Master Services Agreement
Terms & Conditions
v1.60.0
1: Definitions
In this Contract, the following words have the following meanings:
1.1 “Affiliate” means any direct or indirect holding Company or Subsidiary Company of the relevant entity. A Company is a “Subsidiary” of another Company, if the latter company: (a) holds a majority of the voting rights in it; or (b) is a member of it and has the right to appoint or remove a majority of its board of directors; or (c) is a member of it and controls alone, pursuant to an agreement with other shareholders or members, a majority of the voting rights in it. “Company” includes any body corporate or any legal entity capable under law of making a contract.
1.2 “Customer Infrastructure” means the Customer’s systems and technical infrastructure, including those systems that directly or indirectly interface and/or are interoperable with, and/or impact on, the Services, and which are not under Supplier’s management and control and explicitly identified as Supplier’s responsibility under this Contract, but excluding the Connectivity Infrastructure.
1.3 “Customer” means the ‘Customer’ specified in the Order Form.
1.4 “Customer Entities” means any Affiliates of the Customer expressly identified on the Order Form.
1.5 “Connectivity Infrastructure” means the internet, telecommunications links, broadband and/or third party software and systems which are neither owned or supplied by the Supplier or the Customer and which connect the Services and/or the Supplier Software to wide area networks. 1.5. 1.6.
1.6 “Contract” means these MSA Terms & Conditions, the Order Form, and the Schedules.
1.7 “Costs” means costs, liabilities, penalties, and charges.
1.8 “Deliverables” means the output/deliverables in respect of any Services.
1.9 “Effective Date” means the contract date specified in the Order Form.
1.10 “Fees” means the fees and charges specified in the Order Form and the SOW(s).
1.11 “Hosted Services” means ‘Hosted Services’ as described in the Order Form.
1.12 “Hosted Service Commencement Date” means the target date (advised by the Supplier) on which the Customer should put the Hosted Services into live and/or operational use.
1.13 “Intellectual Property Rights” means all copyrights (including copyright in computer software), database rights, rights in inventions, patent applications, patents, trade marks, trade names, know-how, service marks, design rights (whether registered or unregistered), trade secrets, rights in confidential information and all other industrial or intellectual property rights of whatever nature for the full duration of such rights, including any extensions or renewals.
1.14 “Law” means any applicable laws, regulations, regulatory constraints, obligations, proclamations, rules (including binding codes of practice and statement of principles incorporated and contained in such rules), or applicable judgment of a relevant court of law which is a binding precedent, in each case in force in any jurisdiction that is or may be applicable to this Contract.
1.15 “Licensing Purpose” means internal use only in the ordinary course of the Customer’s business and for the use(s) envisaged in the Supplier’s published marketing materials of the Hosted Services.
1.16 “Local” means installed on Customer Infrastructure.
1.17 “Minimum Term” means the period of months identified in the Order Form as the ‘Minimum Term’.
1.18 “MSA T&Cs” means these MSA Terms & Conditions.
1.19 “Order Form” means the order form setting out the services required by the Customer.
1.20 “Professional Services” means ‘Professional Services’ as described in the Order Form.
1.21 “Renewal Period” means the period of months identified in the Order Form as the ‘Renewal Period’.
1.22 “Services” means Set-up and Onboarding Services, Supplier Software, Beacon Hardware, Hosted Services, Professional Services and additional professional services from time to time upon the completion of a Statement of Work.
1.23 “Set-up and Onboarding Services” means ‘Set-up and Onboarding Services’ as described in the Order Form.
1.24 “SLA” means the ‘Service Level Agreement’ set out at Schedule 1.
1.25 “Software” means the Supplier Software, and any software supplied pursuant to this Contract, including such new releases, new versions, updates, and modifications thereto as are provided by Supplier in its discretion and/or in accordance with the SLA.
1.26 “Statement of Work” or “SOW” means a contract for specified professional services that is made in accordance with Clause 4.2.
1.27 “Supplier Software” means the ‘Supplier Software’ described in the Order Form, including such new releases, new versions, updates, and modifications thereto as are provided by Supplier in its discretion and/or in accordance with the SLA. 1.27. 1.28.
1.28 “Supplier” means the ‘Supplier’ specified in the Order Form.
1.29 “System Access” the local and wide area access to the Customer Infrastructure as required by the Supplier in order to provide the Services pursuant to this Contract. 1.29.
1.30 “User Data” means any information, materials, or data: (a) uploaded, stored or created in or while using the Supplier Software by: (i) the Customer or its users; or (ii) by the Supplier or a third party on the Customer’s or its users’ instructions; and/or (b) provided to the Supplier by (or on behalf of) the Customer or its users.
2: Hosted Services
2.1 From the Hosted Service Commencement Date the Supplier shall provide Hosted Services substantially in accordance with the SLA with reasonable skill and care in accordance with good industry practice, subject to the terms of this Contract and provided that the Supplier does not warrant that the Customer’s use of Hosted Services will be uninterrupted or error free. The Supplier shall use its reasonable endeavors to meet any timescales specified in the SLA. Any such timescales are targets rather than guarantees.
2.2 From the Hosted Service Commencement Date, subject to the Customer complying at all times with the terms of this Contract, the Supplier grants to the Customer a non-exclusive non-transferable license for the duration of this Contract to: (a) allow its permitted users to use the Supplier Software via the Hosted Services for the Licensing Purpose and at all times in compliance with the Law, subject to the licensing parameters set out in the Order Form; (b) allow its permitted users to install and use any Local Supplier Software for the Licensing Purpose and at all times in compliance with the Law, subject to the licensing parameters set out in the Order Form.
2.3 From the Hosted Service Commencement Date, subject to the Customer complying at all times with the terms of this Contract, the Supplier grants to the Customer a perpetual non-exclusive non-transferable license to use the Deliverables for the Licensing Purpose. During the term of this Contract the Deliverables may be available to the Customer via the Hosted Software. Prior to termination of the license set out at clause 2.2 the Customer shall inform the Supplier of any Deliverables it wishes to make use of post-termination and the Supplier shall endeavor to make available such Deliverables to the Customer outside of the Hosted Services (e.g. in PDF format or similar).
2.4 The Supplier shall not be responsible for any failure to provide Hosted Services as a result of a failure by the Customer to comply with its responsibilities under this Contract and: (a) errors in or corruption of the Customer Infrastructure, Connectivity Infrastructure, and/or the Customer’s data; and/or (b) the occurrence of a Suspension Event.
2.5 The Supplier reserves the right at its sole discretion to suspend Hosted Services in the event of (each of which shall be a “Suspension Event”): (a) scheduled maintenance services (for which the Supplier shall give to the Customer as much notice as is reasonably practicable in the circumstances); (b) a material breach by the Customer of the terms of this Contract (including a failure to pay the Fees in accordance with Clause 6); (c) where ongoing use by the Customer of Hosted Services has, in the Supplier’s reasonable opinion, the prospect of damaging Hosted Services or degrading performance, whether due to failures in or problems with the Customer Infrastructure, failures in or problems with the Connectivity Infrastructure, or the occurrence of an Event of Force Majeure.
2.6 In the event of a failure by the Supplier to provide Hosted Services in accordance with this Contract, the Supplier will, at its expense, use all reasonable commercial efforts to correct any such failure(s) promptly (which may include the provision of a temporary workaround) in accordance with the SLA. The Supplier’s provision of corrective services in accordance with this Clause 2.6 shall constitute the Customer’s exclusive remedy for any breach of Clause 2.1. Nothing in this Clause 2.6 purports to limit the Supplier’s liability for any failure of the Supplier to comply with this Clause 2.6 (for which the provisions of Clause 12 shall apply).
2.7 If the Customer fails to comply with clause 3.1(e) and/or 3.1(f) in connection with the Set-up and Onboarding Services, then the Supplier may extend the Hosted Services Commencement Date accordingly.
2.8 Customer’s permitted users shall include only employees and directors of the Customer and of any Customer Entities expressly identified in the licensing parameters section of the Order Form. The Customer shall be responsible to the Supplier in relation to any use of the Software and/or Hosted Services by Customer Entities and shall notify the use restrictions under this Contract to each relevant permitted user and ensure that all such users comply with the terms of this Contract. Every permitted user (whether associated with the Customer or the Customer Entities) counts towards the numerical restrictions on users described in the licensing parameters set out in the Order Form.
3: Customer's Responsibilities
3.1 The Customer shall: (a) undertake all reasonable enquiries to satisfy itself that the Services are suitable for its needs before entering into this Contract; (b) adopt such processes and make such changes to its working practices as are necessary to make effective use of the Services; (c) have in place appropriate Customer Infrastructure and Connectivity Infrastructure necessary for the provision of Services; (d) maintain and upgrade the Customer Infrastructure and Connectivity Infrastructure in accordance with good industry practice, the Supplier’s reasonable instructions (e.g. whitelisting Supplier’s domain for email receipt and not throttling such email delivery), and any minimum environment recommendations published as part of Software specifications/guidelines (including Supplier guidance as to supported internet browsers); (e) carry out all of its responsibilities set out in this Contract in a timely and efficient manner and, in particular, not act (or fail to act) in a manner that will delay or otherwise adversely impact on the Supplier (or its subcontractors) performance of Services; (f) provide the Supplier with all necessary information, co-operation, and assistance as may be required by the Supplier in order to provide Services; (g) comply with the Law with respect to its activities under this Contract; (h) provide the Supplier with such technical support, information, and access to systems and/or data as the Supplier reasonably requires in order to maintain System Access for the duration of this Contract; (i) reasonably determine whether it is appropriate (as a matter of good industry practice) to implement any form of additional back-up of User Data (in addition to such back-ups maintained by the Supplier as part of the Hosted Services) and if so either commission directly (or via the Supplier, if available) such additional data back-up services; (j) ensure that any data (including User Data) migrated to the Supplier as part of any data migration project is appropriately cleansed and is free from corruption or material errors; (k) not reverse engineer or decompile the Software (or attempt to do the same), save to the extent permitted by Law.
3.2 The Customer recognises that the availability of the Hosted Services is, in part, dependent on the stability of the Connectivity Infrastructure, and that changes to the Connectivity Infrastructure may result in the loss of availability of (or the material degradation of) the Hosted Services. The Customer shall not make changes to those elements of the Connectivity Infrastructure that are within its control, without first notifying the Supplier of such changes and ensuring that they do not adversely impact or degrade the Hosted Services. The parties agree that changes to Connectivity Infrastructure that are outside of both parties control (and the consequences of such changes) are not the responsibility of either party; save that both parties shall use their reasonable endeavors to mitigate the adverse impact of such changes on the Hosted Services.
3.3 The Customer shall permit the Supplier, on reasonable notice, to test the Customer Infrastructure. In the event that the Supplier reasonably considers that the Customer Infrastructure is inadequate and/or is (or may be) responsible for performance or functionality failures or degradation, the Customer shall make such changes to Customer Infrastructure (whether configuration or upgrades) as the Supplier may reasonably recommend.
4: Services
4.1 Services will be provided pursuant to this Contract if and to the extent that such Services are specified in the Order Form.
4.2 This Contract also operates as a framework under which Services may be provided if the parties agree any SOW(s) by completing an SOW pro forma, as set out at Schedule 2. An SOW is deemed completed and binding on the parties if: (a) it is signed by both parties; or (b) it is raised by the Supplier in accordance with Clause 4.3 below. Each completed SOW is a separate contract for Services. The completed SOW incorporates all the terms of this Contract that directly or indirectly relate to the SOW.
4.3 In the event that Services are undertaken by the Supplier on the written request of the Customer and it is not reasonably practicable to populate and execute an SOW in respect of such services prior to such services commencing, as soon as reasonably practicable thereafter the Supplier shall raise a retrospective SOW capturing the Services ordered by the Customer, with the fees calculated either on a time and materials basis or as a fixed price as specified in an SOW. Such a SOW will not require the Customer’s signature to be binding on the parties.
4.4 The Supplier shall provide Services using reasonable care and skill and in accordance with good industry practice. Both parties shall use their reasonable endeavors to meet the timescales specified in the SOW(s). The Supplier shall not be responsible for any failure to achieve deadlines or milestones in the SOW(s) to the extent that the failure has been caused by any delay or default on the part of the Customer. Time shall not be of the essence in relation to the Supplier’s performance.
5: Personnel
5.1 Each party shall appoint the personnel as specified in the Order Form (“Key Personnel”). Each party shall ensure that its Key Personnel shall be contactable using the contact details specified in the Order Form (as updated from time to time). Each party shall inform the other promptly if any of its Key Personnel resigns or for any other reason ceases to work under this Contract.
5.2 Each party shall use their reasonable endeavors to maintain the continuity of their Key Personnel in respect of the management of this Contract, and if such Key Personnel become unavailable, each party shall promptly replace such individuals and ensure that any disruption to the Contract is minimised.
6: Payment
6.1 The Customer shall pay: (a) Fees as and when they fall due for payment, as specified in the Order Form; and (b) Fees for Services in the manner specified in the SOW(s) or otherwise fixed as specified under an SOW.
6.2 The Supplier shall be entitled to raise invoices for Fees and charges as and when they fall due for payment under Clause 6.1.
6.3 The Customer shall pay the Supplier’s invoices either: (a) within seven (7) days of the date of the invoice (or within such shorter period as specified in the Order Form); or (b) by direct debit or standing order (if applicable; and if specified in the Order Form).
6.4 The Customer may not withhold payment of any amount due to the Supplier because of any set-off, counterclaim, abatement, or other similar deduction.
6.5 All fees payable by the Customer to the Supplier under this Contract are payable in Pounds Sterling (unless another currency is specified in the Order Form) and are exclusive of any tax, levy or similar governmental charges, including value added or sales tax, that may be assessed by any jurisdiction, except for income, net worth or franchise taxes on the Supplier.
6.6 If any sum payable under this Contract is not paid ten (10) days after the due date for payment then (without prejudice to the Supplier’s other rights and remedies) the Supplier reserves the right to charge interest on that sum on a daily compounded basis (before as well as after any judgment) at the annual rate of five per cent measured from the due date to the date of payment, provided that at no time shall the Customer be required to pay interest at an effective rate higher than legally permissible.
6.7 Unless otherwise specified in the Order Form, all Fees shall increase on each anniversary of the Hosted Service Commencement Date by an amount, as notified by Supplier, that does not exceed the rate of change in the Retail Price Index (for all items) as published by the Office for National Statistics plus two per cent, measured between the date of review and the last review date (or in the event of the first review date, the Hosted Service Commencement Date)) (“Indexed Increase”).
6.8 Unless otherwise specified in the Order Form, after the expiry of the Minimum Term and each Renewal Period (i.e. each “Renewal Date”), the Supplier shall be entitled by giving the Customer not less than ninety (90) days’ written notice prior to such Renewal Date to increase any or all Fees with effect from such Renewal Date by an amount that exceeds an Indexed Increase (as determined by the Supplier in its sole discretion) (“General Increase”), provided that if the Customer objects to a General Increase it shall be entitled to terminate this Contract with effect from the Renewal Date by giving to the Supplier not less than sixty (60) days’ written notice prior to the Renewal Date.
7: Property Rights
7.1 Full and unencumbered title (with full title guarantee) in Deliverables shall vest in the Supplier absolutely upon creation. The Supplier and its licensors own and shall continue to own all Intellectual Property Rights in the Supplier Software, and any Deliverables. The Customer undertakes at the request of the Supplier at all times from the date of this Contract to, and to procure that any and all of its subcontractors and any third party involved in any SOW(s) shall, do all acts and execute all documents, papers, forms and authorisations and to dispose to or swear all declarations or oaths reasonably necessary and/or desirable to give effect to the provisions of this Clause 7.1.
8: Term and Termination
8.1 This Contract. This Contract is formed (and becomes legally binding) when the parties complete and sign the Order Form. This Contract shall commence on the Effective Date and shall continue for the Minimum Term and, thereafter, this Contract shall be automatically renewed for successive Renewal Periods, unless and until terminated by either party in accordance with this Clause 8. (i) Either party shall be entitled to terminate this Contract on expiry of the Minimum Term or any Renewal Period by giving to the other party not less than ninety (90) days’ prior written notice. (ii) Either party shall be entitled to terminate this Contract immediately if the other party commits any material breach of this Contract and fails to remedy that breach within thirty (30) days of written notice of that breach (the 30 day period only applies where a breach is capable of remedy - if it is incapable of remedy, the Contract may be terminated by written notice immediately).
8.2 SOW(s). The SOW(s) shall commence in accordance with Clause 4.2 and shall terminate on completion of the Services or in accordance with this Clause 1.2. 8.2. (i) Either party shall be entitled to terminate any SOW(s) immediately by giving written notice to the other party if that other party commits any material breach of the applicable SOW that is incapable of remedy (if the breach is capable of remedy, this Contract may be terminated immediately if the other party fails to remedy that breach within thirty (30) days of written notice).
8.3 Insolvency. Either party shall be entitled to terminate either this Contract and/or any SOW(s) immediately by giving written notice to the other party if that other party has a winding up petition presented or enters into liquidation whether compulsorily or voluntarily (otherwise than for the purposes of amalgamation or reconstruction without insolvency) or makes an arrangement with its creditors or petitions for an administration order or has a receiver, administrator or manager appointed over any of its assets, or a court or arbiter with authority to so determine, determines that the debtor is unable to pay its debts.
9: Consequences and Termination
9.1 On termination of this Contract or any SOW(s) howsoever caused: (a) the rights and duties created by Clauses 6, 7, 10, 11, 12, 15 and 16 shall survive; (b) the rights of either party which arose on or before termination shall be unaffected.
9.2 On termination of this Contract howsoever caused: (a) the SOW(s) shall be unaffected; (b) each party shall return, in good condition, the tangible property of the other party (if any) that was made available under this Contract in accordance with that other party’s reasonable instructions; (c) all licenses granted shall terminate; and (d) the parties shall cooperate as regards the delivery of User Data to the Customer, subject to any data retention that is required by Law.
9.3 On termination of any SOW(s) howsoever caused: (a) other SOW(s) and the Contract shall be unaffected; and (b) each party shall return, in good condition, the tangible property of the other party (if any) that was made available under the SOW(s) in accordance with that other party’s reasonable instructions. In the event that termination of the SOW(s) precedes completion of the Services: (i) the Supplier shall make such partial delivery to the Customer of the Deliverables as is reasonably practicable, such Deliverables to be provided on an “AS IS” basis; and (ii) if the parties had agreed to a fixed price under the SOW(s), the Supplier may (at its sole discretion) reduce the fixed price by an amount that reasonably reflects both the value of the Services that have been provided under the SOW(s) and the cost to the Supplier of providing such Services.
10: Confidentiality
10.1 Each party that receives (“Receiving Party”) non-public business or financial information (excluding the receipt by the Supplier of Cleansed Data) (“Confidential Information”) from the other (or the other’s Affiliates) (“Disclosing Party”), whether before or after the date of this Contract shall:
(i) keep the Confidential Information confidential;
(ii) not disclose the Confidential Information to any other person other than with the prior written consent of the Disclosing Party or in accordance with Clauses 10.2, or 10.3; and
(iii) not use the Confidential Information for any purpose other than the performance of its obligations or its enjoyment of rights under this Contract (“Permitted Purpose”).
10.2 The Receiving Party may disclose Confidential Information to its own, or any of its Affiliates, officers, directors, employees agents and advisers who reasonably need to know for the Permitted Purpose (each a “Permitted Third Party”), provided that the Receiving Party shall remain liable to the Disclosing Party for the acts, omissions, and compliance with the terms of this Clause 10 of such Permitted Third Party as if such Permitted Third Party was the Receiving Party (and a party to this Contract). The Receiving Party shall ensure that each Permitted Third Party is made aware of and complies with all the Receiving Party’s obligations of confidentiality under this Clause 10.
10.3 If required by Law, the Receiving Party may disclose Confidential Information to a court or regulatory authority or agency, provided that the Receiving party shall (if legally permissible) provide reasonable advance notice to the Disclosing Party and co-operate with any attempt by the Disclosing Party to obtain an order for providing for the confidentiality of such information.
10.4 The parties agree that any breach of the restrictions contained in this Clause 10 may cause irreparable harm to the innocent party, whereupon the innocent party shall be entitled to injunctive relief without the necessity of proving damages or the inadequacy of money damages, posting any bond or other security in addition to all other legal or equitable remedies.
11: Data
11.1 The Supplier shall not own (or claim ownership rights in respect of) User Data.
11.2 The Customer is responsible for the accuracy, reliability, lawfulness, and integrity of all User Data. The Customer warrants that User Data shall not be defamatory or offensive and that it, and its users, have all consents, licenses and permissions (including the consent of any Data Subjects) in respect of User Data as are required for Customer (and its users) to lawfully upload, store, distribute, publish, share and/or Process the User Data (as applicable): (a) in/through the Supplier Software; and/or (b) to/with other Customer users or any third parties who are authorised by the Customer or by Law to view/access the User Data. The Customer shall indemnify and hold harmless the Supplier for Costs arising from a breach of this Clause 11.2, including all Costs associated with handling a complaint or allegation which, if substantiated, would constitute a breach by the Customer of this Clause 11.2.
11.3 Without prejudice to any other rights herein, the Supplier shall, in its absolute discretion, be entitled to delete any User Data which, in the opinion of the Supplier, is defamatory or offensive or if the Supplier believes the Customer, and/or its users, do not have the relevant consents, licenses and/or permissions (including the consent of any Data Subject) in respect of the use and/or Processing of such User Data as required in law and/or in accordance with clause 11.2. In the event that the Supplier, acting in accordance with this clause 11.3, deletes User Data, it shall inform the Customer as soon as reasonably practicable and shall have no liability to the Customer in respect of such deleted User Data.
11.4 The Customer acknowledges that the provision of high-quality services requires the Supplier to analyse data to identify trends, optimise services, and provide customers with the opportunity to use such information to enhance their own services. The Customer therefore grants to the Supplier a non-exclusive, perpetual, irrevocable, royalty free, worldwide license to use, modify, adapt, and create derivative works of User Data for any purposes, and commercially exploit and/or sublicense any or all of such rights on any terms, provided always that such User Data must at all times be cleansed such that individuals, the Customer, and/or any legal entities cannot be identified in any circumstances (“Cleansed Data”).
11.5 The Customer acknowledges, given the nature of the Hosted Services and Data Imports, that certain transactional data may be disclosed by the Customer to the Supplier. The Supplier is trusted by the Customer to treat this information as strictly confidential.
11.6 The parties shall comply with Schedule 4.
12: Liability
12.1 Neither party shall exclude or limit its liability for:
(i) death or personal injury caused by its negligence; and/or
(ii) fraudulent misrepresentation.
12.2 The Supplier shall not be liable for loss of profit, loss of revenue, loss of anticipated savings, or loss of goodwill.
12.3 The Customer agrees that it will have no remedy in respect of any untrue statement or representation made to it upon which it relied in entering into this Contract and that its only remedies can be for breach of contract (unless the statement was made fraudulently).
12.4 The Supplier’s Contractual Liability to the Customer shall not exceed one hundred per cent (100%) of the fees paid (plus any unpaid fees that are payable) under the Contract (but not any SOW) in the 12 month period prior to the date in which the claim (or series of connected claims) arose. “Contractual Liability” means liability howsoever arising under or in relation to the subject matter of this Contract that is not:
(i) unlimited by virtue of Clause 12.1; or
(ii) excluded pursuant to Clauses 12.2 and 12.3.
12.5 The Supplier’s SOW Liability to the Customer shall not exceed the fees paid (plus any unpaid fees that are payable) under the SOW under which the claim (or series of connected claims) arose. “SOW Liability” means liability howsoever arising under or in relation to the subject matter of the SOW under which the claim (or series of connected claims) arose that is not: (a) unlimited by virtue of Clause 12.1; (b) excluded pursuant to Clauses 12.2, 12.3, and 12.4.
12.6 Except as expressly provided in this Contract, the Supplier hereby excludes any implied condition or warranty concerning the merchantability, quality or fitness for purpose of its services, whether such condition or warranty is implied by statute or common law.
12.7 Neither party shall be liable for any delay or failure in performing its duties under this Contract caused by any circumstances beyond its reasonable control. Without limitation, the following shall be regarded as causes beyond either party’s reasonable control: (a) act of God, explosion, flood, tempest, fire or accident; (b) unusual atmospheric conditions and unusual conditions in outer space which may affect signals to and from and the workings of satellites; (c) war or threat of war, sabotage, insurrection, civil disturbance or requisition; (d) import or export regulations or embargoes; (e) any change in any Law(s) that has an impact on the parties’ rights and/or responsibilities under this Contract; (f) any breach by a third party of the Computer Misuse Act 1990 or the Communications Act 2003 that has the object or effect of directly or indirectly interfering with or damaging the Customer Infrastructure, and/or the Supplier’s hardware, software and/or network infrastructure; each an “Event of Force Majeure”.
13: Assignment and Subcontracting
13.1 The Customer shall not assign or otherwise transfer this Contract or any of its rights and duties under this Contract without the prior written consent of Supplier, such consent not to be unreasonably withheld or delayed.
13.2 Supplier may assign or otherwise transfer this Contract or any of its rights and duties under this Contract without the consent of the Customer.
13.3 The Supplier may subcontract the performance of any of its duties. The Supplier shall be entitled, at its sole discretion, to replace such service providers from time to time without notice to the Customer.
13.4 The rights and liabilities of the parties hereto are binding on, and shall insure to the benefit of, the parties and their respective successors and permitted assigns.
14: Changes
14.1 Subject to Clause 14.4, no changes to this Contract or the SOW(s) shall be valid unless made in writing and signed by the authorised representatives of both parties.
14.2 Either party shall be entitled from time to time to request a change to the scope of the Services (“Change”). Neither party shall be entitled to charge for considering and/or negotiating a Change unless such consideration requires the Supplier to undertake detailed scoping in which case the Supplier shall be entitled to charge pursuant to an SOW.
14.3 A Change will be effective when it is documented in writing in a standard Supplier change control form.
14.3 The Supplier reserves the right to make changes to Hosted Services from time to time provided that if such a change is to remove material Hosted Services functionality to the material detriment of the Customer’s use of Hosted Services the Supplier shall give the Customer not less than sixty (60) days’ prior written notice of such change (a “Change Notice”) and provided further that in such circumstances Customer shall be entitled, by giving the Supplier not less than thirty (30) days’ prior written notice prior to the Change Notice taking effect, to terminate this Contract. In the event that the Customer has prepaid Fees covering a period that is shortened by termination by the Customer in accordance with this Clause 14.4, the Supplier shall refund to the Customer a proportion of the prepaid Fees in respect of such period, prorated on a daily basis. This Clause 14.4 is without prejudice to the Supplier’s rights under the SLA.
14.4 Neither party shall unreasonably withhold its consent to the other’s request to reschedule the date or time of performance of professional services booked from time to time under a Statement of Work or Set-up and Onboarding Services. However, given that it will not be practical for the Supplier to reschedule resources on short notice, the parties agree that: (a) if the Customer gives to the Supplier less than two (2) clear days’ notice of such a request then the Customer must pay to the Supplier the full value of such booked Services; (b) if the Customer gives to the Supplier between two (2) and seven (7) clear days’ notice of such a request then the Customer must pay to the Supplier fifty per cent (50%) of the full value of such booked Services. For the purpose of this Clause 14.5, a “day” excludes Saturday, Sunday, and public holidays.
15: Disputes
15.1 The parties shall attempt to resolve any dispute arising out of or relating to this Contract (including any dispute relating to any non contractual obligations arising out of or in connection with it) (the “Dispute”) through discussions between senior representatives.
15.2 Where the Dispute is not resolved within forty (40) days of the start of discussions in accordance with Clause 15.1 above, the parties shall attempt to resolve the Dispute in good faith through an Alternative Dispute Resolution (“ADR”) procedure as recommended by the Centre for Effective Dispute Resolution.
15.3 If the Dispute has not been resolved by an ADR procedure within forty (40) days of the initiation of that procedure, or if either of the Supplier or the Customer will not participate in an ADR procedure, either of the parties shall be entitled to refer the Dispute to the High Court of England and Wales and the parties submit to its exclusive jurisdiction for that purpose.
15.4 Clauses 15.1 to 15.3 above shall not restrict either party’s ability to commence court proceedings in respect of any: (i) matter relating to its Confidential Information or Intellectual Property Rights; and/or (ii) unpaid invoice.
16: General Provision
16.1 Publicity. The Customer hereby irrevocably consents to the Supplier referring to the Customer as a customer of the Supplier in its sales and marketing literature (including its web site).
16.2 Third Party Rights. The parties hereby exclude to the fullest extent permitted by law any rights of third parties to enforce or rely upon any of the provisions of this Contract.
16.3 Relationship. Nothing in this Contract shall render the Customer a partner or an agent of the Supplier and the Customer shall not purport to undertake any obligation on the Supplier’s behalf nor expose the Supplier to any liability nor pledge or purport to pledge the Supplier’s credit.
16.4 Entire Agreement. This Contract supersedes any prior contracts, arrangements and undertakings between the parties in relation to its subject matter and constitutes the entire contract between the parties relating to the subject matter.
16.5 Severances. If any part of this Contract is held unlawful or unenforceable that part shall be struck out and the remainder of this Contract shall remain in effect.
16.6 No Waiver. No delay, neglect or forbearance by either party in enforcing its rights under this Contract shall be a waiver of or prejudice those rights.
16.7 No Bribery. Each party warrants to the other that it: (a) has not and will not commit an offence under the Bribery Act 2010 in relation to this Contract or any other contract between the parties; and (b) has adequate procedures (as defined in section 7(2) of that Act) in place to prevent its associated persons from committing an offence under that Act.
16.8 Counterparts. This Contract may be executed in any number of counterparts and by each of the parties on separate counterparts each of which when executed and delivered shall be deemed to be an original, but all the counterparts together shall constitute one and the same agreement.
16.9 Notices. All notices (which include invoices and correspondence) under this Contract shall be in writing and shall be sent to the address of the recipient set out in this Contract or to such other address as the recipient may have notified from time to time. Any notice may be delivered personally, by a reputable courier service, by first-class post, or by email and shall be deemed to have been served if by hand when delivered, if by courier service or first class post 48 hours after delivery to the courier or posting (as the case may be), or if by email immediately.
16.10 Interpretation. In this Contract: (a) any reference to a Clause means a reference to a Clause of this Contract unless the context requires otherwise; (b) unless the context otherwise requires, the words “including” and “include” and words of similar effect shall not be deemed to limit the general effect of the words which precede them; (c) the headings are for ease of reference only and shall not affect the construction or interpretation of the Contract; and (d) references to any enactment, order, regulation or other similar instrument shall be construed as a reference to the enactment, order, regulation or instrument as amended or re-enacted by any subsequent enactment, order, regulation or instrument.
16.11 Hierarchy. To the extent there is any inconsistency between the provisions of these MSA Terms & Conditions, the Order Form, the Schedules, the SOW(s), any documents incorporated into this Contract, and any documents incorporated into the SOW(s) the following order of precedence shall apply: (a) first these MSA Terms & Conditions; (b) second the Schedules; (c) third the Order Form; (d) fourth the SOW(s); (e) fifth documents incorporated into the SOW(s); and (f) sixth documents incorporated into this Contract.
16.12 Law. This Contract is governed by the laws of England.
Schedule 1: SLA
Availability
1.1 In this Contract, the following words have the following meanings:
1.1.1 “Customer” means the user-facing environment of the Hosted Services made available to the Customer via the internet at the URL assigned to the Customer by the Supplier, e.g. https://********.n-gage.io/
1.1.2 “Unavailability” (or “Unavailable”) means unavailability as confirmed by Supplier’s monitoring platform by measuring server-side error rate and analysing ping tests from multiple locations.
1.1.3 “Maintenance Window” means scheduled Unavailability of the Customer n-gage.io, as announced by Supplier prior to the Customer n-gage.io becoming Unavailable.
1.1.4 “Monthly Uptime Percentage” is calculated by subtracting from 100% the percentage of minutes during the month in which the Customer n-gage.io was Unavailable excluding such minutes occurring during Maintenance Windows or in relation to SLA Exclusions.
1.1.5 “Platform Functionality Document” means the Platform Functionality document attached to the Order Form relating to this Contract, as referenced in the description of ‘Hosted Services’ set out on such Order Form.
1.1.6 “SLA Exclusions” means (i) factors outside Supplier’s reasonable control including Events of Force Majeure, problems with Connectivity Infrastructure or Customer Infrastructure, and issues caused by actions or inactions of the Customer.
1.1.7 “Response” means Supplier response to You regarding an Issue, beginning as soon as we receive notice of an Issue, including telephone or email notification.
1.18 “Resolution” means that we have resolved an Issue to your reasonable satisfaction.
1.2 The Supplier shall use its reasonable endeavors to make the Customer n-gage.io available on a 99.5% Monthly Uptime Percentage basis.
Service Credits
1.3 Service credits are calculated as a percentage of the total charges paid by the Customer for Hosted Services (excluding one-time payments, e.g. for training etc.) in the monthly billing cycle in which Unavailability occurs to the following extents:
1.3.1 for Monthly Uptime Percentage less than 99.5% but equal to or greater than 99.0%, the Customer will be eligible for a 5% Service Credit
1.3.2 for Monthly Uptime Percentage less than 99%, the Customer will be eligible for a 15% Service Credit.
1.4 Supplier shall apply any Service Credits only against future payments for the Hosted Services otherwise due from the Customer. Service Credits will not entitle the Customer to any refund or other payment from the Supplier. A Service Credit will be applicable and issued only if the credit amount for the applicable monthly billing cycle is greater than £1 GBP. Service Credits may not be transferred or applied to any other account.
1.5 Customer’s sole and exclusive remedy for any Unavailability of the Hosted Services is the receipt of a Service Credit in accordance with the terms of this SLA.
1.6 To receive a Service Credit, the Customer must submit a claim by emailing support@n-gage.io. To be eligible, the credit request must be received by Supplier by the end of the billing cycle following the one in which the incident occurred and must include:
1.6.1 The words “SLA Credit Request” in the subject line, and
1.6.2 The dates and times of each Unavailability incident in respect of which the Customer is claiming.
1.7 If the Monthly Uptime Percentage of the credit request is confirmed by Supplier and is less than the Target Availability, Supplier will issue the Service Credit to the Customer within one billing cycle following the month in which the request is confirmed by it. Customer’s failure to provide the request and other information as required above will disqualify the Customer from receiving a Service Credit.
Maintenance, New Versions & New Products
1.8 The Supplier may from time to time provide and install: (a) minor improvements, updates, enhancements, error corrections, upgrade scripts, and changes to the Supplier Software (each containing updates to the help files and documentation) (“Maintenance Releases”); and (b) new releases, new versions, updates, and modifications to the Supplier Software that do not constitute New Products (as generally available in accordance with the Supplier’s timetable for releasing new versions as amended from time to time and available on request including updates to the help files and documentation) (“New Version”).
1.9 Nothing in this Contract shall entitle the Customer to any new version of the products which from time to time is publicly marketed and offered for purchase by the Supplier in the course of its normal business, being a version which contains such significant differences from the previous versions as to be generally accepted in the marketplace as constituting a new product (“New Product”).
1.10 Without limiting the generality of paragraph 1.9, the Customer expressly acknowledges that it is not entitled under the Contract to:
1.10.1 items identified as Excluded Platform Features in the Platform Functionality Document, and/or
1.10.2 any platform features not expressly identified as Additional Platform Features in the Platform Functionality Document.
Support
1.11 In response to errors in the Hosted Services and/or the Supplier Software reported to the Supplier’s helpdesk in accordance with paragraphs 1.16 - 1.17 (below), the Supplier may provide a Solution on a timescale that it in its sole discretion considers to be reasonable having regard to the nature of the error. Solutions will typically be provided at the next applicable release cycle, provided the errors reports are not Out of Scope. Our anticipated support response and resolution times will generally fall under two categories; Critical Response & Resolution and Non-Critical Response & Resolution.
Critical Response & Resolution:
Services are unavailable for all Users or Services prevents the Customer from executing one or more critical business processes for a substantial number of Users, or Services are usable with limited capabilities and/or intermittent interruptions which have serious business Impact on the customer.
Response Time: Less than 60 minutes
Resolution Time: Less than one working day
Non Critical Response & Resolution:
Disruption of Services where a workaround is available or functionality is not imperative to business operations. Disruption does not have a significant impact on business operations, but may impair nonessential functions of the Services or adversely affect the use of some of the Services.
Response Time: Less than one working day
Resolution Time: Less than five working days
1.12 “Solutions” are fixes or workarounds that eliminate an error or reduce its effects, which are provided remotely and which may (or may not) include Supplier providing Maintenance.
1.13 “Out of Scope” means errors that fall outside the scope of the Supplier’s responsibilities under this Contract and/or result directly or indirectly from the Customer’s: (a) misuse or improper use of the Hosted Services and/or the Supplier Software; and/or (b) combination, merger, or use of the Hosted Services and/or the Supplier Software with any hardware or software outside the Customer Infrastructure and/or Connectivity Infrastructure.
1.14 The parties may agree that the Supplier will provide certain support and maintenance services in respect of Out of Scope errors as Services under an SOW.
Environment
1.15 The Customer is responsible for procuring and maintaining the Customer Infrastructure and Connectivity Infrastructure.
1.16 Maintenance Releases and New Versions may require enhancements to the Customer Infrastructure and Connectivity Infrastructure. The Supplier will advise the Customer if such enhancements are required. The Customer is responsible for procuring and implementing such enhancements. The parties may agree that the Supplier will provide assistance with implementation as Services under an SOW.
Contacting the Company
1.17 The Supplier’s support operates during the “Support Hours”: from 09:00 – 18:00, 7 days a week, including public holidays.
1.18 The Customer may only contact the Supplier in respect of support queries as follows: (a) email: support@n-gage.io; or (b) where available, support requests can be submitted using a custom form within the Supplier app.
1.19 References to hours in this Service Level Agreement do not include hours outside the Support Hours.