Master services agreement

Download a printable version of our Master Services Agreement.

 

BACKGROUND

(A) The Supplier has developed and will provide the Services (each as defined below).

(B) The Client (as defined below) wishes to use the Supplier’s Services in its business operations.

(C) Kocho has agreed to provide, and the Client has agreed to take and pay for, the Services, subject to the terms and conditions of this Agreement.

TERMS AND CONDITIONS

1. DEFINITIONS AND INTERPRETATION

1.1 The definitions and rules of interpretation in this Clause apply to this Agreement.

Affiliate: means any entity that, directly or indirectly, controls, is controlled by or is under common control with such entity (but only for so long as such control exists), where “control” means the ownership of more than 50% of the outstanding shares or securities representing the right to vote in the election of directors or other managing authority of such entity.

Agreement: the terms and conditions in this agreement along with the Statement of Work(s) and any other documents agreed between the Parties or referenced in this Agreement.

Applicable Data Protection Laws: to the extent the UK data protection law applies, all laws and regulations applicable to the processing of Personal Data pursuant to this Agreement in force from time to time in the UK including the UK GDPR; the Data Protection Act 2018 (“DPA 2018”) (and regulations made thereunder); the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended; and any guidance or codes of practice issued by the UK Information Commissioner’s Office (ICO).

To the extent the EU GDPR applies, the laws of the European Union or any member state of the European Union to which Kocho is subject, which relates to the protection of Personal Data.

Applicable Laws: all applicable laws, statutes, regulations from time to time in force which relate to the business of the relevant Party.

Business Day: a day other than a Saturday, Sunday or public or bank holiday in England when banks in London are open for business.

Business Systems: the information technology and communication systems, including networks, hardware, software and interfaces owned by, or licensed to, the Client or any of its Affiliates, agents or contractors.

Change Request: any request to amend the Services pursuant to this Agreement as set out in Clause 12.

Client: the Client as identified in the relevant Statement of Work.

Client Data: any information that is provided by the Client to Kocho as part of the Client’s use of the Services, including any information derived from such information.

Client’s Equipment: any equipment, including tools, systems, cabling or facilities, provided by the Client, its agents, subcontractors or consultants which is used directly or indirectly in the supply of the Services including any such items specified in a relevant Statement of Work.

Client Personal Data: any Personal Data which Kocho processes in connection with this Agreement, in the capacity of a Processor on behalf of the Client.

Client Site: the locations where the Services are provided as identified in the relevant Statement of Work.

Commencement Date: the date of the relevant Statement of Work.

Commissioner: the Information Commissioner (see section 114, DPA 2018).

Confidential Information: means non-public business information, know-how, and trade secrets in any form, including information regarding a Party’s product plans and any other information a reasonable person should understand to be confidential, which is disclosed by or on behalf of either Party or its Affiliates (“Disclosing Party”) to the other Party or its Affiliates (“Receiving Party”). Confidential Information includes this Agreement, and all related documents and discussions hereunder.

Customer Agreement: the Microsoft Customer Agreement, which is a direct agreement between the Client and Microsoft and is a condition precedent of the Cloud Solution Provider Program that the Client enters into this Agreement, the terms of which are found at https://www.microsoft.com/licensing/docs/customeragreement and which may be updated from time to time.

Deliverable: all Documents, products and materials developed by Kocho or its agents, subcontractors, consultants and employees in relation to the Services for the Client in any form, including computer programs, data, reports and specifications (including drafts).

Designated User: any user of the Services named to Kocho as a user by the Client.

Dispute Resolution Procedure: the procedure described in Clause 26.

Document: 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.

Effective Date: Date set out at the top of this Teaming Agreement.

EU GDPR: the General Data Protection Regulation ((EU) 2016/679).

Fair Usage Policy: the fair usage policy as set out here https://kocho.co.uk/fair-usage-policy/

Fees: the fees payable to Kocho, as described in the relevant Statement of Work, as may be varied from time to time pursuant to the terms of this Agreement.

Force Majeure: any cause preventing either Party from performing any or all of its obligations which arises from or is attributable to acts, events, omissions or accidents beyond the reasonable control of the Party so prevented including, without limitation, act of God, war, riot, computer viruses and malware, epidemics, pandemics, civil commotion, compliance with any law or governmental order, rule, regulation or direction, flood or storm, save that strike or lock out of the Party’s own staff shall not entitle them to claim that to be a Force Majeure event.

Go Live Date: any go live date set out in the relevant Statement of Work.

Goods: the goods to be provided as part of the Services (or any part of them), as set out in the relevant Statement of Work in the relevant section or as otherwise agreed in writing between the Parties.

Good Industry Practice: the standards that fall within the upper quartile of a skilled and experienced provider of business-critical managed services similar or identical to the Services, having regard to factors such as the nature and size of the Parties, the Service Level Arrangements, the Term, the pricing structure and any other relevant factors.

Hardware: all physical telecommunications, networking and computer equipment (including switches, routers, cables, servers, racks, cabinets and peripheral accessories) provided and used by Kocho to deliver the Managed Services to the Client.

Initial Term: means the period commencing on the Commencement Date and ending on the date three (3) years thereafter unless otherwise specified in the relevant Statement of Work. For the avoidance of doubt, each Statement of Work will have their own Term, which will extend the Initial Term of the Agreement if the Term of the Statement of Work is longer than the Initial Term of the Agreement.

Intellectual Property Rights or IPR: any and all intellectual property rights of any nature, whether registered, registerable or otherwise, including patents, utility models, trademarks, registered designs and domain names, applications for any of the foregoing, trade or business names, goodwill, copyright and rights in the nature of copyright, design rights, rights in databases, moral rights, know-how and any other intellectual property rights that subsist in computer software, computer programs, websites, documents, information, techniques, business methods, drawings, logos, instruction manuals, lists and procedures and particulars of customers, marketing methods and procedures and advertising literature, including the “look and feel” of any websites, and in each case all rights and forms of protection of a similar nature or having equivalent or similar effect to any of these that may subsist anywhere in the world, in each case for their full term, together with any future rights and renewals or extensions.

IPR Claim: a claim arising from the infringement of IPR belonging to third parties.

Kocho: Kocho Group Limited incorporated and registered in England and Wales with company number 04308824 whose registered office is at 2 Kingsway, 4th Floor, Cardiff, Wales, CF10 3FD.

Kocho Background Materials: all Intellectual Property Rights, know-how and proprietary interests of whatever nature, whether registered or unregistered, including all information, methodologies, techniques, tools, schemata, architectures, designs, diagrams, ways of doing business, trade secrets, instructions manuals and procedures (including, but not limited, to software (including source code and object code), documentation, and data of whatever nature and in whatever media) owned, developed, conceived, created, acquired or controlled by Kocho, whether prior to, independently of, or outside the scope of the Services and/or this Agreement, or developed in parallel with the Services without specific client funding or direction, together with and including all enhancements, updates, modifications, adaptations, derivatives, translations and/or future developments thereof.

Kocho’s Equipment: any equipment, including tools, systems, cabling or facilities, provided by Kocho to the Client and used directly or indirectly in the provision of the Services, including any such items specified in a Statement of Work but excluding any such items which are the subject of a separate agreement between the Parties under which title passes to the Client.

License Agreement: all licence agreements that may have to be entered into by Kocho and/or the Client in respect of Third Party Services used. Such Licence Agreement terms shall be set out in the relevant Statement of Work.

Managed Services: the hosting and support service described in the relevant Statement of Work to be performed by Kocho in accordance with this Agreement.

NCE Subscription Services: services provided under the New Commerce Experience.

Normal Business Hours: 9.00 am to 5.00 pm local UK time on Business Days unless otherwise stated in the relevant Statement of Work.

Out of Scope: those out of scope services specified as such in a Statement of Work together with any other services which are not detailed in the relevant Statement of Work.

Party or Parties: a party to this Agreement being either Kocho or the Client and Parties shall be construed accordingly.

Professional Services: the professional services described in the relevant section of a Statement of Work to be performed by Kocho in accordance with this Agreement.

Purpose: the purposes for which the Client Personal Data is processed, as set out in the relevant Statement of Work(s).

Rates: Kocho’s standard hourly or daily fee rates as set out in the relevant Statement of Work.

Relief Events: any event, circumstance or combination of events or circumstances, inside or outside the reasonable control of Kocho, which directly or indirectly prevents, hinders, delays, suspends, degrades or increases the cost, complexity or risk of Kocho’s performance of the Services, including where such event or circumstance arises from or attributable to:
(a) any act, omission, delay, failure or default by the Client to comply with, perform or observe any of its obligations under this Agreement, including any dependency, assumption, prerequisite, Client responsibility or Client-provided input, whether or not expressly stated;
(b) any error, defect, malfunction, unavailability, incompatibility or performance issue or security incident in the Business Systems or any other software, hardware, network, infrastructure or systems not provided, controlled or expressly assumed in writing by Kocho or any failure by the Client, its agents or contractors (including any existing or replacement service provider) to obtain, maintain, configure support, patch or licence such systems in accordance with applicable specifications or industry standards;
(c) any failure, delay, inaccuracy or incompleteness by the Client or its agents or contractors (including any existing or replacement service provider) to provide any information, data, access, co-operation, approvals, decisions or instructions to Kocho which is reasonably or necessarily required by Kocho for the proper performance of its obligations under this Agreement;
(d) any Change Request proposed, pending, rejected or approved by the Client, including any assessment, clarification, scoping, negotiation or implementation activities relating thereto; or
(e) any of the causes or events set out in Clause 9.8.

Retail Prices Index: 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 mutually agree (such agreement not to be unreasonably withheld or delayed), acting reasonably, most closely resembles such index.

Service Level Arrangements or SLA: the service level arrangements set out in the relevant Statement of Work (if any).

Services the provision of:
(a) Professional Services including consulting, advisory, integration or technical services,
(b) Managed Services,
(c) Goods,
(d) NCE Subscription Services
(e) Alira Subscription Services
(f) and/or any other services provided by Kocho under a Statement of Work or otherwise agreed further to a signed written agreement between the Parties.

Service Commencement Date: the date set out in the relevant Statement of Work or as otherwise agreed between the Parties in writing for the commencement of the Services.

Statement of Work: the service proposal and any other services specification for either the Professional Services, Managed Services, Goods, NCE Subscription Services, and/or Alira Subscription Services as set out under separate order and agreed between the Parties.

Subsequent Term: twelve (12) months commencing on the last day of the Initial Term or previous Subsequent Term.

Term: Initial Term and any Subsequent Term, as applicable.

Third Party Services: any services, goods, code or software programs written or provided by a Third Party Supplier which are used by the Client during the provision of the Services.

Third Party Supplier: any third party that supplies Third Party Services to Kocho and/or the Client (as the case may be) during and in relation to the provision of the Services.

UK GDPR: has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the DPA 2018.

Variation Agreement: any variations made to this Agreement through the Variation Agreement, a template of which is found at https://kocho.co.uk/app/uploads/2022/09/Kocho-Deed-of-Variation-MSA-v1.0.pdf

1.2 The headings and titles to the clauses and terms and conditions in this Agreement are for convenience only and will not affect their construction or interpretation thereof.
1.3 Unless the context otherwise requires, words in the singular shall include the plural and, in the plural, shall include the singular.
1.4 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.5 Unless expressly provided otherwise in this Agreement, a reference to legislation or a legislative provision is a reference to it as amended, extended or re-enacted from time to time.
1.6 Unless expressly provided otherwise in this Agreement, a reference to legislation or a legislative provision shall include all subordinate legislation made from time to time under that legislation or legislative provision.
1.7 A reference to writing or written includes email.
1.8 References to Clauses are to the Clauses of this Agreement.
1.9 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person’s personal representatives, successors and permitted assigns.
1.10 The Schedules form part of this Agreement and shall have effect as if set out in full in the body of this Agreement. Any reference to this Agreement includes the Schedules.
1.11 A reference to a company shall include any company, corporation, or other body corporate, wherever and however incorporated or established.
1.12 A reference to any Party shall include that Party’s personal representatives, successors and permitted assigns.
1.13 Any obligation on a Party not to do something includes an obligation not to allow that thing to be done.
1.14 A reference to this Teaming Agreement or to any other agreement or document referred to in this Teaming Agreement is a reference to this Teaming Agreement or such other agreement or document as varied or novated (in each case, other than in breach of the provisions of this Teaming Agreement) from time to time.
1.15 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.16 In the event of any conflict or inconsistency between the Clauses, the Statement of Work, the Licence Agreement and the Customer Agreement (including any changes or variations to each of the Clauses, the Statement of Work, the Licence Agreement and the Customer Agreement), the following order of precedence shall apply (in decreasing order) to the extent of such conflict or inconsistency:
(a) any Variations;
(b) the Statement of Work;
(c) the Licence Agreements and Customer Agreement, to the extent applicable to the Services;
(d) the Schedules of this Master Services Agreement, to the extent applicable to the Services;
(e) the Clauses of this Master Services Agreement.

2. PROVISION OF SERVICES

2.1 This Agreement sets out the terms and conditions under which Kocho shall provide Services to the Client.
2.2 Where the Services include the supply of:
(a) Professional Services, the Professional Services Terms and Conditions of Schedule 1 apply;
(b) Managed Services, the Managed Services Terms and Conditions of Schedule 2 apply;
(c) Goods, the Goods Terms and Conditions of Schedule 3 apply;
(d) NCE Subscription Services, the NCE Subscription Services Terms and Conditions of Schedule 4 apply;
(e) Alira Subscription Services, the Alira SaaS Terms of Schedule 5 apply.
2.3 This Agreement (i) is in substitution for any prior oral or other prior arrangements between Kocho and the Client in connection with the purchase of the relevant Services; and (iii) prevails over any of the Client’s inconsistent terms or conditions contained in, or referenced in, any order confirmation or other acknowledgement, quotation, purchase order(s), delivery note, invoice or similar document or implied by law, trade custom or practice.
2.4 No addition to, variation of or other amendment or purported amendment to any Statement of Work or this Agreement is binding on the Parties unless expressly stated as such, made in writing and signed by or acknowledged by a duly authorised representative of both Parties.
2.5 Any quotation or proposal given by Kocho is for budgetary purposes until financial and technical validation and shall not constitute a binding offer. Unless otherwise stated in the relevant quote or proposal, the of the quote or proposal for:
(a) the supply of Goods, is only for a period of seven (7) Business Days;
(b) Professional Services and Managed Services, is only for a period of thirty (30) days,
from its date of issue unless otherwise agreed by Kocho in writing and shall only become binding upon the signing of a Statement of Work by both Parties.

3. RESPONSIBILITIES OF KOCHO

3.1 Kocho shall:
(a) provide the Services in accordance with the terms of this Agreement and the relevant Statement of Work during the Term unless earlier terminated for any reason;
(b) use its commercially reasonable endeavours to complete any Deliverables by any dates set out under any relevant Statement of Work, however, the Client acknowledges that any such dates shall be indicative estimates only and subject to the Relief Events and the Client meeting the Client responsibilities;
(c) provide the Services with due care, skill and ability in accordance with Good Industry Practice;
(d) take such steps as may be required to fulfil its obligations under this Agreement and any Statement of Work;
(e) utilising suitably skilled, qualified, experienced, supervised and vetted employees, agents, representatives and authorised sub-contractors who will exercise all reasonable skill and care;
(f) notify the Client promptly if Kocho is unable to comply with any of the terms of this Agreement, any Licence Agreement or any Statement of Work; and
(g) where Kocho is required to be on the Client Sites for the provision of any Service, ensure that its personnel observe all health and safety rules and regulations and any other security requirements that apply at any of the Client Sites (if applicable) and which have been communicated to it a week prior to the Services commencing.
3.2 Kocho shall co-operate with the Client in all matters relating to the Services and shall appoint a representative (“Kocho Representative”), as the primary contact throughout the Services.
3.3 The Client acknowledges and confirms that Kocho may employ sub-contractors without the requirement of any prior consent of the Client. Notwithstanding the foregoing, Kocho shall at all times be responsible for and liable in respect of the performance of all obligations under this Agreement, whether such obligations are performed by Kocho itself, or any sub-contractor engaged by Kocho and under the supervision of Kocho.
3.4 For the avoidance of doubt, Kocho is only liable to the extent permitted under the respective Licence Agreements for the actions or omissions of any third parties and is not liable for the actions and or omissions of any other third party including but not limited to Microsoft (whereby the Client will have a direct contract in place with Microsoft through the Customer Agreement).
3.5 Kocho shall provide reasonable notice to the Client of any change in its senior personnel engaged as part of the Services. Where relevant, shall replace any senior personnel who are removed with another appropriately skilled person.

4. RESPONSIBILITIES OF CLIENT

4.1 To the extent that Kocho requires access to the Client Site(s) to perform the Services, the Client shall provide such access during Normal Business Hours and to provide a suitable work environment to enable Kocho to perform such Services subject to the personnel of Kocho complying with such internal policies and procedures of the Client (including those relating to security and health and safety) as may be notified to Kocho in writing.
4.2 The Client shall co-operate with Kocho in all matters relating to the Services and shall appoint a minimum of two representatives (“Client Representatives”), who shall have authority to commit the Client on all matters relating to the relevant Service and obligations under this Agreement.
4.3 The Client agrees and acknowledges the terms of the applicable Licence Agreements and the terms of the Customer Agreement shall form part of this Agreement by reference. For the avoidance of doubt, in the event the applicable Licence Agreements, and/or the Customer Agreement, as expressly stated in the relevant Statement of Work(s), is not applicable to the Services being received or delivered by Kocho to the Client under such Statement of Work(s), such License Agreements and/or the Customer Agreement shall not apply.
4.4 The Client shall:
(a) adhere to the Fair Usage Policy;
(b) ensure it has suitable licences in place for any third party software required (which is not issued by Kocho) to allow Kocho and its sub-contractors full use in relation to the Services provided;
(c) co-operate with Kocho in all matters relating to the Services as reasonably requested by Kocho;
(d) adhere to the dates scheduled for provision of Services by Kocho to the Client as stated in the applicable Statement of Work or otherwise agreed between the Parties in writing. In the event the Client wishes to reschedule or cancel the dates for the provision of Services, unless otherwise expressly set out in a Statement of Work, liquidated damages (“Stranded Costs”) will become payable from the Client to Kocho on the following basis:
(a) if dates are changed or cancelled at the Client’s request more than fourteen (14) days before the scheduled start date no Stranded Costs are payable;
(b) if dates are changed or cancelled between seven (7) days and fourteen (14) days before the scheduled start date Stranded Costs equivalent to fifty percent (50%) of the Fees for the Services to be provided at that time will be payable;
(c) if dates are changed or cancelled less than seven (7) days before the scheduled start date Stranded Costs equivalent to one hundred percent (100%) of the Fees for the Services to be provided at that time will be payable;
(e) inform Kocho of all health and safety rules and regulations and any other reasonable security requirements that apply at any of the Client’s premises/sites;
(f) allow Kocho or its designated sub-contractors, global admin access to the Client’s relevant servers and networking systems for the Term of the Agreement;
(g) where a Microsoft Cloud service is deployed / utilised within the project (Azure, Enterprise Mobility Suite or Office365) Kocho will be assigned to the cloud subscription/s as the Claiming Partner of Record and Digital Partner of Record and/or Partner Admin Link (PAL) and/or Admin on Behalf of (AOBO) for a minimum of twelve (12) months from project completion date;
(h) in respect of any Microsoft funded services, sign and deliver to Kocho the Microsoft Proof of Execution (“POE”) within seven (7) days of the date of issue by Microsoft. In the event that the Client does not return the POE within the seven (7) days’ notice period, Kocho shall be entitled to charge the Client the amounts directly and the Client shall comply with the payment terms in this Agreement;
(i) provide appropriate hardware interface, software and access authorisation to enable remote diagnosis, should such capability be required;
(j) ensure that all the Client ‘s Equipment is in good working order and suitable for the purposes for which it is used in relation to the Services and conforms to all relevant United Kingdom standards or requirements;
(k) keep, maintain and insure Kocho’s Equipment in accordance with Kocho’s instructions from time to time and not dispose of or use Kocho’s Equipment other than in accordance with Kocho’s written instructions or authorisation;
(l) provide all information and make available all resources as reasonably requested by Kocho in the execution of its obligations under this Agreement;
(m) use all reasonable efforts to follow the reasonable instructions of Kocho support personnel with respect to the resolution of defects;
(n) gather all relevant information prior to requesting assistance in respect of any defects including detailed defect description, and procedures required to replicate a problem if possible. Any additional information which may help in the diagnosis of a defect should be included such as network configuration details; and
(o) agree that if, in the course of performing the Services, it is reasonably necessary for Kocho’s performance of its obligations under a Statement of Work for Kocho to access or use any equipment, software or data of the Client (or which is in the possession of the Client) then it shall where it is able to do so grant to Kocho and any of its sub-contractors a non-exclusive, royalty free licence to use the same solely for the purpose of delivering the Services only for as long as is strictly necessary to deliver such Services.
4.5 The Client shall (unless otherwise specified in the Statement of Work or as otherwise set out in this Agreement):
(a) use the Services only for lawful purposes and in accordance with this Agreement;
(b) keep secure from third parties any passwords issued to the Client by Kocho;
(c) comply with all applicable laws and regulations with respect to its activities under this Agreement; and
(d) carry out all other Client responsibilities set out in this Agreement and the Statement of Work in a timely and efficient manner. In the event of any delays in the Client’s provision of such assistance as agreed by the Parties, Kocho may adjust any timetable or delivery schedule set out in this Agreement as reasonably necessary.
4.6 In the event that the Client is in breach of its obligations under the Agreement (excluding payment obligations) then Kocho shall provide written notice of such breach, specifying in detail the nature of the breach and providing thirty (30) days’ notice to remedy such breach if capable of remedy. If the Client fails to remedy such breach Kocho shall be entitled to terminate or suspend the Services without prejudice to any pre-existing rights and obligations of either Party. Kocho shall have no liability or responsibility should the Services fail to comply with the Statement of Works and/or Service Level Arrangements as a result of the Client (including without limitation any of its employees, subcontractors or any of its staff) being in breach of the Agreement.
4.7 In the event that the Client is in breach of its payment obligations under the Agreement then Kocho shall provide written notice of such breach, specifying in detail the nature of the breach and providing fourteen (14) days notice to remedy such breach if capable of remedy. If the Client fails to remedy such breach Kocho shall be entitled to terminate or suspend the Services without prejudice to any pre-existing rights and obligations of either Party. Kocho shall have no liability or responsibility should the Services fail to comply with the Statement of Works and/or Service Level Arrangements as a result of the Client (including without limitation any of its employees, subcontractors or any of its staff) being in breach of the Agreement.

5. PROJECT ORGANISATION

5.1 If requested in writing by the Client or specified in the Statement of Work, the Client Representatives and Kocho Representative shall have regular meetings to monitor and review the performance of this Agreement, to discuss any changes proposed in accordance with Clause 12 and to discuss the Service Level Arrangements.
5.2 Before each meeting, the Client Representatives shall notify Kocho Representative, and vice versa, of any problems relating to the provision of the Services or performance of obligations for discussion at the meeting. At each such meeting, the Parties shall agree a plan to address such problems. In the event of any problem being unresolved or a failure to agree on the plan, the matter shall be resolved in accordance with the Dispute Resolution Procedure. Progress in implementing the plan shall be included in the agenda for the next meeting.

6. PRICE AND PAYMENT

6.1 The Client shall pay the Fees for the Services (including any Third Party Services) as more fully set out in the relevant Statement of Work.
6.2 For the avoidance of doubt, in the event the Client delays the Go Live Date (which falls outside of the Liquidated Damages (as defined in accordance with Clause 4.4(d))) or has not conducted its Acceptance Testing in accordance with the Professional Services Terms, and to the extent such delay is not caused by any breach of this Agreement by Kocho, Kocho may charge the Client for the reasonable costs incurred as a result of such delays in accordance with its Rates.
6.3 If no Fee is quoted, the Fee shall be calculated in accordance with Kocho’s Rates set out in the relevant Statemen of Work, or, where applicable, Kocho’s standard Rates, as amended from time to time on not less than thirty (30) days’ prior written notice to the Client and applied prospectively only, in accordance with this Agreement.
6.4 Clause 6.6 shall apply if the Services are to be provided on a time-and-materials basis. The remainder of this Clause 6 shall apply to all Fees, whether payable on a fixed price, annual or time and materials basis.
6.5 Where a Fee has been quoted, this is a best estimate based on the information given to Kocho by the Client and/or which is available at that time and may be based on a number of assumptions set out in the relevant Statement of Work (“Assumptions”). If it materialises that in Kocho’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, Kocho shall be entitled to charge (at Kocho’s then current Rates) the Client for any Out of Scope Services or other additional Services provided beyond those detailed in the relevant Statement of Work together with all related costs and expenses incurred by Kocho.
6.6 Where the Services are provided on a time-and-materials basis:
(a) Kocho’s standard hourly or daily rates are calculated on the basis of Normal Business Hours;
(b) Kocho shall be entitled to charge an overtime rate for time worked outside Normal Business Hours as set out in the Statement of Work;
(c) Kocho shall complete the relevant time recording systems to calculate the Fees for each invoice charged on a time and materials basis and such records shall be conclusive and binding absent manifest error.
6.7 Kocho shall invoice the Fees in accordance with the payment intervals stated in the Statement of Work. Save where other payment terms are set out in the relevant Statement of Work, all Fees will be payable by direct debit in advance. The Client shall provide Kocho with valid up-to-date and complete payment information and direct debit authority upon execution of this Agreement.
6.8 The Fees exclude:
6.9 The Client shall pay each undisputed invoice for the Fees and Expenses in full and cleared funds (without deduction or set-off) within thirty (30) days of the date of such invoice unless otherwise agreed in writing by Kocho or unless otherwise set out in the Statement of Work. Any dispute must be notified in writing within ten (10) days of receipt of the relevant invoice and must set out reasonable details of the grounds for dispute. In the event the Client pays by direct debit, the details of such direct debit payments shall be set out in the Statement of Work, as applicable. The Client shall pay each undisputed invoice for the Fees in full and cleared funds (without deduction or set-off) by direct debit in advance unless otherwise agreed (Expenses shall be invoiced separately) of providing the Services or delivering the Goods, as applicable.
6.10 All payments by the Client hereunder shall be in United Kingdom pound sterling unless otherwise agreed or set out in the Statement of Work and shall be paid to Kocho’s bank account as advised by Kocho to the Client in writing.
6.11 All amounts stated are gross amounts but exclusive of VAT or other sales tax which shall be paid by the Client, if applicable, at the then prevailing rate subject to receipt of a valid VAT invoice or other sales tax invoice.
6.12 Should the Client be required by any law or regulation to make any deduction on account of tax including but not limited to withholding tax or otherwise on any sum payable under the Agreement the Fees payable shall be increased by the amount of such tax to ensure that Kocho receives a sum equal to the amount to be paid under the applicable Statement of Work.
6.13 Without prejudice to any other remedy that Kocho may have, if payment of the Fees or any part thereof is overdue then unless the Client has notified Kocho in writing that such payment is in dispute within ten (10) days of the receipt of the corresponding invoice Kocho may, without prejudice to any other rights or remedies, charge the Client interest on the overdue amount at the rate of four percent (4%) per annum above Bank of England 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 or after judgment. The Client shall pay the interest together with the overdue amount.
6.14 The Client shall not be able to dispute any amounts which have been paid by the Client after a period of three (3) months has elapsed from the date of invoice.
6.15 Kocho shall not be obliged to provide any of the Services and/or deliver any Goods while any duly issued invoice(s) remain unpaid under any Statement of Work, and Kocho shall not be liable for any delay or failure resulting from such suspension. Should Kocho choose to continue to provide the Services, this shall not in any way be construed as a waiver of Kocho’s rights or remedies.
6.16 Subject to Clause 6.17 below, the Fees relating to the provision of Services shall increase 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.
6.17 For the avoidance of doubt, Kocho may increase any fees related to Third Party Services in line with any increases imposed upon Kocho by such Third Party Supplier upon third (30) days’ notice and/or in line with the terms of the Licence Agreement and/or the Customer Agreement.
6.18 Notwithstanding and subject to Clauses 6.16 and 6.17, Kocho reserves the right, on giving the Client thirty (30) days’ notice, to increase the Fees on an annual basis with effect from each anniversary of the Commencement Date. If the Client does not agree with this increase, then either Party may terminate the affected Statement of Work upon thirty (30) days written notice and before such price increase takes effect. This termination right shall not apply to increases relating to Third Party Services. If Kocho does not receive written notice within thirty (30) days, the Client is deemed to have agreed to the amendment to the Fees.

7. WARRANTIES AND SERVICE LEVELS

7.1 The Client warrants that:
(a) it has the full capacity and authority to enter into and perform this Agreement and that this Agreement is executed by a duly authorised representative of the Client;
(b) it has the authority to grant any rights to be granted to Kocho under this Agreement;
(c) it owns or has obtained valid licences, consents, permissions and rights to use, and where necessary to licence to Kocho and any of its subcontractors, any materials reasonably necessary for the fulfilment of all its obligations under this Agreement; and
(d) Kocho’s use in the provision of the Services or otherwise in connection with this Agreement of any third-party materials, including any Hardware or software supplied by the Client to Kocho for use in the provision of the Services or otherwise in connection with this Agreement, shall not cause Kocho to infringe the rights, including any Intellectual Property Rights, of any third party.
7.2 Kocho 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 Kocho;
(b) it owns or has obtained valid licences, consents, permissions and rights necessary to enable Kocho to comply with this Agreement and to use any of the Intellectual Property Rights necessary for the fulfilment of all its obligations under this Agreement including for the Client ‘s use and receipt of the Services, in each case subject to the limitations and exclusions set out in this Agreement, and Kocho shall not knowingly breach the provisions of any such necessary licences, consents, permissions and rights or knowingly cause the same to be breached;
(c) it will comply with all applicable laws which apply to Kocho in the performance of Services under this Agreement; and
(d) the Client’s use of any Kocho materials and/or third-party materials, including any materials supplied by Kocho to the Client, in accordance with this Agreement, shall not cause the Client to infringe the rights, including any Intellectual Property Rights, of any third party.
7.3 Except for any warranties and service levels expressly set forth in this Agreement, the Services are provided on an “as is” basis, and Client’s use of the Services is at its own risk. Kocho does not make, and hereby disclaims, any and all other express and/or implied warranties, statutory or otherwise, including, but not limited to, warranties of merchantability, fitness for a particular purpose and any warranties arising from a course of dealing, usage, or trade practice.
7.4 In the event that a defect, fault or impairment in the provision of the Service(s) causes a service interruption and Kocho becomes aware of this either through the Client giving notification to Kocho of such default, fault or impairment, or as a result of Kocho’s monitoring, then Kocho shall use its commercially reasonable endeavours to resolve that defect, fault or impairment in accordance with the applicable Service Levels (if any) set out in the Statement of Work and subject to the limitations of this Agreement and the Statement of Work and to the extent it reasonably can. This Clause 7.4 shall constitute the Client’s sole and exclusive remedy in respect of service interruptions, except as expressly provided in the applicable Service Level Arrangement.
7.5 If Kocho determines in its reasonable opinion that such a defect, fault or impairment results directly or indirectly from: (i) the negligence, act, omission, or default of the Client or Designated User, (ii) the Client’s breach of this Agreement, or (iii) the operation, failure or malfunction of any network, equipment, hardware or software owned or controlled by the Client or (iv) any third party action in response to an act or omission of the Client or any person given access to the Service by the Client (including third party hosted software vendors) then Kocho may recover from the Client all reasonable costs to be incurred by it or on its’ behalf in connection with the remedy of such defect, fault or impairment. Therefore, for the avoidance of doubt, no Service Levels shall apply to such defect, fault or impairment and time shall not be of the essence in relation to its remediation.
7.6 Unless otherwise agreed or set out in the Statement of Work (as forming part of the Service) if the Client accesses the Services through the public internet or through a private circuit provisioned by a bandwidth provider of the Client’s choice, the Client assumes full responsibility for managing the relationship with this chosen provider, including service level commitments for issues found to be in the chosen provider’s network.
7.7 If the Client moves from one Client Site to another site or makes changes to any Client Site or opens a new location to be added to the Client Sites, the Client must notify Kocho in advance. Kocho may need to carry out an inspection of any cabling and advise the Client of any work to bring the IT Infrastructure up to standard operating conditions at the new location in order to remain eligible for coverage. Kocho will provide a quotation if it is to provide additional resources or services in the case of any change at the Client Sites or new Client Sites for including as part of the Fees.
7.8 Kocho will request approval from the Client Representatives before making any material changes to the Services, where reasonably practicable. Kocho will arrange any Scheduled Downtime in advance with the Client Representatives. Kocho shall not be responsible for Unscheduled Downtime that is due to any matter outside Kocho’s control and Kocho and its subcontractors may suspend some or all of the Services in order to carry out scheduled or emergency maintenance or repairs.
7.9 Kocho will carry out network management routines to test the operations and functions of the relevant Services from time to time, notifying the Client in advance.
7.10 Kocho reserves the right to take any action that it perceives necessary to protect the Client’s systems even though this may impact on the Client’s business activities. Kocho will make reasonable endeavors to inform the Client by telephone or email in advance of such action, but such action will not be dependent on such notification having been given or acknowledged. Kocho shall not be liable for any loss arising from such actions taken in good faith.
7.11 The Service Level Arrangement is specific to directly provided Services of Kocho and do not relate to Third Party Services (of which such Third Party Services will be governed by their own relevant service levels).
7.12 Kocho shall not, in any circumstances, be liable under its obligations in this Clause 7 if it can demonstrate that any failure of the Services was caused or contributed to by any Relief Event.
7.13 Notwithstanding the foregoing, Kocho does not warrant that the Client’s use of the Services will be uninterrupted or error-free.
7.14 The Client hereby warrants that it has not been induced to enter into this Agreement by any prior representations, nor has it relied on any oral representation made by Kocho or upon any descriptions, illustrations or specifications contained in any catalogues and publicity material produced by Kocho.

8. DATA PROTECTION

8.1 Kocho shall as soon as practicable notify the Client in writing of any loss or damage to the Client Data. Kocho shall not remove media or data other than with the Client’s permission, and only for the purpose of providing the Services, testing software or at the Client’s express request. Such media or data are held only for as long as necessary for Kocho to complete the related purpose or as agreed with the Client, and the Client may not rely on them in any way as part of Client backup procedures. Kocho will use all reasonable endeavours to ensure that no data is lost, but disclaims all liability for the loss of any data. Kocho will notify the Client of any failures it discovers in the backup system. If as part of the Services only (and as specified in the relevant Statement of Work), Kocho will monitor the Client’ s backup systems for the purpose of checking that data is backed up, provided however that Kocho excludes all liability in respect of any backups that subsequently fail where they are due to environmental conditions, human input or other factors outside of the control of, its subcontractors, Third Party Suppliers or as otherwise set out in this Agreement.
8.2 For the purposes of this Clause 8, the terms controller, processor, data subject, personal data, personal data breach and processing shall have the meaning given to them in the Applicable Data Protection Laws.
8.3 Both Parties will comply with all applicable requirements of Applicable Data Protection Laws. This Clause 8 is in addition to, and does not relieve, remove or replace, a Party’s obligations or rights under Applicable Data Protection Laws.
8.4 The Parties have determined that, for the purposes of Applicable Data Protection Laws, Kocho shall process the personal data set out in the applicable Statement of Work, as a processor on behalf of the Client.
8.5 Without prejudice to the generality of Clause 8.3, the Client will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Client Personal Data to Kocho for the duration and purposes of this Agreement.
8.6 In relation to the Client Personal Data, the applicable Statement of Work sets out the scope, nature and purpose of processing by, the duration of the processing and the types of personal data and categories of data subject.
8.7 Without prejudice to the generality of Clause 8.3 Kocho shall, in relation to Client Personal Data:
(a) process that Client Personal Data only on the documented instructions of the Client, unless Kocho is required by Applicable Laws to otherwise process that Client Personal Data. Where Kocho is relying on Applicable Laws as the basis for processing Client Processor Data, Kocho shall notify the Client of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit Kocho from so notifying the Client on important grounds of public interest. Kocho shall inform the Client if, in the opinion of, the instructions of the Client violate Applicable Data Protection Laws;
(b) implement appropriate the technical and organisational measures to protect against unauthorised or unlawful processing of Client Personal Data and against accidental loss or destruction of, or damage to, Client Personal Data, which the Client has reviewed and confirms are appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures;
(c) ensure that any personnel engaged and authorised by Kocho to process Client Personal Data have committed themselves to confidentiality or are under an appropriate statutory or common law obligation of confidentiality;
(d) assist the Client insofar as this is possible (taking into account the nature of the processing and the information available to), and at the Client ‘s cost and written request, in responding to any request from a data subject and in ensuring the Client ‘s compliance with its obligations under Applicable Data Protection Laws with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(e) notify the Client without undue delay on becoming aware of a personal data breach involving the Client Personal Data;
(f) at the written direction of the Client, delete or return Client Personal Data and copies thereof to the Client on termination of the Agreement unless Kocho is required by Applicable Law to continue to process that Client Personal Data. For the purposes of this Clause (f)8.7 Client Personal Data shall be considered deleted where it is put beyond further use by Kocho; and
(g) maintain records to demonstrate its compliance with this Clause 8 and allow for reasonable audits by the Client or the Client‘s designated auditor (not being competitotrs of Kocho), for this purpose, on reasonable written notice.
8.8 The Client hereby provides its prior, general authorisation for Kocho to:
(a) appoint processors to process the Client Personal Data, provided that Kocho:
(a) shall ensure that the terms on which it appoints such processors comply with Applicable Data Protection Laws, and are consistent with the obligations imposed on Kocho in this Clause 8;
(b) shall remain responsible for the acts and omission of any such processor as if they were the acts and omissions of Kocho; and
(c) shall inform the Client of any intended changes concerning the addition or replacement of the processors, thereby giving the Client the opportunity to object to such changes provided that if the Client objects to the changes and cannot demonstrate, to Kocho’s reasonable satisfaction, that the objection is due to an actual or likely breach of Applicable Data Protection Law, the Client shall indemnify Kocho for any losses, damages, costs (including legal fees) and expenses suffered by Kocho in accommodating the objection;
(b) transfer Client Personal Data outside of the UK as required for the Purpose, provided that Kocho shall ensure that all such transfers are effected in accordance with Applicable Data Protection Laws. For these purposes, the Client shall promptly comply with any reasonable request of, including any request to enter into standard data protection clauses adopted by the EU Commission from time to time (where the EU GDPR applies to the transfer) or adopted by the Commissioner from time to time (where the UK GDPR applies to the transfer).
8.9 To the extent that the provision of the Services involves any transfer of Personal Data by either Party to the other in respect of which the Parties are required to enter into standard contractual clauses, international data transfer addenda, or other approved transfer mechanisms under Applicable Data Protection Laws, the provisions set out in Annex 1 (International Data Transfer Addendum) shall apply to such transfers and are hereby incorporated into and form part of this Agreement. Where applicable, such Annex shall include:
(a) the standard contractual clauses issued or approved by the European Commission for transfers of personal data to third countries pursuant to Regulation (EU) 2016/679 (“EU SCCs”); and/or
(b) the International Data Transfer Addendum or International Data Transfer Agreement issued by the UK Information Commissioner’s Office pursuant to the UK GDPR (“UK Transfer Addendum”)
in each case as amended, replaced, or superseded from time to time.
8.10 In the event of any inconsistency or conflict between the terms of this Agreement and the International Data Transfer Addendum, the provisions of the International Data Transfer Addendum shall prevail solely to the extent strictly necessary to ensure compliance with Applicable Data Protection Laws and only in respect of the relevant transfer of Personal Data. For the avoidance of doubt, nothing in the International Data Transfer Addendum shall be construed as imposing on Kocho any obligation in excess of, or additional to, those required under Applicable Data Protection Laws, unless expressly agreed in writing by the Parties.
8.11 Kocho’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 8, or Applicable Data Protection Laws shall be limited to the amount set out in Clause 11.4.
8.12 To the extent that Kocho cannot comply with a change to the Client’s instructions when processing Client Personal Data without incurring material additional costs:
(a) shall: (i) immediately inform the Client, giving full details of the problem; and (ii) cease all processing of the affected data (other than securely storing those data) until revised instructions are received; and
(b) any changes in the Client’s instructions that affect the pricing structure or commercial relationship between the Parties should go through an appropriate Change Request (as set out in Clause 12).

9. INTELLECTUAL PROPERTY RIGHTS

9.1 Subject to Clause 9.2 below, and strictly conditional upon Kocho receiving payment in full of all Fees, charges and expenses due, all Intellectual Property Rights in bespoke materials or code created exclusively under the Services (“Bespoke IPR”) specifically for the Client shall vest automatically in the Client. To the extent such Bespoke IPR does not vest automatically, Kocho hereby assigns to the Client its present and future rights and full title and interest in Bespoke IPR. The Client hereby provides an irrevocable, worldwide, royalty-free licence to Kocho, with the right to sublicense to its affiliates and subcontractors, for the Term of this Agreement to use, reproduce and adapt such Bespoke IPR strictly for the purposes of providing the Services, supporting the Deliverables, complying with legal or regulatory obligations, and for Kocho’s internal business operations, including reuse of generic elements, techniques and learnings.
9.2 Notwithstanding Clause 9.1 above, Kocho and/or its licensors shall retain exclusive ownership of (i) Background Materials; and (ii) ideas, concepts, techniques and know-how discovered, created or developed by Kocho during the performance of the Services that are of general application and that are not based on or derived from the Client’s business or Confidential Information (“General IP”, together with the Background Materials, the “Kocho Intellectual Property”). Kocho grants to the Client a non-exclusive, worldwide royalty free, non-sublicensable and non-transferable licence to use Kocho Intellectual Property solely for the purposes of utilising the Services and/or Deliverables.
9.3 Kocho confirms that it has all the rights in relation to Kocho Intellectual Property that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this Agreement. No other rights are granted by implication, estoppel or otherwise.
9.4 The Client may not, at any time including after termination or expiry of this Agreement, share any Kocho Intellectual Property with any third party without Kocho’s prior written consent. Kocho may treat the Client’s breach of this Clause 9.4 as a material breach of this Agreement.
9.5 The Client shall pay, hold harmless and indemnify Kocho, from and against all actions, claims, liabilities, demands, proceedings, costs suffered or incurred by Kocho, arising by reason of claims that (1) Kocho’s possession of or use of the Client’s Intellectual Property Rights in connection with the provision of the Services infringes the Intellectual Property Rights of a third party; (2) the Client or any of its customers, agents, contractors, authorized users, modify, alter, replace combine with any other data, code, documents or other software, which alters Kocho’s Intellectual Property and such alterations infringe the Intellectual Property Rights of a third party. This indemnity applies whether or not legal proceedings are instituted and, if such proceedings are instituted, irrespective of the means, manner or nature of any settlement, compromise or determination.
9.6 Kocho shall pay, hold harmless and indemnify the Client, from and against all actions, claims, liabilities, demands, proceedings, costs suffered or incurred by the Client, arising by reason of claims that (1) Client’s possession of or use of Kocho’s Intellectual Property in connection with the receipt of the Services infringes the Intellectual Property Rights of a third party; (2) Kocho or any of its agents, sub-contractors, authorized users, modifies, alters, replaces combines with any other data, code, documents or other software, which alters the Client’s Intellectual Property Rights and such alterations infringe the Intellectual Property Rights of a third party. This indemnity applies whether or not legal proceedings are instituted and, if such proceedings are instituted, irrespective of the means, manner or nature of any settlement, compromise or determination.
9.7 If either Party (“Indemnifying Party”) is required to indemnify the other Party (“Indemnified Party”) under this Clause 9, 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 9.5 or Clause 9.6 (as applicable);
(b) allow the Indemnifying Party, at its own cost, to conduct all negotiations and proceedings and to settle the IPR Claim, always provided that the Indemnifying Party shall obtain the Indemnified Party’s prior approval of any settlement terms, such approval not to be unreasonably withheld;
(c) provide the Indemnifying Party with such reasonable assistance regarding the IPR Claim as is required by the Indemnifying Party, subject to reimbursement by the Indemnifying Party of the Indemnified Party’s costs so incurred; 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 a way as not to bring the reputation of the Indemnified Party into disrepute.
9.8 If an IPR Claim is brought or in the reasonable opinion of Kocho is likely to be made or brought, Kocho may at its own expense ensure that the Client is still able to use the Deliverables by either:
(a) modifying any and all of the provisions of the Deliverables without reducing the performance and functionality for any or all of the provision of the Deliverables, so as to avoid the infringement or the alleged infringement, provided that the terms herein shall apply mutatis mutandis to such modified or substituted services and such modified or substituted services shall be acceptable to the Client, such acceptance not to be unreasonably withheld; or
(b) procuring a license or permission to use the Deliverables on terms which are acceptable to the Client, such acceptance not to be unreasonably withheld.
9.9 Except to the extent that Kocho should reasonably have known or advised the Client the foregoing provisions of Clause 9.8, Kocho shall have no obligation or liability for any IPR Claim to the extent such IPR Claim arises from:
(a) any use by or on behalf of the Client of the combination with any item not supplied or recommended by Kocho 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 Client to any item supplied by Kocho under this Agreement if such modification is not authorised by Kocho in writing where such modification directly gives rise to a claim, demands or action.

10. LICENCES

10.1 Kocho may, at the Client’s request, procure, facilitate access or resell, any Third Party Services required by the Client for the provision of the Services and as strictly set out in the relevant Statement of Work. Except as expressly set out in the relevant Licence Agreement, Kocho acts solely as a procuring or facilitating intermediary and does not develop, control or modify the Third Party Services and expressly excludes any warranty to the Client that the Third Party Services supplied or licensed under this Agreement will operate substantially in accordance with, and perform, the material functions and features as set out in its marketing, sales or other associated documentations. The Client shall unconditionally remain liable for any and all payments owed to Kocho throughout this Agreement and until the end of the respective licence terms for such Third Party Services (the “Licence Fees”) irrespective of suspension, termination or expiry of this Agreement.
10.2 Where required by a Third Party Supplier, it is a condition precedent of this Agreement that the Client shall enter into such direct Licence Agreements issued by the Third Party Supplier where the Client must directly contract with that Third Party Supplier as so prescribed by the relevant software owners of each Third Party Services identified within this Agreement and/or in the applicable Statement of Work. In the event the Client does not accept the terms of such Licence Agreements (whether directly contracted with Kocho or the relevant Third Party Supplier), Kocho reserves the right, without liability and without prejudice to its other rights, to suspend or limit the provision of the Services (in whole or in part) until such time as the Client enters into such Licence Agreement. Any such suspension shall not relieve the Client of its payment obligations under this Agreement.
10.3 The Client shall fully indemnify, defend and hold harmless Kocho 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 Kocho arising out of or in connection with any claim made against Kocho for actual or alleged breach of such Licence Agreements by the Client or any claim by a Third Party Supplier arising from the Client’s use, misuse, configuration or non-compliance in relation to the Third Party Services.
10.4 The Client acknowledges and agrees that it is solely responsible for ensuring that the Client’s Hardware, and operating software for such Hardware, networks, configurations and related software environments is compatible with the Third Party Services and Kocho gives no warranty or assurance in relation thereto unless agreed otherwise in writing between the Parties in the relevant Statement of Work. Any incompatibility shall constitute a Client dependency failure and may result in Relief Events, suspension of Services (in whole or in part) and/or additional charges/fees.

11. EXCLUSIONS, LIMITATIONS OF LIABILITY, WARRANTIES AND INDEMNITIES

11.1 The Client acknowledges and agrees that, except as expressly provided in this Agreement or unless it is a Service under a relevant Statement of Work to be provided by Kocho, the Client assumes sole responsibility and risk for:
(a) all problems, conditions, delays, delivery failures (including any of those concerning transfer, integrity or loss of data) and all other loss or damage arising from or relating to the Client’s or its agents’ or contractors’ (including any existing or replacement 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, latency, delays, outages and other problems inherent in the use of such connections, links or facilities; and
(b) loss, damage, delay, degradation or cost arising from or relating to any Relief Event, for which Kocho shall bear no responsibility or liability.
11.2 This Clause sets out the entire financial liability of each Party (including any liability for the acts or omissions of its employees, agents and subcontractors) whether arising in contract, tort (including negligence), misrepresentation (whether innocent or negligent), restitution or otherwise, and supersedes any duty of care or liability implied by law, to the fullest extent permitted
11.3 Nothing in this Agreement excludes or limits either Party’s liability for:
(a) death or personal injury caused by negligence;
(b) fraud or fraudulent misrepresentation;
(c) any other liability which cannot lawfully be excluded or limited.
11.4 The maximum aggregated liability for:
(a) a Party’s breach of its obligations under Clause 8 (Data Protection) shall be limited to five hundred thousand (£500,000) in the aggregate, which shall count towards the cap set out in Clause 11.5; and
(b) the indemnification outlined in Clause 9 (Intellectual Property) for either Party shall be equal to and not more than one million pounds (£1,000,000).
11.5 Subject to Clauses 11.3 and 11.4, the 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 the applicable Services in the relevant Statement of Work:
(a) of the Client shall be limited to one hundred and fifteen (115%) of the amount paid and payable for the Services pursuant to the applicable Statement of Work during the twelve (12) months preceding the date on which the claim arose; and
(b) of Kocho shall be limited to one hundred and twenty five percent (125%) of the amount paid and payable for the Services pursuant to the applicable Statement of Work during the twelve (12) months preceding the date on which the claim arose.
For the avoidance of doubt, separate Statements of Work shall give rise to separate liability caps.
11.6 Except as expressly and specifically provided in this Agreement neither Party shall have any liability for any losses or damages which may be suffered by the other Party (or any person claiming under or through that Party), whether the same are suffered directly or indirectly or are immediate or consequential, and whether the same arise in contract, tort (including negligence) or otherwise howsoever, which fall within any of the following categories:
(a) indirect, consequential losses or special damage even if the other Party was aware of the circumstances in which such indirect, consequential losses or special damage could arise;
(b) loss of profits;
(c) loss of anticipated savings;
(d) loss of business opportunity;
(e) loss of goodwill and reputation;
(f) loss or corruption of data.
11.7 Unless the Client notifies Kocho that it intends to make a claim in respect of an event within the notice period, Kocho shall have no liability for that event. The notice period for an event shall start on the day on which the Client became, or ought reasonably to have become, aware of the event having occurred shall expire six (6) months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail setting out the full factual and legal basis of the claim.
11.8 Except as expressly and specifically provided in this Agreement all warranties, conditions, representations and other terms implied by statute, common law or otherwise are, to the fullest extent permitted by law, excluded from this Agreement.
11.9 Any indemnity set out in this Agreement shall not apply unless the Party claiming indemnification notifies (in writing) the other promptly of any matters in respect of which the indemnity may apply and of which the notifying Party has knowledge and gives the other Party full opportunity to control the response to and the defence of such claim; including without limitation, the right to accept or reject settlement offers and to participate in any litigation provided that in no event shall the indemnitor be liable for any settlement or compromise made without its consent, such consent not to be unreasonably withheld or delayed.
11.10 Kocho shall maintain in force the following insurance policies:
(a) Public Liability Insurance Policy – limit £5 million per claim;
(b) Professional Indemnity Insurance Policy – limit £1 million per claim;
(c) Employers Liability Policy – limit £10 million per claim;
(d) Cyber Insurance- limit £25,000 in the aggregate.
Such insurance shall not operate as a limitation or extension of Kocho’s liability under this Agreement.

12. CHANGE REQUESTS

12.1 Either Party may request changes to any Services (in each case, a “Change Request”). Any Change Request shall be made in writing and sent to the Client Representatives or Kocho Representative (as appropriate) and shall set out the change in sufficient detail, assumptions and supporting information so as to enable the other Party to make a proper assessment of such change. Kocho shall have no obligation to consider or progress any Change Request where the information provided by the Client is incomplete, inaccurate or insufficient.
12.2 Where either Party proposes a Change Request, Kocho shall, acting reasonably and subject to the Client’s timely co-operation, provide a written assessment setting out:
(a) estimate of the likely time and resources required to implement the change,
(b) any necessary variations to the Fees, payment milestones or Rates as a result of the change,
(c) the likely impact of the change on the Services including, delivery timelines, service levels, dependencies and assumptions; and
(d) any other impact of the change on the Services or the terms of this Agreement.
The Client shall notify Kocho in writing whether it accepts or reasonably rejects the Change Request within five (5) Business Days of its receipt of the written assessment. Failure to respond within this period shall be deemed a rejection, without prejudice to Kocho’s right to re-price or re-schedule any subsequent Change Request.
12.3 Until such time as a Change Request has been expressly agreed in writing by the Parties, the Parties shall continue to perform their respective obligations under the-then current relevant Statement of Work without taking into account the Change Request, and shall not be liable for any delay, failure or degradation resulting from the non-implementation of the Change Request. Once duly agreed by both Parties, the Change Request shall take effect only from the agreed effective date and shall be deemed incorporated into Agreement and Statement of Work.
12.4 Neither Party shall be obliged to accept any Change Request made by the other Party and shall not be bound by the Change Request unless it has been agreed in writing as set out above. Kocho may reject any Change Request where, in its reasonable opinion, the Change Request would:
(a) materially increase risk, cost or complexity;
(b) adversely affect Kocho’s ability to meet existing commitments; or
(c) require resources, third-party consents or technical changes that are not commercially or operationally feasible.
12.5 Unless otherwise expressly agreed in writing, Kocho shall be entitled to charge the Client at Kocho’s then current Rates for all time and costs incurred in assessing, scoping, investigating, reporting on, preparing estimates for and, if appropriate, implementing any Change Request requested by the Client , irrespective of whether the Change Request is ultimately agreed or implemented.
12.6 Any Change Request proposed by the Client, and any activities undertaken by Kocho in connection with the assessment, scoping, clarification, negotiation or implementation of such Change Request, shall constitute a Relief Event to the extent it directly or indirectly:
(a) impacts the scope, sequencing, assumptions, dependencies or technical design of the Services;
(b) requires additional information, approvals, access, resources or decisions from the Client or any third party; or
(c) affects Kocho’s ability to meet any milestone, service level, delivery date or performance obligation under the Agreement.
12.7 Upon the occurrence of a Relief Event arising from a Change Request, all affected milestones, delivery dates, service levels and time-based obligations shall be automatically extended by a period equal to the duration of the Relief Event and its reasonable consequences. Kocho shall not be required to provide evidence of critical path impact, and no delay shall be deemed a breach where it arises from or is connected to a Change Request.
12.8 Where a Change Request is under consideration or has been approved but is awaiting the Client inputs, approvals or third-party actions, Kocho may, without liability, suspend, de-prioritise or re-sequence the affected Services and allocate resources to other projects. Any such suspension or re-sequencing shall constitute a Relief Event and shall entitle Kocho to corresponding milestone and timetable relief.
12.9 Any Change Request approved by the Parties shall entitle Kocho to:
(a) re-baseline Fees, milestones and payment schedules to reflect the revised scope and sequencing;
(b) charge at Kocho’s then-current Rates for all work performed in connection with the Change Request; and
(c) recover any additional third-party, acceleration, rework or standby costs incurred as a result of the Change Request or related Relief Event.
12.10 No pricing, timeline or service level applicable prior to the Change Request shall apply unless expressly reaffirmed in writing.
12.11 Kocho shall not be liable for, and the Client shall not be entitled to, any service credits, liquidated damages, penalties or other remedies for any failure or delay to the extent arising from or connected with:
(a) a pending, rejected or approved Change Request; or
(b) any Relief Event associated with a Change Request.

13. CONFIDENTIALITY

13.1 Each Party (the “Receiving Party”) agrees and undertakes that it will treat, keep and maintain all Confidential Information disclosed to it by the other Party (the “Disclosing 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 Disclosing Party, publish or otherwise disclose to any third party any such Confidential Information except for the purposes intended by the relevant Statement of Work and this Agreement.
13.2 To the extent necessary to implement the provisions of any Services, each Party may disclose Confidential Information to its representatives, in each case under the same conditions of confidentiality as set out in Clause 13.1 on a “need to know” basis for the purposes of this Agreement.
13.3 The obligations of confidentiality set out in this Clause 13 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.

14. TERM AND TERMINATION

14.1 This Agreement shall commence on the Commencement Date and each Statement of Work shall commence on the Services Commencement Date and shall remain in full force for the Initial Term unless otherwise agreed by the Parties or earlier terminated in accordance with the term of this Agreement. Thereafter, this Agreement and each Statement of Work 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 or the relevant Statement of Work (as applicable). For the avoidance of doubt, termination of a Statement of Work shall not terminate this Agreement unless expressly stated.
14.2 Without prejudice to any rights that the Parties have accrued under this Agreement or any of their respective remedies, obligations or liabilities, the non-breaching Party may terminate this Agreement with immediate effect by giving written notice to the other Party if:
(a) the Client breaches its obligations in Clauses 4.6 and/or 4.7;
(b) Kocho commits a material breach of any material term of this Agreement and (if such breach is remediable) fails to remedy that breach within a period of forty five (45) days after being notified to do so;
(c) the other Party breaches any of the terms of Clause 18 (Anti-Bribery); or
(d) the other Party suspends, or threatens to suspend, payment of its debts, or is unable to pay its debts as they fall due or admits inability to pay its debts, or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986.
(e) the Client commits a material breach of this Agreement (other than those referred to in Clause 14.2(a)) and, where such breach is remediable, fails to remedy that breach within thirty (30) days of written notice.
14.3 Termination of this Agreement, for any reason, shall not affect the accrued rights, remedies, obligations or liabilities of the Parties existing at termination.
14.4 On termination of this Agreement for any reason:
(a) Kocho shall immediately cease provision of the Services without liability and subject always to the Client’s payment obligations under Clause 14.4(b);
(b) the Client shall pay any and all invoices and sums due and payable up to and including the date of termination including: (1) all remaining amounts owing up to the end of the Initial Term or the Subsequent Term (as applicable); (2) any Licence Fees as set out under Clause 10.1; and (3) any termination fees, wind down fees or early exit fees that Kocho incurs from any of its Third Party Suppliers as a consequence of such early termination. Kocho shall use reasonable endeavours to mitigate any loss but the Client acknowledges and agrees that any Third Party Supplier fees may not be capable of mitigation and the Client acknowledges that Kocho shall not be liable if such fees are incurred in full;
(c) the Client shall return all of Kocho’s Equipment. If the Client fails to do so, then Kocho may, where lawful and upon reasonable prior notice, enter the Client’s premises and take possession of Kocho’s Equipment. Until Kocho’s Equipment has been returned or repossessed, the Client shall be solely responsible for its safe keeping and condition; and
(d) 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.
14.5 Save as provided in Clause 14 or elsewhere in this Agreement, or by mutual consent and on agreed terms, or due to a Force Majeure event, neither Party shall be entitled to terminate a Statement of Work. Termination of a Statement of Work shall neither by default, terminate other Statement of Works nor this Agreement.
14.6 Termination of any Statement of Work shall be without prejudice to any other rights which any Party may have under any other Statement of Work.
14.7 Upon a termination of the Agreement or a specific Statement of Work (as applicable), Kocho may retain the Client Data for a maximum period of three (3) months from the effective date of termination or for such longer period as is required to comply with applicable law, resolve disputes, or recover outstanding sums, after which Kocho may delete all such copies of its Client Data.
14.8 Any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination of this Agreement shall remain in full force and effect.

15. STAFF TRANSFER AND NON-SOLICITATION

15.1 It is not intended that any staff be transferred from Kocho to the Client or from the Client to Kocho pursuant to this Agreement or that any ‘relevant transfer’ occur for the purposes of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE”). In the event that the Parties agree that TUPE does apply at either entry and/or exit then the provisions as set out at https://kocho.co.uk/tupe/ shall take priority over this Clause 15.1.
15.2 Neither Party shall solicit the other Party’s staff or contractors who have been employed or engaged in the Services or the performance of this Agreement during the Term 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.
15.3 In the event that either Party is in breach of Clause 15.2 above then the Party in breach shall pay to the other by way of liquidated damages an amount equal to thirty percent (30%) per cent of the annual remuneration (as at the time of the breach or when such person was last in the service of the relevant party) of the person so employed or engaged. This provision shall be without prejudice to either Party’s ability to seek injunctive relief.
15.4 The Parties hereby acknowledge and agree that the formula specified in Clause 15.3 above is a reasonable estimate of the loss which would be incurred by the loss of the person so employed or engaged.

16. RELIEF EVENTS

16.1 Notwithstanding any other provision of this Agreement, Kocho shall have no liability for, and shall be fully relieved from, any failure, delay, partial performance or degradation in the performance of the Services or its other obligations under this Agreement to the extent arising from or in connection with any Relief Event.
16.2 Any such failure or delay shall not constitute a breach of this Agreement, and Kocho shall not be subject to service credits, liquidated damages, penalties or other remedies in respect thereof.
16.3 Upon the occurrence of a Relief Event:
(a) all affected milestones, delivery dates, service levels and time-based obligations shall be automatically extended by a period equal to the duration of the Relief Event and its reasonable consequences;
(b) Kocho shall be entitled to re-sequence, suspend or de-prioritise the affected Services without liability;
(c) Kocho shall be entitled to recover any additional costs reasonably incurred as a result of the Relief Event; and
(d) Kocho shall not be required to demonstrate critical path impact or meet any heightened evidentiary threshold.
16.4 Where a Relief Event arises from or relates to a Change Request, Kocho shall be entitled to:
(a) re-baseline Fees, milestones and payment schedules;
(b) charge at Kocho’s then-current Rates for all assessment, scoping, rework and implementation activities; and
(c) recover any additional third-party, standby, acceleration or re-mobilisation costs incurred.
16.5 No pricing, service level or delivery commitment applicable prior to the Relief Event shall continue to apply unless expressly reaffirmed in writing.

17. FORCE MAJEURE

17.1 Kocho shall have no liability to the Client under this Agreement and the Client shall have no obligation to pay the Fees if Kocho is prevented from, or delayed in, or partially performing its obligations under this Agreement, or from carrying on its business, by an event of Force Majeure except to the extent that Kocho could reasonably have avoided such circumstances by fulfilling its obligations in accordance with the terms of this Agreement or otherwise exercising the level of diligence that could reasonably have been expected of it (having exercised Good Industry Practice), provided that:
(a) the Client is notified of such an event and its expected duration, provided that any failure or delay in providing such notice shall not invalidate Kocho’s entitlement to relief, provided the Client is not materially prejudiced as a result; and
(b) uses all reasonable endeavours to mitigate, overcome or minimise the effects of the event of Force Majeure concerned.
17.2 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. Any termination pursuant to this clause shall not affect any payment obligations which, by their nature, are intended to survive termination.
17.3 During the continuance of a Force Majeure Event:
(a) Kocho’s affected obligations shall be suspended for the duration of the Force Majeure Event and its reasonable consequences;
(b) such failure or delay shall not constitute a breach of this Agreement; and
(c) the Client shall remain liable to pay all Fees and charges falling due in respect of Services performed prior to, during or after the Force Majeure Event, except where performance is rendered wholly impossible and no Services are being provided for the relevant period.
17.4 Kocho shall only be required to demonstrate that it has taken reasonable steps consistent with Good Industry Practice to mitigate the effects of the Force Majeure Event and shall not be required to incur disproportionate cost or operational risk to do so.

18. ANTI-BRIBERY AND MODERN SLAVERY

18.1 Kocho shall:
(a) comply with all applicable laws, regulations and sanctions relating to anti-bribery and anti-corruption, including the Bribery Act 2010;
(b) promptly report to the Client any request or demand for any undue financial or other advantage of any kind received by Kocho in connection with the performance of this Agreement.
18.2 Kocho shall procure that any person associated with, who is performing services in connection with this Agreement, adheres to terms equivalent to those imposed on Kocho in this Clause 18 (“Relevant Terms”). Kocho shall be responsible for the observance and performance by such persons of the Relevant Terms and shall be directly liable to the Client for any breach by such persons of any of the Relevant Terms.
18.3 For the purpose of this Clause 18, 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), sections 6(5) and 6(6) of that Act and section 8 of that Act respectively. For the purposes of this Clause 18 a person associated with Kocho includes any sub-contractor of Kocho.
18.4 In performing its obligations under this Agreement, Kocho shall:
(a) comply with all applicable anti-slavery and human trafficking laws, statutes, regulations from time to time in force the Modern Slavery Act 2015; 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.

19. COMPLIANCE WITH DIGITAL OPERATIONAL RESILIENCE ACT (DORA)

19.1 To the extent that any Services provided under this Agreement constitute information and communication technology services within the scope of Regulation (EU) 2022/2554 on digital operational resilience for the financial sector (“DORA”), the provisions set out in Annex 2 (“DORA Addendum”) shall apply to such Services and are hereby incorporated into and form part of this Agreement.
19.2 In the event of any inconsistency or conflict between the terms of this Agreement and the DORA Addendum, the provisions of the DORA Addendum shall prevail solely to the extent strictly necessary to ensure compliance with applicable requirements under DORA and only in respect of those Services to which DORA applies.
19.3 For the avoidance of doubt, nothing in the DORA Addendum shall be construed as imposing on Kocho any obligation in excess of, or additional to, those required under applicable law, unless expressly agreed in writing by the Parties.
19.4 Any amendment to the DORA Addendum requested by Customer following the Effective Date shall be subject to Kocho’s reasonable review and agreement.

20. WAIVER

20.1 No failure or delay by a Party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.

21. SEVERANCE

21.1 If any court or competent authority finds that any provision of this Agreement (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of this Agreement shall not be affected.
21.2 If any invalid, unenforceable or illegal provision of this Agreement would be valid, enforceable and legal if some part of it were deleted, the Parties shall negotiate in good faith to amend such provision such that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the Parties’ original commercial intention.

22. ENTIRE AGREEMENT AND AMENDMENT

22.1 This Agreement (and its references to website address to further documentation), the Licence Agreements, the Statement of Works and the Customer Agreement constitute the entire agreement between the Parties and supersedes all previous discussions, correspondence, negotiations, arrangements, understandings and agreements between them relating to its subject matter.
22.2 Each Party acknowledges that in entering into this Agreement it does not rely on, and shall have no remedies in respect of, any representation or warranty (whether made innocently or negligently) that is not set out in this Agreement.
22.3 Each Party agrees that its only liability in respect of those representations and warranties that are set out in this Agreement (whether made innocently or negligently) shall be for breach of contract.
22.4 No alteration to or variation of this Agreement shall take effect unless and until the same is in writing and signed on behalf of each of the Parties by a duly authorised representative.

23. ASSIGNMENT

23.1 The Client shall not, without the prior written consent of Kocho (such consent not to be unreasonably withheld or delayed) assign or, transfer or charge or deal in any other manner with either the benefit or the burden of this Agreement or any of its rights or obligations under it, or purport to do any of the same, nor sub-contract any or all of its obligations under this Agreement.

24. NO PARTNERSHIP OR AGENCY
24.1 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.

25. THIRD-PARTY RIGHTS
25.1 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 Customer Agreement) and is not intended to benefit or be enforceable by anyone else.

26. NOTICES
26.1 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 Business Day delivery service, at its registered office (if a company) or (in any other case) its principal place of business.
26.2 Any notice or communication shall be deemed to have been received if delivered by hand, on signature of a delivery receipt, or otherwise at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service.

27. DISPUTE RESOLUTION
27.1 If a dispute arises under this Agreement (“Dispute”), including any Dispute arising out of any amount due to a Party hereto, then before bringing any suit, action or proceeding in connection with such Dispute, a Party must first give written notice of the Dispute to the other Party describing the Dispute and requesting that it is resolved under this dispute resolution process (“Dispute Notice”).
27.2 If the Parties are unable to resolve the Dispute within fifteen (15) calendar days of delivery of the Dispute Notice, then each Party will promptly (but no later than five (5) Business Days thereafter):
(a) appoint a designated representative who has sufficient authority to settle the Dispute and who is at a higher management level than the person with direct responsibility for the administration of this Agreement (“Designated Representative”); and
(b) notify the other Party in writing of the name and contact information of such Designated Representative.
27.3 The Designated Representatives will then meet as often as they deem necessary in their reasonable judgment to discuss the Dispute and negotiate in good faith to resolve the Dispute. The Designated Representatives will mutually determine the format for such discussions and negotiations, provided that all reasonable requests for relevant information relating to the Dispute made by one Party to the other Party will be honoured.
27.4 If the Parties are unable to resolve the Dispute within thirty (30) calendar days after the appointment of both Designated Representatives, then then the Dispute shall be finally resolved by arbitration in accordance with Clause 26.5.
27.5 Mediation (CEDR Institutional Rules): Any Dispute not resolved pursuant to Clauses 26.1 to 26.4 shall be finally resolved by mediation administered by the Centre for Effective Dispute Resolution (CEDR) in accordance with the CEDR Mediation Rules in force at the time of the commencement of the mediation.
27.6 Nothing in this Clause 26 shall prevent either Party from seeking interim or injunctive relief (including for the protection of confidential information, Intellectual Property Rights, or to recover undisputed amounts due) from any court of competent jurisdiction at any time.

28. MARKETING
28.1 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 Client on Kocho’s website or any third party website that Kocho uses to promote and market its Services, provided that in no event shall either Party use the name, trademarks or other proprietary identifying symbols of the other Party without such Party’s prior written consent, which consent shall not be unreasonably withheld or delayed.

29. GOVERNING LAW AND JURISDICTION
29.1 This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be exclusively governed by and construed in accordance with the law of England and Wales.
29.2 The Parties irrevocably agree that the courts of England shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).

 

 

SCHEDULE 1 – PROFESSIONAL SERVICES TERMS

1. INTERPRETATION & DEFINITIONS FOR PROFESSIONAL SERVICES

1.1 These Professional Services Terms form an integral part of the Agreement and are incorporated into the Agreement.

1.2 Except as expressly defined in these Professional Services Terms, all capitalised terms in these Professional Services Terms shall have the meaning given to them in the Agreement.

1.3 In Professional Services Terms, the following terms have the following meanings:

Acceptance Criteria: means the acceptance criteria as specified in paragraph 2.2 or referred to in a Statement of Work or as otherwise agreed by the Parties expressly in writing after the date of the Statement of Work against which the Acceptance Tests are to be carried out to determine whether the Deliverables meet the Statement of Work, are satisfactory and ready to be invoiced.

Acceptance Tests: means the acceptance tests as specified or referred to in the Statement of Work or as agreed between the Parties, to be undertaken to determine whether the Deliverables meet the Acceptance Criteria.

Issues List: a written list of the non-conformities to the Acceptance Criteria for a specific Deliverable.

2. ACCEPTANCE OF PROFESSIONAL SERVICES

2.1 The relevant Statement of Work shall specify the Deliverables that are to be subject to Acceptance Testing and provide a framework for the nature of the testing that will be required.

2.2 In relation to any Acceptance Testing:

(a) the Client shall have a reasonable period of time, up to five (5) Business Days unless otherwise specified in the Statement of Work, from the Supplier’s delivery of each Deliverable under the relevant Statement of Work (the “Acceptance Period”) to confirm that such Deliverable conforms to the acceptance criteria as agreed between the Parties (collectively, the “Acceptance Criteria”). If the Client determines that a Deliverable does not conform to the Acceptance Criteria, the Client shall by the last day of the Acceptance Period provide to the Supplier an Issues List of the non-conformities to the Acceptance Criteria;

(b) the Client shall use best efforts to correctly and efficiently ensure appropriate Acceptance Testing in relation to any Deliverable which is subject to Acceptance Tests and shall notify the Supplier within the Acceptance Period (as defined in paragraph 2.2(a) if any of the Deliverables do not conform to the Acceptance Criteria. In the event that Client has undertaken the Acceptance Testing within the Acceptance Period and fails to reject any Deliverable within the relevant Acceptance Period, for all purposes under these Professional Services Terms such Deliverable, shall be deemed accepted as if the Client had issued a written acceptance thereof. Once the Deliverable has been accepted by the Client and payment has been settled in accordance with Clause 6 of the Agreement, the Deliverable shall become the property of the Client. For the avoidance of doubt, should any non-conformities be found in earlier stages of the Deliverables but which were not highlighted to the Supplier during the applicable Acceptance Period, such non-conformities shall not be subject to the remedies as set out in paragraph 2.2 (c) below.

(c) if:

(a) the Client does not provide any written comments in the initial period described in paragraph 2.2(a) above;

(b) commences live running of the whole or part of such Deliverable other than in the course of undertaking Acceptance Testing; or

(c) if the Deliverable or Services are found to conform with the relevant Statement of Work;

then in each case the Service or Deliverable shall be deemed accepted from the date of the notification by the Supplier pursuant to paragraph 2.2(a).

(d) If there are any non-conformities within any Deliverable, which have been highlighted by Client or the Supplier during the Acceptance Period and whereby the Deliverable has not been accepted by the Client for this reason and such non-conformity is a directly attributable act or omission on the part of the Supplier (and not subject to a Change Request (as defined in Clause 12 of the Agreement or attributable to the Client’s acts or omissions including inadequate Acceptance Testing) the Supplier shall (without prejudice to the Client’s other rights and remedies) carry out all necessary remedial work without additional charge as part of the next Deliverable which shall accordingly be modified.

(e) If any non-conformity cannot be remedied by the Supplier due to an error, defect or fault which the Supplier is able to demonstrate to the reasonable satisfaction of the Client to be outside the Supplier’s control and which has disabled the Supplier’s ability to remedy such non-conformity, then the Supplier reserves the right to terminate work on that specific Deliverable. The Supplier agrees not to charge Client, any amounts paid or payable by the Client to Supplier which specifically relate to the non-conforming Deliverable which cannot be remedied.

3. CANCELLATION OF PROFESSIONAL SERVICES

3.1 The Client agrees to adhere to the dates scheduled for provision of Professional Services by the Supplier as stated in the applicable Statement of Work. If the Client wishes to reschedule or cancel the dates for the provision of the Professional Services, the Supplier will use reasonable endeavours to re-assign allocated resources to other clients. If such re-assignment is not possible, then the Client shall be liable to pay the following cancellation charges in the form of damages (“Cancellation Charges”) relating to this action, in addition to any specific costs relating to cancelling pre-booked travel arrangements and to unpaid Fees (if any) for any Professional Services work that has already been performed:

(a) if dates are changed or cancelled between two (2) to four (4) weeks before the scheduled start date Cancellation Charges equivalent to fifty percent (50%) of the Fees for the Services to be provided at that time will be payable;

(b) if dates are changed or cancelled between one (1) to two (2) weeks before the scheduled start date:

(i) where the Services include training, Cancellation Charges equivalent to one hundred percent (100%) of the Fees for the provision Services to be provided at that time will be payable; and

(ii) for all other Services, Cancellation Charges equivalent to seventy five percent (75%) of the Fees for the Services to be provided at that time will be payable;

(c) if dates are changed or cancelled less than one (1) week before the scheduled start date Cancellation Charges equivalent to one hundred percent (100%) of the Fees for the Services to be provided at that time will be payable.

SCHEDULE 2 – MANAGED SERVICES TERMS

1. Interpretation & Definitions for Managed Services

1.1 These Managed Services Terms form an integral part of the Agreement and are incorporated into the Agreement.

1.2 Except as expressly defined in these Managed Services Terms, all capitalised terms in these Managed Services Terms have the meaning given to them in the Agreement.

1.3 In these Managed Services Terms, the following terms have the following meanings:

Client’s Operating Environment: the Client’s computing environment (consisting of hardware and software) that is to be used by the Client in connection with its use of the Managed Services and which interfaces with the Supplier’s System in order for the Client to receive the Managed Services, but excluding the Client-side Equipment.

Client-side Equipment: any equipment located or to be located on a Client Site but controlled or to be controlled exclusively by the Supplier as part of the Services.

Local System Components: equipment supplied by the Client such as routers, switches, PCs, thin client devices, smart phones, wireless controllers and access points.

Scheduled Downtime: the total amount of time during which the Client is not able to access the Managed Services due to planned maintenance. The Supplier may schedule system downtime, with prior agreement of the Client. Scheduled Downtime periods do not count against the Service Level calculation detailed in such Statement of Work (if any).

Service Level: the service levels applicable to the Service Level Arrangement.

Supplier’s System: the system to be used by the Supplier in performing the Managed Services, including the Hardware, any Third Party Services, the Client-side Equipment and communications links between the Hardware and the Client-side Equipment and the Client’s Operating Environment.

Unscheduled Downtime: the total amount of time during which the Client is not able to access the Managed Services due to unexpected system failures or other reasons other than Scheduled Downtime.

2. Provision of Managed Services

2.1 The Supplier will use reasonable endeavours to provide the Managed Services in accordance with the Service Level Arrangements as stated in the Statement of Work.

2.2 The Client shall remain responsible for the use of the Managed Services under its control.

2.3 The Client must take reasonable measures to ensure it does not jeopardise services supplied to third parties on the same shared access infrastructure as notified to the Client by the Supplier in writing. This includes informing the Supplier promptly in the case of a denial-of-service attack or distributed denial-of-service attack. In the event of any such incident, the Supplier will work with the Client to alleviate the situation as quickly as possible. The Parties shall discuss and agree appropriate action (including suspending the Managed Services).

2.4 The Client shall not provide the Managed Services to third parties without the prior written consent of the Supplier.

2.5 The Client 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. Examples of such conditions are listed below:

(d) failure of Client Hardware, software or operating system;

(e) partial or full failure of Third Party Services;

(f) network connectivity issues between Local System Components and the Supplier’s platform;

(g) network connectivity issues between Local System Components and its third party’s servers.

2.6 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 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 Client and the Parties shall follow the Change Request.

2.7 If the Supplier breaches its obligations in Clause 3.1(d) of the Agreement, the Supplier shall, at its expense, use commercially reasonable endeavours to correct any such non-conformance promptly, or provide the Client with an alternative means of accomplishing the desired performance.

3. Supplier’s Obligations

3.1 The Supplier shall:

(a) where provided as part of the Managed Services, staff the Supplier support desk with a team of skilled individuals (whether subcontracted or not);

(b) maintain a team skilled in the platform and with knowledge of the systems developed to deliver the solution;

(c) maintain a comprehensive IT service management solution, with integrated knowledge base and how-to guides to reduce the time to issue resolution;

(d) undertake a regular account review if requested by the Client, to discuss the Client’s service needs and ensure that the Agreement is in alignment with its needs;

(e) use commercially reasonable endeavours to follow the instructions of the Client and will remain courteous during any communications with Client personnel; and

(f) provide the Client with reasonable co-operation in relation to this Agreement.

3.2 The Supplier shall be under no obligation to provide the Managed Services to the Client in the following circumstances (unless specified under the Statement of Work);

(a) providing the Managed Services outside Normal Business Hours unless otherwise agreed between the Parties in writing;

(b) providing any other services not covered herein;

(c) training; and

(d) providing the Managed Services to the Client where such support would have been unnecessary if the Client had implemented update(s) and upgrade(s) supplied or offered to the Client pursuant to the call for technical support.

4. Client’s Obligations

4.1 The Client shall:

(a) make the Client’s Operating Environment and Client-side Equipment accessible to the Supplier’s support staff to the extent required to enable the Supplier to provide the Services, enable logons or passwords required for such support staff (who will have their own logons); and provide appropriate hardware interface, software and access authorisation to enable remote diagnosis, should such capability be required;

(b) 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, where required under the Statement of Work;

(c) virus-check all data supplied to the Supplier pursuant to these Managed Services Terms;

(d) provide the Supplier at least seven (7) Business Days’ notice in advance of any intention or move to change applicable Client-side Equipment or Client’s Operating Environment or data-feeds that will directly impact the Managed Services. If such notice has not been received on time and where such work is provided under the Statement of Work, the Supplier will have to make additional effort to return the Client’s systems to an acceptable state for continued support, and will charge accordingly at its then standard charging rate;

(e) take reasonable measures to ensure it does not jeopardise services supplied to third parties on the same platform as notified to the Client by the Supplier in writing. This includes informing the Supplier promptly in the case of a denial-of-service attack or distributed denial-of-service attack. In the event of any such incident, the Supplier will work with the Client to alleviate the situation as quickly as possible. The Parties shall discuss and agree appropriate action (including suspending the Managed Services).

5. Service Levels

5.1 The SLAs are specific to Services provided directly by the Supplier and do not relate to Third Party Services (of which such Third Party Services will be governed by their own relevant service levels).

5.2 Subject to Clause 11.3 of the Agreement, the Service Level Arrangements state the Client’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.

5.3 The Supplier will promptly investigate failures to meet Service Levels and, unless otherwise set out in the Statement of Work, will report the findings of such investigations to the Client’s Representative at their next service review meeting, together with its written proposals for remedial action. The Parties will agree any remedial action, and the Client will use reasonable endeavours to prevent recurrences.

5.4 The Supplier will submit a Service Level report to the Client at intervals set out in the Statement of Work (or as otherwise agreed with the Client) and the Supplier will report on its performance of the Services against the Service Levels in the period since the last service review meeting.

5.5 The Supplier shall not in any circumstances be liable under its obligations in this paragraph 5 if it can demonstrate that any failure of the Services was caused or contributed to by any Relief Event.

6. Termination assistance

6.1 Save as otherwise agreed in the applicable Statement of Work, upon termination of the Statement of Work the Supplier may provide to the Client and / or to any new supplier selected by the Client (the “Successor Service Provider”) such assistance as reasonably requested by the Client (and agreed to by the Supplier) in order to effect the orderly transition of the applicable Services, in whole or in part, to the Client or to Successor Service Provider during any period of notice of termination (the “Termination Assistance Period”). Any services required by the Client for the transition of Services during the Termination Assistance Period shall be provided by the Supplier at its then-current time and materials fee rate for such period of time and upon such terms as shall be mutually agreed.

7. Liability

7.1 Except as expressly and specifically provided in the Agreement, the Client assumes sole responsibility for results obtained from the use of the Managed Services, and for conclusions drawn from such use. The Supplier has no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Supplier by the Client in connection with the Managed Services, or any actions taken by the Supplier at the Client’s direction.

SCHEDULE 3 – SUPPLY OF GOODS

1. Interpretation & Definitions for Goods

1.1 These Goods Terms form an integral part of the Agreement and are incorporated into the Agreement.

1.2 Except as expressly defined in these Goods Terms, all capitalised terms in these Goods Terms have the meaning given to them in the Agreement.

2. The Goods

2.1 Any samples, drawings, descriptive matter or advertising produced by the Supplier and any descriptions or illustrations contained in the Supplier’s catalogues, brochures or website are produced for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Agreement or have any contractual force.

2.2 To the extent that the Goods are to be manufactured in accordance with the relevant section of a Statement of Work supplied by the Client, the Client shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by the Supplier in connection with any claim made against the Supplier for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of or in connection with the Supplier’s use of the Statement of Work. This paragraph 2.2 shall survive termination of the Agreement.

2.3 The Supplier reserves the right to amend the Statement of Work if required by any applicable statutory or regulatory requirements.

3. Delivery

3.1 The Supplier shall use its reasonable endeavour to deliver Goods to the agreed delivery location on the agreed delivery date.

3.2 If the Supplier fails to deliver Goods by the relevant delivery date after being given a reasonable opportunity to remedy such delay, except to the extent that such delay is due to a third party for which the Supplier shall have no liability, its liability shall be limited to the costs and expenses incurred by the Client in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. The Supplier shall have no liability for any failure to deliver Goods to the extent that such failure is caused by:

(a) a delay from the manufacturer, third party supplier or other third party;

(b) an event of Force Majeure; or

(c) the Client’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.

3.3 If the Supplier ten (10) Business Days after the day on which the Supplier attempted to make delivery of Goods the Client has not taken delivery of those Goods, the Supplier may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Client for any excess over the price of the Goods, or charge the Client for any shortfall below the price of the Goods.

3.4 The Supplier may deliver Goods by instalments, which shall be invoiced and paid for separately. The Client may not cancel an instalment because of any delay in delivery or defect in another instalment.

4. Warranties

4.1 Subject to paragraph 4.3, the Supplier warrants that, for a period of as offered by the manufacturer (if any) (“Warranty Period”), the Goods shall:

(a) conform in all material respects with the relevant section of the Statement of Work;

(b) be free from material defects in design, material and workmanship;

(c) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979); and

(d) be fit for any purpose held out by the Supplier.

4.2 Subject to paragraph 4.3, if:

(a) the Client gives notice in writing to the Supplier during the Warranty Period, within five (5) Business Days of discovery that some or all of the Goods do not comply with the warranties set out in paragraph 4.1;

(b) is given a reasonable opportunity of examining such Goods; and

(c) the Client (if asked to do so by the Supplier) returns such Goods to the Supplier’s place of business at the Supplier’s cost,
the Supplier shall, at its option, repair or replace any Goods that are found to be defective, or refund the price of such defective Goods in full.

4.3 The Supplier shall not be liable for the Goods’ failure to comply with the warranties set out in paragraph 4.1 if:

(a) the Client makes any further use of such Goods after giving notice of defects in accordance with paragraph 4.2;

(b) the defect arises because the Client failed to follow the Supplier’s oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;

(c) the defect arises as a result of the Supplier following any drawing, design or Statement of Work supplied by the Client;

(d) the Client alters or repairs such Goods without the written consent of the Supplier;

(e) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or

(f) the Goods differ from the Statement of Work as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.

4.4 Insofar as the Goods comprise or contain goods or components which were not manufactured or produced by the Supplier, the Client shall be entitled only to such warranty or other benefit as the Supplier has received from the manufacturer and is permitted to pass onto the Client.

4.5 The Supplier’s only liability to the Client if the Goods fail to comply with the warranties set out in paragraph 4.1 is as set out in this paragraph 4.

4.6 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Agreement.

4.7 The terms of the Agreement shall apply to any repaired or replacement Goods supplied by the Supplier.

5. Title and risk

5.1 Risk in Goods shall pass to the Client on completion of unloading the Goods at the agreed delivery location.

5.2 Title to Goods shall only pass to the Client once the Supplier receives payment in full (in cash or cleared funds) for them.

5.3 Until title to the Goods has passed to the Client, the Client shall:

(a) store the Goods separately from all other goods held by the Client so that they remain readily identifiable as the Supplier’s property;

(b) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;

(c) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;

(d) notify the Supplier immediately if it becomes subject to any of the events listed in Clause 14.2(d) of the Agreement; and

(e) give the Supplier such information relating to the Goods as the Supplier may require from time to time.

5.4 The Supplier may recover Goods in which title has not passed to the Client. The Client irrevocably licenses , its officers, employees and agents, to enter any premises of the Client (including with vehicles), in order to satisfy itself that the Client is complying with the obligations in paragraph 5.3, and to recover any Goods in which property has not passed to the Client.

SCHEDULE 4 – NCE SUBSCRIPTION SERVICES

1. INTERPRETATION & DEFINITIONS FOR NCE SUBSCRIPTION SERVICES

1.1 These NCE Subscription Services Terms form an integral part of the Agreement and are incorporated into the Agreement.

1.2 Except as expressly defined in these NCE Subscription Services Terms, all capitalised terms in these NCE Subscription Services Terms shall have the meaning given to them in the Agreement.

The following definitions in this paragraph 1 apply in these NCE Subscription Services Terms.

Cap: is the total monthly volume of Microsoft services which the Client is permitted to use.

Consumption Subscriptions: refers to the licences that are billed based on actual usage in the preceding month.

Minimum Users: the minimum users as provisioned from time to time.

Online Service: any of the Microsoft-hosted online services subscribed to by the Client under the Agreement.

Product(s): the Microsoft online services, tools, software, hardware, or professional support or consulting services provided under the terms of the Customer Agreement.

Subscription(s): the purchase of a Subscription Service.

Subscription Services: a right to use the Product(s) for a defined term.

Third Party Distributor: the third party who sells the Product(s) to the Client or the Supplier (as the case may be).

2. SERVICE PROVISION

2.1 By submitting an order for NCE Subscription Services, the Client:

(a) represents that any Subscription commitments and requirements disclosed are complete and accurate in all respects;

(b) agrees to pay the Supplier for all orders it submits for Products and the NCE Subscription Services; and

(c) agrees to the terms of the NCE Subscription Services Terms, the Agreement and the Statement of Work.

2.2 By placing an order with the Supplier, the Client represents and warrants that the Client has accepted the Customer Agreement.

2.3 Once an order for a Subscription has been accepted by the Supplier:

(a) Subscriptions shall continue for the duration of the Agreement or the applicable Statement of Work (as the case may be) unless and until terminated in compliance with the Statement of Work; and/or

(b) adjustments may only be made to increase the Minimum Users and not decrease below any current Minimum User provisioned as more fully set out in the Statement of Work.

3. CLIENT’S OBLIGATIONS

The Client agrees and acknowledges to adhere to the terms of the Customer Agreement which govern the use of the Subscription Services and the Online Services.

4. FEES

4.1 Fixed Term Subscriptions:

(a) Products sold under fixed term Subscriptions are sold for a term as specified in the Statement of Work. The Statement of Work shall specify if such Subscriptions are to be billed on a monthly or annual basis.

(b) Any subsequent adjustments to annual Subscriptions (e.g. adding users) made mid-billing cycle will be invoiced and paid at the time of placing the order.

(c) Any subsequent adjustments to monthly Subscriptions (e.g. adding users) made mid-billing cycle will be calculated and post-billed at the subsequent invoice.

4.2 For all Consumption Subscriptions, the Client agrees and acknowledges that:

(a) Consumption Subscriptions can only be cancelled in accordance with these NCE Subscription Services Terms unless otherwise specified in a Statement of Work, and any usage before a transfer to another provider is in effect will be billed in the next scheduled invoice date;

(b) Consumption Subscriptions will be billed at the next billing cycle and will include all usage from the prior month. Pricing will be based on the pricing effective during the current billing cycle except when prices decrease or increase. The unit price for the Online Services sold on a consumption basis may change during the subscription period;

(c) it shall pay all such usage and is responsible for monitoring its consumption needs

4.3 Subject to paragraph 4.4 below, the fees may increase on an annual basis with effect from each anniversary of the date of the Statement of Work in line with the percentage increase in the Retail Prices Index in the preceding 12-month period.

4.4 For the avoidance of doubt, the Supplier may increase any fees related to the Subscription Services in line with any increases imposed upon the Supplier by Microsoft or the Third Party Distributor and in line with the terms of the Customer Agreement.

4.5 The Supplier may change credit or payment terms for unfilled orders if, in the Supplier’s reasonable opinion, the Client´s financial condition, previous payment record, or relationship with the Supplier merits such change.

5. INTELLECTUAL PROPERTY

5.1 The Client acquires only such limited rights to use the Products as is explicitly described in the Customer Agreement. Any use by the Client of these rights beyond the scope permitted by the Customer Agreement shall constitute a material breach hereof.

5.2 The Supplier is not liable for defects in, or delays related to the Products.

5.3 For the avoidance of doubt, if a claim for infringement concerns the Product, the separate terms and conditions of the Customer Agreement shall apply and is a separate action between the Client and Microsoft.

6. LIMITATION OF LIABILITY

6.1 For the avoidance of doubt, the terms set out in the Customer Agreement govern the rights and responsibilities of the Client and Microsoft in relation to the use of the Subscription Services and Online Services and the Supplier excludes any and all liability in relation to the use of the Products.

6.2 Notwithstanding anything to the contrary in the Agreement, the Client shall indemnify the Supplier from and against any claims, including but not limited to claim for licence fees that directly or indirectly arises from the Client’s use of the Subscription Services or reporting under the Agreement.

7. TERM & TERMINATION

7.1 The Client’s perpetual licences and licences granted on a Subscription basis will continue for the duration of the Subscription period(s), subject to these NCE Subscription Services Terms. Unless otherwise specified in the applicable Statement of Work, the Client shall remain liable for any and all payments due in respect of the licences until the end of the respective Subscription period.

7.2 Termination of the licences will not affect any other Services provided under these NCE Subscription Services Terms or the Agreement.

7.3 The Supplier shall not be liable whatsoever to the Client following any termination or suspension of the Subscription for legal, regulatory or any other reasons by Microsoft or the Third Party Distributor.

7.4 The Supplier may terminate the NCE Subscription Services immediately on giving written notice to the Client if:

(a) payment of any amount due from the Client under these NCE Subscription Services Terms is overdue by ten (10) Business Days or more provided that the Supplier has given the Client ten (10) days’ written notice of such failure to pay; and/or

(b) upon termination by Microsoft or the Third Party Distributor of the licence(s); and/or

(c) in accordance with the Customer Agreement.

7.5 On termination of the Agreement or the NCE Subscription Services Terms for any reason:

(a) the Client shall pay all outstanding sums owing to the Supplier up to and including the date of termination;

(b) all licences granted under the Agreement will terminate immediately except for fully-paid fixed term and perpetual licences;

(c) for metered Products billed periodically based on usage, the Client must immediately pay for unpaid usage as of the termination date; and

(d) if Microsoft is in breach and the Client is entitled, the Client will receive a credit for any Subscription Services fees upon receipt from Microsoft, including amounts paid in advance for unused consumption for any usage period after the termination date.