MASTER SERVICES AGREEMENT
BACKGROUND
AGREED TERMS
1.1 The definitions and rules of interpretation in this clause apply in this agreement.
Agreement: means the terms and conditions in this agreement along with the Statement of Work(s) and any other documents agreed between the Parties.
Applicable Data Protection Laws: means;
Applicable Laws: means all applicable laws, statutes, regulations from time to time in force which related to the business of the applicable Party.
Assumptions: has the meaning given in Clause 10.4.
Authorised User: means any individual who is entitled to user of the Third Party Services and/or 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 the networks, hardware, software and interfaces owned by, or licensed to, the Customer 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 16.
Commencement Date: means the date of this Agreement unless otherwise specified in the relevant Statement of Work(s).
Commissioner: the Information Commissioner (see section 114, Data Protection Act 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 the nature and the manner of its disclosure.
Customer: the customer as identified in the Statement of Work(s).
Customer Applications: means the applications used by the Customer on the Customer Equipment.
Customer Data: any information that is provided by the Customer to the Supplier as part of the Customer’s use of the Services, including any information derived from such information.
Customer Equipment: means any hardware, software, spares and any other goods owned by the Customer (which may include Goods) and used at the Customer Site, but excluding Customer-side Equipment. And the Customers Operating Environment.
Customer Personal Data: any personal data which the Supplier processes in connection with this Agreement, in the capacity of a processor on behalf of the Customer
Customer Site: means the locations where the Services are provided as identified in the Statement of Work(s).
Customer’s Operating Environment: the Customer’s computing environment (consisting of hardware and software) that is to be used by the Customer in connection with its use of the Managed Services and which interfaces with Supplier’s System in order for the Customer to receive the Managed Services, but excluding the Customer-side Equipment.
Customer-side Equipment: any equipment located or to be located on a Customer Site but controlled or to be controlled exclusively by the Supplier or a Third-Party as part of the Services.
CSP Agreement: the CSP customer agreement, which is a direct agreement between the Customer and Microsoft and is a condition of Cloud Solution Provider Program that the Customer 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 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 30.
EU GDPR: The General Data Protection Regulation ((EU)2016/679)
Fees: the fees payable to the Supplier as described in the Statement of Work(s) or as otherwise agreed in writing as may be varied from time to time pursuant to the terms of this Agreement.
Force Majeure: has the meaning given in Clause 21.
Go-live Date: the date specified in the Statement of Work(s) or as otherwise agreed between the Parties in writing.
Goods: means any hardware sold or supplied to the Customer by the Supplier as part of the Services (or any part of them), as set out in the Statement of Work(s) or as otherwise agreed 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 regards 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
Initial Term: means the period commencing on the Commencement Date and enfin on the date twelve (12) months thereafter unless specified in the Statement of Work(s). For the avoidance of doubt, each Statement of Work(s) will have its own Term, which will extend the Initial Term of the Agreement if the term of the Statement of Work(s) 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 software, 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 database, 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, instructions 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 of having equivalent or similar effect to any of these that may subsist anywhere in the world now of 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.
Issues List: means a written list of the non-conformities to the Acceptance Criteria for a specific Deliverable.
License Agreement: means all licence agreements that may have to be entered into by the Supplier and/or the Customer in respect of Third Party Services used as set out in a Statement of Work(s) or as identified to the Customer by the Supplier as necessary from time to time.
Local System Components: means equipment supplied by the Customer such as routers, switches, PCs, thin client devices, smart phones, wireless controllers, and access points.
Losses: means costs, fines, damages, losses, and liabilities suffered by a Party.
Maintenance: any error corrections, updates and upgrades that the Supplier may provide or perform with respect to the Managed Services, as well as any other support or training services and/or any maintenance of certain Goods or Customer Equipment Supplier has agreed to provide such maintenance of, any such maintenance to be provided will be as set out under the Statement of Work(s).
Microsoft Online Services: means any of the Microsoft Hosted online services subscribed to the Customer under this Agreement, and as set of in the Statement of Work(s) and which terms are governed by the CSP Agreement.
Microsoft Product(s): means the Microsoft Online Services, tools, software, hardware, or professional support or consulting services provided under the terms of the CSP Agreement.
Managed Services: the hosting and support service (including any support arrangements and Maintenance) described in the Statement of Work(s) to be performed by the Supplier in accordance with this Agreement.
Normal Business Hours: 08:30am to 18:00pm local UK time on Business Days unless otherwise stated in the applicable Statement of Work(s).
Out of Scope: means those out of scope services specified as such in the Statement of Work(s) together with any other services which are not detailed in the Statement of Work(s).
Party: a party to this Agreement or parties.
Professional Services: the project related work and/or services described in the Statement of Work(s) to be performed by the Supplier in accordance with this Agreement.
Purpose: the purposes for which the Customer Personal Data is processed, as set out in the applicable Statement of Work(s).
Quotation: the specification for the Services, licences and any other services as set out in the document headed “Quotaton”, “Quote” or “Proposal” sent to the Customer by the Supplier and agreed by the Parties and as amended by the Parties in writing from time to time and which may be used instead of a Statement of Work(s).
Rates: the Supplier’s standard hourly or daily rate fees as set out in the applicable Statement of Work(s).
Relief Events: the following events
Representative: means the person(s) nominated by each Party in accordance with this Agreement
Retail Price 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 Customer is not able to access the Services due to planned maintenance. The Supplier may schedule system downtime, with prior agreement of the Customer. Scheduled Downtime periods do not count against the service level calculation detailed in such Statement of Work(s).
Service Level Arrangements: the service level arrangements set out in the Statement of Work(s) (if applicable) or as otherwise agreed in writing between the parties.
Services: means the provision of Goods and/or the Managed Services and/or Professional Services including consulting, advisory, integration or technical services performed by the Supplier under a Statement of Work(s) or otherwise agreed in writing between the Parties.
Services Commencement Date: means the date set out in the applicable Statement of Work(s) or as otherwise agreed between the Parties for the commencement of Services.
Software: means any software used by the Supplier to provide the Services to the Client whether owned by a third party (“Third-Party Software”), by the Customer (“Customer Software”) or by the Supplier (“Supplier Software”).
Statement of Work(s): means the statement of work and/or quotation and/or any other services specification which sets out the Services and where applicable, Service Level Arrangements as set out under separate cover and agreed between the Parties or between the Supplier and an affiliate or Sub-Contractor of Customer, and which incorporates the terms and conditions of this Agreement, each as varied by and Change Request.
Sub-Contractor: means any company or individual engaged by the Customer to deliver any services and such company or individual is required to contract directly with the Supplier as part of the performance of its services to the Customer.
Supplier: Netteam tX Limited, incorporated and registered in England and Wales with company number 04850060 whose registered office is at 12 Kingfisher Court, Hambridge Road, Newbury, Berkshire, England, RG14 5SJ.
Supplier’s 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 Customer.
Supplier’s System: the system(s) to be used by the Supplier in performing the Managed Services, including the Supplier’s Hardware, any Third-Party Services, the Customer-side Equipment and communications between the Supplier’s Hardware and the Customer-side Equipment and the Customer’s Operating Environment.
Supply of Goods Agreement: means agreements that have been or may have been entered into by the Supplier and/or the Customer in respect of the supply of certain Goods as part of the Third-Party Services. Such Supply of Goods Agreements terms shall be set out, in or annexed to the relevant Statement of Work.
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 Customer (as the case may be) during the provision of Services.
Third Party Services: any services, goods, code or software programs written or provided by Third Parties which are used by the Customer during the provision of the Services.
Ticket: shall have the meaning given to it in the relevant Statement of Work(s).
UK Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the UK GDPR; the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2022/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications regulations 2003 (SI 2003/2426) as amended.
UK GDPR: has the meaning given to it in section 3(10) (As supplemented by section 2005(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 Customer shall be unavailable to the Customer due to unexpected system failures other than Scheduled Downtime or the downtime is attributable to events not under the control of the Supplier.
Virus: without limitation, any malicious code, trojans, worms, viruses, malware, and ransomware, lock authorisation key or similar device that impairs or could impair the operation of the Software and or the Services.
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 refence 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, the Statement of Work(s), the Licence Agreement, the Supply of Goods Agreements and the CSP Agreement (including any changes or variations to each of the Clauses, the Statement of Work(s), the Licensing Agreement, the Supply of Goods Agreements and the CSP Agreement), the following order of precedence shall apply (in decreasing order) to the extent of such conflict or inconsistency;
a) The Supply of Goods Agreement
b) the relevant Quotation
c) The Licence Agreements, and the CSP Agreement, to the extent applicable to the Services
d) the Clauses of this Agreement
2. PROVISION OF SERVICES
2.1 This Agreement sets out the terms and conditions under which the Supplier shall provide to the Customer the Services.
2.2 This Agreement shall (i) be in substitution for any prior oral or other prior arrangements between the Supplier and the Customer in connection with the purchase or the relevant Services; and (ii) prevail over any of the Customer’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 of practice
2.3 No addition to, variation of or other amendment or purported amendment to any Statement of Work(s) 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
2.4 Any quotation or proposal given by the Supplier is for budgetary purposes until financial and technical validation and shall not constitute an offer. Each quotation is only valid for the calendar month in which it is issued and shall only become binding upon execution of the of Statement of Work(s)
2.5 In the event that Supplier enters into a Statement of Work(s) with a Sub-Contractor Customer shall procure that such Sub-Contractor shall comply with all applicable terms of this Agreement
2.6 SERVICE LEVEL AGREEMENTS
These Service Level Agreements (SLA’s) define how our team respond to your technical issues and requests raised in line with your Netteam tX Service Agreement. These reflect our focus to ensure that you get the very best level of service from the support that we provide.
2.6.1 SLA Introduction
The SLA’s represent our promise to deal with your technical issues and requests within specified time frames
Our SLA’s are dependant on the level of service agreed and are represented accordingly within the Master Services Agreement (MSA), detailing agreed hours of cover and priorities of resolving issues logged
We provide several bespoke SLA’s which have been designed around the level of service being requested with the inclusion of 24x7x365 cover
In particular scenarios, Netteam tX will be limited on resolution times which are defined by any third-party providers own SLA policies, such as Internet Service Providers (ISP’s), Oracle, Payment Providers, Microsoft and any other Hardware and/or Software Manufacturers
2.6.2 STANDARD HOURS OF COVER
Our Standard cover runs between 08:30 and 18:00, Monday through Friday excluding UK Public Holidays.
2.6.3 EXTENDED HOURS OF COVER
Optional extended 24x7x365 cover is available on all Service agreements and this includes full cover across UK Public Holidays
2.6.4 HOW WE PRIORITISE
Issues are prioritised following an initial assessment based upon the information supplied and systems affected, whilst also considering any extenuating circumstances. Using this information we then factor in both the level of urgency and the impact to the business and apply the appropriate level to the specific issue.
2.6.5 URGENCY
This level is established through determining how many individuals are affected by this specific incident, for example
2.6.6 IMPACT
This level is established by determining the amount of disruption being experienced by the business for this specific incident, for example
Following on form this initial assessment, we then apply our priority matrix to the incident as follows:
IMPACT VS URGENCY PRIORITY MATRIX
| Impact Level | High Urgency | Medium Urgency | Low Urgency |
| High Impact | Priority 1 | Priority 1 | Priority 2 |
| Medium Impact | Priority 1 | Priority 2 | Priority 3 |
| Low Impact | Priority2 | Priority 3 | Priority 4/ Priority 5 |
In our experience most issues fall in to Priority 3, so that tends to be a default. The priority assigned dictates the amount of time we give ourselves to deal with you incident or request
2.6.7 OVERRIDING OUR PRIORITIES
Our focus is on applying services as needed and we recognise that often there are extenuating circumstances. For example, the issue maybe affecting you customers, or key staff are having issues with a critical project with an impending deadline.
Our technicians are always able to override our standard priority assessment where there is the necessity and, when we are aware of the need
2.6.8 RESPONSE TIMES
Our ticketing system applies a timer on every ticket that you raise, and our helpdesk team of technicians are trained to focus upon two elements when noting the SLA applied to the ticket – “Respond Within” and “Resolve Within”
In certain circumstances we will put timings on hold – for example when we are awaiting a response from yourselves with further information or an approval for work that may have a temporary impact on yourself or the business.
“We Will Respond Within…”
This is the maximum amount of time (within your hours of cover) that it should take us to get back to you and confirm who is dealing with your ticket. You will get to speak with a trained technical expect straight away, rather than a recorded menu system or a call-logger.
“We will Resolve Within…”
This is the maximum amount of time (within your hours of cover) that it should us to resolve the issue and get everything back up and running
IMPACT VS URGENCY PRIORITY MATRIX
| Priority Level | Respond Within | Resolve Within |
| Priority 1 | 30 working mins | 2 to 4 working hours |
| Priority 2 | 1 working hours | 8 working hours |
| Priority 3 | 2 working hours | 16 working hours |
| Priority 4 | 4 working hours | 24 working hours |
| Priority 5 | 8 working hours | 48 working hours |
SOME EXAMPLES OF PRIORITIES
OTHER EXCEPTIONS TO OUR PRIORITIES
The following are exceptions to our priorities and timers in the above matrix:
3. MANAGED SERVICES
3.1 The Supplier will provide the Managed Services in accordance with the Statement of Work(s) and the terms of this Agreement with all due care, skill and ability during the Term unless earlier terminated for any reason
3.2 The Supplier use commercially reasonable endeavours to provide the Managed Services in accordance with the Service Level Arrangements as stated in the Statement of Work(s)
3.3 The Customer all remain responsible for the use of the Managed Services under its control including any use by third parties that Customer is permitted to and has authorised to use the Managed Services
3.4 The Customer must take reasonable measures to inform the Supplier promptly in the case of any incident affecting the Customer’s Operating Environment, premises or any shared access infrastructure (including but not limited to a power outage, fire, flood or similar event), the Supplier will work with the Customer to alleviate the situation as quickly as possible. The Parties shall discuss and agree on appropriate action (including suspending the Managed Service).
3.5 The Customer shall not provide the Managed Services to third parties unless otherwise indicated in the Statement of Work(s) or as otherwise agreed by the Supplier in writing
3.6 The Supplier does not and cannot control the flow of data to or from its network and other portions of the internet. Such flow depends in large part on the performance of internet services provided or controller by third parties. At times, actions or omissions of such third parties can impair or disrupt connection the the internet (or portions thereof). Whilst the Supplier will use reasonable efforts to take all actions it deems appropriate to remedy and avoid such events, the Supplier cannot guarantee that such events will not occur. Accordingly, the Supplier disclaims any and all liability resulting from or related to such events
3.7 The Customer acknowledges that the Supplier may at any time, with the Customer’s prior written approval (such approval not to be unreasonably withheld or delayed), incorporate licence management software into elements of the Managed Services for the purposes of ensuring that licence rights are not exceeded, where the Supplier have a licencing responsibility for software installed on the Customer’s Server, PC’s Laptops, Mobile devices, or other endpoint devices. Any such costs relating to such incorporation shall be at the Customer’s sole cost and expense.
3.8 The Supplier reserves the right to:
A) modify the Supplier’s System, its network, system configurations or routing configuration; or
B) modify or replace any Supplier’s Hardware or Software in its network or in equipment used to deliver any Managed Service over its network
Provided that this has no adverse effect on the Supplier’s obligations or performance under this Agreement and its provision of the Managed Services or the Service Level Arrangements. If such changes will have an adverse effect, the Supplier shall notify the Customer and the Parties shall follow the Change Request.
3.9 The Supplier breaches it obligations in Clause 3.1, the Supplier shall, at its expense, use commercially reasonable endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance.
3.10 The Managed Services acquired by the Customer are solely for the Customer’s own internal use and not for resale or sub-licensing, unless otherwise agreed by the Supplier in writing.
3.11 The Supplier will not provide the Managed Service, and bear no liability, in respect of defects or Supplier;
A) resulting from any modification or enhancements of Third-Party Software not made by Supplier;
B) resulting from incorrect use of the Third-Party Software in scenarios other than those intended by Microsoft or other third parties
C) for any reason external to the Third-Party Software including, but not limited to, failure of electrical supplies or natural disasters; and
D) resulting from the inter-relationship between the Third-Party Software and any other software not supported by the Supplier.
3.12 the Supplier many suspend, revoke or limit use of the Managed Services, wholly or partly (i) upon fourteen days written notice to the Customer, in the event of late payments, (ii) if the Supplier in its absolute discretion finds that a risk to the overall integrity of the Managed Services has occurred, or (iii) other reasonable grounds exist. If the cause of suspension is reasonably capable of being remedied, the Supplier will provide the Customer notice of what actions the Customer must take to reinstate the Managed Services and/or Microsoft Products. If the Customer fail to take such actions within a reasonable time, the Supplier may terminate the applicable Managed Service.
4 SUPPLY OF GOODS
4.1 The Customer acknowledges and agrees that any samples, drawings, descriptive matter or other advertising produced by the Supplier and shared with the Customer and/or any descriptions or illustrations contained in the Supplier’s catalogues, brochures or viewable on its website are produced for the sole purpose or providing an approximate estimate of the Goods and shall not form part of the Agreement
4.2 Where the Supplier has agreed to install the Goods at the Customer Site, the Customer shall ensure all necessary preparatory works are completed prior to the installation, including without limitation preparing all necessary IT Infrastructure and ensuring a suitable electrical supply
4.3 Goods shall be delivered to the Customer at the location specified in the Statement of Work(s)
4.4 All risk in the goods shall pass to the Customer on delivery. For the avoidance of doubt, where Goods are delivered via a courier service, goods deemed “delivered” once the courier has obtained a valid proof of delivery and Supplier is in receipt of such valid proof
4.5 Subject to Clause 4.6, upon the Supplier receiving payment in full for the Goods, title in the Goods shall pass to the Customer
4.6 Title in the Goods will not pass to the Customer where any Fees which are due under this Agreement for any service remain unpaid.
4.7 Where any Goods are being provided by Supplier free of charge for the applicable Term, title of the goods shall not pass to the Customer at any time
4.8 For the purposes of Section 12 of the Sales of Goods Act 1979, the Supplier shall only be entitled to transfer such title or rights in respect of the Goods as the Supplier has and if the goods is purchased from a third party shall transfer only such title or rights as that party has transferred to Goods
4.9 Until title in the goods passes to the Customer in accordance with Clause 4.5, or if title will not pass pursuant to Clause 4.7, the Customer shall.
A) hold the Goods and each part of the Goods on a fiduciary basis as bailee for the Supplier
B) insure and keep insured the Goods to the full Goods price against “all risks” to the reasonable satisfaction of the Supplier until title in the Goods passes to the Customer and shall if requested by the Supplier produce a copy of the policy of insurance
C) upon request by the Supplier, deliver up to such of the Goods as in possession of or control of the Customer. If the Customer fails to do so the Supplier may enter upon any premises owned, occupied or controller by the Customer where the goods is situated and retake possession of the Goods
D) not pledge or in any way charge by way of security for any indebtedness any of the Goods which is the property of the Supplier
4.10 The Customer shall, upon establishing that any of the Goods (or part of the Goods):
A) have not been delivered by the agreed date
B) have not been delivered damaged
C) are defective
D) are not of the agreed quantity as set out in the Statement of Work(s)
E) do not comply with all material aspects with the description
Notify the Supplier, who shall at its absolute discretion either (i) replace the Goods with Goods of a similar specification, (ii) provide the Customer with credit at the full invoice value in respect of the affect Goods only or, (iii) where the affected Goods can be repaired, repair the affected Goods. For the avoidance of doubt the Supplier’s liability under this Clause shall only be in respect to the Goods (or part thereof) that are affected. The Supplier shall have no liability to the Customer in respect of the Goods (or part thereof) that remain unaffected.
4.11 Where the Goods supplied to the Customer have not been manufactured by the Supplier, the Supplier shall assign to the Customer (in so far as is possible) any warranties given by the manufacturer of the Goods to the Supplier.
4.12 The delivery of any repaired or replacement Goods or any parts for the Goods shall be at the location specified in the Statement of Work(s).
4.13 The Supplier shall not be liable for:
A) any damage, defects, or errors in the Goods arising from any design or specification provided or made by the Customer
B) any damage, defects, or errors in the Goods where adjustments, alterations or other work have been carried out on the Goods by anyone other than the Supplier
C) any variations in the quantities or dimensions of any goods or changes of their specifications or the substitution of any materials or components except where the variation or substitution does not materially affect the characteristics of the goods and the substituted materials or components are of a quality equal to or superior to those originally specified and the variation or substitution is carried out by the Supplier
D) any substitution by the Supplier at the request of the Customer of any materials or components not forming part of any specification of the Goods agreed in writing by the Supplier
4.14 The Supplier shall have the right to a lien over all Goods in the Customer possession up to an amount equal to the fees due from the Customer to the Supplier. The Supplier shall be entitled, upon providing no less than twenty-eight (28) days prior written notice to the Customer, to use, sell or dispose of such Goods as agent for and at the expense of the Customer and apply the proceeds of such sale towards the amounts due by the Customer to the Supplier.
5. CUSTOMER EQUIPMENT MAINTENANCE
5.1 Where the Supplier is providing Maintenance in respect of any Customer Equipment, such Customer Equipment shall be set out within a Statement of Work(s) together with the applicable terms with regard to the provision of such Maintenance
5.2 The Supplier shall have no liability or responsibility for.
A) the Customer Equipment has not been adjusted, modified and/or repaired by someone other than the Supplier or otherwise not in accordance with the manufacturer’s recommendations.
or
B) any Customer Equipment which is not included within the Statement of Work(s)
As equipment to be maintained and it shall be the responsibility of the
Customer to ensure that any equipment which the Customer requires the Supplier to maintain is included in the Statement of Work(s)
6 DELIVERY OF THE PROFESSIONAL SERVICES
6.1 Upon final delivery of the Professional Services by the Supplier, the Customer shall sign off on the completion of the Professional Services.
7 RESPONSIBILITIES OF THE SUPPLIER
7.1 The Supplier shall;
7.2 The Supplier shall co-operate with the Customer in all matters relating to the Services and shall appoint a representative (“Supplier Representative”) as the contact throughout the Services
7.3 The Customer confirms that the Supplier may employ Sub-contractors without seeking the prior consent of the Customer. Notwithstanding the foregoing, the Supplier shall at all times be responsible for and liable in respect of the performance of all its 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.
7.4 For the avoidance of doubt, the Supplier shall only be held liable to the extent permitted under the respective Licence Agreements and/or the Supply of Goods Agreements (as applicable) for the actions or omissions of any third-parties; and shall not be held liable for the actions and or omissions of any other third-party including but not limited to Microsoft (whereby the Customer will have direct contract in place with Microsoft through the CSP Agreement.
7.5 In relation to the Manged Services specifically and notwithstanding the Supplier’s obligations under Clause 7.1, the Supplier shall;
7.6 The Supplier shall be under no obligation to provide the Managed Services to the Customer in the following circumstances (unless specified under the Statement of Work(s)
7.7 The Customer acknowledges that certain conditions outside of the Supplier’s control may adversely impact the ability of the Supplier to perform functions of the Managed Services and as a result, the Supplier disclaims any and all liability resulting from or related to such conditions. Examples of such
7.8 The Supplier does not warranty that the Customer’s use of the Managed Services will be uninterrupted or error free
7.9 If the Managed Services do not conform with the Statement of Work, the Supplier shall, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance and provide the Customer with Service Credits if applicable.
7.10 The time taken by the Supplier to respond to a Ticket will only be measured during Normal Business Hours
8.0 RESPONSIBILITIES OF THE CUSTOMER
8.1 To the extent that the Supplier requires access to the Customer Site to perform the Services, the Customer shall provide such access during Normal Business Hours (or such as agreed between the Parties including during the applicable services hours set out in Statement of Work(s)) and to provide a suitable working environment to enable the Supplier subject to the Supplier complying with such internal policies and procedures of the Customer (including those relating to security and health and safety) as may be notified to the Supplier in writing from time to time
8.2 The Customer shall co-operate with the Supplier in all matters relating to the Services and shall appoint a minimum of one Representative (“Customer Representative”), who shall have authority to commit the Customer on all matters relating to the relevant service
8.3 The Customer agrees and acknowledges the terms of the applicable Licence Agreements and/or the Supply of Goods Agreements and the terms of the CSP Agreement shall form part of the Agreement. For the avoidance of doubt, in the event the applicable Licence Agreements and/or the Supply of Goods Agreement and/or the CSP Agreement is not applicable to the Services being received or delivered by the Supplier to the Customer under this Agreement, such Agreements shall not apply
8.4 The Customer shall:
a) use the Services only for lawful purposes and in accordance with this Agreement and the Statement of Work(s)
b) fully virus-check all data supplied to the Supplier pursuant to this Agreement
c) make the Customer Equipment, Customer’s Operating Environment and Customer-side Equipment, required to the provide the Services, accessible to the Supplier’s support staff via a secure broadband link operating at the industry accepted bandwidth for the purposes of remote diagnostics
d) enable log-ons on passwords required for such support staff and provide appropriate hardware interface, software and access authorisation to enable remote diagnosis, should such capability be required
e) keep each component of the Customer-side Equipment and the Customer Operating Environment in the environmental conditions recommended by any manufacturer(s) and ensure that the external surfaces, cables and fittings of the Customer Equipment and Customer’s Operating Environment are kept clean and in good condition
f) ensure that the Customer’s Operating Environment is only used by properly trained staff in accordance with the manufacturer’s instructions, current computing practice and instructions issued by the Supplier from time to time
g) ensure that only the Customer’s IT support personnel or other personnel authorised by the Supplier adjust, modify, configure, maintain, repair, replace or remove and component of the Customer’s Operating Environment
h) permit the Supplier to install the current version of software required to provide the Managed Services from time to time when upgrades or fixes occur and to provide a reasonable level of assistance in implement and testing:
i) provide the Supplier at least seven (7) Business Days’ notice in advance of any intention or move to change when applicable Customer-side Equipment, Components or Customer’s Operating Environment or data-feeds that will directly impact the Managed Services. If such notice has not been received on time, the Supplier will have to make additional effort to return the Customer’s systems to an acceptable state for continued support, and will charge accordingly at its then standard charging rate;
j) 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 sub-contractors full use in relation to the Services provided
k) not use the Services to receive, store, 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;
l) be a bona-fide licenced user of all third-party software and of the Customer’s Software used by it;
m) co-operate with the Supplier in all matters relating to the services as reasonably requested by the Supplier;
n) adhere to the dates scheduled for provision of Services by the Supplier to the Customer as stated in the applicable Statement of Work(s) or otherwise agreed between the Parties in writing. In the event the Customer wishes to reschedule or cancel the dates for the provision of Services, liquidated damages (“Liquidated Damages”) will become payable from the Customer to the Supplier on the following basis:
(i) if the dates are changed of cancelled at the Customer’s request more than fourteen (14) days before the scheduled start date no Liquidated Damages are payable
(ii) if dates changed of 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 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
o) inform the Supplier of all health and safety rules and regulations and any other reasonable security requirements that apply at any of the Customer’s premises
p) allow the Supplier or its designated subcontractors, global admin access to the Customer’s relevant servers and networking systems for the duration of the Agreement
q) where a Microsoft Product service is deployed / utilised within the project (Azure, Enterprise Mobility Suite, Office 365 or Microsoft 365) the Supplier will be assigned to the cloud subscription(s) (as applicable) 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/or Admin on Behalf of (AOBO) for a minimum of twelve (12) months from project completion;
r) take good care of the Supplier’s Equipment to prevent damage or loss to such equipment arising from misuse by Customer personnel in accordance with any applicable Supplier policy or instructions of the Supplier from time to time
s) maintain adequate policies of insurance which provide cover for the Supplier’s Equipment when located at the Customer Site against the normal risks which the Customer could reasonably be expect to insure against in respect of its own equipment
t) provide appropriate hardware interface, software and access authorisation to enable remote diagnosis, should such capability be required
u) provide all information and make available all resources as reasonably requested by Supplier in the execution of its obligations under this Agreement, and ensure that all such information and resources are accurate in all material aspects;
v) use all reasonable efforts to follow the reasonable instruction of Supplier support personnel with respect to the resolution of defects;
w) 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
x) 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(s) for the Supplier to access of use any equipment, software or data of the Customer (or which is in possession of the Customer) then it shall where it is able to do so grant to the Supplier and any of its subcontractors a non-exclusive, royalty-free, terminal licence to use the same solely for the purpose of delivery the Services only for as long as is strictly necessary to deliver such services.
8.5 The Customer shall (unless otherwise specified in the Statement of Work(s) or as otherwise set out in this Agreement):
a) use the Services only for lawful purposes and in accordance with this agreement
b) keep secure from third-parties any passwords issued to the Customer by the Supplier
c) fully virus-check all data supplied to the Supplier pursuant to this agreement
d) permit the Supplier to install the current version of software required to provide the Managed Services from time to time when upgrades or fixes occur and to provide a reasonable level of assistance in implementation and testing
e) provide the Supplier at least seven (7) Business Days’ notice in advance of any intention or move to changed when applicable Customer-side Equipment or Customer’s Operating Environment or data-feeds that will directly impact the Managed Services. If such notice has not been received on time, the Supplier will have to make additional effort to return the Customer’s Systems to an acceptable state for continued support, and will charge accordingly at its then standard charging rate
f) comply with all applicable laws and regulation with respect to its activities under this Agreement; and
g) carry out all other Customer responsibilities set out in this Agreement and the Statement of Work(s) in a timely and efficient manner. In the event of any delays in the Customer 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.
8.6 All waiting time spent by any employees or agents of the Supplier (which includes any time which had been allocated to the Customer by the Supplier and which is not utilised by the Customer for any of the reasons set out in this Clause) as a result of the delay, variation or failure by the Customer to comply with the Agreement (which for these purposes includes any delays or postponements by the Customer of any installation dates specified by the Supplier, of dates of scheduled service visits or otherwise) will be payable by the Customer to Supplier at the Suppliers then current rates.
8.7 The Customer shall not knowingly store, distribute or transmit any material through the Managed Services that:
a) is unlawful, harmful, threatening, defamatory, obscene, harassing or racially or ethnically offensive
b) facilitates illegal activity
c) depicts sexually explicit images; and/or
d) promotes unlawful violence, discrimination based on race, gender, age, disability, sexual orientation, religion and belief, gender assignment, or any illegal activities
8.8 In the event that the Customer is in breach of its obligations under the Agreement (including payment obligations) 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 Customer fails to remedy such breach the Supplier shall be entitled to terminate or suspend the Services and/or not deliver any Goods (as applicable) 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 Work(s) and/or Service Level Arrangements as a direct result of the Customer (including without limitation any of its employees, subcontractors or any of its staff) being in breach of the Agreement.
9.0 PROJECT ORGANISATION
9.1 If requested in writing by the Customer or specified in the Statement of Work(s), the Customer Representative 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 16 and to discuss the Service Level Arrangements.
9.2 Before each meeting, the Customer Representative shall notify the Supplier Representative, and vice-versa, of any problems relating to the provision of the Services for discussion at the 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.
10.0 PRICE AND PAYMENT
10.1 The Customer shall pay the Fees for the Services (including any Third Party Services fees) as more set out in the relevant Quotation or Statement of Work(s)
10.2 If no Fee is quoted, the Fee shall be calculated in accordance with the Supplier’s Rates set out in the Statement of Work(s) as amended from time to time in accordance with this Agreement.
10.3 Clause 10.5 shall apply if the Services are to be provided on a time-and-material basis. The remainder of this Clause 10 shall apply to all Fees, whether payable on a fixed price, annual or time and material basis
10.4 Where a Fee has been quoted, this is a best estimate based on the information given to the Supplier by the Customer and/or which is available at that time and may be based on a number of assumptions set out in the Statement of Work(s) (“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 Customer for any Out of Scope Services or other additional Services provided to those detailed in the Statement of Work(s) together with all related costs and expenses incurred by the Supplier.
10.5 Where the Services are provided on a time-and-material basis:
a) the Fees payable will be calculated in accordance with 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 of Normal Business Hours as set out in the Statement of Work(s); and
c) the Supplier shall complete the relevant time recording systems to calculate the Fees for each invoice charged on a time and materials basis
10.6 The Supplier shall invoice the Fees in accordance with the payment intervals stated in the Statement of Work(s).
10.7 The Fees exclude (unless otherwise agreed and set out in the Statement of Work(s))
a) Actual, reasonable travel costs and expenses including the cost of hotels, subsistence, travelling and any other ancillary expenses incurred by the Supplier or its subcontractors in providing the Services at any site other than the Customer Site, the cost of any materials and the cost of services reasonably and properly provided by third parties and required by the Customer for Services (“Expenses”). The Supplier shall obtain the Customer’s prior written approval before incurring any such expense, material or service exceeding a total cost of fifteen hundred pounds (£1,500) in aggregate per day and shall be payable by the Customer in accordance with Clause 10.8
b) 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
10.8 The Customer 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 Quotation, Proposal and/or Statement of Work(s).
10.9 Unless otherwise set out in the Statement of Work(s), all amounts stated are gross amounts but exclusive of VAT or other sales tax which shall be paid by the Customer, if applicable, at the then prevailing rate subject to receipt of a valid VAT invoice or other sales tax invoice.
10.10 All payments by the Customer hereunder shall be in United Kingdom pound sterling unless otherwise agreed or set out in the Statement of Work(s) and shall be paid to the Supplier’s bank account as advised by the Supplier to the Customer in writing
10.11 Should the Customer 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(s).
10.12 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 Customer has notified the Supplier in writing that such payment is in dispute within ten (10) days of receipt of the corresponding invoice the Supplier may, without prejudice to any other rights or remedies, charge the Customer interest on the overdue amount at the rate of four percent (4%) per annum above National Westminster Bank plc base rate 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 of after judgement. The Customer shall pay the interest together with the overdue amount.
10.13 The Customer shall not be able to dispute any amounts which have been paid by the Customer after a period of three (3) months has elapsed from the date of invoice.
10.14 The Supplier shall not be obliged to provide any of the Services while any duly issued invoice(s) remain unpaid under any Statement of Work(s), 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
10.15 Notwithstanding Clause 10.17 below, the Supplier reserves the right to increase the Fees relating to the provision of Services on an annual basis with effect from each anniversary of the Commencement Date in line with the percentage increase in the Retail Prices Index in the preceding twelve (12) month period
10.16 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 thirty (30) days’ notice and in line with the terms of the Licensing Agreement, the Supply of Goods Agreement, and/or the Statement of Work(s) and/or the CSP Agreement. Further in the event that Supplier enters into an Agreement with a Third Party on behalf of the Customer, then notwithstanding any termination of this Agreement Customer shall be liable for the Fees associated with such Third Party agreement and any termination of that Third Party agreement shall be in accordance with the dates and notice periods set out therein, which shall be communicated to the Customer
10.17 Subject to Clauses 10.15 and 10.16, the Supplier reserves the right, on giving the Customer thirty (30) days’ notice, to increase the Fees on an annual basis with effect from each anniversary of the Commencement Date. If the Customer does not agree with this increase, then they may terminate the specific Service which the increase to the Fees relates to 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 Customer is deemed to have agreed to the amendment to the Fees
11.0 WARRANTIES
11.1 The Customer 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 Customer
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 its obligations under this Agreement
d) it will comply with and use the Services in accordance with the terms of this Agreement and all applicable laws, and shall not do any act that shall infringe the rights of third party including the publishing or transmission of any materials contrary to relevant laws; and
e) the Suppliers use in the provision of the Managed Services or otherwise in connection with this Agreement of any third party materials, including hardware or software supplied by the Customer 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 rights, including any Intellectual Property Rights, of any third party.
11.2 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 Customer’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; and
d) the Customer’s use of any Supplier materials and/or third-party materials, including any materials supplied by the Supplier to the Customer, shall not cause the Customer to infringe the rights, including any Intellectual Property Rights
11.3 Except for any warranties and service levels expressly set forth in this Agreement, the Services are provided on an “as-is” basis, and the Customers 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 merchandise, fitness for a particular purpose and any warranties arising from a course of dealing, usage, or trade practice
11.4 The Supplier shall have no liability or responsibility for the following;
a) the suitability of any goods not supplied by the Supplier or included in the Goods for any purpose or use under specific conditions whether the purpose or conditions were known or communicated to the Supplier or not; or
b) any non-performance of the Customer’s Applications. It shall be the sole responsibility of the Customer to advise the Supplier of the details in respect of any Customer Applications which the Customer requires the Supplier to maintain as part of the Services
11.5 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 Customer 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 it commercially reasonable endeavours to resolve that defect, fault or impairment as more fully set out in the Statement of Work(s) and to the extent that it reasonably can
11.6 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 Customer or Authorised User, (ii) the Customer’s breach of this Agreement, or (iii) the operation, failure or malfunction of any network, equipment, hardware or software owned or controlled by the Customer; or (iv) any third party action in response to an act or omission of the Customer of any person given access to the Service by the Customer (including third party hosted software vendors) then the Supplier may recover from the Customer 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 dix any fault and time is not of the essence
11.7 Unless otherwise agreed or set out in the Statement of Work(s) (as forming part of the Service) if the Customer accesses the Services through the public internet or through a private circuit provisioned by a bandwidth provider of the Customer’s choice, the Customer assumes responsibility for managing the relationship with this chosen provider, including Service Level Commitments for issues found to be in the chosen providers’ network.
11.8 If the Customer moves from one Customer Site to another site or makes changes to any Customer Site or opens a new location to be added to the Customer Sites, the Customer must notify the Supplier in advance. The Supplier may need to carry out an inspection of any cabling and advise the Customer of any work to bring the IT Infrastructure up to standard operating conditions at the location in order to remain eligible for the coverage. The Supplier will provide a Quotation if it is to provide additional resources or services in the case of any change at the Customer Sites or new Customer Sites for including as part of the Fees
11.9 The Supplier will request approval form the Customers Representatives before making any significant changes to the Services. The Supplier will arrange any Scheduled Downtime in advance with the Customers 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 its Services in order to carry out scheduled or emergency maintenance or repairs.
11.10 The Supplier will carry out network management routines to test the operations and functions of the relevant Services from time to time, notifying the Customer in advance
11.11 The Supplier reserves the right to take any action that it perceives necessary to protect the Customer’s systems even though this may impact on Customer’s business activities. The Supplier will make reasonable endeavours to inform the Customer by telephone or email in advance of such action, but such action will not be dependant on such notification been given or acknowledged.
11.12 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 Service Level Arrangements).
11.13 The Supplier shall not in any circumstances be liable under its obligations in this Clause 11 if it can demonstrate that any failure of the Services was caused or contributed to by any relief
11.14 Notwithstanding the foregoing, the Supplier does not warrant that the Customers use of the Services will be uninterrupted or error-free, or in the case of the Managed Services bye available 100% of the time
11.15 The Customer hereby warrants that it has not been induced to enter in to 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
12.0 DATA PROTECTION
12.1 The Supplier shall promptly notify the Customer in writing of any loss or damage to the Customer Data. In the event of any loss or damage to Customer Data, the Supplier shall use commercially reasonable endeavours to restore the lost or damaged Customer Data from the latest backup of such Customer Data. Subject to Clause 7.3, the Supplier shall not be responsible for any loss, destruction, alteration, or unauthorised disclosure of Customer Data caused by any third-party.
12.2 For the purposes of this Clause 12, the terms controller, processor, data subject, personal data, personal data breach and processing shall have the meaning given to them in the UK Data Protection Legislation.
12.3 Both Parties will comply with all applicable requirements of Applicable Data Protection Laws. This Clause 12 is in addition to, and does not relieve, remove or replace, a Party’s obligations or rights under Applicable Data Protection Laws.
12.4 The Parties have determined that, for the purposes of Applicable Data Protection Laws, the Supplier shall process the personal data set out in the applicable Statement of Work(s), as a processor on behalf of the Customer
12.5 Without prejudice to the generality of Clause 12.3, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Customer Personal Data to the Supplier for the duration and purposes of this Agreement.
12.6 In relation to the Customer Personal Data, the data processing schedule within the applicable Statement of Work(s) 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.
12.7 Without prejudice to the generality of Clause 12.3 the Supplier shall, in relation to Customer Personal Data:
a) process that Customer Data only on the documented instructions of the Customer, unless the Supplier is required by Applicable Data Protection Laws to otherwise process that Customer Personal Data. Where the Supplier is relying on Applicable Data Protection Laws as the basis for processing Customer Processor Data, the Supplier shall notify the Customer of this before performing the processing required by the Applicable Data Protection Laws unless those Applicable Data Protection Laws prohibit the Supplier from so notifying the Customer on important grounds of public interest. The Supplier shall inform the Customer if, in the opinion of the Supplier, the instructions of the Customer infringe Applicable Data Protection Laws;
b) implement appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Customer Personal Data, which the Customer 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 Customer Personal Data have committed themselves to confidentiality or are under an appropriate statutory or common law obligation of confidentiality;
d) assist the Customer insofar as this possible (taking into account the nature of the processing and the information available to the Supplier), and at the Customer’s cost and written request, in responding to any request form a data subject and in ensuring the Customer’s compliance with its obligations under Applicable Data Protection Laws with respect to security, breach, notifications, impact assessments and consultations with supervisory authorities or regulators;
e) notify the Customer without undue delay on becoming aware of a personal data breach involving Customer Personal Data;
f) at the written direction of the Customer, delete or return Customer Personal Data and copies thereof to the Customer on termination of the Agreement unless the Supplier is required by Applicable Law to continue to process that Customer Personal Data. For the purposes of this Clause 12.7(f) Customer Personal Data shall be considered deleted where it is put beyond further use by the Supplier; and
g) maintain records to demonstrate its compliance with this Clause 12 and allow for reasonable audits by the Customer of the Customer’s designated auditor, for this purpose, on reasonable written notice
12.8 The Customer hereby provides it prior, general authorisation for the Supplier to:
a) appoint processors to process the Customer Personal Data, provided the Supplier:
i) shall ensure that the terms on which it appoints such processors comply with Applicable Data Protection Laws, and are consistent with obligations imposed on the Supplier in this Clause 12;
ii) shall remain responsible for the acts and omission of any such processor as if they were the acts and omissions of the Supplier; and
iii) shall inform the Customer of any intended changes concerning the addition or replacement of the sub processors, thereby giving the Customer the opportunity to object to such changes provided that if the Customer objects to the changes and cannot demonstrate, the Supplier’s reasonable satisfaction, that the objection is due to an actual or likely breach of Applicable Data Protection Law, the Customer shall indemnify the Supplier for any losses, damages, costs (including legal fees) and expenses suffered by the Supplier in accommodating the objection
b) transfer Customer Personal Data outside 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 Laws. For these purposes, the Customer 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 Data Protection Legislations applies to the transfer)
12.9 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 12, or Applicable Data Protection Laws shall be limited to amount set out in Clause 15.5
12.10 To the extent that the Supplier cannot comply with a change to the Customer’s instructions when processing Customer Personal Data without incurring material additional costs:
a) the Supplier shall (i) immediately inform the Customer, 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 Customer’s instructions that affect the pricing structure or commercial relationship between the Parties should go through an appropriate Change Request (as set out in Clause 16)
13 INTELLECTUAL PROPERTY RIGHTS
13.1 The Supplier and its respective licensors shall retain exclusive ownership of (i) all of its Background Materials; and (ii) any material code, ideas, concepts, techniques and know-how discovered, created or developed by the Supplier during the performance of the Services that are not based on or derived from the Customer’s business or Confidential Information (General IP, together with the Background Materials, the “Supplier Intellectual Property”). The Supplier grants to the Customer a non-exclusive, irrevocable, worldwide royalty free and non-transferrable license to use the Suppliers Intellectual Property
13.2 The Customer shall pay and indemnify the Supplier, from and against all actions, claims, liabilities, demands, proceedings, costs suffered or incurred by the Supplier, arising by reason of claims that:
a) the Supplier’s possession of or use of the Customer’s Intellectual Property in connection with the provision of the Services infringes the Intellectual Property Rights of a third party;
b) the Customer or any of its customers, modify, alter, replace, combine with 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; and/or
c) any Goods manufactured by the Supplier in accordance with the Customer’s specification 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
13.3 The Supplier shall pay and indemnify the Customer, from and against all actions, claims, liabilities, demands, proceedings, costs suffered or incurred by the Customer, arising by reason of claims that:
a) the Customer’s possession of or use of the Supplier’s Intellectual Property Rights in connection with the provision of the Services infringes the Intellectual Property Rights of a third party
b) the Supplier, modifies, alters, replaces, combines with any other data, code, documents or other software, which alters the Customer’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
13.4 If either Party (“Indemnifying Party”) is required to indemnify the other party (“Indemnified Party”) under this Clause 13, 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 13.2 or Clause 13.3 (as applicable);
b) allow the Indemnified 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 Parties prior approval of any statement 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 Indemnified Party’s costs so incurred; and
d) 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 way as not to bring the reputation of the Indemnified Party in to disrepute.
13.5 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 Customer 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 Customer, such acceptance not to be unreasonably withheld; or
b) procuring a licences or permission to use the Deliverables on terms which are acceptable to the Customer, such acceptance not to be unreasonably withheld
13.6 Except to the extent that the Supplier should reasonably have known or advised the Customer the foregoing provisions of Clause 13.5, 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 Customer of the combination with any item not supplied by the Supplier where such use of the Deliverables directly gives rise to the claim, demand or action: or
b) any modification carried out on behalf of the Customer 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
14 THIRD PARTY SERVICES
14.1 The Supplier shall procure any Third-Party Services required by the Customer for the provision of the Services and as more fully set out in the Statement of Work(s). Except as expressly set out in the relevant Licence Agreement and/or Supply of Goods Agreement (as applicable), the Supplier expressly excludes any warranty to the Customer 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 it’s marketing, sales or associated documentations. The Customer 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”)
14.2 It is a condition of this Agreement that the Customer shall enter into such direct Licence Agreements and/or Supply of Goods Agreements (as applicable) issued by the Third Party where the Customer must directly contract with that Third Party as so prescribed by the relevant manufacturer or software owners of each Third Party Services (as applicable) identified within this Agreement and/or in the applicable Statement of Work(s). In the event the Customer does not accept the terms of such Licence Agreements and/or Supply of Goods Agreements (as applicable) (whether directly contracted with the Supplier or the relevant Third Party), the Supplier reserves the right to suspend the provision of the Services until such time as the Customer enters into such Licence Agreement and/or Supply of Goods Agreement (as applicable)
14.3 The Customer 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 and/or Supply of Goods Agreements.
14.4 The Customer shall not:
a) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the Parties, and except to the extent expressly permitted under this Agreement, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Services (as applicable) in any form or media or by any means; or
b) attempt to adapt, make error corrections, reverse compile, disassemble, reverse engineer or otherwise reduce human-perceivable form or any part of the Services; or
c) access all or any part of the Services in order to build a product or service which competes with all or any part of the Services during the term of this Agreement and for a period of six (6) years thereafter; or
d) use the Services to provide services to third parties; or
e) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services available to any third-party except the Authorised User’s; or
f) attempt to obtain, or assist third parties in obtaining access to the Services and/or Documentation, other than as provided under this Clause 14.4
14.5 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and, in the event of any such unauthorised access or use, promptly notify the Supplier
14.6 The rights provided under this Clause 14 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer unless otherwise agreed in a Statement of Work(s)
14.7 The Customer acknowledges that it is responsible for ensuring that the Customer’s hardware, and operating software for such hardware is compatible with the Services including any 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(s)
14.8 The Parties shall identify and agree within the Statement of Work(s) the Parties responsibilities for the maintenance of adequate backup copies of all application and data held on the Customer’s Operating Environment or any Customer Equipment.
15 EXCLUSIONS, LIMITATIONS OF LIABILITY, WARRANTIES AND INDEMNITIES
15.1 The Customer acknowledges and agrees that, except as expressly provided in this Agreement or unless it is a Service under a relevant Statement of Work(s), the Customer 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 Customer’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, delay 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.
15.2 This Clause 15 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
15.3 Nothing in this Agreement excludes or limits either Parties 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
15.4 Subject to Clause 15.3 above, the Service Level Arrangements state the Customer’s full and exclusive right and remedy, and the Supplier’s only obligation and liability, in respect of the performance and availability of the Managed Services, or their non-performance and non-availability
15.5 Subject to Clause 15.6, 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.
15.6 Either Party’s responsibilities under any indemnification obligations in Clause 13 and Clause 15.9 shall be limited to £1,000,000 in aggregate per year
15.7 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 of corruption of data
15.8 Except as expressly and specifically provided in this Agreement:
a) the Customer assumes sole responsibility for results obtained from the use of the Managed Services, and for conclusions drawn from such use. The Supplier shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Supplier by the Customer in connection with the Managed Services, or any actions taken by the Supplier at the Customer’s direction; and
b) all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from this Agreement
15.9 Each Party (the indemnifying party) shall indemnify the other Party (the indemnified party) against all Losses and damage suffered by the indemnified party as a result of the indemnifying party’s negligence resulting in damage to the indemnified party’s property (including the negligence of its agents, contractors or employees). Subject to the contributory negligence of indemnified party, its agents, contractors, or employees in respect of any act, default, or negligence if applicable.
15.10 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 an 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 o be unreasonably withheld or delayed.
16 CHANGE REQUESTS
16.1 Either Party may request changes to any Professional Services (in each case, a “Change Request”), Any Change Request shall be made in writing and sent to the Customer Representative 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.
16.2 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 Professional Services; and any other impact of the change on the terms of this Agreement. The Customer 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.
16.3 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(s) without taking in to account the Change Request. Once duly agreed by both Parties, the Change Request shall be deemed incorporated into the Agreement and the Statement of Work(s) and the Supplier shall commence performance of the Change Request accordingly.
16.4 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 in Clause 16.3
16.5 Unless otherwise agreed in writing, Supplier shall be entitled to charge the Customer at the Supplier’s then current Rates for investigating, reporting on and, if appropriate, implementing any Change Request requested by the Customer
16.6 Notwithstanding anything in this Clause 16, the Supplier may, from time to time and without notice, change the Professional Services in order to comply with any applicable safety or statutory requirements, provided that such changes do not materially affect the nature, scope of, or the Fees for the Professional Services
17 CONFIDENTIALITY
17.1 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(s)
17.2 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 advisors, in each case under the same conditions of confidentiality as set out in Clause 17.1
17.3 The obligations of confidentiality set out in this Clause 17 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.
18 TERM AND TERMINATION
18.1 This Agreement shall commence on the Commencement Date and each Statement of Work(s) shall commence on the Services Commencement Date and shall remain in full force for the Initial Term unless otherwise agreed by the Parties in writing or earlier terminated in accordance with the term of this Agreement. Thereafter, this Agreement and each Statement of Work(s) 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
18.2 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 Customer breaches its obligations in Clause 8.8;
b) the other Party commits a material breach of any term of this Agreement and (if such breach is remediable) fails to remedy that breach within a period of thirty (30) days after being notified in writing to do so;
c) the other Party breaches any of the terms of Clause 12, Clause 17 or Clause 22; or;
d) the other Party suspends, or threatens to suspend, payment od 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
For the purposes of this Clause 18.2(b), “material breach” means a breach (including an anticipatory breach) that is serious in the wised sense of having a serious effect on the benefit which the terminating party would otherwise derive from a substantial portion of this Agreement. In deciding whether any breach is material no regard shall be had to whether it occurs by some accident, mishap, mistake, or misunderstanding
18.3 Termination of this Agreement, for any reason, shall not affect the accrued rights, remedies, obligations, or liabilities of the Parties existing at termination
18.4 On termination of this Agreement for any reason:
a) the Supplier shall immediately cease provision of the Services
b) the Customer shall pay any and all invoices and sums due and payable up to and including the date of termination including (i) all remaining amounts owing up to the end of the Term (as applicable); (ii) any Licence Fees as set out under Clause 14.1; and (iii) 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 Customer acknowledges and agrees that any Third Party fees may not be mitigated by the Supplier and the Customer shall not hold the Supplier responsible if it incurs full termination fees; and
c) 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
18.5 Save as provided in Clause 18 or elsewhere in this Agreement, or by mutual consent and on agreed terms, or sue to a Force Majeure event, neither Party shall be entitled to terminate a Statement of Work(s). Termination of a Statement of Work(s) shall not by default, terminate other Statement of Work(s) nor this Agreement
18.6 On termination of this Agreement, howsoever arising, each Statement of Work(s) then in force at the date of such termination shall continue in full force and effect for the remainder of the term of such applicable Statement of Work(s), unless terminated earlier in accordance with the terms of such Statement of Work(s). For the avoidance of doubt any Supply of Goods Agreements entered into for the purposes of providing Services set out herein shall terminate solely as set out in therein notwithstanding any earlier termination of the Statement of Work(s) or this Agreement and, as set out at Clause 10.16 any Statement of Work(s) or Quotation which refers to a Third Party agreement shall also continue with respect to that Third Party agreement.
18.7 Termination of any Statement of Work(s) shall
a) be without prejudice to any other rights which any Party may have under other Statement of Work(s); and
b) not by default, terminate other Statement of Work(s) nor this Agreement
18.8 If for any reason a contract between a Third Party and the Supplier relating to the Supplier’s right to use, install or support Third Party Services which is the subject of the Agreement is terminated, then the Agreement or applicable Statement of Work(s) (as the case may be) shall automatically terminate, save that where the Agreement or Statement of Work shall operate only in so far in so far as it relates to such Third Party Services.
18.9 Upon termination of this Agreement or specific Statement of Work(s) for any reason the Supplier will provide to the Customer and/or to any new supplier selected by the Customer (the “Successor Service Provider”) such assistance as reasonably requested by the Customer in order to effect the orderly transition of the applicable Services, in whole or part, to the Customer or to Successor Service Provider (such assistance shall be known as (the “Termination Assistance Period”). Any Services required by the Customer 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.
18.10 The provisions of Clauses 10, 11, 12, 13, 14, 15, 17, 18, 19, 20 and 22 shall survive termination of any Statement of Work(s) or this Agreement
19 STAFF TRANSFER AND NON-SOLICITATION
19.1 It is not intended that any staff by transferred from the Supplier to the Customer or from the Customer 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 (the “Regulations”). The Customer will repay to the Supplier any costs, expenses, damage awards, fines, court or tribunal orders and other liabilities or other sums for which the Supplier is or may be liable by reason of the application of alleged application of the Regulations in relation to provision of those Services by the Supplier, including any compensation or damages which the Supplier may be required to pay to any such person for any reason.
19.2 The Customer acknowledges the investment made by the Supplier in the training of the Supplier’s personnel and the commercial interest which the Supplier has in retaining their services
19.3 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 twelve (12) 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, sub-contractor, or independent contractor.
19.4 In the event that either Party is in breach of Clause 19.3 then the Party in breach shall pay to the other by way of liquidated damages an amount equal to fifty percent (50%) 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 Parties ability to seek injunctive relief.
19.5 The Parties hereby acknowledge and agree that the formula specified in Clause 19.4 is a reasonable estimate of the loss which would be incurred by the loss of the person so employed or engaged
20 RELIEF EVENTS
20.1 Subject to Clause 15.3, 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
21 FORCE MAJEURE
21.1 The Supplier shall have no liability to the Customer under this Agreement and the Customer shall have no obligation to pay the Fee’s if the Supplier is prevented from, or delayed in, performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control 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), including strikes, computer viruses and malware pandemics, epidemics, lock-outs or other industrial disputes (excluding any industrial disputes involving the workforce of the Supplier), act of god, war, riot, civil commotion, compliance with any law or regulation, fire, flood or storm (each a “Force Majeure Event”), provided that:
a) the Customer is notified of such an event and its expected duration
b) the Fees suspended are only in relation to the Service which is unable to be provided as a result of the event; and
c) the Supplier uses all reasonable endeavours to mitigate, overcome or minimise the effects of the Force Majeure Event concerned,
and that if the period of delay or non-performance continues for four (4) weeks or more, the Party not affected may terminate this Agreement by giving fourteen (14) days’ written notice to the other Party
22. ANTI-BRIBERY AND MODERN SLAVERY
22.1 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 Customer 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
22.2 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 22 (“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 Customer for any breach by such persons of any of the Relevant Terms.
22.3 For the purpose of this Clause 22, 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 22 a person associated includes any subcontractor of the Supplier
22.4 In performing its obligations under the Agreement, the Supplier shall:
a) comply with all applicable anti-slavery and human trafficking laws, statutes, regulations from time to time in force in force the Modern Slavery Act 2015; and
b) 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
23 WAIVER
23.1 No failure or delay by a Party to exercise any right to 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
24 SEVERANCE
24.1 If any court of 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
24.2 If any invalid, enforceable 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.
25 ENTIRE AGREEMENT AND AMMENDMENT
25.1 This Agreement and its references to further documentation, the Licence Agreements, the Supply of Goods Agreements, the Statement of Work(s) and the CSP 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
25.2 Each Party acknowledges that in entering into this Agreement it does not rely on, and shall have no remedies in respect o, any representations or warranty (whether made innocently or negligently) that is not set out in this Agreement.
25.3 Each Party agrees that its only liability in respect of those representations and warranties that are set out in this Agreements (whether made innocently or negligently) shall be for breach of contract
25.4 No alteration to or variation to this Agreement shall take effect unless and until the same is in writing and signed on behalf of the Parties by a duly authorised representative.
26 ASSIGNMENT
26.1 The Customer 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, except that the Customer’s affiliates and/or Sub-contractors may enter into a Statement of Work(s) and perform obligations on the Customer’s behalf
26.2 The Supplier may assign, sub-contract or otherwise transfer the benefit of, and/or its obligations under this Agreement to any person at any time
27 NO PARTNERSHIP OR AGENCY
27.1 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
28 THIRD-PARTY RIGHTS
28.1 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 CSP Agreement) and is not intended to benefit or be enforceable by anyone else
29 NOTICES
29.1 Any notice or other communication 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.
29.2 Any notice or communication shall be deemed to have received if delivered by hand, on signature of delivery receipt, or otherwise at 09:00am on the second Business Day after posting or at the time recorded by the delivery service
29.3 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.
30 DISPUTE RESOLUTION
30.1 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 the dispute resolution process (“Dispute Resolution”)
30.2 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 higher management level that the person with direct responsibility for the administration of this Agreement (“Designated Representative”). And
b) notify the other Party in writing of the name and contact information of such Designated Representative
30.3 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.
30.4 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.
31 MARKETING
31.1 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 the Customer on the Supplier’s website, provided that in no event shall either Party use the name, trademarks or other propriety identifying symbols of the other Party without such Party’s prior written consent, which consent shall not be unreasonably withheld or delayed
32 GOVERNING LAW AND JURISDICTION
32.1 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 and Wales.
32.2 The Parties irrevocably agree that the courts of England and Wales 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)