in the applicable Statement of Work.
Relief Events: the following events:
a) any failure by the Client to comply with its obligations under this Agreement;b) any error or malfunction in the Business Systems or any other software, hardware or systems for which the Supplier is not responsible or any failure by the Client, its agents or contractors (including any existing service provider) to obtain sufficient support and maintenance, as required, for any software, hardware or systems for which the Supplier is not responsible;c) any failure by the Client or its agents or contractors (including any existing service provider) to provide any information, co-operation or instructions to the Supplier which is reasonably required by the Supplier for the proper performance of its obligations under this Agreement;d) incompetence, misuse or other error of a user of the Services or erroneous or incorrectly prepared Client materials;e) accident, neglect, virus or malware attacks, network down-time, misuse, transportations or moving, excessive fluctuations in mains electrical supply;f) failure or down-time of any third party services;g) failure to access or use the Services in accordance with the terms of this Agreement, any Documentation or the Supplier’s instructions;h) any change, addition, variation or repair other than those carried out by the Supplier;i) use of the Services in combination with other systems, software or equipment of the Client (or any third party) not approved by the Supplier;j) any telecommunications network defect, delay or failure; ork) any of the causes or events set out in Clause 10.7.
Representative: means the person nominated by each Party in accordance with this Agreement.
Retail Prices Index: means the Retail Prices Index (all Items, excluding mortgages) as published by the Office for National Statistics from time to time, or failing such publication, such other index as the Parties may agree (such agreement not to be unreasonably withheld or delayed), acting reasonably, most closely resembles such index.
Scheduled Downtime: means the total amount of time during which the Client is not able to access the Services due to planned maintenance. The Supplier may schedule system downtime, with prior agreement of the Client. Scheduled Downtime periods do not count against the service level calculation detailed in a Statement of Work.
Service Level Arrangements: any service level arrangements set out in the Statement of Work.
Services: means the provision of Goods, Managed Services, the Professional Services and/or NCE Managed Services including consulting, advisory, integration or technical services performed by the Supplier under a Statement of Work or otherwise agreed between the Parties in writing.
Services Commencement Date: means the date set out in the applicable Statement of Work or as otherwise agreed between the Parties for the commencement of the Services.
Statement of Work: means the statement of work which sets out the Services and the Service Level Arrangements under separate cover and which incorporates the terms and conditions of this Agreement.
Subscription Services: means a right to use the Product(s) for a defined term.
Subsequent Term: means twelve (12) months commencing on the last day of the Initial Term or previous Subsequent Term.
Supplier: Meritum Cloud Services Ltd incorporated and registered in England and Wales with company number 09356706 whose registered office is at 1 Ropemaker Street, Citypoint, London, EC2Y 9HT.
Supplier’s System: the system to be used by the Supplier in performing the Managed Services, including the Hardware, any Third Party Services, the Client-side Equipment and communications links between the Hardware and the Client-side Equipment and the Client’s Operating Environment.
Supply of Goods Terms: the terms and conditions relating to the supply of Goods found here.
Term: means the Initial Term and any Subsequent Term, as applicable.
Third Party: any third party that supplies Third Party Services to the Supplier and/or the Client (as the case may be) during the provision of the Services.
Third Party Services: any services, goods, code or software programs written or provided by a Third Party which are used by the Client during the provision of the Services.
UK GDPR: has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018.
Unscheduled Downtime: means any time when any or all of the applications and Services provided by the Supplier to the Client shall be unavailable to the Client due to unexpected system failures other than Scheduled Downtime or the downtime is attributable to events not under the control of the Supplier.
User Subscriptions: means the user subscriptions purchased by the Client pursuant to a Statement of Work which entitle Authorised Users to access and use the Subscription Services and/or Third Party Services (as the case may be) in accordance with this Agreement.
Variations: any variations made through the Variation Agreement, a template of which is found here.
1.2. Clause, and paragraph headings shall not affect the interpretation of this Agreement.
1.3. A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.4. Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.5. Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.6. A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
1.7. A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.
1.8. A reference to writing or written includes e-mail.
1.9. Any phrase introduced by the words including, includes, in particular or for example, or any similar phrase, shall be construed as illustrative and shall not limit the generality of the related general words.
1.10. References to Clauses are to the Clauses of this Agreement.
1.11 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.12 In the event of any conflict or inconsistency between the Clauses of this Agreement, the Links, the Statement of Work, Licence Agreement and the Customer Agreement (including any changes or variations to each of the Clauses, the Statement of Work, the Licence Agreement and Customer Agreement), the following order of precedence shall apply (in decreasing order) to the extent of such conflict or inconsistency:
a) the Variations;b) the Statement of Work;c) the Licence Agreements and Customer Agreement, to the extent applicable to the Services;d) the Links;e) the Clauses.
2. PROVISION OF SERVICES2.1. This Agreement sets out the terms and conditions under which the Supplier shall provide to the Client the Services.
2.2. Where the Services include:
a) the supply of Managed Services, the provisions of the Managed Services Terms shall apply in addition to the Clauses;b) the supply of Professional Services, the provisions of the Professional Services Terms shall apply in addition to the Clauses;c) the supply of the NCE Managed Services, the provisions of NCE Managed Services Terms shall apply in addition to the Clauses; andd) the supply of Goods, the provisions of Supply of Goods Terms shall apply in addition to the Clauses.
2.3. This Agreement shall (i) be in substitution for any prior oral or other prior arrangements between the Supplier and the Client in connection with the purchase of the relevant Services; and (ii) prevail over any of the Client’s inconsistent terms or conditions contained in, or referenced in, any order confirmation or other acknowledgement, quotation, purchase order(s), delivery note, invoice or similar document or implied by law, trade custom or practice.
2.4. No addition to, variation of or other amendment or purported amendment to any Statement of Work or this Agreement shall be binding on the Parties unless expressly stated as such, made in writing and signed by or acknowledged by a duly authorised Representative of both Parties.
2.5 Any quotation or proposal given by the Supplier is for budgetary purposes until financial and technical validation and shall not constitute an offer. For
a) Managed Services (including NCE Managed Services) or Professional Services, it is only valid for a period of thirty (30) days; and/orb) the supply of Goods, it is only valid for a period of fourteen (14) days,
from its date of issue unless otherwise agreed by the Supplier in writing and shall only become binding upon the signing of a Statement of Work.
3. RESPONSIBILITIES OF SUPPLIER
3.1. The Supplier shall:
a) provide the Services in accordance with the terms of this Agreement and the Statement of Work;b) use its commercially reasonable endeavours to complete any Deliverables set out under any Statement of Work but any dates shall be estimates only;c) commit sufficient resources to the provision of the Services to enable their delivery in accordance with the Agreement and any Statement of Work;d) provide the Services with due care, skill and ability in accordance with Good Industry Practice;e) take such steps as may be required to fulfil its obligations under this Agreement and any Statement of Work;f) utilising suitably skilled, qualified, experienced, supervised and vetted employees, agents, representatives and authorised sub-contractors who will exercise all reasonable skill and care;g) notify the Client promptly if the Supplier is unable to comply with any of the terms of this Agreement, any of the Licence Agreements, the Customer Agreement or any Statement of Work; andh) observe and ensure that its personnel observe all health and safety rules and regulations and any other security requirements that apply at any of the Client Sites and which have been communicated to it a week prior to the Services commencing, where the Supplier is required to be on such Client Sites for the provision of the Services.
3.2. The Supplier shall co-operate with the Client in all matters relating to the Services and shall appoint a Representative (“Supplier Representative”), as the contact throughout the Services.
3.4. The Supplier shall provide reasonable notice to the Client of any change in its senior personnel engaged as part of the Services. Where relevant, the Supplier shall replace any senior personnel who are removed with another appropriately skilled person.
3.3. The Client confirms that the Supplier may employ sub-contractors without seeking the prior consent of the Client. Notwithstanding the foregoing, the Supplier shall at all times be responsible for and liable in respect of the performance of all obligations under this Agreement, whether such obligations are performed by the Supplier itself, or any sub-contractor engaged by the Supplier and under the supervision of the Supplier. For the avoidance of doubt, the Supplier shall not be held liable for the actions and or omissions of third parties who are not its subcontractors.
4. RESPONSIBILITIES OF CLIENT
4.1 To the extent that the Supplier requires access to the Client Site to perform the Services, the Client shall provide such access during Normal Business Hours and to provide a suitable work environment to enable the Supplier to perform such Services subject to the Supplier complying with such internal policies and procedures of the Client (including those relating to security and health and safety) as may be notified to the Supplier in writing from time to time.4.2. The Client shall co-operate with the Supplier in all matters relating to the Services and shall appoint a minimum of two Representatives (“Client Representatives”), who shall have authority to commit the Client on all matters relating to the relevant Service.
4.3. The Client agrees and acknowledges the terms of the applicable Licence Agreements and the terms of the Customer Agreement shall form part of this Agreement. For the avoidance of doubt, in the event the applicable Licence Agreements and/or the Customer Agreement is not applicable to the Services being received or delivered by the Supplier to the Client under this Agreement, such agreements shall not apply.
4.4. The Client shall:
a) make the Client’s Operating Environment and Client-side Equipment, required to provide the Services, accessible to the Supplier’s support staff, enable logons or passwords required for such support staff and provide appropriate hardware interface, software and access authorisation to enable remote diagnosis, should such capability be required;b) ensure it has suitable licences in place for any third party software required (which is not issued by the Supplier) to allow the Supplier and its subcontractors full use in relation to the Services provided;c) not use the Services to receive, store or transmit material or data that is obscene, threatening, offensive, discriminatory, defamatory or in breach of confidence, infringes Intellectual Property Rights or other rights, gives rise to any cause of action against the Supplier in any jurisdiction or is otherwise unlawful;d) adhere to the dates scheduled for provision of Services by the Supplier to the Client as stated in the applicable Statement of Work or otherwise agreed between the Parties in writing. In the event the Client wishes to reschedule or cancel the dates for the provision of Services, liquidated damages (“Liquidated Damages”) will become payable from the Client to the Supplier on the following basis:
I) if dates are changed or cancelled at the Client’s request more than fourteen (14) days before the scheduled start date no Liquidated Damages are payable;II) if dates are changed or cancelled between seven (7) days and fourteen (14) days before the scheduled start date Liquidated Damages equivalent to fifty percent (50%) of the Fees for the Services to be provided at that time will be payable;III) if dates are changed or cancelled less than seven (7) days before the scheduled start date Liquidated Damages equivalent to one hundred percent (100%) of the Fees for the Services to be provided at that time will be payable;
e) inform the Supplier of all health and safety rules and regulations and any other reasonable security requirements that apply at any of the Client’s premises;f) allow the Supplier or its designated subcontractors and third parties, global admin access to the Client’s relevant servers and networking systems for the duration of the Agreement;g) where a Microsoft Cloud service is deployed / utilised within the project (Azure, Enterprise Mobility Suite or Office365) the Supplier will be assigned to the cloud subscription/s as the Claiming Partner of Record (CPOR) and/or Digital Partner of Record (DPOR) and/or Transacting Partner of Record (TPOR) and/or Partner Admin Link (PAL) and Admin on Behalf of (AOBO) for a minimum of twelve (12) months from project completion date;h) in respect of any Microsoft funded services, sign and deliver the Microsoft Proof of Execution (“POE”) within seven (7) days of the date of issue by Microsoft. In the event that the Client does not return the POE within the seven (7) days’ notice period, the Supplier may be entitled to charge the Client the amounts directly and the Client shall follow the payment terms in this Agreement;i) take good care of the Supplier’s equipment to prevent damage or loss to such equipment arising from misuse by Client personnel in accordance with any applicable Supplier policy or instructions of the Supplier from time to time;j) maintain adequate policies of insurance which provide cover for the Supplier’s equipment when located at the Client Site against the normal risks which the Client could reasonably be expected to insure against in respect of its own equipment;k) provide appropriate hardware interface, software and access authorisation to enable remote diagnosis, should such capability be required;l) provide all information and make available all resources as reasonably requested by Supplier in the execution of its obligations under this Agreement;m) use all reasonable efforts to follow the reasonable instructions of Supplier support personnel with respect to the resolution of defects;n) gather all relevant information prior to requesting assistance in respect of any defects including detailed defect description, and procedures required to replicate a problem if possible. Any additional information which may help in the diagnosis of a defect should be included such as network configuration details; ando) agree that if, in the course of performing the Services, it is reasonably necessary for the Supplier’s performance of its obligations under a Statement of Work for the Supplier to access or use any equipment, software or data of the Client (or which is in the possession of the Client) then it shall where it is able to do so grant to the Supplier and any of its subcontractors a nonexclusive, royalty free, terminable licence to use the same solely for the purpose of delivering the Services only for as long as is strictly necessary to deliver such Services.
4.5. The Client shall (unless otherwise specified in the Statement of Work or as otherwise set out in this Agreement):
a) adhere to any Fair Use Policy;b) use the Services only for lawful purposes and in accordance with this Agreement;c) keep secure from third parties any passwords issued to the Client by the Supplier;d) fully virus-check all data supplied to the Supplier pursuant to this Agreement;e) comply with all applicable laws and regulations with respect to its activities under this Agreement; andf) carry out all other Client responsibilities set out in this Agreement and the Statement of Work in a timely and efficient manner. In the event of any delays in the Client’s provision of such assistance as agreed by the Parties, the Supplier may adjust any timetable or delivery schedule set out in this Agreement as reasonably necessary.
4.6. In the event that the Client is in breach of its obligations under the Agreement (excluding payment obligations) then the Supplier shall provide written notice of such breach, specifying in detail the nature of the breach and providing thirty (30) days’ notice to remedy such breach if capable of remedy. If the Client fails to remedy such breach the Supplier shall be entitled to terminate or suspend the Services without prejudice to any pre-existing rights and obligations of either Party. The Supplier shall have no liability or responsibility should the Services fail to comply with the Statement of Works and/or Service Level Arrangements as a direct result of the Client (including without limitation any of its employees, subcontractors or any of its staff) being in breach of the Agreement.
4.7. In the event that the Client is in breach of its payment obligations under the Agreement then the Supplier shall provide written notice of such breach, specifying in detail the nature of the breach and providing fourteen (14) days’ notice to remedy such breach if capable of remedy. If the Client fails to remedy such breach the Supplier shall be entitled to terminate or suspend the Services without prejudice to any pre-existing rights and obligations of either Party. The Supplier shall have no liability or responsibility should the Services fail to comply with the Statement of Works and/or Service Level Arrangements as a direct result of the Client (including without limitation any of its employees, subcontractors or any of its staff) being in breach of the Agreement.
4.8. The Supplier shall not be liable for any delays or claims of whatsoever nature, which result, directly or indirectly, from the failure by the Client to comply with the reasonable requests of the Supplier or the breach by the Client of any provision of this Agreement.
5. PROJECT ORGANISATION
5.1. If requested in writing by the Client or specified in the Statement of Work, the Client Representatives and the Supplier Representative shall have regular meetings to monitor and review the performance of this Agreement, to discuss any changes proposed in accordance with Clause 13 and to discuss the Service Level Arrangements.
5.2. Before each meeting, the Client Representatives shall notify the Supplier Representative, and vice versa, of any problems relating to the provision of the Services for discussion at the meeting. At each such meeting, the Parties shall agree a plan to address such problems. In the event of any problem being unresolved or a failure to agree on the plan, the matter shall be resolved in accordance with the Dispute Resolution Procedure. Progress in implementing the plan shall be included in the agenda for the next meeting.
6. User Subscriptions
6.1. The Supplier grants to the Client a non-exclusive, non-transferable right to permit the Authorised Users to use the Third Party Services and/or Subscription Services (as applicable) during the applicable Term solely for the Client’s internal business operations.
6.2. In relation to the Authorised Users, the Client undertakes that:
a) it will not allow or suffer any User Subscription to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User shall no longer have any right to access or use the Third Party Services and/or Subscription Services;b) each Authorised User shall keep a secure password or other biometric authentication for their use of the Third Party Services and/or Subscription Services (as the case may be) and where a password is used, ensure that such password shall be changed no less frequently than monthly and that each Authorised User shall keep their password confidential;c) it shall maintain a written, up to date list of current Authorised Users and provide such list to the Supplier within five (5) Business Days of the Supplier’s written request from time to time;d) it shall permit the Supplier to audit the Client’s use of the Third Party Services and Subscription Services for each Authorised User. Such audit may be conducted no more than once per quarter, at the Supplier’s expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Client’s normal conduct of business;e) if any of the audits referred to in Clause 6.2(d) reveal that any password has been provided to any individual who is not an Authorised User, then without prejudice to the Supplier’s other rights, the Client shall promptly disable such passwords and the Supplier shall not issue any new passwords to any such individual; andf) if any of the audits referred to in Clause 6.2(d) reveal that the Client has underpaid Fees to the Supplier and/or individuals are using the Third Party Services and/or Subscription Services who are not Authorised Users, without prejudice to the Supplier’s other rights, the Client shall pay to the Supplier an amount equal to such underpayment within ten (10) Business Days of the date of the relevant audit or upon request by the Supplier, promptly disable access to such individuals.
6.3. The Client may, from time to time during any Term:
a) subject to the NCE Managed Services Terms and the Statement of Work, request that the User Subscriptions are increased but the Client is not permitted to decrease below the Minimum Users provisioned; orb) request Additional Users at any point in excess of the User Subscriptions, by giving the Supplier written notice subject to the following:
I) The Supplier shall evaluate the Client’s request for Additional User subscriptions and grant or refuse the request (in its sole discretion).II) If the Supplier approves the Client’s request to purchase Additional User subscriptions, the Client shall, within thirty (30) days of the date of the Supplier’s invoice, pay to the Supplier the relevant Fees for such Additional User subscriptions at the relevant price at the time of the request and, if such Additional User subscriptions are purchased by the Client part way through the Term, such fees shall be pro-rated for the remainder of the Term.
6.4. Unless otherwise set out in the Statement of Work, the Supplier may adjust the Minimum Users on renewal to reflect any adjustments made to the User Subscriptions in accordance with this Clause 6 over the previous twelve (12) months or as otherwise agreed between the Parties.
7. PRICE AND PAYMENT
7.1. The Client shall pay the Fees for the Services (including any Third Party Services) as more fully set out in the relevant Statement of Work. Where these are based on the number of Subscription Users and/or Consumption, such Fees shall be variable upon the terms set out in the Statement of Work.
7.2. If no Fee is quoted, the Fee shall be calculated in accordance with the Supplier’s Rates set out in the Statement of Work as amended from time to time in accordance with this Agreement. For the avoidance of doubt, in the event the Client delays any agreed go-live date (which falls outside of the Liquidated Damages) or has not conducted its Acceptance Testing in accordance with the Professional Services Terms, the Supplier may charge the Client for such delays in accordance with its Rates.
7.3. Clause 7.5 shall apply if the Services are to be provided on a time-and-materials basis. Clause 7.7 shall apply if the Services are to be provided on a Consumption basis. The remainder of this Clause 7 shall apply to all Fees, whether payable on a fixed price, annual or time and materials basis.
7.4. Where a Fee has been quoted, this is a best estimate based on the information given to the Supplier by the Client and/or which is available at that time and may be based on a number of assumptions set out in the Statement of Work (“Assumptions”). If it materialises that in the Supplier’s reasonable opinion, the information provided and/or Assumptions made are incorrect, inaccurate or have changed and/or that the proposed scope of Services is not feasible, the Supplier shall be entitled to charge (at the Supplier’s current Rates) the Client for any Out of Scope Services or other additional Services provided to those detailed in the Statement of Work together with all related costs and expenses incurred by the Supplier.
7.5. Where the Services are provided on a time-and-materials basis:
a) the Supplier’s standard hourly or daily rates are calculated on the basis of Normal Business Hours; b) the Supplier shall be entitled to charge an overtime rate for time worked outside Normal Business Hours as set out in the Statement of Work; andc) the Supplier shall complete the relevant time recording systems to calculate the Fees for each invoice charged on a time and materials basis.
7.6. The Supplier shall invoice the Fees in accordance with the payment intervals stated in the Statement of Work. Save where other payment terms are set out in the Statement of Work, all Fees will be payable by direct debit. The Client shall provide the Supplier with valid up-to-date and complete payment information and direct debit authority.
7.7. For all Consumption subscriptions (“Consumption Subscriptions”), the Client agrees and acknowledges that:
a) it may be required to submit monthly use reports based on its monthly usage of the applicable Third Party Service in accordance with the requirements set out in the applicable Statement of Work;b) any adjustments or revisions to its monthly use report must be provided within thirty (30) days of the original invoice date together with a detailed explanation of the adjustment or revision;c) Consumption Subscriptions do not expire unless cancelled. Consumption Subscriptions can be cancelled in accordance with the Customer Agreement or Licence Agreement and any usage before a transfer to another provider is in effect will be billed in the next scheduled invoice date;d) Consumption Subscriptions may be subject to a cap. It will be billed at the next billing cycle including all usage from the prior month. Pricing will be based on the pricing effective during the current billing cycle except when prices decrease or increase. The unit price for the applicable Third Party Service sold on a Consumption basis may change during the subscription period;e) it shall pay all such usage and is responsible for monitoring its Consumption needs; f) for the avoidance of doubt, if, in spite of Clause 7.7(d), the Client utilises the applicable Third Party Services in excess of any cap, the Client shall pay to the Supplier the Fees and other expenses in accordance with its actual use.
7.8. The Fees exclude:
a) actual, reasonable travel costs and expenses including airfares, hotels and meals incurred by the Supplier in performance of the Services (“Expenses”); b) unless otherwise set out in the Statement of Work, the costs of packaging, insurance and transport of the Goods;c) VAT or other relevant sales tax, which the Supplier shall add to its invoices at the appropriate rate,
and the Supplier shall obtain the Client’s prior written approval before incurring any such expense, material or service exceeding a total cost of a hundred and fifty pounds (£150) in the aggregate per day per project resource and shall be payable by the Client in accordance with Clause 7.9.
7.9. The Client shall pay each undisputed invoice for the Fees and Expenses in full and cleared funds (without deduction or set-off) within thirty (30) days of the date of such invoice unless otherwise agreed in writing by the Supplier or unless otherwise set out in the Statement of Work. In the event the Client pays by direct debit, the details of such direct debit payments shall be set out in the Statement of Work, as applicable.
7.10. All payments by the Client hereunder shall be in United Kingdom pound sterling unless otherwise agreed or set out in the Statement of Work and shall be paid to the Supplier’s bank account as advised by the Supplier to the Client in writing.
7.11. Should the Client be required by any law or regulation to make any deduction on account of tax including but not limited to withholding tax or otherwise on any sum payable under the Agreement the Fees payable shall be increased by the amount of such tax to ensure that the Supplier receives a sum equal to the amount to be paid under the applicable Statement of Work.
7.12. Without prejudice to any other remedy that the Supplier may have, if payment of the Fees or any part thereof is overdue then unless the Client has notified the Supplier in writing that such payment is in dispute within ten (10) days of the receipt of the corresponding invoice the Supplier may, without prejudice to any other rights or remedies, charge the Client interest on the overdue amount at the rate of four percent (4%) per annum above the base lending rate of the Bank of England from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Client shall pay the interest together with the overdue amount.
7.13. The Client shall not be able to dispute any amounts which have been paid by the Client after a period of three (3) months has elapsed from the date of invoice.
7.14. The Supplier shall not be obliged to provide any of the Services and/or deliver any Goods while any duly issued invoice(s) remain unpaid under any Statement of Work, but should the Supplier choose to continue to do so, this shall not in any way be construed as a waiver of the Supplier’s rights or remedies.
7.15. Subject to Clause 7.16 below, the Fees relating to the provision of Services shall increase on an annual basis with effect from each anniversary of the Commencement Date (each such period being a “Service Year”) in line with the percentage increase in the Retail Prices Index in the preceding 12-month period.
7.16. For the avoidance of doubt, the Supplier may increase any fees related to Third Party Services in line with any increases imposed upon the Supplier by such third parties upon reasonable notice and in line with the terms of the Licence Agreement and/or the Customer Agreement.
7.17. Notwithstanding and subject to Clauses 7.15 and 7.16, the Supplier reserves the right, on giving the Client thirty (30) days’ notice, to increase the Fees on an annual basis with effect from each anniversary of the Commencement Date. If the Client does not agree with this increase, then they may terminate this Agreement upon thirty (30) days written notice and before such price increase takes effect. If the Supplier does not receive written notice within thirty (30) days, the Client is deemed to have agreed to the amendment to the Fees.
8. WARRANTIES AND SERVICE LEVELS
8.1. The Client warrants that:
a) it has the full capacity and authority to enter into and perform this Agreement and that this Agreement is executed by a duly authorised representative of the Client;b) it has the authority to grant any rights to be granted to the Supplier under this Agreement;c) it owns or has obtained valid licences, consents, permissions and rights to use, and where necessary to licence to the Supplier and any of its subcontractors, any materials reasonably necessary for the fulfilment of all its obligations under this Agreement; andd) the Supplier’s use in the provision of the Managed Services or otherwise in connection with this Agreement of any third-party materials, including any Hardware supplied by the Client to the Supplier for use in the provision of the Managed Services or otherwise in connection with this Agreement, shall not cause the Supplier to infringe the rights, including any Intellectual Property Rights, of any third party.
8.2. The Supplier warrants and represents that:
a) it has the full capacity and authority to enter into and perform this Agreement and that this Agreement is executed by a duly authorised representative of the Supplier;b) it owns or has obtained valid licences, consents, permissions and rights to enable the Supplier to comply with this Agreement and to use any of the Intellectual Property Rights necessary for the fulfilment of all its obligations under this Agreement including for the Client’s use and receipt of the Services, and the Supplier shall not breach the provisions of any such necessary licences, consents, permissions and rights or cause the same to be breached;c) it will comply with all applicable laws in performing its obligations under this Agreement; andd) the Client’s use of any Supplier materials and/or third-party materials, including any materials supplied by the Supplier to the Client, shall not cause the Client to infringe the rights, including any Intellectual Property Rights, of any third party.
8.3. Except for any warranties and service levels expressly set forth in this Agreement, the Services are provided on an “as is” basis, and Client’s use of the Services is at its own risk. The Supplier does not make, and hereby disclaims, any and all other express and/or implied warranties, statutory or otherwise, including, but not limited to, warranties of merchantability, fitness for a particular purpose and any warranties arising from a course of dealing, usage, or trade practice.
8.4. In the event that a defect, fault or impairment in the provision of the Service(s) causes a service interruption and the Supplier becomes aware of this either through the Client giving notification to the Supplier of such default, fault or impairment, or as a result of the Supplier’s monitoring, then the Supplier shall use its commercially reasonable endeavours to resolve that defect, fault or impairment as more fully set out in the Statement of Work and to the extent it reasonably can.
8.5. If the Supplier determines in its reasonable opinion that such a defect, fault or impairment results directly or indirectly from: (i) the negligence, act, omission, or default of the Client or Authorised User, (ii) the Client’s breach of this Agreement, or (iii) the operation, failure or malfunction of any network, equipment, hardware or software owned or controlled by the Client or (iv) any third party action in response to an act or omission of the Client or any person given access to the Service by the Client (including third party hosted software vendors) then the Supplier may recover from the Client all reasonable costs to be incurred by it or on its’ behalf in connection with the remedy of such defect, fault or impairment. Therefore, for the avoidance of doubt, the Supplier can make no commitment to fix any fault and time is not of the essence.
8.6. Unless otherwise agreed or set out in the Statement of Work (as forming part of the Service) if the Client accesses the Services through the public internet or through a private circuit provisioned by a bandwidth provider of the Client’s choice, the Client assumes responsibility for managing the relationship with this chosen provider, including service level commitments for issues found to be in the chosen provider’s network.
8.7. If the Client moves from one Client Site to another site or makes changes to any Client Site or opens a new location to be added to the Client Sites, the Client must notify the Supplier in advance. The Supplier may need to carry out an inspection of any cabling and advise the Client of any work to bring the IT Infrastructure up to standard operating conditions at the new location in order to remain eligible for coverage. The Supplier will provide a quote if it is to provide additional resources or Services in the case of any change at the Client Sites or new Client Sites for including as part of the Fees.
8.8. The Supplier will request approval from the Client’s Representatives before making any significant changes to the Services. The Supplier will arrange any Scheduled Downtime in advance with the Clients Representatives. The Supplier is not responsible for Unscheduled Downtime that is due to anything outside the Supplier’s control and the Supplier and its subcontractors may suspend some or all of the Services in order to carry out scheduled or emergency maintenance or repairs.
8.9. The Service Level Arrangements are specific to directly provided Services of the Supplier and do not relate to Third Party Services (of which such Third Party Services will be governed by their own relevant service levels).
8.10. The Supplier shall not in any circumstances be liable under its obligations in this Clause 8 if it can demonstrate that any failure of the Services was caused or contributed to by any Relief Event.
8.11. Notwithstanding the foregoing, the Supplier does not warrant that the Client’s use of the Services will be uninterrupted or error-free.
8.12. The Client hereby warrants that it has not been induced to enter into this Agreement by any prior representations, nor has it relied on any oral representation made by the Supplier or upon any descriptions, illustrations or specifications contained in any catalogues and publicity material produced by the Supplier.
9. DATA PROTECTION
9.1. The Supplier shall promptly notify the Client in writing of any loss or damage to the Client Data. In the event of any loss or damage to Client Data, the Supplier shall use commercially reasonable endeavours to restore the lost or damaged Client Data from the latest backup of such Client Data. The Supplier shall not be responsible for any loss, destruction, alteration or unauthorised disclosure of Client Data caused by any third party.
9.2. For the purposes of this Clause 9, the terms controller, processor, data subject, personal data, personal data breach and processing shall have the meaning given to them in the Applicable Data Protection Legislation.
9.3. Both Parties will comply with all applicable requirements of Applicable Data Protection Legislation. This Clause 9 is in addition to, and does not relieve, remove or replace, a Party’s obligations or rights under Applicable Data Protection Legislation.
9.4. The Parties have determined that, for the purposes of Applicable Data Protection Legislation, the Supplier shall process the Client Personal Data set out in the applicable Statement of Work, as a processor on behalf of the Client.
9.5. Without prejudice to the generality of Clause 9.3, the Client will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Client Personal Data to the Supplier for the duration and purposes of this Agreement.
9.6. In relation to the Client Personal Data, the applicable Statement of Work sets out the scope, nature and purpose of processing by the Supplier, the duration of the processing and the types of personal data and categories of data subject.
9.7 Without prejudice to the generality of Clause 9.3 the Supplier shall, in relation to Client Personal Data:
a) process that Client Personal Data only on the documented instructions of the Client, which shall be to process that Client Personal Data for the purposes of the applicable Statement of Work;b) implement appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Client Personal Data and against accidental loss or destruction of, or damage to, Client Personal Data, which the Client has reviewed and confirms are appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures; c) ensure that any personnel engaged and authorised by the Supplier to process Client Personal Data have committed themselves to confidentiality or are under an appropriate statutory or common law obligation of confidentiality; d) assist the Client insofar as this is possible (taking into account the nature of the processing and the information available to the Supplier), and at the Client’s cost and written request, in responding to any request from a data subject and in ensuring the Client’s compliance with its obligations under Applicable Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;e) notify the Client without undue delay on becoming aware of a personal data breach involving the Client Personal Data;f) at the written direction of the Client, delete or return Client Personal Data and copies thereof to the Client on termination of the Agreement unless the Supplier is required by Applicable Law to continue to process that Client Personal Data. For the purposes of this Clause 9.7(f) Client Personal Data shall be considered deleted where it is put beyond further use by the Supplier; andg) maintain records to demonstrate its compliance with this Clause 9 and allow for reasonable audits by the Client or the Client’s designated auditor, for this purpose, on reasonable written notice.
9.8. The Client hereby provides its prior, general authorisation for the Supplier to:
a) appoint processors to process the Client Personal Data, provided that the Supplier:
i. shall ensure that the terms on which it appoints such processors comply with Applicable Data Protection Legislation, and are consistent with the obligations imposed on the Supplier in this Clause 9;ii. hall remain responsible for the acts and omission of any such processor as if they were the acts and omissions of the Supplier; andiii. shall inform the Client of any intended changes concerning the addition or replacement of the processors, thereby giving the Client the opportunity to object to such changes provided that if the Client objects to the changes and cannot demonstrate, to the Supplier’s reasonable satisfaction, that the objection is due to an actual or likely breach of Applicable Data Protection Legislation, the Client shall indemnify the Supplier for any Losses, damages, costs (including legal fees) and expenses suffered by the Supplier in accommodating the objection;
b) only transfer Client Personal Data outside of the UK as required for the Purpose, provided that the Supplier shall ensure that all such transfers are effected in accordance with Applicable Data Protection Legislation. For these purposes, the Client shall promptly comply with any reasonable request of the Supplier, including any request to enter into standard data protection clauses adopted by the EU Commission from time to time (where the EU GDPR applies to the transfer) or adopted by the Commissioner from time to time (where the UK GDPR applies to the transfer).
9.9. Either Party may, at any time on not less than thirty (30) days’ notice, revise this Clause 9 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to this agreement) where there has not been a European Community finding of adequacy pursuant to Article 45 of the EU GDPR in respect of the UK.
9.10. The Supplier’s total aggregate liability in contract, tort (including negligence and breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement or any collateral contract insofar as it relates to the obligations set out in this Clause 9 or the Applicable Data Protection Legislation shall be limited to the amount set out in Clause 13.5.
9.11. To the extent that the Supplier cannot comply with a change to the Client’s instructions when processing Client personal data without incurring material additional costs:
a) the Supplier shall: (i) immediately inform the Client, giving full details of the problem; and (ii) cease all processing of the affected data (other than securely storing those data) until revised instructions are received; and
b) any changes in the Client’s instructions that affect the pricing structure or commercial relationship between the Parties should go through an appropriate Change Request.
10. INTELLECTUAL PROPERTY RIGHTS
10.1. Subject to Clause 10.2 below, on creation by the Supplier and upon the Supplier receiving payment in full, all Intellectual Property Rights in bespoke materials or code created exclusively under the Services (”Bespoke IPR”) for the Client shall vest automatically in the Client. The Supplier hereby assigns to the Client its present and future rights and full title and interest in such creations, including but not limited to workflows, widgets, business processes, and customised web coding which are used in order to provide the Services. The Client hereby provides an irrevocable, worldwide, royalty-free licence to the Supplier for the duration of this Agreement to use such Bespoke IPR strictly for the purposes of providing the Services.
10.2. Notwithstanding Clause 10.1 above, the Supplier and its respective licensors shall retain exclusive ownership of (i) all of its Background Materials; and (ii) ideas, concepts, techniques and know-how discovered, created or developed by the Supplier during the performance of the Services that are of general application and that are not based on or derived from the Client’s business or Confidential Information (“General IP”, together with the Background Materials, the “Supplier Intellectual Property”). The Supplier grants to the Client a non-exclusive, irrevocable, worldwide royalty free and non-transferable license to use the Supplier Intellectual Property.
10.3. The Client shall pay and indemnify Supplier, from and against all actions, claims, liabilities, demands, proceedings, costs suffered or incurred by Supplier, arising by reason of claims that (1) Supplier’s possession of or use of the Client’s Intellectual Property Rights in connection with the provision of the Services infringes the Intellectual Property Rights of a third party; (2) the Client or any of its clients, modify, alter, replace combine with any other data, code, documents or other software, which alters the Supplier’s Intellectual Property and such alterations infringe the Intellectual Property Rights of a third party. This indemnity applies whether or not legal proceedings are instituted and, if such proceedings are instituted, irrespective of the means, manner or nature of any settlement, compromise or determination.
10.4. The Supplier shall pay and indemnify the Client, from and against all actions, claims, liabilities, demands, proceedings, costs suffered or incurred by Client, arising by reason of claims that (1) Client’s possession of or use of the Supplier’s Intellectual Property in connection with the provision of the Services infringes the Intellectual Property Rights of a third party; (2) the Supplier, modifies, alters, replaces combines with any other data, code, documents or other software, which alters the Client’s Intellectual Property Rights and such alterations infringe the Intellectual Property Rights of a third party. This indemnity applies whether or not legal proceedings are instituted and, if such proceedings are instituted, irrespective of the means, manner or nature of any settlement, compromise or determination.
10.5. If either Party (“Indemnifying Party”) is required to indemnify the other Party (“Indemnified Party”) under this Clause 10, the Indemnified Party shall:
a) notify the Indemnifying Party in writing of any IPR Claim against it in respect of which it wishes to rely on the indemnity at Clause 10.3 or Clause 10.4 (as applicable);b) allow the Indemnifying Party, at its own cost, to conduct all negotiations and proceedings and to settle the IPR Claim, always provided that the Indemnifying Party shall obtain the Indemnified Party’s prior approval of any settlement terms, such approval not to be unreasonably withheld;c) provide the Indemnifying Party with such reasonable assistance regarding the IPR Claim as is required by the Indemnifying Party, subject to reimbursement by the Indemnifying Party of the Indemnified Party’s costs so incurred; andd) not, without prior consultation with the Indemnifying Party, make any admission relating to the IPR Claim or attempt to settle it, provided that the Indemnifying Party considers and defends any IPR Claim diligently, using competent counsel and in such a way as not to bring the reputation of the Indemnified Party into disrepute.
10.6. If an IPR Claim is brought or in the reasonable opinion of the Supplier is likely to be made or brought, the Supplier may at its own expense ensure that the Client is still able to use the Deliverables by either:
a) modifying any and all of the provisions of the Deliverables without reducing the performance and functionality for any or all of the provision of the Deliverables, so as to avoid the infringement or the alleged infringement, provided that the terms herein shall apply mutatis mutandis to such modified or substituted services and such modified or substituted services shall be acceptable to the Client, such acceptance not to be unreasonably withheld; orb) procuring a licence or permission to use the Deliverables on terms which are acceptable to the Client, such acceptance not to be unreasonably withheld.
10.7. Except to the extent that the Supplier should reasonably have known or advised the Client the foregoing provisions of Clause 10.6, the Supplier shall have no obligation or liability for any IPR Claim to the extent such IPR Claim arises from:
a) any use by or on behalf of the Client of the combination with any item not supplied or recommended by the Supplier where such use of the Deliverables directly gives rise to the claim, demand or action; orb) any modification carried out on behalf of the Client to any item supplied by the Supplier under this Agreement if such modification is not authorised by the Supplier in writing where such modification directly gives rise to a claim, demands or action.
11. THIRD PARTY SERVICES
11.1. The Supplier shall procure any Third Party Services required by the Client for the provision of the Services and as more fully set out in the Statement of Work. The Supplier expressly excludes any warranty to the Client that the Third Party Services supplied or licensed under this Agreement will operate substantially in accordance with, and perform, the material functions and features as set out in its marketing, sales or other associated documentations. The Client shall remain liable for any and all payments owed to the Supplier throughout this Agreement and until the end of the respective licence terms for such Third Party Services (the “Licence Fees”).
11.2. It is a condition of this Agreement that the Client shall enter into such direct Licence Agreements issued by the Third Party where the Client must directly contract with that Third Party as so prescribed by the relevant software owners of each Third Party Services identified within this Agreement and/or in the applicable Statement of Work. In the event the Client does not accept the terms of such Licence Agreements (whether directly contracted with the Supplier or the relevant Third Party Supplier), the Supplier reserves the right to suspend the provision of the Services until such time as the Client enters into such Licence Agreement.
11.3. The Client shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by the Supplier in connection with any claim made against the Supplier for actual or alleged breach of such Licence Agreements.
11.4. The Client acknowledges that it is responsible for ensuring that the Client’s Hardware, and operating software for such Hardware is compatible with the Third Party Services and the Supplier gives no warranty in relation thereto unless agreed otherwise in writing between the Parties in the Statement of Work.
11.5. The Client acknowledges that all back up shall be the sole responsibility of the Client unless otherwise expressly agreed to by the Supplier in writing.
12. EXCLUSIONS, LIMITATIONS OF LIABILITY, WARRANTIES AND INDEMNITIES
12.1. The Client acknowledges and agrees that, except as expressly provided in this Agreement or unless it is a Service under a relevant Statement of Work, the Client assumes sole responsibility for:
a) all problems, conditions, delays, delivery failures (including any of those concerning transfer of data) and all other loss or damage arising from or relating to the Client’s or its agents’ or contractors’ (including any existing service provider’s) network connections, telecommunications links or facilities, including the internet and acknowledges that the Services and the Deliverables may be subject to limitations, delays and other problems inherent in the use of such connections, links or facilities; and
b) loss or damage arising from or relating to any Relief Event.
12.2. This Clause 12 sets out the entire financial liability of each Party (including any liability for the acts or omissions of its employees, agents and subcontractors) in respect of:
a) any breach of this Agreement; and b) any representation, misrepresentation (whether innocent or negligent), statement or tortious act or omission (including negligence) arising under or in connection with this Agreement.
12.3. Nothing in this Agreement excludes or limits either Party’s liability for:
a) death or personal injury caused by negligence;b) fraud or fraudulent misrepresentation; c) any other liability which cannot lawfully be excluded or limited.
12.4. Any breach of the Party’s responsibilities under Clause 9 shall be limited to five hundred thousand pounds (£500,000) in the aggregate, which shall count towards the cap set out in Clause 12.5.
12.5. The Parties’ total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to one hundred and twenty five percent (125%) of the price paid for the Services during the twelve (12) months preceding the date on which the claim arose.
12.6. Except as expressly and specifically provided in this Agreement neither Party shall have any liability for any Losses or damages which may be suffered by the other Party (or any person claiming under or through that Party), whether the same are suffered directly or indirectly or are immediate or consequential, and whether the same arise in contract, tort (including negligence) or otherwise howsoever, which fall within any of the following categories:
a) special damage even if the other Party was aware of the circumstances in which such special damage could arise;b) loss of profits;c) loss of anticipated savings;d) loss of business opportunity;e) loss of goodwill and reputation;f) loss or corruption of data.
12.7. Except as expressly and specifically provided in this Agreement all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from this Agreement.
12.8. Any indemnity set out in this Agreement shall not apply unless the Party claiming indemnification notifies (in writing) the other promptly of any matters in respect of which the indemnity may apply and of which the notifying Party has knowledge and gives the other Party full opportunity to control the response to and the defence of such claim; including without limitation, the right to accept or reject settlement offers and to participate in any litigation provided that in no event shall the indemnitor be liable for any settlement or compromise made without its consent, such consent not to be unreasonably withheld or delayed.
13. CHANGE REQUESTS
13.1. Either Party may request changes to any Services (in each case, a “Change Request”). Any Change Request shall be made in writing and sent to the Client Representatives or Supplier Representative (as appropriate) and shall set out the change in sufficient detail so as to enable the other Party to make a proper assessment of such change.
13.2. Where the Parties propose a Change Request the Supplier shall provide a written estimate of the likely time required to implement the change, any necessary variations to the Charges as a result of the change, the likely effect of the change on the Services; and any other impact of the change on the terms of this Agreement. The Client shall notify the Supplier whether it accepts or reasonably rejects the Change Request within five (5) Business Days of its receipt of the written estimate.
13.3. Until such time as a Change Request has been agreed to by the Parties, the Parties shall continue to perform their respective obligations under the Statement of Work without taking into account the Change Request. Once duly agreed by both Parties, the Change Request shall be deemed incorporated into Agreement and Statement of Work and the Supplier shall commence performance of the Change Request accordingly.
13.4. Neither Party shall be required to accept any Change Request made by the other Party and shall not be bound by the Change Request unless it has been agreed in writing as set out above.
13.5. Unless otherwise agreed in writing, Supplier shall be entitled to charge the Client at Supplier’s then current Rates for investigating, reporting on and, if appropriate, implementing any Change Request requested by the Client.
14.1. Each Party agrees and undertakes that it will treat all Confidential Information disclosed to it by the other Party in connection with the Services as strictly confidential and shall use it solely for the purpose intended by the Services and shall not, without the prior consent of the other Party, publish or otherwise disclose to any third party any such Confidential Information except for the purposes intended by the relevant Statement of Work.
14.2. To the extent necessary to implement the provisions of any Services, each Party may disclose Confidential Information to its employees, agents, sub-contractors and professional advisers, in each case under the same conditions of confidentiality as set out in Clause 14.1.
14.3. The obligations of confidentiality set out in this Clause 14 shall not apply to any information or matter which: (i) is in the public domain other than as a result of a breach of this Agreement; (ii) was in the possession of the receiving Party prior to the date of receipt from the disclosing Party or was rightfully acquired by the receiving Party from sources other than the disclosing Party; (iii) is required to be disclosed by law, or by a competent court, tribunal, securities exchange or regulatory or governmental body having jurisdiction over it wherever situated; or (iv) was independently developed by the receiving Party without use of or reference to the Confidential Information.
15. TERM AND TERMINATION
15.1. This Agreement shall commence on the Commencement Date and each Statement of Work shall commence on the Services Commencement Date and shall remain in full force for the Initial Term unless otherwise agreed by the Parties or earlier terminated in accordance with the term of this Agreement. Thereafter, this Agreement and each Statement of Work unless otherwise set out in the applicable Statement of Work, shall continue to automatically renew for a Subsequent Term, unless a Party gives written notice to the other Party, not later than ninety (90) days before the end of the initial Term or the relevant Subsequent Term, to terminate this Agreement.
15.2. Without prejudice to any rights that the Parties have accrued under this Agreement or any of their respective remedies, obligations or liabilities, a Party may terminate this Agreement with immediate effect by giving written notice to the other Party if:
a) the Client breaches its obligations in Clauses 4.6 and 4.7;b) the Supplier commits a material breach of any material term of this Agreement and (if such breach is remediable) fails to remedy that breach within a period of forty five (45) days after being notified to do so;c) the other Party breaches any of the terms of Clause 9, Clause 14 or Clause 19; ord) the other Party suspends, or threatens to suspend, payment of its debts, or is unable to pay its debts as they fall due or admits inability to pay its debts, or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986.
15.3. If for any reason a contract between a third party and the Supplier relating to the Supplier’s right to provide the Third Party Services which is the subject of the Agreement is terminated, then the Agreement shall automatically terminate, save that where the contract relates to other Deliverables other than that Third Party Service, termination of the Agreement shall operate only in so far as it relates to such Third Party Services.
15.4. Termination of this Agreement, for any reason, shall not affect the accrued rights, remedies, obligations or liabilities of the Parties existing at termination.
15.5. On termination of this Agreement for any reason:
a) the Supplier shall immediately cease provision of the Services; b) the Client shall pay any and all invoices and sums due and payable up to and including the date of termination including (1) all remaining amounts owing up to the end of the Initial Term or the Subsequent Term (as applicable); (2) any Licence Fees as set out under Clause 11.1; and (3) any termination fees that the Supplier incurs from any of its third parties as a consequence of such early termination. The Supplier shall use reasonable endeavours to mitigate any loss but the Client acknowledges and agrees that any Third Party fees may not be mitigated by the Supplier and the Client shall not hold the Supplier responsible if its incurs full termination fees; andc) each Party shall use reasonable endeavours to return and make no further use of any equipment, property, materials and other items (and all copies of them) belonging to the other Party.
15.6. Save as provided in this Clause 15 or elsewhere in this Agreement, or by mutual consent and on agreed terms, or due to a Force Majeure event, neither Party shall be entitled to terminate a Statement of Work. Termination of a Statement of Work shall not by default, terminate other Statement of Works nor this Agreement.
15.7. Termination of any Statement of Work shall be without prejudice to any other rights which any party may have under any other Statement of Work.
15.8. Upon termination of this Agreement or a specific Statement of Work for any reason the Supplier will provide to the Client and / or to any new supplier selected by the Client (the “Successor Service Provider”) such assistance as reasonably requested by the Client in order to effect the orderly transition of the applicable Services, in whole or in part, to the Client or to Successor Service Provider (such assistance shall be known as the “Termination Assistance Services”) during any period of notice of termination (the “Termination Assistance Period”). Any services required by the Client for the transition of Services during the Termination Assistance Period shall be provided by the Supplier at its then current time and materials fee rate for such period of time as shall be mutually agreed.
15.9. Upon a termination of the Agreement or a specific Statement of Work (as applicable), the Supplier shall only retain the Client Data for a maximum period of three (3) months from the date of termination and may delete all such copies of its Client Data after the three (3) months period has ended.
15.10. The provisions of Clauses 7, 8, 9, 10, 11, 12, 14, 15, 16, 17 and 19 shall survive termination of any Statement of Work or this Agreement.
16. STAFF TRANSFER AND NON-SOLICITATION
16.1. It is not intended that any staff be transferred from the Supplier to the Client or from the Client to the Supplier pursuant to this Agreement or that any ‘relevant transfer’ occur for the purposes of the Transfer of Undertakings (Protection of Employment) Regulations 2006.
16.2. Neither Party shall solicit the other Party’s staff or contractors who have been employed or engaged in the Services or the performance of this Agreement during the lifetime of this Agreement and for a period of nine (9) months thereafter. For the purposes of this Clause ‘solicit’ means the soliciting of such person with a view to engaging such person as an employee, director, subcontractor or independent contractor.
16.3. In the event that either Party is in breach of Clause 16.2 above then the Party in breach shall pay to the other by way of liquidated damages an amount equal to fifty percent (50%) per cent of the gross annual budgeted fee income (as at the time of the breach or when such person was last in the service of the relevant party) of the person so employed or engaged. This provision shall be without prejudice to either Party’s ability to seek injunctive relief.
16.4. The Parties hereby acknowledge and agree that the formula specified in Clause 16.3 above is a reasonable estimate of the loss which would be incurred by the loss of the person so employed or engaged.
17. RELIEF EVENTS
Subject to Clause 12.3, and notwithstanding any other provision of this Agreement, the Supplier shall have no liability for failure to perform the Services or its other obligations under this Agreement if it is prevented, hindered or delayed in doing so as a result of any Relief Event.
18.1. The Supplier shall have no liability to the Client under this Agreement and the Client shall have no obligation to pay the Fees if the Supplier is prevented from, or delayed in, performing its obligations under this Agreement, or from carrying on its business, by an event of Force Majeure except to the extent that the Supplier could reasonably have avoided such circumstances by fulfilling its obligations in accordance with the terms of this Agreement or otherwise exercising the level of diligence that could reasonably have been expected of it (having exercised Good Industry Practice), provided that:
a) the Client is notified of such an event and its expected duration; andb) the Supplier uses all reasonable endeavours to mitigate, overcome or minimise the effects of the event of Force Majeure concerned,and that if the period of delay or non-performance continues for four (4) weeks or more, either Party may terminate this Agreement by giving fourteen (14) days’ written notice to the other Party.
19. ANTI-BRIBERY AND MODERN SLAVERY
19.1. The Supplier shall:
a) comply with all applicable laws, regulations and sanctions relating to anti-bribery and anti-corruption, including the Bribery Act 2010 (“Relevant Requirements”);b) promptly report to the Client any request or demand for any undue financial or other advantage of any kind received by the Supplier in connection with the performance of this Agreement.
19.2 The Supplier shall procure that any person associated with the Supplier, who is performing services in connection with this Agreement, adheres to terms equivalent to those imposed on the Supplier in this Clause 19 (“Relevant Terms”). The Supplier shall be responsible for the observance and performance by such persons of the Relevant Terms, and shall be directly liable to the Client for any breach by such persons of any of the Relevant Terms.
19.3. For the purpose of this Clause 19, the meaning of adequate procedures and foreign public official and whether a person is associated with another person shall be determined in accordance with section 7(2) of the Bribery Act 2010 (and any guidance issued under section 9 of that Act), section 6(5) and (6) of that Act and section 8 of that Act respectively. For the purposes of this Clause 19 a person associated with the Supplier includes any subcontractor of the Supplier.
19.4. In performing its obligations under the Contract, the Supplier shall:
a) comply with all applicable anti-slavery and human trafficking laws, statutes, regulations from time to time in force the Modern Slavery Act 2015; andb) not engage in any activity, practice or conduct that would constitute an offence under sections 1, 2 or 4, of the Modern Slavery Act 2015 if such activity, practice or conduct were carried out in the UK.
No failure or delay by a Party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
21.1. If any court or competent authority finds that any provision of this Agreement (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of this Agreement shall not be affected.
21.2 If any invalid, unenforceable or illegal provision of this Agreement would be valid, enforceable and legal if some part of it were deleted, the Parties shall negotiate in good faith to amend such provision such that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the Parties’ original commercial intention.
22. ENTIRE AGREEMENT AND AMENDMENT
22.1. This Agreement (and its references to website address to further documentation, the Licence Agreements, the Statement of Works and the Customer Agreement constitutes the entire agreement between the Parties and supersedes all previous discussions, correspondence, negotiations, arrangements, understandings and agreements between them relating to its subject matter.
22.2. Each Party acknowledges that in entering into this Agreement it does not rely on, and shall have no remedies in respect of, any representation or warranty (whether made innocently or negligently) that is not set out in this Agreement.
22.3. Each Party agrees that its only liability in respect of those representations and warranties that are set out in this Agreement (whether made innocently or negligently) shall be for breach of contract.
22.4. No alteration to or variation of this Agreement shall take effect unless and until the same is in writing and signed on behalf of each of the Parties by a duly authorised representative.
The Client shall not without the prior written consent of the Supplier (such consent not to be unreasonably withheld or delayed) assign or, transfer or charge or deal in any other manner with either the benefit or the burden of this Agreement or any of its rights or obligations under it, or purport to do any of the same, nor sub-contract any or all of its obligations under this Agreement.
24. NO PARTNERSHIP OR AGENCY
Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the Parties, constitute any Party the agent of another Party, nor authorise any Party to make or enter into any commitments for or on behalf of any other Party.
25. THIRD-PARTY RIGHTS
This Agreement is made for the benefit of the Parties, to it and (where applicable) their successors and permitted assigns, and Microsoft (in respect of enforcing the terms of the Customer Agreement) and is not intended to benefit or be enforceable by anyone else.
26.1. Any notice required to be given to a Party under or in connection with this Agreement shall be in writing and shall be delivered by hand or sent by pre-paid first class post or other next working day delivery service, at its registered office (if a company) or (in any other case) its principal place of business.
26.2. Any notice shall be deemed to have been received if delivered by hand, on signature of a delivery receipt, or otherwise at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service.
26.3. This Clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution. For the purposes of this Clause, “writing” shall include e-mail.
27. DISPUTE RESOLUTION
27.1. If a dispute arises under this Agreement (“Dispute”), including any Dispute arising out of any amount due to a Party hereto, then before bringing any suit, action or proceeding in connection with such Dispute, a Party must first give written notice of the Dispute to the other Party describing the Dispute and requesting that it is resolved under this dispute resolution process (“Dispute Notice”).
27.2. If the Parties are unable to resolve the Dispute within thirty (30) calendar days of delivery of the Dispute Notice, then each Party will promptly (but no later than five (5) Business Days thereafter):
a) appoint a designated representative who has sufficient authority to settle the Dispute and who is at a higher management level than the person with direct responsibility for the administration of this Agreement (“Designated Representative”); andb) notify the other Party in writing of the name and contact information of such Designated Representative.
27.3. The Designated Representatives will then meet as often as they deem necessary in their reasonable judgment to discuss the Dispute and negotiate in good faith to resolve the Dispute. The Designated Representatives will mutually determine the format for such discussions and negotiations, provided that all reasonable requests for relevant information relating to the Dispute made by one Party to the other Party will be honoured.
27.4. If the Parties are unable to resolve the Dispute within thirty (30) calendar days after the appointment of both Designated Representatives, then either Party may proceed with any other available remedy.
Both Parties agree to reasonably cooperate in connection with the creation of mutually beneficial marketing communications, which shall include, at a minimum, a press release, case study and a reference to Client on Supplier’s website, provided that in no event shall either Party use the name, trademarks or other proprietary identifying symbols of the other Party without such Party’s prior written consent, which consent shall not be unreasonably withheld or delayed.
29. GOVERNING LAW AND JURISDICTION
29.1. This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be exclusively governed by and construed in accordance with the law of England.
29.2. The Parties irrevocably agree that the courts of England shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).